Kuwait Court of Cassation principle number 211

Summary: - Employees charged with recording publication offences, drawing up their reports and procedures, and referring them to the Public Prosecution. Their appointment by the competent minister. Basis thereof. Administrative organization. - Decision 52 of 2006 issuing the Executive Regulations of the Press and Publications Law. Its import. - No encroachment upon everyone's duty to report these or other offences pursuant to Article 14 of the Criminal Procedure and Trials Law. Effect: reporting those offences by persons other than the employees appointed by the Minister of Information entails no nullity and does not deprive the Public Prosecution of, or fetter, its power to institute criminal proceedings. - Law No. 3 of 2006 concerning Press and Publications contains no restriction on the Public Prosecution's power to institute criminal proceedings for publication offences. Effect thereof. The institution of criminal proceedings for them is not contingent upon the victim submitting a complaint. Rule: The second paragraph of Article 29 of Law No. 3 of 2006 concerning Press and Publications—which entered into force on the date of its publication in the Official Gazette on 2/4/2006—provides that: "The competent minister shall also issue a decision appointing the employees charged with recording violations committed contrary to the provisions of this Law, drawing up reports and their procedures, and referring them to the Public Prosecution." Article 31 of the aforementioned Law also provides that: "The competent minister shall issue the Executive Regulations and the decisions necessary to implement the provisions of this Law within six months from the date it enters into force." Article 2 of the same Law specifies that the Minister of Information is the competent minister and that the Ministry of Information is the competent ministry for the application of its provisions. On 1/10/2006, the Minister of Information issued Decision No. 52 of 2006 issuing the Executive Regulations of the Press and Publications Law—which entered into force on the date of their publication in the Official Gazette on 2/10/2006. Article 1 thereof specifies that the competent authority for the application of the provisions of the aforementioned Law No. 3 of 2006 and the Executive Regulations is the Press and Publications Sector at the Ministry of Information. It is established in the papers that, on 11/8/2006, the Assistant Undersecretary for Press and Publications Affairs at the Ministry of Information sent a letter to the Undersecretary of the Ministry of Information containing the expressions in the published article—the subject of the charge—and considered that criminal proceedings should be initiated against the newspaper ...... . The Undersecretary of the Ministry of Information authorized the prosecution witness to appear before the Public Prosecution in the investigations and report the incident—which the two appellants concede in their grounds of appeal. After conducting the investigation in the case, the Public Prosecution ordered its referral to the competent court. Accordingly, the procedures for recording the offence committed by the two appellants on 6/8/2009 and reporting it to the Public Prosecution were validly undertaken, by a person with standing, through the lawful channel. Moreover, the provision of the second paragraph of Article 29 of Law No. 3 of 2006 concerning Press and Publications, empowering the Minister of Information to issue a decision appointing employees whom he charges with recording violations of the provisions of the said Law and drawing up their reports and procedures to the Public Prosecution, is merely an administrative arrangement intended to entrust these procedures to certain employees of the Ministry of Information—as the competent ministry pursuant to Article 2 of the Law—who, by reason of the nature of their assigned work and their knowledge and experience, can implement the provisions of the Law, record violations of its provisions, draw up reports thereof, and report them to the Public Prosecution if they constitute criminal offences. However, it does not encroach upon everyone's duty to report these or other offences, as prescribed by Article (14) of the Criminal Procedure and Trials Law. Accordingly, no nullity results from persons other than those employees appointed by the Minister of Information reporting those offences, whether they are other ministry employees or individual members of the public. Nor does that deprive the Public Prosecution of, or fetter, its power to institute criminal proceedings for them, since it is established, and the jurisprudence of this Court has held, that the Public Prosecution—or whoever acts in its stead in misdemeanour cases—holds the right to institute and conduct criminal proceedings for all offences except those excluded by a special provision, pursuant to Articles 9, 105 and 129 of the Criminal Procedure and Trials Law and 53 of Decree-Law No. 23 of 1990 concerning the Judicial Organization Law. Law No. 3 of 2006 concerning Press and Publications contains no restriction on the Public Prosecution's power to institute criminal proceedings for the offence of which each of the two appellants was convicted, provided that the Public Prosecution was notified of it within the period prescribed in Article 25 thereof. These two offences are not among the offences specified in Article 109 of the Criminal Procedure and Trials Law for which the institution of criminal proceedings is contingent upon the victim submitting a complaint. Since the challenged judgment ultimately rejected the plea that the criminal proceedings were inadmissible because they had been instituted otherwise than through the lawful channel prescribed by law, the criticism directed against it in this regard is therefore incorrect.