Kuwait Court of Cassation principle number 65

Summary: - A foreign public employee in a government body is granted ordinary residence authorization throughout his employment, provided that he holds a valid passport. The end of his service without obtaining another residence authorization. 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 1 week and no more than 3 months, and is punishable by imprisonment and a fine, or either, in the event of a violation. Settlement with him is permissible if he pays 2 dinars for each day. The effect of settlement: extinguishment 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 that falls outside the jurisdiction of the Administrative Circuit, and no other circuit of the court has jurisdiction over it either; a ruling of lack of jurisdiction must be rendered. The judgment's ruling that the court has jurisdiction to consider the request to annul the fine in dispute and annulling it. This renders it defective and requires its cassation. Rule: Article (15) of Amiri Decree No. 17 of 1959 concerning the Aliens Residence Law provides that "An employee in a government body shall be granted ordinary residence authorization 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 authorization 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 1 week and no more than 3 months from the end of his service. Article (24/3) of the same Decree provides that "The penalty shall be imprisonment for a period not exceeding 3 months and a fine of no less than 300 dinars and no more than 600 dinars, or either of these penalties, for anyone who violates any of Articles (11, 12, 14 paragraphs 1, 2 and Article 15 of this Law". Article (44 bis) thereof provides that "Settlement may be accepted from an accused who violates 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: payment of 2 dinars for each day of delay in the event of a violation of Articles 11, 12, 14 paragraphs 2, 3 and Article 15.... The settlement amount shall be paid at the headquarters of the Immigration Affairs Department in the competent governorate within 10 days from the date on which the accused is notified of the violation. Payment of the settlement amount shall result in extinguishment of the criminal proceedings and all their effects. The explanatory memorandum to the aforementioned Decree stated that the legislature "made settlement result in extinguishment 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, in the Residence Law, the legislature prescribed 2 routes for extinguishing criminal proceedings: either by pursuing the criminal proceedings to their conclusion with a judicial judgment issued by the competent court, or by settlement with the administrative authority. The general principle is that the accused is tried for his legally criminalized act and punished by imprisonment or a fine or either.... By way of exception, the legislature permitted him to express his desire to settle and not proceed with the criminal proceedings. If the administration accepts settlement with him, he must pay 2 dinars for each day of delay, and the criminal proceedings against him are consequently extinguished. The violator's settlement with the administrative authority and his payment, by way of exception, of 2 dinars for each day of delay in obtaining residence constitute, in substance, a means of extinguishing criminal proceedings that falls outside the jurisdiction of the Administrative Circuit, and no other circuit of the court has jurisdiction over it either. In these circumstances, the court must rule that it lacks jurisdiction to consider it. Since the challenged judgment adopted a different approach and unjustifiably concluded that the court had jurisdiction to consider the request to annul the fine in dispute and ruled to annul it, it is defective in a manner requiring its cassation.