Kuwait Court of Cassation principle number 33

Summary: - The Court of Appeal may set aside the appealed judgment if it finds a substantive defect or an irremediable formal defect therein, or that it contravenes the law, whether raised by the appellant or noticed by the court of its own motion. It must address the case and issue a new judgment without being bound by what appears in the first-instance judgment. Article 209 of the Code of Criminal Procedure and Trials. An example concerning the nullity of a first-instance judgment for determining the merits of the case without hearing the accused’s defense. - Articles 146, 196 and 209 of the Code of Criminal Procedure and Trials. Their import. - The judge’s power to rectify an invalid procedure. It extends to all levels of litigation, whether the nullity is absolute or relative. The judge’s exercise of this power of his own motion in cases of absolute nullity. - Rectification of the procedure is by repeating it, that is, correcting the defect that affected it and caused its nullity, not by remitting the case to the court that previously heard it, determined its merits, and exhausted its jurisdiction in respect thereof. Rule: What the appellant raises in the grounds of his appeal concerning the second-instance court’s error in addressing the merits, because this deprives him of a level of litigation, is unfounded. Article 209 of the Code of Criminal Procedure and Trials provides: (The court may rule to set aside the appealed judgment if it finds a substantive defect or an irremediable formal defect therein, or finds that it contravenes the law, whether the appellant has relied on these defects or the court has noticed them of its own motion. In this event it must issue a new judgment in the case without being bound by anything contained in the first-instance judgment.) The express wording and clear meaning of this provision show that the legislature was careful not to require the appellate court, when setting aside the appealed judgment owing to the existence of one of the circumstances referred to in this provision, to remit the case to the first-instance court for judgment on its merits—unlike certain other legislation. Rather, it required the appellate court in such a case to address the case and issue a new judgment without being bound by anything contained in the vacated first-instance judgment. The papers establish that the first-instance court, after addressing the case and examining its merits, convicted the appellant and punished him for the offense charged against him by the Public Prosecution. When the appellant appealed that judgment, the appellate court—as appears from the reasons of the challenged judgment—concluded that the appealed judgment was invalid because the court had determined the merits without hearing the accused’s defense. It therefore set it aside, addressed the merits, and issued a new judgment, namely the challenged judgment, pursuant to Article 209 explained above. The appellate court therefore correctly applied the law when it examined the merits and adjudicated them in its challenged judgment in compliance with the aforementioned article. This does not conflict with Article 146 of the Code of Criminal Procedure and Trials, which provides: (If it appears to the court that a procedure in the case or investigation contains a substantial defect, it may order its nullification and repetition, or order rectification of the defect affecting it whenever possible. A procedure may not be declared invalid if the defect affecting it has caused no harm to the interests of justice or the litigants. The court may issue a judgment declaring inadmissible criminal proceedings brought before it prior to an investigation or during the investigation if it finds that they contain a substantial formal defect that cannot be rectified and the defective procedure cannot be repeated.) Article 196 of the Code of Procedure also provides: (The court may rule to set aside a judgment rendered in absentia if it finds a substantive defect or an irremediable formal defect therein, or finds that it contravenes the law, whether the party lodging opposition has relied on these defects or the court has noticed them of its own motion.) The aforementioned Article 146 concerns the procedures of the case and investigation conducted at the stage preceding trial. This provision does not prevent the court, whether the first-instance court examining a judgment rendered in absentia against which opposition has been lodged or the appellate court examining the appealed judgment, from addressing and determining the merits of the judgment rendered in absentia or the appealed judgment when the judgment challenged by opposition or appeal is affected by nullity, after rectifying defects affecting the judgment rendered in absentia or the appealed judgment, or affecting the procedures of the case or its investigation, whenever possible. Articles 146, 196 and 209 have each conferred on the judge the power to rectify an invalid procedure, if any, to limit the effects of nullity at any stage of litigation, particularly since nullity of a procedure entails nullity of subsequent procedures directly consequent upon it. The judge replaces the invalid procedure with a valid one, thereby restoring the proper course of the proceedings. The judge exercises this power at any level of litigation, whether the nullity is absolute or relative. If the nullity is absolute, the judge may exercise this power of his own motion, that is, without waiting for an interested party to invoke it. Rectification of the procedure is by repeating it, that is, correcting the defect that affected it and caused its nullity. It does not mean remitting the case to the court that previously heard it and determined its merits—and exhausted its jurisdiction in respect thereof—to carry out the rectification. Accordingly, all that the appellant raises in this regard is without basis.