Kuwait Court of Cassation principle number 237

Summary: - A person’s freedom of movement within and outside the country is one of the fundamental freedoms set out in the Kuwaiti Constitution, which prohibits restricting it except in accordance with the provisions of law. The consequence thereof. Restrictions and controls may be imposed on that freedom for reasons of public interest and the security and safety of society. The condition therefor. Such restrictions must not reach the point of permanence in time and place; otherwise, they become a deprivation rather than a restriction, emptying the freedom of its substance. - Freedom of movement. What it entails. Enabling a person to obtain a passport, which the legislature has made inseparably connected with Kuwaiti nationality; the administrative authority may therefore not deprive him of it without a serious justification required by the public interest and warranting interference with a constitutional right. - The existence of a justification for the administrative authority to withdraw a passport and retain it for a period of time requires it to disclose the justifications and reasons for doing so. It is subject to review by the administrative judiciary, which may ascertain whether or not its decision is lawful and assess the elements upon which it was based. Rule: The provision in Article (31) of the Constitution that “No person may be arrested ......... or have his freedom of residence or movement restricted except in accordance with the provisions of law,” and in Article (17) of Law No. 11/1962 concerning Passports that “Passports shall be issued to persons possessing Kuwaiti nationality in accordance with the nationality provisions in force at the time the passport is issued,” and in Article (19) that “For special reasons, the granting or renewal of a passport may be refused, and a passport may also be withdrawn after it has been granted,” indicate that a person’s freedom of movement within and outside the country is one of the fundamental freedoms set out by the Constitution among the public rights provided for in Part Three, and that it prohibited restricting it except in accordance with the provisions of law. This means that controls and restrictions may be imposed on that freedom for reasons of public interest and the security and safety of society, but without those restrictions reaching the point of permanence in time and place; otherwise, they become a deprivation rather than a restriction, emptying the freedom of its substance. Since freedom of movement entails enabling a person to obtain a passport, the legislature made the granting of a passport a right inseparably connected with Kuwaiti nationality. The administrative authority may therefore not deprive him of it without a serious justification required by the public interest and warranting interference with his constitutional right to movement and travel abroad, which can be realized only by giving him a passport enabling him to exercise that right. If the administrative authority considers that a justification exists for withdrawing the passport and then retaining it for a period of time by refusing to renew it, it must disclose the justifications and reasons for doing so. In exercising this power to restrict individuals’ freedom, it is subject to review by the administrative judiciary, a review extending to the lawfulness of the decision issued in this regard through scrutiny of its reasons, to ascertain whether it is based on facts supporting it materially and legally and the extent of their proportionality to its subject matter. Within the bounds of its review of the decision, the judiciary may properly assess those elements. That being so, and as it is established from the papers that the respondent administrative authority withdrew the appellant’s passport as a consequence of what was attributed to him in the manner previously stated, and since the aforementioned person challenged the administrative authority’s refusal to hand over his passport to him judicially, and a final judgment was rendered dismissing his request or action, he renewed his challenge against it, and that refusal continued for a period exceeding five years, seeking delivery of the passport valid for travel and removal of his name from the lists of persons prohibited from travelling. In this he relied on the uprightness of his conduct during that period and his necessary and pressing need to travel abroad for treatment, particularly after suffering a heart attack that reached the point of coma, following which he was admitted to Mubarak Al-Kabeer Hospital on 20/10/2009. Since the administrative authority did not refute what the appellant submitted or advanced, nor did it proceed to provide reasons for continuing its refusal by withdrawing his passport or refusing to renew it despite the lapse of that period, this constitutes a restriction of his freedom of movement and travel without justification, an excess of precaution against what he had previously done, without presenting evidence justifying its continuation. Its refusal thus becomes a negative administrative decision contrary to law and deserving of annulment.