Criminal Action (Public Prosecution)
Introduction
A criminal action is the State’s demand—represented by the Public Prosecution—for a criminal court to adjudicate an alleged offense attributed to a specific person, by convicting him if responsibility is proven or acquitting him if it is not.
The Public Prosecution conducts investigation, disposition, and prosecution in felonies; investigators at the Ministry of Interior handle investigation, disposition, and prosecution in misdemeanors, as regulated by the Code of Criminal Procedure.
The Prosecution is the backbone of the preliminary stages: it initiates the public action on behalf of society, supervises law‑enforcement officers, ensures the application of penal laws, pursues offenders, and executes judgments.
Every offense under the Penal Code constitutes an assault on the social order. Hence the State may impose punishment through the criminal action. Alongside it, the victim (or heirs) may seek civil compensation via a civil claim arising from the offense.
Although, in principle, the Prosecution’s power to initiate criminal action is unrestricted, the legislator— for specific policy reasons—imposed exceptional constraints on initiation: complaint, request, and authorization.
A criminal action may terminate for reasons such as the defendant’s death, settlement where permitted, limitation (prescription), or other grounds provided by law.
General Outline
- Part One: The Criminal Action.
- Part Two: Constraints on Initiating the Criminal Action.
- Part Three: Extinction of the Criminal Action.
Part One: The Criminal Action
The criminal action is society’s instrument to safeguard its security and stability by identifying the offender, trying him, and enforcing punishment where guilt is established. The State vindicates its right through the public action, while the injured party may pursue a civil claim for damages.
Section 1 — Concept and Nature
A criminal action is the State’s right—through the prosecuting authority—to pursue the perpetrator and submit him to the courts for the imposition of criminal sanctions. It legally exists from the moment the offense occurs; its limitation period runs from that time, and its existence does not depend on any specific procedural step.
The criminal action is a demand for the enforcement of public penal law through the judiciary. It must be distinguished from the criminal proceedings (criminal litigation), which encompass all steps taken after the action is initiated until a final decision is rendered or the action becomes extinct.
The community’s interest is not served by convicting innocents or eroding liberties. The action must be oriented toward the truth: acquitting the innocent and convicting the true offender. If the evidence collapses during the proceedings, the Prosecution should seek acquittal or, at least, leave the matter to the court.
Subsection A — Criminal vs. Civil Claims
A civil claim arising from the offense may be joined before the criminal court (civil action ancillary to the criminal one). The criminal court may award damages if the unlawful act constituting the offense is established. As a rule, the civil claim follows the criminal action: there is no compensation if the offense is legally absent or a final acquittal negates the wrongful act.
Two guiding rules govern their relationship:
- Criminal prevails over civil (priority rule): the civil court does not decide a claim arising from an offense before a criminal judgment is rendered on the same facts, to avoid contradictory decisions.
- Res judicata effect of criminal judgment: if the criminal court acquits for absence of criminality (no offense), the civil court cannot grant damages for the same factual basis as an unlawful act.
Subsection B — Commencement and Conduct of Proceedings
The criminal action is initiated by the first procedural act signaling prosecution (e.g., charging the defendant to appear, filing the case before the competent court, or formally initiating investigation for prosecution). This empowers the court to hear the case; courts do not initiate criminal actions on their own motion.
Police inquiries and evidence gathering are not, by themselves, initiation of the criminal action. In felonies, the Public Prosecution initiates and conducts the action; in misdemeanors, investigators of the Ministry of Interior do so, with limited instances where courts may proceed directly (e.g., contempt in the face of the court) as provided by law.
Part Two: Constraints on Initiating the Criminal Action
In principle, the Public Prosecution (or investigator in misdemeanors) may initiate the criminal action without restriction. However, the legislator has imposed exceptional constraints for specific policy reasons: complaint, request, and authorization. Failure to observe these constraints renders subsequent proceedings invalid and the action inadmissible.
Section 1 — Complaint
A. Nature of the Complaint
A complaint is a formal declaration by the victim (or legal representative) expressing the wish to prosecute certain offenses designated by law. The requirement of a complaint is a matter of public order; any investigation carried out before the complaint is filed is void where the law requires it.
Rationale: these offenses often touch the victim’s privacy, honor, or family relationships, so the legislator left it to the victim to decide whether prosecution is appropriate.
B. Offenses Requiring a Complaint
- Defamation, insult, and disclosure of secrets.
- Abduction of females.
- Theft, blackmail, fraud, and breach of trust when committed against ascendants, descendants, or spouses.
- Adultery: prosecution may begin without complaint, but the victim spouse may prevent continuation or suspend enforcement under legal conditions.
The complaint is directed against the accused; if there are multiple offenders, a complaint against one is deemed to extend to all. One victim’s complaint suffices when there are multiple victims. It may be submitted by a guardian or trustee for minors and may also be made through an attorney.
