CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Initial reports of States parties due in 1997
[5 August 1997]
1. Man will
always be a matter of concern to the various political, economic,
social, cultural, legal and other systems which, within the framework
of contemporary modern societies based on the principles of justice,
equality and freedom, are endeavouring to promote, consolidate and
develop the concepts of human rights which constitute part of the
values and ideals of human civilization.
its foundation, the State of Kuwait has diligently adopted these concepts
and turned them into fundamental principles of Kuwaiti society, which
has put them into practice in various ways at the national and international
3. At the
national level, Kuwait has endeavoured, inter alia, to establish
a legal foundation for the promotion of human rights issues on various
vital matters of concern to mankind, particularly through the promulgation
of the legislation and regulations on which this foundation is largely
4. In addition
to these national endeavours, at the international level the State
of Kuwait has also acceded to numerous international human rights
instruments, including the Convention forming the subject of this
report which became applicable in the State of Kuwait on 17 April
1996 following completion of all the national procedures for its entry
5. When speaking
of the State of Kuwait's accession to this Convention, reference must
be made to a basic component of the State's fundamental position in
this regard, namely its total rejection of all types of torture, which
constitutes one of the most odious violations of human rights and,
as such, must be designated as a criminal offence. Kuwait's legislation
carefully emphasized that fact a long time before the State acceded
to this Convention, as will be seen below in this report.
within the context of the State of Kuwait's fulfilment of its obligations
under the Convention, and in response to the note dated 20 January
1997 from the Centre for Human Rights/Committee against Torture requesting
the State of Kuwait to submit its initial report on the measures taken
pursuant to article 19, paragraph 1, of the Convention, the State
of Kuwait has pleasure in presenting this report, which has been prepared
in the light of the guidelines adopted by the Committee against Torture
in November 1989 concerning the form and content of initial reports.
7. This report
consists of two parts, Part I comprising a general introduction to
Kuwait and Part II comprising information on the legislative, judicial
and administrative measures taken by the State of Kuwait to give effect
to articles 2 to 16 of the Convention.
A. Land and people
8. In this
section, precise and detailed information should be provided concerning
the population and demographic situation in Kuwait, in addition to
the other information which the reporting State should provide in
accordance with the consolidated guidelines for part I of the reports
of States parties.
to the viewpoint of the State of Kuwait on the content of this section,
it should be noted that the information required from the State is
documented in official publications issued by its competent authorities.
Accordingly, since those publications contain an adequate amount of
the requisite information, they can be referred to as annexes forming
an integral part of this report. (The annexes can be consulted
at the Office of the United Nations High Commissioner for Human Rights).
These annexes comprise:
1. A booklet published
by the Ministry of Planning containing information and statistics
on the following matters:
(a) The location of
(c) The size of the
population, by nationality, educational level and sex, as shown
by the recent census conducted in April 1995;
(d) Government housing
programmes and the distribution of housing units by governorate;
(e) The labour force,
by sector, nationality and educational level;
(f) National income
(g) External trade,
industry, agriculture and fishery and livestock resources;
(h) Educational services
from the standpoint of the number of schools and pupils, by sex
and nationality, and the number of adult education and literacy
(i) Health services
from the standpoint of the number of hospitals, beds and medical
personnel working in the government and private sectors (annex
2. Statistical publications:
(a) The monthly statistical
bulletin for December 1996;
(b) The statistical
yearbook for 1995;
(c) The general population
census of 1995;
(d) The annual bulletin
of vital statistics (births and deaths) for 1994;
(e) Amended preliminary
estimates of the national accounts for the years 1993 to 1995
B. General political structure
9. This section
gives an account of some aspects of the general political structure
of the State including, in particular, the form of the State, its
system of government and its authorities.
regard to the form of the State and its system of government, Kuwait
is an independent and fully sovereign Arab State the people of which
form part of the Arab nation. The religion of the State is Islam and
its official language is Arabic. It has a democratic system of government
in which sovereignty resides with the people, who are the source of
all authority. Sovereignty is exercised in the manner specified in
the State's Constitution. Kuwaiti society is based on justice, liberty
and equality and its citizens enjoy close links of mutual aid and
11. For a
clearer understanding of Kuwait's democratic system of government,
it should be noted that, as indicated in the Explanatory Note on the
Constitution, the Constitution viewed this democratic system, which
it adopted, as a compromise between the parliamentary and presidential
systems but with a more pronounced tendency towards the former given
the fact that the presidential system was intended for republics.
12. In keeping
with the intrinsic principles of democracy, Kuwait's system of government
has adopted the firmly established constitutional concept of the separation
of powers, each being required to cooperate with the others but without
being permitted to relinquish all or any part of its jurisdiction
as defined in the Constitution.
13. The Kuwaiti
Constitution, which consists of five chapters, devotes a separate
chapter (chapter IV, consisting of five sections), to the question
of all, it indicates that legislative power is exercised by the Amir
and the National Assembly in accordance with the Constitution, executive
power being exercised by the Amir, the Cabinet and the ministers in
the manner specified in the Constitution, and judicial power being
exercised by the courts, in the name of the Amir, within the limits
laid down in the Constitution.
2 of the said chapter indicates, inter alia, that the head
of State exercises his jurisdictional authority through his ministers
and is empowered to appoint and dismiss the Prime Minister. In his
capacity as head of State, he is the commander-in-chief of the armed
forces and is empowered to appoint and dismiss officers in the manner
provided by law. He promulgates the regulations needed to enforce
the law, as well as those needed to control and regulate public departments
and agencies of the State. He also appoints civil servants, military
personnel and diplomatic representatives accredited to foreign States.
16. In addition
to the above, the provisions of the Constitution also refer to other
powers of the Amir.
power is exercised by the Amir and the National Assembly, consisting
of 50 members elected directly by universal suffrage and secret ballot
for a four-term of office. This is the authority which is empowered
to promulgate legislation under the terms of the Constitution, article
79 of which indicates that no legislative enactment may be promulgated
unless it has been approved by the National Assembly and ratified
by the Amir. The National Assembly, like the Amir, has the right to
propose bills of law and exercises supervisory authority over the
activities of the Government. It is also empowered to approve the
international conventions to which the State of Kuwait accedes and
which are regarded as being the most important treaties concluded
by the State in accordance with article 70, paragraph 2, of the Constitution.
