Kuwait Court of Cassation principle number 299

Summary: - An action for compensation for personal injury. Its lapse upon the mere passage of three years from the time of the accident. Application to this compensation of the provisions governing liability for unlawful acts insofar as they do not conflict with the provisions specifically prescribed by the legislature for compensation for personal injury. Its implication. The period that must elapse for such an action not to be heard is a prescriptive period subject to suspension. Reason therefor. The general rule in Article 446 Civil Code suspending prescription whenever there is an impediment making it impossible for the creditor to claim his right. - An unlawful act constituting an offence entails a criminal action alongside the civil compensation action. Its implication. The civil action does not lapse until the criminal action lapses. Separation of the two actions where the injured person chooses the civil rather than the criminal route to claim compensation for damage arising from the offence. Its effect. Suspension of prescription in his regard as long as the right to bring, initiate, or proceed with the criminal action remains in existence. Extinction of that action by a final judgment convicting the offender or by another ground of extinction. Its implication. Prescription of the compensation action 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 making it impossible for the injured person to claim his right to compensation. - Criminal proceedings for misdemeanours. Their lapse upon the passage of five years from the day of commission of the offence. Interruption of the period upon whose expiry criminal proceedings lapse. Its means. By charging, investigation, or trial procedures, or inquiries conducted in the presence of the accused or officially notified to him. Expiry of the prescriptive period without this occurring. Its necessary consequence. Lapse of the criminal proceedings through passage of time. Its implication. Upon that lapse, the impediment that caused suspension of prescription of the injured person’s civil action against the liable person ceases. - Provisional shelving of the papers because the perpetrator is unknown. An administrative measure by the Public Prosecution as the authority overseeing all preliminary inquiries. It may reverse it at any time before extinction of the criminal action. The perpetrator being unknown. Its effect. The right to bring, initiate, or proceed with the action remains in existence. Its condition: that the five-year period prescribed for lapse of the misdemeanour has not expired. Articles 6, 8 of the Penal Code. Its implication. Continuation of the impediment preventing prescription from running in the civil action. Establishment that the two appellants brought their action claiming Sharia blood money before the date of lapse of the criminal proceedings, from which the three-year period required for extinction of the civil action begins under Article 256/2 Civil Code. Its implication. Their action has not lapsed through passage of time. The challenged judgment’s departure from this constitutes an error in application of the law requiring its cassation. Rule: It is established in the jurisprudence of this Court that the effect of Articles 256/2, 261 of the Civil Code, contained in the section on 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 prescriptive period subject to suspension, since the provisions governing this compensation contain nothing excluding that period from the general rule laid down in Article 446 of the Civil Code concerning suspension of prescription where an impediment makes it impossible for the creditor to claim his right. Nor do its provisions contain anything justifying a distinction, in this respect, between it and prescription of 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 an offence entailing a criminal action alongside the civil compensation action, the civil action does not lapse until the criminal action lapses. If the two actions are separated because the injured person chooses the civil rather than the criminal route to claim compensation for the damage arising from the offence, prescription in his regard is suspended as long as the right to bring, initiate, or proceed with the criminal action remains in existence. If that action is extinguished by a final judgment convicting the offender or by another ground of extinction resulting in its lapse, prescription of the compensation action 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 explained above, 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 for misdemeanours lapse upon the passage of five years from the day of commission of the offence, and the period upon whose expiry criminal proceedings lapse is interrupted by charging, investigation, or trial procedures, or inquiries conducted in the presence of the accused or officially notified to him. If the prescriptive period expires without this occurring, the necessary consequence is lapse of the criminal proceedings through passage of time. From that lapse, the impediment that caused suspension of prescription of the injured person’s civil action against the liable person ceases. That being so, and since it is established from the papers that the appellants’ predecessor 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 provisionally shelved because the perpetrator who caused his death was unknown; and since this shelving order is an administrative measure issued by the Public Prosecution in its capacity as the authority overseeing the gathering of preliminary evidence, it does not bind it, and it may reverse it at any time before extinction 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 lapse of the misdemeanour under Articles 6, 8 of the Penal Code has not expired. The impediment preventing prescription of the appellants’ action from running therefore remains in existence, and their right to bring their action does not lapse the arrival of the date of lapse of the criminal action on 30/6/2013, and the prescriptive 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 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 in Article 256/2 of the Civil Code. Since the challenged judgment departed from this view and ruled that the right to claim had lapsed by three-year prescription, it is defective, requiring its cassation.