Kuwait Court of Cassation principle number 190

Summary: - The accusation and trial of ministers and the body competent to conduct such trials. Special procedural arrangements. Their basis: Law 88 of 1995 concerning the Trial of Ministers. - A grievance against an order issued by the Investigation Committee before the special court for the trial of ministers. Judgments not subject to appeal except by cassation. - The Investigation Committee’s decision declining jurisdiction to examine a report and referring it to the Public Prosecution is not subject to grievance. This is not altered by Law 29 of 2014 amending the Law concerning the Trial of Ministers by creating a previously unavailable avenue for challenging the Committee’s decisions. The reason: this Law took effect from 27/4/2014, whereas the Committee’s decision was issued on 11/10/2011 before its entry into force and under Law No. 88 of 1995, which restricted the right to lodge a grievance. There is no basis for invoking Law No. 29 of 2014 as the more favourable law. The reason: the more-favourable-law rule applies to substantive rules, not procedural rules, and laws regulating avenues for challenging judgments do not apply except in respect of judgments rendered before their effective date when they create an avenue of challenge, pursuant to the rule that laws apply only to what occurs from their effective date. - Cassation appeals against judgments of the special court for the trial of ministers lie only against judgments on the merits of the criminal action. Otherwise, they are impermissible. Rule: The legislature established special procedural arrangements for accusing and trying ministers and for the body competent to conduct such trials. Law No. 88 of 1995 concerning the Trial of Ministers, after specifying in Article 3/1 the formation of a three-member investigation committee of appellate court counsellors, provides: “This Committee shall have exclusive competence to examine reports submitted in writing and signed to the Public Prosecutor alone, and the report must be referred to the Committee within no more than two days.” That Committee examines the seriousness of the report submitted against the minister. If it finds it serious, it orders that proceedings continue and investigates it; if it finds the report lacking in seriousness, it orders its final dismissal. It required the dismissal decision to be reasoned. Article 4/4 of Law No. 88 of 1995—as amended by Law No. 38 of 2001—permitted a grievance only against an order issued by the Committee imposing a precautionary measure, before the special court for the trial of ministers prescribed and constituted in Article 8 thereof. Judgments issued by that special court are not subject to challenge except by cassation; these are judgments issued by the court after trying the minister for the crimes he commits, namely judgments on the merits of the criminal action. The aforementioned Law No. 88 of 1995 did not permit grievances against decisions issued by the three-member Investigation Committee except orders imposing one of the precautionary measures prescribed in Article 4/3, or the other measures prescribed by Law No. 1 of 1993 concerning the Protection of Public Funds. The first Law, in the fourth paragraph of Article Four, permitted a grievance against any such order before the aforementioned Ministers Court. Accordingly, the Investigation Committee’s decision of 11/10/2012 declining jurisdiction to examine the report—referred to it by the Public Prosecutor and submitted by the appellant—and referring the report to the Public Prosecution to take the appropriate action is not a decision against which a grievance may be lodged. This is not altered by Law No. 29 of 2014 amending certain provisions of Law No. 88 of 1995 concerning the Trial of Ministers, issued on 27/4/2014, having created a previously unavailable avenue for challenging the Investigation Committee’s decisions under Articles 3 and 6 by adding Article 6 bis to the latter Law. Its first paragraph provides: “The reporting person may lodge a grievance against the dismissal decisions referred to in Articles 3 and 6 of this Law, within two months from the date of notification thereof or knowledge of the dismissal decision, before the court prescribed in Article Eight of this Law.” This is because the challenged decision of the Investigation Committee for the trial of ministers, issued on 11/10/2012, and the judgment under appeal, issued on 30/7/2013 on the grievance against that decision, were both issued under the provisions of Law No. 88 of 1995 concerning the Trial of Ministers and before publication of Law No. 29 of 2014 amending certain provisions thereof, which took effect upon publication on 27/4/2014. Its provisions before amendment restricted the right to lodge grievances against decisions of the three-member Investigation Committee by the restrictions stated therein. Those provisions therefore determine which decisions issued by the Committee may or may not be challenged by grievance in this report. There is no basis for asserting application of the more favourable law to the decision challenged by grievance, because the more-favourable-law rule applies to substantive rules, not procedural rules. It is also established that laws regulating avenues for challenging judgments generally—including criminal judgments—do not apply to judgments rendered before their effective date where those laws create an avenue of challenge, pursuant to the general rule that statutory provisions apply only to what occurs from their effective date, unless they contain an express provision applying their provisions to or all that occurred before their effective date. That being so, Article Eight of Law No. 40 of 1972 concerning the Cases and Procedures of Cassation Appeals limited appeals before the Court of Cassation to judgments issued by the Court of Appeal. Article 11/1 of the aforementioned Law No. 88 of 1995 also provides that judgments issued by the special court for the trial of ministers are not subject to challenge except by cassation. This means that such appeals lie only against judgments on the merits of the criminal action, not other orders or decisions, as explained above. Accordingly, the grievance against the Investigation Committee’s decision declining jurisdiction to examine the appellant’s report and referring it to the Public Prosecution to take the appropriate action is, in principle—under the legislation in force when the decision was issued and applicable to it, and as explained above—impermissible. This is what that court correctly concluded in its judgment under appeal. Since the avenue of grievance before that court is closed, it is all the more impermissible to pursue an appeal before this Court—the Court of Cassation. Accordingly, the appeal must be declared impermissible, with forfeiture of the security deposit.