Kuwait Court of Cassation principle number 209

Summary: - Criminal intent in the offence of printing a publication containing material contrary to the national interest, serving a foreign entity or State, or affecting the social or political system in the State of Kuwait. Article 26 of Law 3 of 2006. Its assessment: a matter of fact without review by the Court of Cassation. Existence of general criminal intent. Effect: the publisher’s knowledge is presumed and there is no room to discuss permissible criticism. Establishing it is a matter of fact. An example concerning expressions serving a foreign State and affecting the social and political system in the State of Kuwait, exceeding the bounds of permissible criticism and establishing the elements of that offence. Rule: After guaranteeing personal liberty in Article “30”, the Constitution was careful to provide for freedom of opinion and expression in Article “36” and freedom of the press, printing and publication in Article “37”, in accordance with the conditions and arrangements prescribed by law. This was affirmed by the legislature in Article 1 of Law No. 3 of 2006 concerning Printing and Publication, which provides for freedom of the press, printing and publication. Chapter 3 of that Law also specified matters whose publication is prohibited as an exception to that constitutional principle—freedom of thought and expression of opinion, including the right of criticism—reflecting the legislature’s concern to safeguard and protect persons’ dignity, lives and beliefs as part of their personal freedoms, without suppressing the right to express opinions and expression through guaranteeing freedom of the press and publication. That being so, it is apparent from Article 26 of the aforementioned Law No. 3 of 2006 that it criminalizes everything contained in a publication which conflicts with the national interest, serves a foreign entity or State, or affects the social or political system in the State of Kuwait. The assessment of whether publication involves anything prohibited by that provision is for the trial judge. He alone may ascertain the true nature of the words which conflict with the national interest, serve a foreign entity or State, or affect the social or political system in the State of Kuwait, according to his understanding of the facts of the case. The Court of Cassation has no power of review over him in this regard so long as he has not erred in applying the law to the incident. That being so, it is established that criminal intent in the offence of printing and distributing a magazine containing material contrary to the national interest, serving a foreign State and affecting the social or political system in the State of Kuwait, criminalized by Article 26 of the aforementioned Law No. 3 of 2006, exists if the material published in newspapers or other means of expression prescribed by law contains material contrary to the national interest, serving a foreign State, or affecting the social or political system in the State of Kuwait. The publisher’s knowledge is then presumed. The law does not require specific intent for that offence, but is satisfied with general intent. Establishing the presence or absence of that intent from the facts and circumstances of the case falls within the trial court’s jurisdiction without further review, so long as the implications of those facts and circumstances are not incompatible with the court’s inference. Once intent is established, there is no room to discuss permissible criticism, which is merely expressing an opinion on a matter or act without affecting the social or political system. If it exceeds that limit, punishment is required because it constitutes the aforementioned offence. That being so, the first-instance judgment, whose reasons were adopted and which was supplemented and amended by the challenged judgment—after setting out the facts of the case—with the expressions it contained serving a foreign State and affecting the social and political system in the State of Kuwait and exceeding the bounds of permissible criticism, thereby establishing the elements of the offence of which it convicted both appellants as defined by law—including criminal intent—the two appellants’ contention in this regard is unfounded.