Kuwait Court of Cassation principle number 441

Summary: - A person’s freedom of movement within and outside the country is among the fundamental freedoms set forth in the Kuwaiti Constitution, which prohibits its restriction except in accordance with the provisions of the law. The implication thereof. Restrictions and controls may be placed upon that freedom for considerations of the public interest and the security and safety of society. The condition thereof. Such restrictions must not approach permanence in time and place; otherwise they become a deprivation rather than a restriction, emptying the freedom of its substance. - Freedom of movement. Its requirement. Enabling a person to obtain a passport, which the legislature has made inseparable from Kuwaiti nationality; the administrative authority may not deprive him of it without a serious justification required by the public interest and warranting interference with a constitutional right. - The existence of justification for the administrative authority to withdraw a passport and retain it for a time requires it to disclose its justifications and reasons for doing so, and it is subject to review by the administrative judiciary, which may ascertain whether 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 the law,” and in Article (17) of Law No. 11/1962 concerning Passports that: “Passports shall be issued to those enjoying 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(19) that: “For special reasons, the granting or renewal of a passport may be refused, and a passport may also be withdrawn after it has been given,” indicate that a person’s freedom of movement within and outside the country is among the fundamental freedoms set forth by the Constitution among the public rights stipulated in Part 3, and that it prohibited restriction thereof except in accordance with the provisions of the law. This means that controls and restrictions may be placed upon that freedom for considerations of the public interest and the security and safety of society, but without those restrictions approaching permanence in time and place; otherwise they become a deprivation rather than a restriction, emptying the freedom of its substance. Since freedom of movement requires enabling a person to obtain a passport, the legislature made the granting of a passport a right inseparable from Kuwaiti nationality. The administrative authority may 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 only be realized by giving him a passport enabling him to exercise the right. If the administrative authority considers that justification exists to withdraw the passport and then retain it for a time, refusing to renew it, it must disclose its justifications and reasons for doing so, since, in exercising this power to restrict persons’ freedom, it is subject to review by the administrative judiciary. That review extends to the lawfulness of the decision issued in this regard, scrutinizing its reasons to ascertain whether it is based on facts that substantiate it materially and legally, and the extent of their proportionality to its subject matter. Within the limits 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 set forth above, and since the said person judicially contested the administrative authority’s refusal to deliver his passport to him, and a final judgment dismissed his application or action, he again contested its continuation of that refusal for a period exceeding 5 years, seeking delivery to him of a passport valid for travel and removal of his name from the lists of persons prohibited from travelling. In doing so, he relied upon the uprightness of his conduct during that period and his necessary and urgent need to travel abroad for treatment, particularly after suffering a heart attack reaching the point of coma, as a result of 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 provide reasons for continuing its refusal in withdrawing his passport or refusing its renewal despite the passage of that period, thereby constituting a restriction upon his freedom of movement and travel without justification, as an excessive precaution against what he previously committed, without presenting evidence justifying its continuation, its refusal therefore becomes a negative decision contrary to the law and deserving of annulment.