Kuwait Court of Cassation principle number 119

Summary: - The National Council for Culture, Arts and Letters. The legislature entrusted it with the preservation of antiquities, and it alone is responsible for assessing the archaeological and historical character of objects, sites and buildings and determining the antiquities that must be registered for their protection, maintenance, study and retention. - Registration of archaeological sites and historical buildings in Kuwait. Its purpose is to determine the fitness of these sites and buildings to remain and be passed on to future generations, to provide them with official protection and to ensure their maintenance. - Registration of archaeological sites and historical buildings. Method. Issuance of a decision by the Chairman of the National Council for Culture, Arts and Letters, notification thereof to the departments concerned, and annotation thereof in the real estate register in respect of those registered. - The obligation of the National Council for Culture, Arts and Letters to acquire the registered archaeological site or historical building within a year of its registration, and its owner’s entitlement to compensation for that registration. - Acquisition of historical sites and buildings. Method. By a decision expropriating them in accordance with Law 23 of 1964 concerning Expropriation and Temporary Appropriation for the Public Benefit, in return for compensation assessed in accordance with that Law. The administrative authority may refrain from acquisition. The passage of a year after registration without acquisition. Effect. The owners of these archaeological sites and historical buildings may claim compensation for registration because of the resulting restriction of their right to benefit from them. Implication. Acquisition of these archaeological sites and buildings that have been registered is not obligatory upon the administrative authority. Rule: Article (2) of Amiri Decree No. (11) of 1960 concerning the Antiquities Law, as amended by Law No. (9) of 1994, provides: “The task of preserving antiquities shall be entrusted to the National Council for Culture, Arts and Letters, and this Council alone shall be responsible for assessing the archaeological and historical character of objects, sites and buildings, judging the importance of each antiquity, and determining the antiquities that must be registered for their protection, maintenance, study and use.” Article (10) of the same Law provides: “The purpose of registering archaeological sites and historical buildings in Kuwait is to determine the fitness of these sites and buildings to remain and to be passed on to future generations, to provide them with official protection, and to ensure their maintenance. The aforementioned registration shall be effected by a decision of the Chairman of the National Council for Culture, Arts and Letters. The said decision shall be notified to the departments concerned, and the registered sites and buildings shall be annotated in the real estate register.” Article (11) thereof also provides: “If the National Council for Culture, Arts and Letters does not acquire the registered archaeological site or historical building within a year of its registration, its owner may claim compensation from this Council for registration.” The import of these articles is that the legislature was keen to reconcile the State’s right to preserve its cultural heritage and protect, maintain and use its antiquities with the rights of the persons concerned who own archaeological sites and historical buildings for which a registration decision is issued. It therefore permitted the administrative authority to acquire those sites and buildings if it assessed them as important. In that case, a decision expropriating them is issued in accordance with Law No. (33) of 1964 concerning Expropriation and Temporary Appropriation for the Public Benefit, and the persons concerned are entitled to compensation for expropriation assessed in accordance with that Law. It also permitted the administrative authority to retain the registration of archaeological sites and historical buildings without acquiring them. In that case, it permitted the owners of these sites and buildings, if a year elapsed from the date of registration without their acquisition, to claim compensation from the Council for registration because of the resulting restriction of their right to benefit from them. This means that acquisition of archaeological sites and historical buildings for which a registration decision is issued is not obligatory upon the administrative authority, and it has no obligation to do so. Rather, it is a matter subject to its discretion, such that it acquires only those it considers important, and at the time it considers appropriate.