Kuwait Court of Cassation principle number 176

Summary: - A foreign public employee in a government entity is granted an ordinary residence permit throughout his period of employment, provided that he holds a valid passport. Expiry of his period of service without obtaining another residence permit. Its effect: he must leave the State of Kuwait within the period specified for him by the Ministry of Interior, which shall be no less than one week and no more than three months, and, in the event of violation, is punishable by imprisonment and a fine or either of them. Settlement with him is permissible if he pays two dinars for each day. The effect of settlement: extinguishment of the criminal action and all its effects. The Director of the General Department of Immigration Affairs, or his delegate, may refuse settlement if he finds justification for doing so in the accused's conduct and the duration of the violation. Settlement with the accused is a means of extinguishing the criminal action which falls outside the jurisdiction of the Administrative Circuit, and no other circuit of the court has jurisdiction over it either; a ruling of lack of jurisdiction must be issued. The judgment's ruling that the court had jurisdiction to hear the application to cancel the disputed fine and its cancellation thereof. This renders it defective and requires its cassation. Rule: The provision in Article (15) of Amiri Decree No. 17 of 1959 concerning the Aliens Residence Law that "An employee in a government entity shall be granted an ordinary residence permit throughout the period during which he works as an employee, provided that he holds a valid passport. If his service ends and he does not obtain another residence permit pursuant to Article (12) of this Law, he must leave Kuwait within the period specified for him by the Ministry of Interior, which shall be no less than one week and no more than three months from the end of his service." The provision in Article (24/3) of the same Decree that "The penalty shall be imprisonment for a period not exceeding three months and a fine of no less than three hundred dinars and no more than six hundred dinars, or either of these two penalties, for anyone who violates the provision of any of Articles (11, 12, 14, paragraphs 1, 2, and Article 15 of this Law." The provision in Article (44 bis) thereof that "Settlement may be accepted from an accused who violates the provisions of Articles 10, 11, 12, 14, paragraphs 2, 3, 15 bis of this Law, or the regulations or decisions implementing them, on the following bases. First: ...... Second: That he pay two dinars for each day of delay in the event of violation of the provisions of Articles 11, 12, 14, paragraphs 2, 3, and Article 15 .... The settlement amount shall be paid at the premises of the Immigration Affairs Department in the competent governorate within ten days from the date the accused is notified of the violation. Payment of the settlement amount entails extinguishment of the criminal action and all its effects." The Explanatory Memorandum to the aforementioned Decree stated that the legislature "made settlement entail extinguishment of the criminal action and all its effects and also permitted the Director of the General Department of Immigration Affairs, or his delegate, to refuse settlement if he finds justification for doing so in the accused's conduct and the duration of the violation ...." This indicates that the legislature, in the Residence Law, prescribed two routes for extinguishment of the criminal action: either by proceeding with the criminal action until its conclusion through a judicial judgment rendered therein by the competent court, or by settlement with the administrative authority. The rule is that the accused is tried for his legally criminalized act and punished by imprisonment or a fine or either of them .... As an exception, the legislature permitted him to express his wish to settle and not proceed with the criminal action. If the administrative authority accepts settlement with him, he must pay two dinars for each day of delay, and the criminal action against him is consequently extinguished. The violator's settlement with the administrative authority and payment of two dinars for each day of delay in obtaining residence, by way of exception, is in truth a means of extinguishing the criminal action that falls outside the jurisdiction of the Administrative Circuit, and no other circuit of the court has jurisdiction over it either. In these circumstances, the court must rule that it lacks jurisdiction to hear it. Since the challenged judgment took a different approach and unsoundly concluded that the court had jurisdiction to hear the application to cancel the fine—the subject of the dispute—and ruled to cancel it, it is defective in a manner requiring its cassation.