Kuwait Court of Cassation principle number 32

Summary: - An appeal brought by the accused alone. His position may not be worsened. The appellate court may amend the judgment in his favor or uphold its operative part, whatever errors it contains in assessing facts or applying the law. It may not increase the penalty or add a supplementary penalty. - Supplementary penalty. Its nature. Article 67 of the Penal Code. Where its imposition depends on its pronouncement by the judge. - Confiscation penalty. Article 78 of the Penal Code. - Confiscation under Article 78 of the Penal Code and Article 21 of Decree-Law 13 of 1991 concerning Weapons and Ammunition. A supplementary penalty. - An appellate judgment—in an appeal brought by the accused alone—ordering confiscation of the firearms and ammunition seized and used in the incident, although the judgment under appeal did not order it. Contrary to law. Effect: the Court of Cassation may cancel the confiscation penalty even if this was not included in the grounds of appeal. This does not prejudice the administrative authority's right of confiscation. Reason for this. Rule: Article 213 of the Code of Criminal Procedure and Trials provides that .. if an appeal or grievance is brought by the accused alone, that appeal or grievance may not prejudice him." This means that where an appeal is brought by the accused alone, his position may not be worsened because of it. The appellate court may only amend the judgment in favor of the appellant or uphold its operative part, whatever errors it contains in assessing facts or applying the law. Consequently, it may not increase the principal penalty or add a supplementary penalty. Article 67 of the Penal Code provides that "A penalty is supplementary if its imposition depends on its pronouncement by the judge, whether the law requires or permits him to do so." Article 78 of the same Code also provides that "Where a judge imposes a penalty for a felony or an intentional misdemeanor, he may order confiscation of the seized things used or liable to be used in committing the offense and things obtained from it, without prejudice to the rights of bona fide third parties over those things. If the manufacture, possession, or dealing in the things mentioned in the preceding paragraph constitutes an offense in itself, the judge must order their confiscation even if a bona fide third party has a right over them." Article 21 of Decree-Law No. 13 of 1991 concerning Weapons and Ammunition provides that: "......... In all cases, confiscation of the weapons and ammunition forming the subject of the offense shall be ordered." This means that the confiscation prescribed in these last two articles is a supplementary penalty imposed by the judge in addition to the principal penalty. Since the appeal in the present case was brought by the appellant alone, and the challenged judgment added to the principal penalty it imposed a supplementary penalty, namely confiscation of the firearm and ammunition seized and used in the incident, although the judgment under appeal had not imposed that supplementary penalty, it contravened the law in this part of its ruling. This permits the Court of Cassation, pursuant to the last paragraph of Article Ten of Law No. 40 of 1972 concerning Cases and Procedures of Appeal by Cassation, to intervene to correct this error in the judgment in the appellant's favor, even if it was not included in the grounds of appeal. Accordingly, the challenged judgment must be partially quashed insofar as it ruled in the criminal action and corrected by canceling the penalty of confiscation of the seized firearm and ammunition, with the appeal otherwise dismissed and the appellant ordered to pay civil costs. This does not, however, prejudice the administrative authority's right of confiscation, because possession of the unlicensed firearm and its ammunition is prohibited by law.