Kuwait Court of Cassation principle number 64

Summary: - A decision finally closing the investigation. Its meaning: its issuer has concluded that there is no desire to proceed with the case against the accused or that the investigation should be suspended for substantive or legal reasons. Articles 102, 103 of the Criminal Procedure and Trials Law. - The decision is not established by inference or conjecture or proved by other evidence, except where it may be inferred from another act or procedure that necessarily and by logical implication entails that decision. - No express decision by the Public Prosecution to close the investigation in respect of an accused in a felony; rather, what was issued was closure of the investigation in respect of accused persons specifically identified by name. Consequence: this does not conclusively and necessarily signify that it closed the case against another person so as to prevent it from subsequently bringing proceedings against him. - A closure decision has no binding effect in respect of all persons accused of the act unless it is based on objective grounds, such as establishing that the offense did not occur at all or that the incident is not punishable by law. - A closure decision based on circumstances particular to one accused rather than the others has binding effect only in respect of the person in whose favor it was issued. Rule: It is established that a decision finally closing the investigation means that its issuer has concluded that there is no desire to proceed with the case against the accused or that the investigation should be suspended for substantive or legal reasons as set out in Articles 102, 103 of the Criminal Procedure and Trials Law. It is not established by inference or conjecture or proved by other evidence, except where it may be inferred from another act or procedure if that act or procedure necessarily—and by logical implication—entails that decision. Where the Public Prosecution has not issued an express decision closing the investigation in respect of an accused in a felony, but has merely closed the investigation in respect of accused persons specifically identified by name, this does not conclusively and necessarily signify that it closed the case against the other person so as to prevent it from subsequently bringing proceedings against him. A closure decision has binding effect in respect of all persons accused of the act only if it is based on objective grounds, such as establishing that the offense did not occur at all or that the incident is not punishable by law. If, however, the closure decision is based on circumstances particular to one accused rather than the others, it has binding effect only in respect of the person in whose favor it was issued. That being so, the first-instance judgment, whose reasons were adopted by the challenged judgment, addressed the appellant’s plea that the criminal action was inadmissible and rejected it, stating: “It is established from examination of the Public Prosecution’s decision that the investigation was closed in respect of other accused persons because criminal intent was absent on their part. Accordingly, the closure decision in their respect did not conclude that the offense did not exist or that it was not a punishable act. That decision therefore concerns those accused persons only and has no binding effect in respect of the third accused (the appellant), since the Public Prosecution concluded in the same decision that a charge should be brought against him. Accordingly, the plea has no basis in fact or law, and the court rules that it be rejected.” The challenged judgment’s foregoing conclusion in response to the appellant’s defense accords with the correct application of the law. Moreover, the incident attributed to the appellant of forging cheque No. (.......) differs from the incident attributed to the accused persons in respect of whom the Public Prosecution concluded that the investigation should be closed, namely forging other cheques different from the aforementioned cheque. Accordingly, the incident is not one and the same, as the appellant maintained in his grounds of complaint, and his complaint against the judgment in this respect is therefore incorrect.