Kuwait Court of Cassation principle number 193

Summary: - An action for compensation for personal injury. Its lapse upon the mere passage of three years from the time of the accident. The provisions governing liability for unlawful acts apply to this compensation insofar as they do not conflict with the provisions specifically prescribed by the legislature for compensation for personal injury. The implication thereof. The period that must elapse for that action not to be heard is a limitation period subject to suspension. The reason therefor. The general rule in Article 446 of the Civil Code suspending limitation whenever an impediment exists that makes it impossible for the creditor to claim his right. - An unlawful act constituting a crime entails the existence of criminal proceedings alongside the civil action for compensation. Its effect. The civil action does not lapse unless the criminal proceedings lapse. Separation of the two actions through the injured person's choice of the civil route rather than the criminal route to claim compensation for damage arising from the crime. Its effect. Suspension of the running of limitation in his regard for as long as the right to bring, institute, or proceed with criminal proceedings remains in existence. Termination of those proceedings by a final judgment convicting the offender or by another ground of termination. Its effect. The limitation period for the compensation action resumes running from that date. The reason therefor. The continuing existence of the right to bring, institute, or proceed with criminal proceedings constitutes a legal impediment making it impossible for the injured person to claim his right to compensation. - Criminal proceedings in misdemeanors. Their lapse upon the passage of five years from the day of the commission of the crime. Interruption of the running of the period upon which criminal proceedings lapse. Its means. By accusation, investigation, or trial procedures, or by inquiries undertaken in relation to the accused or of which he was officially notified. Expiration of the limitation period without that having occurred. Its necessary consequence. The lapse of criminal proceedings by passage of time. The implication thereof. Upon that lapse, the impediment that caused suspension of the running of limitation for the injured person's civil action against the person liable ceases to exist. - Temporary shelving of the papers because the perpetrator is unknown. An administrative measure by the Public Prosecution as the authority overseeing all inquiries. It may reverse it at any time before the termination of criminal proceedings. The perpetrator being unknown. Its effect. The right to bring, institute, or proceed with the action remains in existence. The condition thereof: the five-year period prescribed for the lapse of the misdemeanor has not expired. Articles 6, 8 of the Penal Code. Its effect. The continued existence of the impediment preventing the running of limitation in the civil action. Establishment that the two appellants brought their action claiming Sharia-prescribed blood money before the date on which the criminal proceedings lapse, from which the three-year period necessary for termination of the civil action begins pursuant to Article 256/2 of the Civil Code. Its effect. Their action has not lapsed by passage of time. The challenged judgment's departure from this is an error in the application of the law requiring its cassation. Rule: It is established—in the jurisprudence of this Court—that the effect of the provisions of Articles 256/2, 261 of the Civil Code, appearing in the section concerning compensation for personal injury, is that the compensation action lapses upon the passage of three years from the time of the accident, and that the provisions governing liability for unlawful acts apply to this compensation insofar as they do not conflict with the provisions specifically prescribed by the legislature for compensation for personal injury. This means that the period that must elapse for an action for compensation for personal injury not to be heard is a limitation period subject to suspension, since the provisions regulating this compensation contain nothing excluding this period from the general rule laid down in Article 446 of the Civil Code concerning suspension of limitation where an impediment exists making it impossible for the creditor to claim his right. Nor do its provisions contain anything justifying a distinction—in this respect—between it and the limitation period for an action for liability for an unlawful act. The provisions of Articles 253, 446 of the Civil Code indicate that, if the unlawful act constitutes a crime, entailing the existence of criminal proceedings alongside the civil action for compensation, the civil action does not lapse unless the criminal proceedings lapse. If the two actions are separated through the injured person's choice of the civil route rather than the criminal route to claim compensation for damage arising from the crime, the running of limitation in his regard is suspended for as long as the right to bring, institute, or proceed with criminal proceedings remains in existence. If those proceedings terminate through a final judgment convicting the offender or through another ground of termination resulting in their lapse, the limitation period for the compensation action resumes running from that date, on the basis that the continuing existence of the right to bring, institute, or proceed with criminal proceedings constitutes, within the meaning of the aforementioned Article 446 of the Civil Code, a legal impediment making it impossible for the injured person to claim his right to compensation. The effect of Articles 6, 8 of the Penal Code is that criminal proceedings in misdemeanors lapse upon the passage of five years from the day of the commission of the crime, and the running of the period upon which criminal proceedings lapse is interrupted by accusation, investigation, or trial procedures, or by inquiries undertaken in relation to the accused or of which he was officially notified. If the limitation period expires without that having occurred, the necessary consequence is the lapse of criminal proceedings by passage of time. From that lapse, the impediment that caused suspension of the running of limitation for the injured person's civil action against the person liable ceases to exist. That being so, and it being established from the papers that the appellants' predecessor died on 26/9/2007, and that Case No. 177 of 2007, Abdullah Al-Mubarak Traffic Misdemeanors, was recorded in respect of that incident, and that on 30/6/2008 the papers were temporarily shelved because the perpetrator who caused his death was unknown, and this shelving order being an administrative measure issued by the Public Prosecution in its capacity as the authority overseeing the gathering of information, it does not bind it, and it may reverse it at any time before the termination of criminal proceedings. Since the perpetrator has not been identified, the right to bring, institute, or proceed with criminal proceedings remains in existence, and the five-year period prescribed for the lapse of the misdemeanor pursuant to Articles 6, 8 of the Penal Code has not expired. Accordingly, the impediment preventing the running of the limitation period for the appellants' action remains in existence, and their right to bring their action does not lapse upon the arrival of the date for the lapse of criminal proceedings on 30/6/2013, and the limitation period for the civil action which begins from that date for three years ending on 30/6/2016. Since the two appellants brought their action claiming Sharia-prescribed blood money on the basis of the rules governing compensation for personal injury on 14/3/2012, their action is immune from the lapse prescribed by Article 256/2 of the Civil Code. Since the challenged judgment departed from this view and ruled that the right to claim had lapsed under the three-year limitation period, it is defective in a manner requiring its cassation.