Kuwait Court of Cassation principle number 172

Summary: - Interpretation of penal laws. Caution is required. - Clear statutory language. It must be regarded as a faithful expression of the legislature’s will, and no departure from it by interpretation or construction is permitted. Reason: there is no room for interpretive discretion in the face of an express provision. - The criterion for imposing a proportional fine is that the offender has embezzled or appropriated property, a benefit, or a profit for himself, or facilitated this for another, whether or not the appropriated property entered the offender’s patrimony. Article 16, Law 1 of 1993. - The challenged judgment’s imposition of a proportional fine upon the appellant as a mandatory supplementary penalty that the court must impose when convicting the offender of facilitating the appropriation of public funds, even if it decides to refrain from pronouncing punishment. Correct. Rule: There is no basis for the Cassation Prosecution’s view in its attached memorandum that the challenged judgment should be partially quashed and corrected by canceling the proportional fine imposed upon the first appellant, on the ground that, as regards the offense of facilitating the appropriation of public funds, the appellant’s activity was limited to facilitating another person’s—the second convicted person’s—appropriation of public funds without any of that entering the appellant’s patrimony, and that, in those circumstances, imposing the two fine penalties upon him would have no basis, such that the challenged judgment erred in applying the law. This is unfounded, since the principle is that caution and precision must be exercised in interpreting penal laws, without imposing meanings on their language beyond what it can bear. Where statutory language is clear and unambiguous, it must be regarded as a faithful expression of the legislature’s will, and departure from it by interpretation or construction is impermissible, whatever the motive, since there is no room for interpretive discretion in the face of the express wording of the applicable provision. Article 16 of Law No. 1 of 1993 concerning the Protection of Public Funds provides: “In addition to the penalties prescribed for the offenses mentioned in Articles 9, 10, 11, 12, the offender shall be sentenced to dismissal, restitution, and a fine equal to twice the value of the property, benefit, or profit that he embezzled or appropriated or facilitated for another.” The express wording and clear meaning of this provision show that the criterion for imposing a proportional fine is that the offender has embezzled or appropriated property, a benefit, or a profit for himself, or facilitated this for another. The aforementioned Article 16 did not exempt the latter, who facilitates another person’s appropriation of public funds, from this penalty, whether or not anything whose appropriation he facilitated entered his patrimony. This follows from the express wording of the provision, leaving no room for interpretive discretion or an interpretation imposing meanings upon its language beyond what it can bear. Since the challenged judgment imposed a proportional fine upon the appellant, which is a mandatory supplementary penalty that the court must impose when convicting the offender of facilitating the unlawful appropriation of public funds on this ground, even if the court decides to refrain from pronouncing punishment, it accords with the correct application of the law, contrary to what the Cassation Prosecution raised in its submitted opinion memorandum. Accordingly, the appellant’s appeal is unfounded and must be dismissed on the merits, with forfeiture of the security.