Kuwait Court of Cassation principle number 69

Summary: - Article 33 of Law No. 74 of 1983 concerning Combating Narcotics and the Regulation of Their Use and Trade. Its import: in the offence of possession of narcotics with intent to consume them, the court may order placement in one of the treatment institutions designated by the Minister of Health for treatment, and the committee constituted by the Minister of Health shall submit a report on his condition to the court for his release or continued placement for another period or periods. - Cases in which a placement order may not be imposed. Their nature. Judgments ordering placement may not be challenged by appeal or cassation. This is conditional upon the judgment being issued in conformity with the provisions of the law. The meaning thereof: the accused must not have previously been ordered to be placed in the treatment institution twice before the placement judgment was issued. Contravention thereof: an error in applying the law. Permissibility of challenging it. Rule: Article 33 of Law No. 74 of 1983 concerning Combating Narcotics and the Regulation of Their Use and Trade, after setting out in its first paragraph the penalty prescribed for the offence of possessing narcotics with intent to consume them, provided in its second paragraph that: (The court may, instead of imposing the penalty prescribed in the preceding paragraph, order that a person proven to be addicted to narcotics consumption be placed in one of the institutions designated by the Minister of Public Health, to be treated there until a committee constituted by a decision of the Minister of Public Health submits a report on his condition to the court for it to decide on his release or continued placement for another period or periods....). The third paragraph of the aforementioned Article provided that: (No person who has previously been ordered to be placed therein twice, or for whom at least 2 years have not elapsed since his discharge therefrom, may be placed in the institution.). Article 36 of the aforementioned Law provided that judgments ordering placement pursuant to the aforementioned Article 33/2 may not be challenged by appeal. Articles 39 and 42 of Decree-Law No. 48 of 1987 concerning Combating Psychotropic Substances and the Regulation of Their Use and Trade adopted the same approach concerning dependence on the consumption of psychotropic substances. That being so, the import of the aforementioned Articles 36 and 42 is that the inadmissibility of an appeal by the Public Prosecution, and consequently of cassation, against a judgment imposing the measure of placement is conditional upon the judgment ordering it being issued in conformity with the provisions of the law, by establishing that the accused had not previously been ordered to be placed in the treatment institution twice before the placement judgment was issued, which the judgment must verify. It is established from the papers that the accused had previously been ordered to be placed in an institution for addiction treatment twice before committing the incident forming the subject of the charge. Accordingly, under the express wording of the law, the court may not place the appellant in an institution for treatment of addiction to narcotic substances or dependence on psychotropic substances. Since the judgment under appeal imposed the measure of placement contrary to the law, it falls outside the scope of the prohibition and may be challenged. The Public Prosecution’s appeal against this judgment is therefore admissible and has satisfied the formal requirements prescribed by law.