3 of the said chapter sets forth the provisions concerning legislative
power. Act No. 12 of 1963, promulgating the rules of procedure of
the National Assembly, regulates that body's functions and activities.
19. The election
of members of the National Assembly is regulated by the provisions
of Act No. 35 of 1962 (annex 3).
20. In short,
it can be said that the legislature has the widest legislative jurisdiction.
power is exercised by the Amir and the Cabinet, which controls the
agencies of the State, formulates and monitors the implementation
of the general policy of the State and supervises the work of the
government departments. Each minister is responsible for supervising
the affairs of his ministry, implementing the general policy of the
Government and formulating and monitoring the implementation of his
power is exercised by the courts in the name of the Amir. The Constitution
and the law guarantee the independence of the judiciary in accordance
with the principle that the honour of the judiciary and the integrity
and impartiality of judges form the basis of Government and constitute
a guarantee of rights and freedoms.
23. In accordance
with the Constitution, in his administration of justice the judge
is not subject to any authority. The law guarantees the independence
of the judiciary, as well as the safeguards and other provisions concerning
judges. An entire section, comprising 12 articles, of the Kuwaiti
Constitution is devoted to judicial authority and contains numerous
provisions which emphasize the principle of the independence of the
24. The Organization
of the Judiciary Act No. 23 of 1990 regulates the various levels of
courts, defines the composition and powers of the Higher Council of
the Judiciary, regulates judicial appointments and promotions and
specifies the duties of judges and the composition and jurisdiction
of the Department of Public Prosecutions (annex 4).
25. In this
connection, it should also be noted that Act No. 10 of 1996 made numerous
amendments to the above-mentioned Act with a view to ensuring greater
independence for this important institution (annex 5).
C. General information on the application of the provisions of
legal framework for the protection of human rights in Kuwait within
the context of which torture, as defined in article 1 of the Convention,
is prohibited and is being eliminated
26. It is
noteworthy that the political and legal framework of basic principles
and provisions for the protection of human rights in the State of
Kuwait is embodied in the Kuwaiti Constitution promulgated on 11 November
1962 which, as the State's basic law, carefully establishes these
principles in numerous articles concerning the form of the political
system, the fundamental constituents of Kuwaiti society, public rights
and obligations and the separation of powers. Hence, the Kuwaiti Constitution
can be said to form the political and legal basis for the protection
of human rights as a whole in Kuwait. In fact, numerous legislative
enactments have been promulgated, pursuant to those constitutional
provisions, to safeguard human rights in the political, civil, penal,
economic, cultural, social and other relevant fields in the State
of Kuwait. It should also be borne in mind that many Kuwaiti legislative
enactments concerning vital human issues were promulgated prior to
the proclamation of the Constitution. These enactments, the most important
of which were the Penal Code and the Code of Criminal Procedure promulgated
in 1960, sought to provide guarantees of justice for the population
27. The Explanatory
Note on the Kuwaiti Constitution reveals the high degree of concern
which the Constitution shows for the question of human rights by clearly
stating: "This Constitution has been promulgated in order to consummate
the means of democratic government in the State of Kuwait with a view
to ensuring a better future in which the country will enjoy greater
prosperity and higher international standing and in which its citizens
will benefit from more political freedom, equality and social justice;
a future that will consolidate the traditions inherent in Arab society
by enhancing the feeling of pride in the dignity of the individual,
safeguarding the public interest and applying consultative government
while maintaining the unity and stability of the country."
28. In this
way, the Kuwaiti Constitution clearly expresses the importance of
human rights, for which it shows appropriate concern by according
them the highest status. In fact, most of the provisions contained
in the various chapters of the Constitution embody the principles
which the international community has approved and expressed in the
international instruments that have been adopted in this regard, to
most of which the State of Kuwait has acceded.
regard to the legal framework of Kuwait's policy of prohibiting torture,
as defined in article 1 of the Convention, adequate provision therefor
is made in the Kuwaiti Constitution, in the legislation in force in
the country and in the conventions to which the State has acceded,
as will be seen from the following.
31 of the Constitution stipulates that no one shall be subjected to
torture or to degrading treatment, while article 34 prohibits the
infliction of physical or mental harm on any accused person. The constitutional
position is further clarified in the Explanatory Note on the Constitution
which states that, under the terms of article 31, paragraph 2, no
human being to whom God has accorded an honourable status may be subjected
to torture or to degrading treatment. The reference here is to an
innocent person who has not yet been convicted. If he has been convicted
by due process of law, the punishment imposed on him as a criminal
cannot be regarded as torture or degrading treatment. The safeguards
pertaining to such punishment are specified in articles 32, 33 and
34 of the Constitution.
31. The Explanatory
Note further states that the Constitution did not find it necessary
to explicitly prohibit "cruel punishment", even though this is prohibited
in the Universal Declaration of Human Rights, since this type of punishment
is totally alien to Kuwaiti society and is most unlikely to be imposed
in the future. Hence, there is no need for a textual prohibition and
the Constitution's silence in this connection confirms that "cruel
punishment" is inherently prohibited.
regard to the position of Kuwaiti legislation, it is noteworthy that
both the Kuwaiti Penal Code and the Code of Criminal Procedure contain
numerous provisions which condemn and prohibit torture. For example,
the Kuwaiti Penal Code regards acts of torture as criminal offences
that merit appropriate penalties in which account is taken of the
serious nature of these acts. The Code prescribes a penalty of imprisonment
and a fine for any public official who induces an accused person to
confess through torture (article 53), subjects an accused person to
a punishment more severe than that to which he was legally sentenced
(article 54), or who abuses his official authority by treating people
in a harsh, dishonourable or physically painful manner (article 56).
