Kuwait Court of Cassation principle number 177

Summary: - Motive or ignorance of the vocabulary and principles of the language. Does not exempt from criminal liability. The judgment under appeal contravening this. Renders it defective through faulty reasoning and arbitrary inference inconsistent with what the respondent stated in his expressions, which indicate that his malicious intent predominated in his mind when writing them. The effect thereof. It must be quashed. An example. - Criminal intent in the two offences of publicly inciting sectarian strife through writing and publication on social media sites, and publicly disseminating through writing on social media sites material involving disparagement and belittlement of the Islamic religion. Its existence. Does not require specific criminal intent. General intent is sufficient. Ascertainment is a matter of fact. The limit thereof. Rule: Criminal intent in the two offences of publicly inciting sectarian strife through writing and publication on social media sites, and publicly disseminating, through the aforementioned writing, opinions involving disparagement and belittlement of the Islamic religion, criminalized under Articles 1/1, 3, 2 of Decree-Law No. 19 of 2012 concerning the Protection of National Unity, Article 29/1 of Law No. 31 of 1970 amending certain provisions of the Penal Code, and Article 111 of the Penal Code, exists if the material disseminated and published through a means of expression on social media networks contains anything offensive to the Messenger Muhammad, "may Allah bless him and grant him peace", by affronting, attacking, mocking, or disparaging him, or the superiority of a religious denomination or lineage over another denomination. The publisher’s knowledge is then presumed, and the law does not require specific intent in these two offences, but is satisfied with the existence of general intent. Although ascertaining the existence or absence of this intent from the facts and circumstances of the case falls within the jurisdiction of the trial court, the limit thereof is that it must have based its assessment on sound reasons, and the implications of those facts and circumstances must not be inconsistent with what the court inferred from them. Once this intent is established, there is no room to speak of freedom of opinion and permissible criticism, which is merely expressing an opinion on a matter or act without attacking the person responsible for that matter or act with the aim of defaming him or impairing his dignity. That being so, and whereas it is established from the first-instance judgment convicting the respondent, which the judgment under appeal overturned, that it set out the facts of the case to the effect that the respondent published a tweet on his personal account on the social media site "Twitter" through his mobile telephone, in which he stated: "For this reason, al-Hasan and al-Husayn, peace be upon them, are nobler than the Messenger of Allah—Allah’s blessings be upon him—from this perspective only", and that the public could see that tweet, which is liable to incite sectarian strife and provoke an angry reaction in public opinion as a result of attacking the Messenger and stirring sectarian tendencies, and that it leads to inciting sectarian strife among members of society and dividing it into two groups, one Shiite and the other Sunni. The respondent admitted that he authored the tweet through his Twitter account using his mobile telephone. That being so, and whereas the statement, with the words contained in the tweet published by the respondent—as aforementioned—is liable to attack the person of the Messenger Muhammad, upon him be the finest blessings and peace, who is free of every defect, and impairs his lineage and the sanctity owed to him by reason of his great standing and exalted rank, which no other created being has attained, because Allah, Almighty and Glorious, endowed him with special qualities and favoured him above all other created beings. Writing it in this manner results in inciting sectarian strife between the Shiite and Sunni denominations and leads to disseminating ideas advocating the superiority of one denomination and lineage over another. That statement in itself, after the respondent admitted that he was the one who published it in the aforementioned manner, indicates the existence of intent to offend, incite hatred and contempt for a section of society, and stir sectarian strife. That being so, and whereas what the judgment under appeal advanced and on which it based its acquittal of the respondent—as previously explained—does not exempt him from liability for his act, as it relates to motive or his ignorance of the vocabulary and principles of the language, what it stated is unsound, tainted by faulty reasoning and arbitrary inference inconsistent with what the respondent stated in his expressions, which indicate that his malicious intent predominated in his mind when writing them. This renders the judgment defective and requires its cassation, without any need to examine the remainder of what the appellant raises in the grounds of its appeal.