Kuwait Court of Cassation principle number 206

Summary: - An action for compensation for personal injury. Its lapse merely upon the 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. Implication thereof. The period that must elapse for such an action not to be heard is a limitation period subject to suspension. Reason therefor. The general rule in Article 446 of the Civil Code suspending limitation whenever there is an impediment rendering it impossible for the creditor to claim his right. - An unlawful act constituting a crime entails a criminal action alongside the civil action for compensation. Effect thereof. The civil action does not lapse until the criminal action lapses. Separation of the two actions where the injured party chooses the civil rather than the criminal route to claim compensation for the damage arising from the crime. Effect thereof. The running of limitation in respect of him is suspended for as long as the right to bring, initiate, or proceed with the criminal action remains in existence. Termination of that action by a final judgment convicting the offender or for another ground of termination. Effect thereof. Limitation of the action for compensation resumes running from that date. Reason therefor. The continued existence of the right to bring, initiate, or proceed with the criminal action constitutes a legal impediment rendering it impossible for the injured party to claim his right to compensation. - Criminal proceedings in misdemeanours. Their lapse upon the passage of five years from the day the crime occurred. Interruption of the running of the period upon which criminal proceedings lapse. Means thereof. By charging, investigation, or trial procedures, or inquiries conducted in the presence of the accused or of which he was formally notified. Expiry of the limitation period without that having occurred. Necessary consequence thereof. Lapse of the criminal proceedings by passage of time. Effect thereof. Upon that lapse, the impediment that caused the suspension of the running of limitation of the injured party’s civil action against the liable person ceases. - Temporary shelving of the papers because the perpetrator is unknown. An administrative measure by the Public Prosecution in its capacity as the authority overseeing all preliminary inquiries. It may reverse it at any time before the termination of the criminal action. The perpetrator remaining unknown. Effect thereof. The right to bring, initiate, or proceed with the action remains in existence. Condition thereof: The five-year period prescribed for the lapse of the misdemeanour has not expired. Articles 6 and 8 of the Penal Code. Effect thereof. The impediment preventing the running of limitation in the civil action remains in existence. Establishment that the two appellants brought their action claiming Sharia-prescribed blood money before the date of lapse of the criminal action, from which the three-year period necessary for termination of the civil action begins pursuant to Article 256/2 of the Civil Code. Effect thereof. Their action has not lapsed by passage of time. The challenged judgment’s departure from that constitutes an error in the application of the law requiring its cassation. Rule: It is established in the case law of this Court that the effect of Articles 256/2 and 261 of the Civil Code, appearing in the section concerning compensation for personal injury, is that the action for compensation 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 stipulated in Article 446 of the Civil Code concerning suspension of limitation where an impediment exists rendering it impossible for the creditor to claim his right. Nor do its provisions contain anything justifying a distinction, in this respect, between it and limitation of an action for liability for an unlawful act. The provisions of Articles 253 and 446 of the Civil Code indicate that, where the unlawful act constitutes a crime entailing a criminal action alongside the civil action for compensation, the civil action does not lapse until the criminal action lapses. If the two actions are separated because the injured party chooses the civil rather than the criminal route to claim compensation for the damage arising from the crime, the running of limitation in respect of him is suspended for as long as the right to bring, initiate, or proceed with the criminal action remains in existence. If that action terminates by a final judgment convicting the offender or for another ground of termination causing its lapse, limitation of the action for compensation resumes running from that date, on the basis that the continued existence of the right to bring, initiate, or proceed with the criminal action constitutes, within the meaning of Article 446 of the Civil Code mentioned above, a legal impediment rendering it impossible for the injured party to claim his right to compensation. The effect of Articles 6 and 8 of the Penal Code is that criminal proceedings in misdemeanours lapse upon the passage of five years from the day the crime occurred, and the running of the period upon which criminal proceedings lapse is interrupted by charging, investigation, or trial procedures, or inquiries conducted in the presence of the accused or of which he was formally notified. If the limitation period expires without that having occurred, the necessary consequence is the lapse of the criminal proceedings by passage of time. From that lapse, the impediment that caused suspension of the running of limitation of the injured party’s civil action against the liable person ceases. That being so, and as it is established from the papers that the appellants’ decedent died on 26/9/2007, and Case No. 177 of 2007, Abdullah Al-Mubarak Traffic Misdemeanours, was registered concerning that incident, and on 30/6/2008 the papers were temporarily shelved because the perpetrator who caused his death was unknown, and as this shelving order is an administrative measure issued by the Public Prosecution in its capacity as the authority overseeing the collection of preliminary evidence, it does not bind it and it may reverse it at any time before the termination of the criminal proceedings. Since the perpetrator has not been identified, the right to bring, initiate, or proceed with the criminal proceedings remains in existence, and the five-year period prescribed for the lapse of the misdemeanour under Articles 6 and 8 of the Penal Code has not expired. Accordingly, the impediment preventing the running of limitation of the appellants’ action remains in existence, and their right to bring their action does not lapse upon the arrival of the date of lapse of the criminal action on 30/6/2013, and the limitation period for the civil action which begins on that date and lasts three years, ending on 30/6/2016. Since the two appellants brought their present action claiming Sharia-prescribed blood money on the basis of the rules governing compensation for personal injury on 14/3/2012, their action is beyond the lapse prescribed by Article 256/2 of the Civil Code. As 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.