33. The Code
of Criminal Procedure is an important legal instrument for the protection
of human rights and fundamental freedoms since it contains adequate
safeguards to ensure enjoyment of the maximum guarantees of judicial
fairness when any form of penal proceedings is instituted against
any person. For example, the Code contains numerous provisions concerning
the prohibition of torture and the inadmissibility of confessions
extracted through torture.
the prohibition of any resort to torture during the institution of
penal proceedings against an accused person, article 12 of the said
Code stipulates that no examiner or other person vested with judicial
authority is permitted to use torture or coercion to obtain statements
from an accused person or a witness or to prevent them from making
any statements that they wish to put on record during the trial, examination
or investigation proceedings. The perpetrators of any offence of this
type are punishable in accordance with the provisions of the Penal
Code. Under article 159 of the Code of Criminal Procedure, if the
court finds that any statements or confessions by the accused were
made as a result of torture or coercion it must regard them as null
and void and without probative value.
regard to the status of the international conventions to which the
State of Kuwait has acceded and which contain provisions prohibiting
torture, in this connection it should be noted that, in addition to
the Convention forming the subject of this report, there are two other
human rights instruments, namely the Convention on the Rights of the
Child and the International Covenant on Civil and Political Rights,
which also contain provisions prohibiting torture.
application of international conventions in the State of Kuwait
36. In this
connection, it is noteworthy that the provisions of the Convention
against Torture are applied in the State of Kuwait in accordance with
the procedure specified in article 70 of the Constitution, which stipulates:
"The Amir shall conclude treaties by decree and shall transmit them
immediately to the National Assembly accompanied by an appropriate
statement. A treaty shall have the force of law after it is signed,
ratified and published in the Official Gazette. However, treaties
of peace and alliance, treaties concerning the territory of the State,
its natural resources or sovereign rights or the public or private
rights of citizens, as well as treaties of commerce, navigation and
residence and treaties which would oblige the State Treasury to bear
expenditure not provided for in the budget or which would involve
amendments to the laws of Kuwait, can enter into force only when promulgated
in the form of a legislative enactment. Treaties may under no circumstances
include secret provisions which contradict those declared."
article clearly shows that treaties concluded by the State of Kuwait
have the force of law in Kuwait. They apply to all persons and their
provisions are binding on the Kuwaiti judiciary. Consequently, on
the completion of the constitutional procedures for Kuwait's accession
to the Convention against Torture, the Convention became part of Kuwait's
domestic legislation in force in the country and all the authorities
and agencies in the State, at all levels, are bound thereby.
judicial or administrative authorities which have jurisdiction over
matters dealt with in the Convention
regard to the authorities which have jurisdiction over matters dealt
with in the Convention and the information required on cases actually
dealt with by those authorities during the reporting period, it should
be noted that article 1 of Legislative Decree No. 23 of 1990, concerning
the organization of the judiciary, as amended by Act No. 10 of 1996,
lays down two basic rules for the organization of the judiciary. The
first rule is that the courts have jurisdiction to adjudicate in all
civil, commercial and administrative disputes, in matters of personal
status and also in criminal cases. The consequent harmonization of
judicial authority in the State has numerous advantages such as, in
particular, consecration of the principle of equality among litigants
and avoidance of the problems arising from the difficulty of determining
the body competent to exercise jurisdiction in certain cases.
39. The second
rule laid down in article 1 is that the principles governing the competence
of the courts, from the standpoint of subject matter or jurisdictional
value, are determined by law and the competence of the courts cannot
be regulated or modified by any lesser legislative instrument. This
meets the requirements of article 164 of the Constitution, which stipulates
that the functions and competence of the courts shall be specified
40. The above-mentioned
Act regulates the various levels of courts. Article 4 thereof stipulates
that the courts shall consist of:
Court of Cassation;
Court of Appeal;
Court of Summary Jurisdiction.
41. In this
connection, we would like to point out that the above and information
contained elsewhere in this report covers only part of the theoretical
applications of the legal regulations in the State of Kuwait in regard
to the question of the inadmissibility of torture. The main point
to be noted in this report is that, far from confining itself to those
legal provisions, the State of Kuwait has given attention to the practical
aspects of this question, as can be seen from the position adopted
by the Kuwaiti judiciary, which has handed down numerous judgements
under the terms of which public officials have been punished for committing
acts of torture. The following are some examples of these judgements:
judgement handed down by the Criminal Court in case No. 2822/92/35/292
of 21 May 1995 under which, inter alia, the first defendant
was sentenced to three years' penal servitude (bail being set at 500
dinars pending appeal) and five years' suspension from duty on the
charges of torture and unlawful detention. The second defendant was
sentenced to two years' penal servitude. Both were public officials;
appeal judgement handed down on 15 November 1995 in the above-mentioned
case under which the initial sentence passed on the first defendant
was reduced to two and a half years' penal servitude and three years'
suspension from duty, the initial sentence passed on the second defendant
being reduced to one year and eight months' penal servitude and two
years' suspension from duty, on the charge of torture;
No. 26 of 1996 handed down by the Court of Cassation on 16 September
1996 upholding the appeal judgement;
judgement of the Criminal Court in case No. 2785/22/1/1996, the penal
clauses of which, inter alia, sentenced the first defendant,
who was a public official, to a fixed term of two years and four months'
penal servitude and one year's suspension from duty on the charges
brought against him. He was also ordered to pay provisional civil
damages amounting to 5,000 dinars to the plaintiff in the civil proceedings;
appeal judgement handed down on 22 May 1996 in the above-mentioned
case under which the sentence imposed on the first defendant was suspended
on condition that he sign an undertaking, secured by a bail bond of
500 dinars, to maintain good conduct for two years (annex 6).
means of redress available to individuals
regard to the means of redress available to individuals claiming to
be victims of torture or other cruel, inhuman or degrading treatment
or punishment in the State of Kuwait, under the provisions of the
Kuwaiti Constitution and the laws in force any individual claiming
that any of his rights, as guaranteed by the Constitution or the laws
in force, have been violated can lodge a complaint with the Kuwaiti
courts at any level of jurisdiction. This is confirmed in article
166 of the Constitution, which stipulates that everyone has a guaranteed
right to seek legal redress, the procedures and conditions required
for the exercise of this right being specified by law.
43. The Code
of Criminal Procedure specifies the procedures and conditions required
for the lodging of a criminal complaint and provides litigants with
all the legal safeguards needed, including a public hearing, the presence
of a lawyer and other safeguards which litigants enjoy under Kuwaiti
law and which are consistent with the standards of international justice.
D. Information and publication
to article 70 of the Kuwaiti Constitution, no treaty can enter into
force and become binding before the completion of the constitutional
procedures and subsequent publication in the Official Gazette. The
said article specifically refers to treaties, which must be promulgated
through a legislative enactment.
45. The purpose
of publication, which constitutes the final legislative stage, is
to make the enactment widely known so that it can be implemented by
the executive authority. Legislation is published, in the Arabic language,
in the Official Gazette within two weeks from the date of its promulgation
and enters into force one month after the date of its publication.
