Kuwait Court of Cassation principle number 39

Summary: - The offence of influence peddling encompasses two matters: first, soliciting a promise or gift under the pretext that it is a bribe for a public official, with the intention of retaining it; second, soliciting it to use real or purported influence to obtain or attempt to obtain from any public authority an advantage of any kind. The perpetrator’s competence to perform the act, or his being a public official or equivalent, is unnecessary. He may be a private individual, provided he enjoys a degree of influence with the persons in authority who can secure the advantage, whether because of his general standing in society or a relationship of kinship or friendship, even if the influence is purported and the perpetrator cannot obtain the advantage for the person requesting it. An example. Rule: Article 37 of Law No. 31 of 1970 amending certain provisions of the Penal Code, in providing that “The same penalty prescribed in Article 35 of this Law shall be imposed on anyone who solicits for himself or another a promise or gift under the pretext that it is a bribe, while intending to retain it or part of it for himself, or to use real or purported influence to obtain or attempt to obtain from any public authority acts, orders, judgments, decisions, decorations, a concession, licence, supply agreement or works contract, a position, service or any advantage of any kind,” indicates, as stated in the explanatory memorandum to this Law, that it punishes two matters: first, soliciting a promise or gift under the pretext that it is a bribe for a public official, with the intention of retaining it; second, soliciting it to use real or purported influence to obtain or attempt to obtain from any public authority an advantage of any kind. Soliciting a promise or gift in influence peddling is not in return for performing an act within the perpetrator’s competence—as in bribery—but in return for using real or purported influence to obtain from a public authority an advantage whose realization is outside the perpetrator’s competence. Indeed, the perpetrator need not be an official or equivalent; he may be a private individual, provided he enjoys a degree of influence with the persons in authority who can secure the advantage, whether that influence derives from his general standing in society or a special relationship connecting him to them, such as kinship or friendship. The offence is also constituted even if the influence is purported and the perpetrator cannot obtain the advantage for the person requesting it. The challenged judgment addressed the appellant’s defence in this respect and answered it as follows: “As regards the defence’s contention that the elements of bribery are absent in respect of the accused and that the subject matter of the bribe was not within his competence and he did not claim that it was, this defence is rejected. The court of first instance concluded in its judgment that the incident constituted the felony prescribed in Article 37 of Law No. 31 of 1970. That offence does not require the perpetrator to be a public official or equivalent. It suffices that the perpetrator, even a private individual, claims influence with a public official and solicits money on the basis of that purported influence. That being so, the investigations establish that the accused solicited six thousand dinars from the victim and received one thousand dinars from him in return for obtaining a judgment acquitting him in the case in which he was accused, No. .................., Narcotics Felonies, claiming to use his influence with an Egyptian working at the court and intending to retain the amount for himself. This establishes against him the felony criminalized by Articles 35 and 37 of Law No. 31 of 1970 amending certain provisions of Penal Code No. 60 of 1960.” What the judgment thus established satisfies all the legal elements of the offence of soliciting a bribe for a public official while intending to retain it for himself and influence peddling, of which the appellant was convicted. His contention that the offence was not established against him is therefore unsound.