Kuwait Court of Cassation principle number 34

Summary: - The accused’s failure to appear or his appearance before the trial court to present his defence. A matter for him. His failure to present his defence before it precludes him from raising it before the Court of Cassation. - If a party fails to attend the hearing fixed for consideration of the appeal without an acceptable excuse, the Court of Appeal may dispense with his attendance and decide the appeal in his absence. Article 204/1 of the Criminal Procedure and Trials Law. Example concerning the appellant’s failure to attend the final hearing for consideration of the appeal despite having been notified thereof, with no lawyer appearing on his behalf to justify his absence, and the court finding no need to adjourn its consideration after it had become ready for decision. No violation of the Law. - The appellant’s presentation of the excuse of taking an academic-term examination to justify his failure to attend. A defence requiring factual investigation outside the function of the Court of Cassation. Effect: inadmissible before the Court of Cassation. - The judgment does not affect the appellant’s interest. Effect: he has no interest in challenging it. Reason: interest is the prerequisite for a challenge. Rule: It is established that the accused’s failure to appear or his appearance before the trial court to present his defence is a matter for him, and that his failure to present his defence before it precludes him from raising it before the Court of Cassation. Article 204/1 of the Criminal Procedure and Trials Law permits the Court of Appeal, if a party fails to attend the hearing fixed for consideration of the appeal without an acceptable excuse, to dispense with his attendance and decide the appeal in his absence. Examination of the minutes of the appellate trial hearing fixed for consideration of the appeal establishes that the court adjourned the case to the hearing of 8/5/2014 for notification of the appellant. At the final hearing, the appellant failed to attend and no lawyer appeared on his behalf to justify his absence—contrary to what the appellant alleges in his grounds of appeal. Accordingly, when the challenged judgment decided the case in the appellant’s absence after it had become ready for decision and the court, for its part, found no need to adjourn its consideration, it did not violate the Law in any respect. What the appellant raises regarding the excuse of taking an academic-term examination to justify his failure to appear before the Court of Appeal is a defence requiring factual investigation outside the function of the Court of Cassation and may not be invoked for the first time before it. Furthermore, the appellant has no interest in challenging the judgment in this respect, since it did not affect any right of his. Since interest is the prerequisite for a challenge, the appellant’s challenge on this ground is inadmissible.