Kuwait Court of Cassation principle number 535

Summary: - A foreign public employee in a government entity is granted an ordinary residence permit throughout his employment, provided that he holds a valid passport. Termination of his service without obtaining another residence permit. Its effect: he must leave the State of Kuwait within the period specified for him by the Ministry of Interior, which shall be no less than one week and no more than three months, and he is punishable by imprisonment and a fine or either of them in the event of violation. Settlement with him is permissible if he pays two dinars for each day. Effect of settlement: extinction of the criminal proceedings and all their effects. The Director of the General Department of Immigration Affairs or his delegate may refuse settlement if he considers that the accused’s conduct and the length of the violation justify doing so. Settlement with the accused is a means of extinguishing criminal proceedings over which the Administrative Circuit has no jurisdiction, nor does any other circuit of the court have jurisdiction, and a ruling declining jurisdiction must be issued. The judgment’s ruling that the court has jurisdiction to hear the application to annul the disputed fine and annulling it. This renders it defective and requires it to be quashed. Rule: The provision of Article (15) of Amiri Decree No. 17 of 1959 concerning the Aliens Residence Law that "An employee in a government entity shall be granted an ordinary residence permit throughout the period in which he works as an employee, provided that he holds a valid passport. If his service ends and he does not obtain another residence permit pursuant to Article (12) of this Law, he must leave Kuwait within the period specified for him by the Ministry of Interior, which shall be no less than one week and no more than three months from the termination of his service." And the provision of Article (24/3) of the same Decree that "The penalty shall be imprisonment for a period not exceeding three months and a fine of no less than three hundred dinars and no more than six hundred dinars, or either of these penalties, for anyone violating any of Articles (11, 12, 14 paragraphs 1, 2 and Article 15 of this Law". And the provision of Article (44 bis) thereof that "Settlement may be accepted from an accused who violates the provisions of Articles 10, 11, 12, 14 paragraphs 2, 3, 15 bis of this Law or the regulations or decisions implementing them, on the following bases. First:........ Second: that he pay two dinars for each day of delay in the event of violation of Articles 11, 12, 14 paragraphs 2, 3 and Article 15.... The settlement amount shall be paid at the premises of the Immigration Affairs Department in the competent governorate within ten days from the date on which the accused is notified of the violation, and payment of the settlement amount entails extinction of the criminal proceedings and all their effects." The explanatory memorandum to the aforementioned Decree states that the legislature "made settlement entail extinction of the criminal proceedings and all their effects and also permitted the Director of the General Department of Immigration Affairs or his delegate to refuse settlement if he considers that the accused’s conduct and the length of the violation justify doing so...." This indicates that the legislature, in the Residence Law, prescribed two routes for terminating criminal proceedings: either by pursuing the criminal proceedings to their conclusion through a judicial judgment issued by the competent court, or through settlement with the administrative authority. The rule is that the accused is tried for his legally criminalized act and punished by imprisonment or a fine or either of them.... As an exception, the legislature permitted him to express his wish to settle and not to proceed with the criminal proceedings. If the administration accepts settlement with him, he must pay two dinars for each day of delay, and the criminal proceedings against him are consequently extinguished. The violator’s settlement with the administrative authority and payment of two dinars for each day of delay in obtaining residence, by way of exception, is in reality a means of extinguishing criminal proceedings over which the Administrative Circuit has no jurisdiction, nor does any other circuit of the court have jurisdiction. Accordingly, the court must rule that it lacks jurisdiction to hear it. As the challenged judgment adopted a different approach and unsoundly concluded that the court had jurisdiction to hear the application to annul the fine—the subject of the dispute—and ruled to annul it, it is defective and must be quashed.