This period may be prolonged or shortened if special provision therefor
is made in the enactment concerned.
enters into force on the expiration of the specified period of time
after its publication in the Official Gazette and, consequently, becomes
applicable to everyone, regardless of whether they are aware or unaware
of its existence.
47. All types
of legislative enactments require publication, which is tantamount
to an order to all official bodies and authorities to implement the
provisions thereof within their respective fields of jurisdiction.
It is noteworthy that the human rights instruments, including the
Convention against Torture, to which Kuwait has acceded have been
published in the Official Gazette in conformity with this procedure
in order to make their provisions known to all.
II. INFORMATION CONCERNING THE MEASURES TAKEN BY THE
STATE OF KUWAIT TO GIVE EFFECT TO ARTICLES 2 TO 16
OF THE CONVENTION
1 of this article stipulates that each State party has a general obligation
to pursue a legislative policy designed to prevent acts of torture.
Under the terms of paragraph 2, each State party has a general obligation
to refrain from invoking any circumstances whatsoever as a justification
regard to Kuwait's implementation of paragraph 1, this report reaffirms
that the general policy of the State of Kuwait is to promote and protect
human rights and reject anything that might violate those rights.
Part I and subsequent sections of this report refer to numerous aspects
of the position adopted in this connection by the Kuwaiti Constitution
and Kuwaiti legislation, which contain provisions that clearly and
categorically designate these inhuman acts as intolerable criminal
offences which must be combated not only at the national level in
each individual State but also through effective international cooperation.
This is what the State of Kuwait believes in and is endeavouring to
the State of Kuwait's fulfilment of the obligation provided for in
that paragraph is not confined solely to the promulgation of legislation
to prevent torture. This legislation is also being enforced, as can
be seen from the fact that the judiciary has handed down numerous
judgements punishing public officials who have been found guilty of
committing acts of torture.
51. In this
connection, it is noteworthy that the State of Kuwait was one of the
first States in its region to accede to this Convention.
regard to the State of Kuwait's obligation to implement the provisions
contained in paragraph 2, this report, while reaffirming the State's
compliance with those provisions, provides a historic opportunity
to highlight Kuwait's experience in this field, which can be divided
into two chronological stages.
53. The first
stage covers the period of the iniquitous Iraqi occupation of the
State of Kuwait, since it is a historical and internationally established
fact that the occupation authorities committed the most odious violations
of human rights not only against the population but also against foreign
residents of Kuwait. One of these odious violations consisted in the
commission of acts of torture which exceeded all humanly conceivable
degrees of barbarity and were documented by various official and other
international bodies as evidence of war crimes as defined in the rules
of international humanitarian law concerning human rights. These crimes
were one of the reasons that prompted the Security Council of the
United Nations to adopt the resolution calling for rapid and concerted
international endeavours to liberate Kuwait.
54. The second
stage, which was characterized primarily by the commission of numerous
violations of human rights in Kuwait, including acts of torture against
Kuwaiti citizens and others, covered the period following the liberation
of Kuwait from the clutches of the iniquitous Iraqi occupation until
the legitimate Kuwaiti authorities were able to re-establish their
sovereign control over the territory of Kuwait. Once this had been
done, one of the main priorities of the authorities was to take legal
action against the persons who had committed those violations. Accordingly,
the authorities did not invoke the exceptional circumstances that
prevailed in Kuwait during the period from its liberation until the
re-establishment of their legitimate control as a pretext to shirk
their national and international legal obligations. On the contrary,
they rapidly took the requisite measures to investigate the violations
that had occurred and the persons responsible therefor were brought
to justice. Measures were also taken to prevent any recurrence of
such violations in future.
55. In addition
to the above, Kuwait responded to the requests received from various
governmental and non-governmental human rights organizations to investigate
some practices that had occurred after the invasion and had resulted
in some persons being subjected to torture or ill-treatment. The authorities
replied to these allegations, clarified the situation of the persons
concerned, investigated the incidents that required investigation
and took legal action against the persons who were found to be involved
in the commission of those acts.
this article, every State party has an obligation to refrain from
expelling, returning or extraditing a person to another State where
there are substantial grounds for believing that he would be in danger
of being subjected to torture in the said other State. The same article
also specifies the measures that must be taken to determine the latter
State's record in regard to the commission of flagrant violations
of human rights.
the State of Kuwait's compliance with this rule, it should first of
all be noted that, in accordance with the principle laid down in article
46 of the Constitution, political refugees cannot be extradited. In
this connection, although it might seem, at first glance, that the
above-mentioned provision refers only to the situation of the political
refugees to whom the rules of asylum are applied in accordance with
the principles of international customary and conventional law, it
also inherently implies that persons cannot be extradited to another
State in cases in which there is a danger of torture since the position
adopted by the Kuwaiti Constitution is clearly and totally opposed
article comprises two main provisions: (i) Each State party must ensure
that acts of torture or attempted torture by any person are offences
under its criminal law; (ii) These offences must be punishable by
appropriate penalties. With regard to the position of Kuwaiti legislation
on these provisions, it should first of all be noted that this report
has already dealt with one aspect of the issues dealt with in this
article when it referred to the position of the Kuwaiti Constitution,
the Penal Code and the Code of Criminal Procedure in regard to the
prohibition, criminalization and punishment of torture.
59. The position
of the above-mentioned legislative instruments in regard to the question
of the penalties applicable to public officials is further clarified
in articles 120, 121 and 125 of the Kuwaiti Penal Code.
120 stipulates that: "Any public official who uses the authority of
his office merely to harm any individual shall be punished by a term
of up to three years' imprisonment and/or a fine of up to 3,000 rupees".
121 stipulates that: "Any public official who abuses his authority
by dealing harshly with people or by compelling people to perform
work in circumstances other than those in which the law so permits
shall be punished by a term of up to one year's imprisonment and/or
a fine of up to 1,000 rupees".
125 stipulates that: "Any public official who uses the authority of
his office to compel a person to sell or dispose of his property or
to relinquish his right thereto, whether in favour of the official
himself or in favour of a third party, shall be punished by a term
of up to three years' imprisonment and/or a fine of up to 3,000 rupees".
In all such cases, the official must be dismissed from his post.
