Kuwait Court of Cassation principle number 73

Summary: - An action for compensation for personal injury. Its lapse merely upon the passage of three years from the time 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. Meaning thereof. The period that must elapse to bar the hearing of that action 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 the existence of a criminal action alongside the civil action for compensation. Consequence thereof. The civil action does not lapse unless the criminal action lapses. 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. Effect thereof. Suspension of limitation as regards him for as long as the right to bring, initiate or proceed with the criminal action remains in existence. Termination of that action by a final judgment convicting the offender or for another reason for termination. Consequence thereof. Limitation 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 party to claim his right to compensation. - Criminal actions in misdemeanours. Their lapse upon the passage of five years from the date of the crime. Interruption of the period upon whose expiry the criminal action lapses. Means thereof. Charging, investigation or trial procedures, or inquiries undertaken in the presence of the accused or of which he was officially notified. Expiry of the limitation period without that being completed. Necessary consequence thereof. Lapse of the criminal action by passage of time. Meaning thereof. Immediately upon that lapse, the impediment that caused suspension of limitation of the injured party's civil action against the liable party ceases. - Temporarily shelving the papers because the perpetrator is unknown. An administrative measure by the Public Prosecution in its capacity as the authority overseeing all preliminary inquiries. It may reverse it at any time before the criminal action terminates. The perpetrator remaining unknown. Effect thereof. The right to bring, initiate or proceed with the action remains in existence. Condition thereof: the five-year period prescribed for the lapse of the misdemeanour has not expired. Articles 6 and 8 of the Penal Code. Meaning thereof. The impediment preventing limitation from running in the civil action remains in existence. Proof that the two appellants brought their action claiming Sharia blood money before the date of lapse of the criminal action, from which begins the three-year period required for termination of the civil action pursuant to Article 256/2 of the Civil Code. Meaning thereof. Their action has not lapsed within the meaning of the period. The challenged judgment's departure therefrom is an error in the application of the law requiring its cassation. Rule: It is established in the jurisprudence of this Court that the effect of Articles 256/2 and 261 of the Civil Code, appearing in the section concerning 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 to bar the hearing of an action for compensation for personal injury is a limitation period subject to suspension, since the provisions regulating this compensation contain nothing excluding that period from the general rule provided in Article 446 of the Civil Code concerning suspension of limitation where an impediment exists that makes it impossible for the creditor to claim his right. Nor do its provisions contain anything warranting a distinction, in this respect, between it and limitation of an action for liability for an unlawful act. The provisions of Articles 253 and 446 of the Civil Code indicate that, if the unlawful act constitutes a crime entailing the existence of a criminal action alongside the civil action for compensation, the civil action does not lapse unless the criminal action lapses. If the two actions are separated through the injured party's choice of the civil rather than the criminal route to claim compensation for damage arising from the crime, limitation as regards him is suspended for as long as the right to bring, initiate or proceed with the criminal action remains in existence. If that action terminates by a final judgment convicting the offender or for another reason for termination through its lapse, limitation 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 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 actions in misdemeanours lapse upon the passage of five years from the date of the crime, and the period upon whose expiry the criminal action lapses is interrupted by charging, investigation or trial procedures, or inquiries undertaken in the presence of the accused or of which he was officially notified. If the limitation period expires without that being completed, the necessary consequence is that the criminal action lapses by passage of time. From that lapse, the impediment that caused suspension of limitation of the injured party's civil action against the liable party ceases. That being so, and it being established from the papers that the appellants' predecessor died on 26/9/2007 and that Case No. 177 of 2007, Abdullah Al-Mubarak Traffic Misdemeanours, was recorded concerning that incident, and that on 30/6/2008 the papers were temporarily shelved because the perpetrator who caused his death was unknown, and that 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 the criminal action terminates. Since the perpetrator has not been identified, the right to bring, initiate or proceed with the criminal action remains in existence, and the five-year period prescribed for the lapse of the misdemeanour under Articles 6 and 8 of the Penal Code has not expired. Thus, the impediment preventing limitation of the appellants' action from running 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 limitation period for the civil action which begins on that date for a period of 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 beyond the reach of the lapse prescribed by Article 256/2 of the Civil Code. Since the challenged judgment departed from this view and held that the right to claim had lapsed by the three-year limitation period, it is defective in a manner requiring its cassation.