Everyone has a right to report criminal offences to the competent Kuwaiti authorities. The Kuwaiti legislature had set out a standalone provision and save
Hassan AhmedSenior Associate,Litigation
Everyone has a right to report criminal offences to the competent Kuwaiti authorities. The Kuwaiti legislature had set out a standalone provision and save for few exceptions, the reporting is actually a legal requirement and duty. Refraining from reporting criminal offences may give rise to a criminal liability. The objective, from the foregoing, is to assist the competent Kuwaiti authorities in ensuring the revealing of crimes in a prompt manner and that perpetrators are penalized.
It is worth mentioning that the duty to report applies even if a party has no direct relationship whatsoever with the crime in question nor any relationship with the parties involved in committing it.
From a regulatory perspective, Article 14 of the Kuwaiti Criminal Procedures Law No. 17 of 1960 sets out a penalty on whoever abstains from reporting a criminal offence with certain exceptions and conditions. An English translation of the provision states:
“A person who witnesses or is aware of the commission of an offense shall immediately report it to the nearest police or investigation authority. A person who, in bias/in favour of the accused persons, refrains from making such reporting shall be punished by the penalty prescribed for abstaining from providing a witness testimony. The provision of this article shall not apply to the spouse of any person involved in commission of the offense, nor to his or her ascendants and descendants.”
In addition, an English of Article 140 of the Criminal Law No. 16 of 1960 states:
“A person who is called to give witness testimony before courts and declines, without an acceptable excuse, to appear shall be punished by imprisonment for a term not exceeding six months and a fine not exceeding thirty seven dinars and five hundred fils, or one of these two penalties.”
Consequently, save for certain exceptions, if someone comes to know of or has witnessed the occurrence of a crime and refrains from reporting it to the Kuwaiti criminal authorities, he/she may face a penalty of imprisonment not exceeding 6 months and/or a fine not exceeding thirty seven dinars and five hundred fils (KWD 37.500).
Whilst the above provisions provide for a strict requirement in terms of reporting, the matter may not be as straightforward in certain circumstances. As noted, the reporting duty applies when a crime had already occurred. However, as an example, there could be situations where an interpretation of a specific circumstance or a statement made to assess whether it means that a crime occurred or not. Also, an assessment need to be made for a circumstance or a statement relating to the intention to commit a crime. There are also circumstances that provide, prima facie, that a crime has been committed. However upon reviewing certain details, the elements of that crime may not be satisfied in full and thus no duty to report is required.
These scenarios are non-exhaustive and as such, each incident needs to be assessed on a case by case basis.
It is key to mention that reporting a criminal offence must be made in good faith, to avoid other potential criminal and civil liabilities. To elaborate further, the reporting must:
Not include untrue facts that the reporter is aware of;
Not be aiming to harm the party being reported.
The objective of having those restriction is to prevent parties from abusing the right granted by the Kuwaiti legislature to achieve unlawful purposes. In this respect, the Kuwait Court of Cassation have previously asserted and addressed the foregoing. An English translation of an extract from one of its judgment states that:
“It is established, as applied by the judiciary of this Court, that reporting of crimes is one of the rights granted to individuals. It is even one of the duties imposed on them where abstaining from it would lead to a criminal penalty in accordance with Article 14 of the Criminal Procedures Law. As such, it is a lawful right when performed within the remits of the law. A party that makes such reporting would not be accountable for compensation if the party being reported sustains harm from the reporting that included untrue facts, unless he/she was aware that the facts are untrue and that he/she made such reporting with the intent of harming the party being reported or if the reporting was done in a fast and reckless manner without taking due precaution and justification, provided the intent to harm exists.” (Cassation No. 770/2006 Civil/3 hearing of 30/4/2008)."
An English translation of another Kuwaiti Cassation judgment notes that:
“… the party reporting a crime shall not be liable for compensation unless he/she deviated from the objective designated for using the legal right to report, to use it in a malicious manner to impose harm on third parties. The assessment of whether such deviation exists or not is a factual matter that the Court has exclusive jurisdiction to look into…” (Cassation No. 605/2004 Commercial/2 gearing of 16/2/2005)."
Accordingly, reporting a criminal offence, to the Kuwaiti criminal authorities, is a legal duty imposed on anyone. This duty applies even if a party has no direct relationship whatsoever with the crime in question nor any relationship with the parties involved in committing it. An imprisonment term that does not exceed 6 months and/or a fine not exceeding thirty seven dinars and five hundred fils (KWD 37.500) would apply on anyone who refrains from reporting. There are certain exceptions and assessments that need to be considered and legal consultation need to be sought immediately when such circumstance arises.
For further information,please contact Hassan Ahmed.
Published in October 2022