63. In addition
to the above provisions dealing with questions relating to the criminalization
and punishment of abuse of authority, the Kuwaiti Penal Code provides
the maximum legal protection against any form of violation of physical
integrity. Such violations are designated as criminal offences in
articles 160-164 and 166 of the Penal Code.
160 stipulates that: "Anyone who strikes, wounds, causes bodily harm
to, or prejudices the physical integrity of, any person in an appreciable
manner shall be punished by a term of up to two years' imprisonment
and/or a fine of up to 2,000 rupees".
161 stipulates that: "Anyone who severely harms another person by
using him as a target for any form of projectile, by striking him
with a knife or any other dangerous instrument, by throwing a caustic
liquid at him, by placing such liquid or any explosive material in
any place with a view to harming him, or by providing him with a narcotic
substance, shall be punished by a term of up to 10 years' imprisonment,
to which may be added a fine of up to 10,000 rupees".
162 stipulates that: "Anyone who inflicts harm on another person in
such a way as to cause a permanent disability shall be punished by
a term of up to 10 years' imprisonment, to which may be added a fine
of up to 10,000 rupees. A penalty of up to five years' imprisonment
and/or a fine of up to 5,000 rupees shall be imposed if such acts
of aggression cause the victim to suffer severe physical pain or render
him unable to use one or more of his limbs or bodily organs in a natural
manner for a period not exceeding 30 days but without causing him
to suffer a permanent disability".
163 stipulates that: "Anyone who commits a minor act of aggression
of lesser gravity than the acts referred to in the preceding articles
shall be punished by a term of up to three months' imprisonment and/or
a fine of up to 300 rupees".
164 stipulates that: "Anyone who unintentionally wounds or causes
appreciable harm to another person by acting in a thoughtless, negligent,
careless or inattentive manner or by failing to respect the regulations
shall be punished by a term of up to one year's imprisonment and/or
a fine of up to 1,000 rupees".
69. It is
also a criminal offence to endanger anyone's physical integrity. For
example, it is a punishable offence to refrain, deliberately or unintentionally,
from catering for the vital needs of a person for whose welfare the
offender is legally responsible for any reason whatsoever, including
restriction of liberty, if, by failing to assume his responsibility,
he causes harm to the said person. This is stipulated in article 166
of the Penal Code, which reads as follows: "Anyone who, being legally
responsible for the welfare of another person who is unable to meet
his own vital needs due to age, illness, mental disorder or restriction
of his freedom, regardless of whether such responsibility arises directly
from a legal obligation, a contract or a lawful or unlawful act, deliberately
fails to assume his responsibility, as a result of which the victim
dies or suffers harm, shall be punished, depending on the degree of
criminal intent and the gravity of the harm caused, by the penalties
prescribed in articles 149, 150, 152, 160, 162 and 163. If the said
failure is due to unintentional negligence, the penalties prescribed
in articles 154 and 164 shall apply".
70. In the
State of Kuwait, the legal obligation to protect and maintain physical
integrity extends to persons serving prison sentences since their
welfare also constitutes a legal obligation as stipulated in articles
224, 226 and 227 of the Kuwaiti Code of Criminal Procedure and article
18 of the Prisons Regulatory Act No. 26 of 1962.
224 of the Code of Criminal Procedure stipulates that: "Neither the
warden nor any responsible officer of a prison shall permit the incarceration
of a detainee therein except on the basis of a written detention order
from a competent authority or a court judgement to which an enforcement
order is attached. The detainee shall under no circumstances be forced
to remain in the prison for a period longer than that specified in
the detention order or judgement".
226 stipulates that: "No one shall be arrested or detained except
in accordance with an order, in due and proper form, issued by the
competent authority in accordance with the conditions and procedures
prescribed by law. Persons sentenced to imprisonment shall be confined
only in prisons designated for that purpose in the laws and regulations
currently in force".
227 stipulates that: "If an examiner is informed that a person has
been arrested unlawfully, he must promptly investigate the matter,
proceed to the place in which the person is detained and release him.
A person who has been abducted or a child who has been removed unlawfully
from the custody of his legal guardian or of the person in whose care
he has been placed shall likewise be deemed to be detained unlawfully".
74. In conclusion,
it should be noted that the practical applications of this article
in Kuwait have been reinforced by the judgements handed down by the
Kuwaiti courts in the manner already indicated in this report.
Articles 5 and 7
5 deals with the question of the establishment of the jurisdiction
of each State party to the Convention. It specifies the cases in which
the State can exercise jurisdiction over the offences referred to
in article 4 of the Convention. Article 7 refers to the procedures
that the State party must follow if it decides that a person alleged
to have committed an offence referred to in article 4 of the Convention
should not be extradited but should be tried by its own courts.
these two articles, it should be noted that the Kuwaiti Penal Code
contains provisions that regulate the applicability of the Code from
the standpoint of the time and place of the commission of offences.
11 stipulates that: "The provisions of this Code shall apply to any
person who, in the territory of Kuwait and its dependencies, commits
any of the offences referred to herein. Its provisions shall also
apply to any person who commits an act outside Kuwaiti territory which
makes him a principal offender or an accomplice in an offence which
was committed wholly or partly in Kuwaiti territory".
12 stipulates that: "The provisions of this Code shall apply to any
Kuwaiti national who commits, outside Kuwait, an act which is punishable
under the provisions of the law in force at the place in which he
committed the said act, provided that he returns to Kuwait without
being acquitted by the foreign courts of the charges brought against
79. The Code
of Criminal Procedure lays down the general rules concerning the competence
of the Kuwaiti criminal courts to hear criminal cases. Article 2 of
the Code stipulates that: "The criminal courts shall be competent
to try persons accused of committing felonies and misdemeanours within
the limits laid down in this Code and in accordance with the procedures
prescribed therein. Lesser offences shall be dealt with in accordance
with a separate code regulating the courts competent to hear such
offences and specifying the rules and procedures to be followed in
23 of Legislative Decree No. 23 of 1980 promulgating the Code of Civil
and Commercial Procedure lays down the general rules concerning the
international jurisdiction of the Kuwaiti courts and their competence
to hear cases brought against Kuwaiti or foreign nationals.
1 of Legislative Decree No. 23 of 1990, concerning the organization
of the judiciary, stipulates that the Kuwaiti courts are competent
to hear cases involving any type of dispute or offence unless otherwise
specified in a special legal provision.
