Kuwait Court of Cassation principle number 60

Summary: - Refraining from pronouncing punishment. Article 81 of the Penal Code. - Refraining from pronouncing punishment is not a judgment imposing a penalty. It is a determination by the court that the offender committed the offence charged against him, that his guilt was established, and that a penalty is to be imposed upon him, but that it considered stopping the proceedings at this point for considerations of mitigation. The condition for this. Breach of the conditions of the undertaking. - The appellant's contention that he did not breach the conditions because no final judgment convicting him of other offences had been issued. Article 81 of the Penal Code does not require this. The contention is unfounded. Rule: Whereas Article 81 of the Penal Code provides that: (If a person is charged with an offence requiring a sentence of imprisonment, the court may, if it finds in his character, past, age, the circumstances in which he committed his offence, or the triviality of that offence grounds for believing that he will not return to criminal conduct, decide to refrain from pronouncing punishment and require the accused to provide an undertaking, with a personal surety or security in rem or without security, in which he undertakes to observe certain conditions and maintain good conduct for the period it specifies, not exceeding two years. If the period specified by the court expires without the accused breaching the conditions of the undertaking, the preceding trial proceedings shall be deemed never to have occurred. If, however, the accused breaches the conditions of the undertaking, the court shall order—at the request of the prosecuting authority, the person responsible for supervising him, or the victim—that the trial proceed, shall sentence him to the punishment for the offence he committed, and shall confiscate the security in rem, if any.). It follows from this provision that refraining from pronouncing punishment upon the accused is not a judgment by the court imposing a penalty. Rather, it is, in fact, a determination by the court that the offender committed the offence charged against him and that his guilt thereof has been established before it, which would have required sentencing him to the imprisonment prescribed for that offence had the court proceeded with the trial. However, it considered stopping the proceedings at that point because it found the mitigating considerations referred to in this Article to exist. Accordingly, the Article made the court's exercise of the permission granted to it in this regard conditional upon requiring the accused to provide an undertaking, with or without security, in which he undertakes to maintain good conduct. If he breaches the conditions of that undertaking, the court may, at the request of the prosecuting authority, the person responsible for supervising him, or the victim, proceed with the trial to impose upon him the punishment prescribed for the offence he committed and of which his guilt was established.