Unlike some foreign laws, Kuwaiti law does not fix a specific time limit for complaints, as long as the criminal action has not become time‑barred or extinguished for another reason.
C. Effect of Joinder and Multiple Defendants
If the action is conditional on a complaint against a specific defendant, it may still be brought against co‑participants if evidence of their complicity emerges. Where there is factual linkage with another offense:
- Simple connection: the action may proceed for the related offense not requiring a complaint (e.g., assault on a mother upon discovering her theft).
- Inseverable connection: prosecution may extend to the related offense (e.g., theft from a father to purchase drugs and use them).
D. Waiver of the Complaint
Only the person who filed the complaint may withdraw it; if multiple complainants exist, all must waive it. The waiver extinguishes the action only for the offenses requiring a complaint. It may be made orally or in writing at any stage prior to a final judgment. If the waiver occurs after a final conviction, it may result in suspension of enforcement under the law.
Section 2 — Request
A request is a statement by an administrative authority harmed by the offense (e.g., Customs Authority) expressing its wish to initiate prosecution for offenses affecting its financial rights.
Example: smuggling cases—the criminal action may not be initiated without a written request from the competent authority.
Effect: if the action is commenced before the request is filed where the law requires it, proceedings are void and inadmissible. Once the request is filed, the restriction is lifted and the prosecuting authority may proceed.
Section 3 — Authorization
Authorization is the consent of a legally designated body before criminal proceedings can be taken against certain persons who enjoy functional independence. Typical examples: parliamentary immunity for Members of the National Assembly, and judicial immunity for judges and prosecutors.
A. Parliamentary Immunity (Procedural)
Except in cases of flagrante delicto (in‑flagrancy), no investigation, arrest, detention, search, or any criminal measure may be taken against a Member of Parliament during the legislative session without the Assembly’s authorization. The Speaker must be notified of any measures, and requests for authorization must be decided within the period set by the Assembly’s Rules.
Loss of immunity: it lapses in cases of flagrante delicto, at the end of the legislative session, or upon the Assembly’s express authorization. It is a personal procedural immunity that does not extend to relatives and does not bar civil proceedings against the MP as a civilly liable person.
B. Judicial Immunity
To preserve judicial independence, special procedural safeguards protect judges and prosecutors. In cases of flagrante delicto, if a judge or prosecutor is apprehended, the matter must be referred within a specified time to the Supreme Judicial Council for appropriate action. In other cases, no criminal proceedings may be taken against them except with the required authorization and under the conditions set by the Judicial Organization Law.
Note: Failure to obtain a complaint, request, or authorization where required invalidates the proceedings and renders the action inadmissible. Preliminary police inquiries may still be conducted to identify the suspect and clarify the facts in order to seek the required constraint.
Part Three: Extinction of the Criminal Action
A criminal action does not last forever. It may be extinguished for reasons provided by law.
Extinction means the State loses its right to initiate or continue the criminal action, whether before or after it is brought.
Previous lawful procedural acts remain valid despite extinction.
Section 1 — Death of the Defendant
The criminal action is extinguished by the death of the defendant, regardless of the stage reached.
The purpose of criminal punishment disappears upon death.
However, this does not affect the civil claim, which may be pursued against the deceased’s heirs for compensation.
If the death occurs after a final conviction, the sentence lapses with the action, except for financial penalties (fines)
which may still be executed against the estate if ordered prior to death.
Section 2 — Settlement (Conciliation)
Settlement is an agreement between the victim and the accused that terminates the criminal action.
The law allows settlement in certain minor offenses such as simple defamation, family‑related theft, property damage, and certain misdemeanors.
Settlement must be explicit or in writing and may occur at any stage before a final judgment.
It results in the extinction of the criminal action and of the ancillary civil action unless the parties agree otherwise.
Section 3 — Limitation (Prescription)
Limitation is the lapse of a period fixed by law without initiation or continuation of the criminal action.
The length of time varies with the seriousness of the offense:
- 15 years for felonies.
- 5 years for misdemeanors.
- 3 months for petty offenses (contraventions).
When the period expires, the State may no longer initiate or continue the action.
Extinction by limitation does not preclude a separate civil claim for damages.
Section 4 — Other Grounds for Extinction
- General Amnesty: issued by law, it erases the offense and all its consequences.
- Final Judgment: once a final judgment is rendered on the merits, the criminal action is extinguished for that offense.
- Extinction of the penalty: when the penalty is extinguished by law (e.g., limitation), the action ceases to exist.
Conclusion
The criminal action is the State’s mechanism for confronting crime.
The legislator has framed clear rules for its initiation, constraints, and extinction, ensuring a fair balance between society’s right to punish and individuals’ rights to liberty and dignity.