82. In the
light of the above, the Kuwaiti courts have jurisdiction over offenders
and offences committed in Kuwaiti territory.
article refers to the obligations of each State party in regard to
the custody of any person alleged to have committed any offence referred
to in article 4 of the Convention and the measures to be taken in
the position of Kuwaiti legislation on this matter, the constitutional
principle is that personal liberty must be guaranteed and no one may
be arrested, detained, searched or subjected to restriction of his
freedom of residence or movement except as provided by law (arts.
30 and 31).
85. In the
light of this constitutional principle, the relevant Kuwaiti legislation,
contained in the Code of Criminal Procedure, takes care to specify
the safeguards that must be applied when any legal measure is taken
to restrict any person's liberty or freedom of residence or movement.
article 60 of the Code, the police have an obligation to bring the
arrested person before an examiner and the arrested person may under
no circumstances be retained in custody for more than four days unless
the examiner issues a written order for his remand in custody.
article 63, every arrest warrant must be in writing, dated and signed
by the person who issues it, who must also specify the capacity in
which he is acting. It must indicate the name of the person to be
arrested, his place of residence, the location at which he can be
found and the reason for his arrest. If the warrant is not executed
within three months from its date of issue, it becomes invalid and
may not subsequently be executed without a written order for its renewal.
article 70, if the accused person remains in custody for a period
of six months from the date of his arrest, his detention may be extended
for a further period, at the request of the examiner, only by order
of the court competent to hear the case and after listening to the
statements of the accused.
article 227 of the Code, to which reference has already been made
in this report, if an examiner is informed that a person has been
arrested unlawfully, he must promptly investigate the matter, proceed
to the place in which the person is detained and release him.
90. In conclusion,
it is evident from the above that Kuwait's Constitution, law and legislation
diligently endeavour to safeguard the freedoms of individuals in the
manner indicated and to prevent any violation thereof. These guarantees
obviously apply equally to nationals and foreigners and, in such circumstances,
the latter also enjoy additional safeguards consisting in the obligation
to bring an interpreter to hear their statements and the obligation
to inform their consulate so that it can send a representative to
be present at the hearing and monitor its various stages. The consulate
must also be informed of any new developments in the proceedings,
which must be attended by lawyers and in which the other customary
procedures must be followed.
91. The main
provisions of this article refer to the need for cooperation among
the States parties to the Convention in regard to extradition for
the offences specified in article 4 of the Convention, regardless
of whether or not they have concluded extradition treaties, and indicate
the procedures and conditions that must be respected in every case.
the provisions of this article, it should first of all be noted that
their theoretical and practical application falls within the context
of international cooperation between two or more States. This can
be achieved in various ways but primarily through the existence of
treaties in which provision is made for the extradition of criminals
or under the terms of international conventions in which specific
acts are regarded as international crimes, as in the case of the international
treaties to combat the phenomenon of international terrorism. Consequently,
the purpose of the policy pursued by the State of Kuwait is to encourage
the conclusion of bilateral and multilateral international treaties
concerning judicial cooperation, which would obviously contain provisions
regulating the extradition of criminals, or the conclusion of independent
international conventions concerning their extradition.
regard to conventions to combat the phenomenon of terrorism, it is
noteworthy that the provisions of this article are similar to those
contained in those conventions, as exemplified by article 10 of the
International Convention against the Taking of Hostages, article 8
of the Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents, and
article 8 of the Hague Convention of 1970 for the Suppression of Unlawful
Seizure of Aircraft. It should be noted that Kuwait has acceded to
the aforementioned conventions.
94. In conclusion,
we wish to emphasize that the State of Kuwait is committed to the
implementation of this article.
95. The provisions
of this article refer to mutual judicial assistance between States
parties to this Convention in connection with criminal proceedings
brought in respect of the offences mentioned in article 4 and stipulate
that the States parties should fulfil this obligation in conformity
with any treaties on mutual judicial assistance that may exist between
96. In this
connection, the State of Kuwait is extremely eager to conclude treaties
on mutual legal and judicial assistance with any friendly States and
endeavours to include judicial assistance among the provisions of
those treaties in order to ensure that foreign nationals residing
in any of the contracting States are able to exercise their legal
rights easily and without hindrance.
97. The treaties
that the State of Kuwait has concluded with numerous countries contain
a special section on judicial assistance in civil and criminal matters
under the terms of which all the nationals of each contracting party
residing in the territory of the other party enjoy the right to receive
the same judicial protection as that afforded to nationals of the
other party. Under those treaties, nationals of the two contracting
parties also enjoy unrestricted freedom to apply to the courts and
other judicial authorities in order to uphold and defend their rights
and interests through, inter alia, the submission of documentary
evidence, the organization of inspections, the cross-examination of
adversaries and the hearing of witnesses and experts. Examples of
these treaties are the Legal and Judicial Cooperation Agreement between
the State of Kuwait and the Republic of Tunisia and the Legal and
Judicial Cooperation Agreement on Civil, Commercial, Criminal and
Personal Status Matters between the State of Kuwait and the Arab Republic
of Egypt, which are only some of the treaties that Kuwait has concluded
in this field.
the judicial cooperation agreements concluded by the State of Kuwait,
in which provision is made for assistance in regard to criminal proceedings
and access to evidence in the State's possession, stipulate that the
State must seize and hand over objects which constitute evidence or
which were acquired either as a result of the offence or in return
for objects acquired as a result of the offence, if they are found
in the possession of the wanted person at the time of his arrest.
article emphasizes the obligation of each State party to ensure that
education and information regarding the prohibition against torture
are included in the training programmes for law enforcement personnel.
It also gives a general indication of the measures to be taken to
regard to this article, it is noteworthy that the Penal Code and the
Code of Criminal Procedure are subjects which form part of the curriculum
taught at the Faculty of Law at Kuwait University, since some of its
students will be responsible for implementing those two Codes.
subjects are also taught to police cadets at the Police Academy and
to candidates for senior posts in the Department of Public Prosecutions,
who study at the Kuwaiti Institute for Judicial Studies, in their
capacity as future law enforcement personnel.
