Kuwait Court of Cassation principle number 498

Summary: - An action for compensation for personal injury. Its extinction upon the mere passage of three years from the occurrence 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. This means that the period required to 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 an impediment exists that makes it impossible for the creditor to claim his right. - An unlawful act constituting a crime entails criminal proceedings alongside the civil compensation action. Its implication: the civil action is not extinguished unless the criminal proceedings are extinguished. Separation of the two actions through the injured party’s choice of the civil rather than the criminal route to claim compensation for damage arising from the crime. Its effect: limitation is suspended in relation to him as long as the right to bring, initiate or pursue criminal proceedings remains. Termination of those proceedings by a final judgment convicting the offender or for another ground of termination. Its implication: limitation for the compensation action resumes from that date. Reason therefor: the continuing right to bring, initiate or pursue criminal proceedings constitutes a legal impediment making it impossible for the injured party to claim his right to compensation. - Criminal proceedings for misdemeanours. Extinguished upon the passage of five years from the date of commission of the crime. Interruption of the period upon whose expiry criminal proceedings are extinguished. Its means: indictment, investigation or trial procedures, or inquiries conducted in the accused’s presence or of which he was officially notified. Passage of the limitation period without that occurring necessarily entails extinction of the criminal proceedings by lapse of time. Its implication: immediately upon such extinction, the impediment that caused suspension of limitation for 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 as the authority supervising the gathering of evidence. It may reverse it at any time before termination of the criminal proceedings. The perpetrator remaining unknown. Its effect: the right to bring, initiate or pursue proceedings remains. Condition therefor: the five-year period prescribed for extinction of the misdemeanour has not elapsed. Articles 6 and 8 of the Penal Code. Its implication: the impediment preventing limitation from running in the civil action remains. Establishment that the two appellants brought their action claiming Sharia blood money before the date of extinction of the criminal proceedings, from which the three-year period necessary for termination of the civil action begins pursuant to Article 256/2 of the Civil Code. Its implication: their action is not extinguished by lapse of time. The challenged judgment’s departure therefrom is an error in applying the law requiring it to be quashed. Rule: It is established in this Court’s jurisprudence that the effect of Articles 256/2 and 261 of the Civil Code, contained in the section concerning compensation for personal injury, is that the compensation action is extinguished upon the passage of three years from the occurrence 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 required to elapse for an action for compensation for personal injury not to be heard is a limitation period subject to suspension, since the provisions regulating such compensation contain nothing excluding this period from the general rule prescribed 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 limitation for 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 criminal proceedings alongside the civil compensation action, the civil action is not extinguished unless the criminal proceedings are extinguished. If the two actions are separated because the injured party chooses the civil rather than the criminal route to claim compensation for damage arising from the crime, limitation is suspended in relation to him as long as the right to bring, initiate or pursue criminal proceedings remains. If those proceedings terminate by a final judgment convicting the offender or for another ground of termination extinguishing them, limitation for the compensation action resumes from that date, on the basis that the continuing right to bring, initiate or pursue criminal proceedings constitutes, within the meaning of the aforementioned Article 446 of the Civil Code, a legal impediment making 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 for misdemeanours are extinguished upon the passage of five years from the date of commission of the crime, and the period upon whose expiry criminal proceedings are extinguished is interrupted by indictment, investigation or trial procedures, or inquiries conducted in the accused’s presence or of which he was officially notified. If the limitation period elapses without that occurring, criminal proceedings necessarily become extinguished by lapse of time. From that extinction, the impediment that caused suspension of limitation for the injured party’s civil action against the liable person ceases. That being so, and as the documents establish that the appellants’ predecessor died on 26/9/2007 and Case No. 177 of 2007, Abdullah Al-Mubarak Traffic Misdemeanours, was recorded 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 as the authority supervising the gathering of evidence, it is not binding upon it and it may reverse it at any time before termination of the criminal proceedings. Since the perpetrator has not been identified, the right to bring, initiate or pursue criminal proceedings remains, and the five-year period prescribed for extinction of the misdemeanour pursuant to Articles 6 and 8 of the Penal Code has not elapsed. Accordingly, the impediment preventing limitation from running for the appellants’ action remains, and their right to bring their action is not extinguished the arrival of the date of extinction of the 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 blood money based on the rules of compensation for personal injury on 14/3/2012, their action is beyond the extinction prescribed by Article 256/2 of the Civil Code. As the challenged judgment departed from this view and ruled that the right to claim was extinguished by the three-year limitation period, it is defective and must be quashed.