11 of the Convention stipulates that: "Each State party shall keep
under systematic review interrogation rules, instructions, methods
and practices as well as arrangements for the custody and treatment
of persons subjected to any form of arrest, detention or imprisonment
103. In this
regard, the provisions of the Code of Criminal Procedure give a detailed
account of the rules and principles governing preliminary examinations,
interrogations and remand in custody, as well as the guarantees needed
to safeguard the rights of persons subjected to arrest, detention
or imprisonment, including the prohibition of any form of physical
or mental duress, torture or violation of their inherent human dignity.
The said Code also indicates that the Department of Public Prosecutions
is responsible for monitoring the actions of the police during arrest
and search operations in various circumstances.
45 of the Code stipulates that: "During their inquiries, police officers
may use investigatory methods that do not harm or restrict the freedoms
of individuals, but none of them is empowered to examine a suspect
unless he is legally vested with the capacity of an examiner".
60 further stipulates that no arrested person may be held in custody
for more than four days without a written order.
106. In conclusion,
the competent court is the highest authority empowered to determine
whether all the procedures followed were correct and in conformity
with the law. The court also has full discretion to weigh the evidence
and form its own opinion in accordance with the dictates of its conscience.
Articles 12 and 13
basic subject dealt with in article 12 is the obligation of each State
party to ensure that its competent authorities proceed to a prompt
and impartial investigation whenever an act of torture has been committed
in any territory under its jurisdiction.
13 emphasizes the need to safeguard the rights of any individual who
alleges that he has been subjected to torture.
regard to the provisions of the two above-mentioned articles, it should
first of all be noted that Kuwaiti law guarantees a prompt and impartial
investigation whenever any breach of the law is committed. Acts of
torture are obviously among the offences that merit such investigation.
the Code of Criminal Procedure, any person who has been subjected
to torture has a guaranteed right to lodge a complaint with the competent
authorities who, in turn, have an obligation to take steps to deter
the aggressor and ensure the triumph of justice. This is most clearly
illustrated by the judicial precedents set by the Kuwaiti courts which
have tried persons who, after an impartial investigation, were found
to be involved in acts of torture. All the rights of the victims were
safeguarded, including the right to call witnesses and submit evidence
for the prosecution without any fear or intimidation. These courts,
at various levels of jurisdiction, handed down judgements, to which
reference has already been made in this report, convicting the persons
found to be involved in the commission of acts of torture, brutality
or degrading treatment.
111. In addition
to the above, in the State of Kuwait there are specific rules governing
procedure and evidence in judicial examinations, which can be conducted
only by persons vested with the capacity of an examiner, i.e. members
of the Department of Public Prosecutions, senior police officers and
persons appointed as examiners in the police and public security departments.
article refers to the obligation of each State party to ensure that,
under its legal system, the victim of an act of torture obtains fair
and adequate redress in accordance with the principles laid down therein.
Paragraph 2 stipulates that nothing in the said article shall effect
any right of the victim or other persons to compensation which might
exist under national law.
113. In this
connection, it should be noted that, under the terms of the Civil
Code promulgated in Legislative Decree No. 67 of 1980, any detriment
caused must be remedied. Section 3 of the Code deals with the legal
aspects of the detrimental act. Its articles are divided into two
main categories, the first of which sets forth the rules of liability
in respect of unlawful acts, while the second makes provision for
compensation in the event of personal injury.
aim which this article seeks to achieve is guaranteed by the Civil
Code under which anyone who, through a culpable act, causes direct
or consequential harm to another person is obliged to pay compensation
in respect of the harm caused by his culpable act even if he is incapable
of exercising discretion. If the harm is attributable to a culpable
act committed by more than one person, each of them is liable to compensate
the victim for the full extent of the harm caused. The harm for which
the person responsible for the unlawful act is obliged to pay compensation
covers any loss, including loss of earnings, provided that it is a
natural consequence of the unlawful act. Compensation is also payable
in respect of mental pain or suffering caused by an act prejudicial
to a person's life, body, liberty, dignity, honour, reputation, social
or moral status or financial standing.
227 of the Civil Code stipulates that: "Anyone who, through a culpable
act, causes direct or consequential harm to another person shall be
obliged to pay compensation in respect of the harm caused by his culpable
act even if he was incapable of exercising discretion".
230 stipulates that: "The harm for which the person responsible for
the unlawful act is obliged to pay compensation shall cover any loss,
including loss of earnings, provided that it is a natural consequence
of the unlawful act. The loss, including loss of earnings, shall be
deemed to be a natural result of the unlawful act if it could not
be avoided by a reasonable endeavour which an ordinary person might
be expected to make in the given circumstances".
231 stipulates that: "The compensation payable in respect of the unlawful
act shall cover any harm caused, including mental pain or suffering,
particularly that caused by an act prejudicial to a person's life,
body, liberty, dignity, honour, reputation, social or moral status
or financial standing. Mental pain or suffering shall also include
the grief and distress with which a person is afflicted and the feelings
of love and tenderness which he misses as a result of the death of
someone who was dear to him".
the terms of article 111 of the Code of Criminal Procedure, anyone
who suffers harm as a result of an offence has the right to bring
a civil action before the court which is hearing the criminal proceedings,
regardless of the stage reached in those proceedings, until such time
as the final pleadings have been presented. A civil claimant may file
a claim during the preliminary examination by submitting an application
to the examiner, in which case he is treated as a claimant during
the said Code, if the victim brings a civil action for damages, the
criminal court is empowered to adjudicate in the civil action unless
it decides to refer the case to the competent civil court. Even in
the absence of a civil action, the court may, on its own initiative,
order the defendant to pay damages if the victim undertakes to refrain
from claiming any other compensation in respect of the offence in
112 stipulates that the civil claimant may sue the person bearing
civil liability in the action that he brings before the criminal court
or during the preliminary examination. The person bearing civil liability
may also intervene, on his own initiative, during the criminal proceedings
at the trial or examination stage, even if no civil action has been
brought. In both cases, the person bearing civil liability is regarded
as a co-defendant in the criminal proceedings.
to article 113: "In the judgement that it hands down in the criminal
proceedings, the criminal court shall adjudicate on the actions for
damages brought before it by the adversaries. However, if it finds
that a simultaneous judgement in both the civil and criminal actions
would entail a delay in the judgement of the criminal action, the
criminal court may separate the two actions and hand down a separate
judgement in the criminal action, postponing the hearing of the civil
action until a future session or referring it to the competent civil
article 114: "Any person who brings a civil action before a criminal
court shall be entitled to abandon his civil action at any stage of
the criminal proceedings. He shall not thereby forfeit his right to
bring his action before a civil court unless he simultaneously declared
his intention to abandon his civil claim. The civil claimant's abandonment
of his action shall not affect the rights of the defendant or of the
person bearing civil liability towards him, nor shall it prevent the
court from ordering him to pay the costs if it deems appropriate.
civil claimant fails to appear without a valid reason, the court may
regard him as having abandoned his action".
article 115: "If the defendant is convicted, the court may, on its
own initiative, order him to pay compensation in respect of the detriment
resulting from the offence, provided that the person to whom such
compensation is awarded undertakes to refrain from claiming any other
damages in respect of the same offence.
"If so requested
by the convicted person, the court may order payment of the compensation
124. In this
regard, it should be noted that torture obviously falls within the
category of offences constituting unlawful acts to which all the above-mentioned
rules apply. Furthermore, anyone who, under the terms of a final court
judgement, is found to have been subjected to torture or degrading
treatment obviously has the right to subsequently bring a civil action
for damages in respect of the material detriment, pain and suffering
and loss of earnings that he incurred.
the terms of this article, any confession made as a result of torture
is inadmissible as evidence except against a person accused of torture.
126. It is
noteworthy that, as already indicated in this report, the position
of Kuwaiti law on this question is consistent with the rule laid down
in this article, as can be seen from the stipulation contained in
article 159 of the Kuwaiti Code of Criminal Procedure to the effect
that any statements or confessions made as a result of torture are
inadmissible as evidence in Kuwaiti courts. Accordingly, the invalidity
of any statements or confessions made by the defendant as a result
of torture implies the invalidity of any subsequent measures taken
on the basis of such confessions extracted under torture or coercion.
127. It is
noteworthy that this principle, which has been incorporated in the
body of Kuwaiti law, was established long ago in the provisions of
the Islamic Shari'a under which "anything based on an invalid premiss
is itself invalid".
128. In addition
to the above, the provisions of this article are applied in accordance
with article 158 of the Code of Criminal Procedure, which stipulates
that the defendant shall not be required to take the oath, nor shall
he be coerced or induced to answer or to make specific statements
by any means whatsoever. The defendant's silence or refusal to answer
a question must not be regarded as implying a confession and must
not be held against him. He cannot be punished for perjury in respect
of the statements that he makes in his own defence. The reason for
not requiring the defendant to take the oath and not compelling him
to answer is to ensure that he is not subjected to any form of coercion,
even of a moral nature.
this article, each State party has an obligation to prevent in its
territory any acts of cruel, inhuman or degrading treatment or punishment
which do not amount to torture, in accordance with the terms and conditions
set forth therein.
130. In this
regard, Kuwaiti law designates as criminal offences not only acts
of torture, especially if committed by public officials wielding authority,
but also any act committed by such officials which, although not amounting
to torture, is prejudicial to dignity or constitutes cruel or degrading
treatment. The Penal Code stipulates that it is a criminal offence
for any public official or public servant to abuse his authority by
treating people in a harsh, dishonourable or physically painful manner,
by obliging people to perform work in circumstances other than those
in which the law so permits, or by using people for tasks other than
those for which they were assembled in accordance with the law. It
is also a criminal offence for any public official to use the authority
of his office to compel a person to sell or dispose of his property
or to relinquish his right thereto, whether in favour of the official
himself or in favour of a third party. These offences are dealt with
in articles 56, 57 and 58 of the Penal Code.
56 stipulates that: "Any public official or employee and any public
servant who abuses his authority by treating people in a harsh, dishonourable
or physically painful manner shall be punished by a term of up to
three years' imprisonment and/or a fine of up to 225 dinars".
57 stipulates that: "Any public official or employee and any public
servant who compels people to perform work in circumstances other
than those in which the law so permits or who uses people for tasks
other than those for which they were assembled in accordance with
the law shall be punished by a term of up to two years' imprisonment
and shall be ordered to pay the cost of the wages due to the persons
so used in an unlawful manner".
58 stipulates that: "Any public official who uses the authority of
his office to compel a person to sell or dispose of his property or
to relinquish his right thereto, whether in favour of the official
himself or in favour of a third party, shall be punished by a term
of up to three years' imprisonment and/or a fine of up to 225 dinars".
above provisions clearly show the extent to which Kuwaiti law diligently
safeguards human dignity and protects it from any form of cruel or
degrading treatment to which it might be subjected, even if such treatment
does not amount to torture.
report has endeavoured to highlight numerous aspects of Kuwait's legislative
policy in regard to the prevention of torture in a manner consistent
with the provisions and rules set forth in the Convention under review
which, in actual fact, are being applied by the Kuwaiti judiciary.
in this report we wish to affirm that Kuwait's policy in this regard
is in keeping with one of the fundamental aims of Kuwaiti society,
which is to do everything possible to promote and support the cause
of human rights and continue to cooperate with the international organizations
concerned in furtherance of the lofty objectives that this cooperation
seeks to achieve.
Kuwaiti authorities trust that this report will serve the purpose
for which it is intended and affirm their readiness to provide further
clarifications in this regard when the report is discussed by the
List of annexes*
published by the Ministry of Planning containing information on the
State of Kuwait, together with the following statistical publications:
(a) Monthly Statistical
Bulletin for December 1996;
(b) Statistical Yearbook
(c) General Population
Census of 1995;
(d) Annual Bulletin
of Vital Statistics (Births and Deaths) for 1994;
(e) Amended preliminary
estimates of the national accounts for the years 1993 to 1995.
2. Copy of
Act No. 35 of 1962, concerning elections to the National Assembly.
3. The Organization
of the Judiciary Act No. 23 of 1990.
4. Act No.
10 of 1996, amending some of the articles of the Organization of the
handed down by the Kuwaiti courts under the terms of which public
officials have been punished for committing acts of torture:
(a) Judgement of 21
May 1995 handed down by the Criminal Court in case No. 2822, together
with the appeal judgement of 15 November 1995 and the ruling handed
down by the Court of Cassation on 16 September 1996;
(b) Judgement of 22
January 1996 handed down by the Criminal Court in case No. 2785
and the appeal judgement of 22 May 1996 in the same case.
* The annexes
may be consulted at the Office of the United Nations High Commissioner
for Human Rights.