The Preservation of Papers under the Kuwait Criminal Procedures Code No. 17 of 1960: A Comparative and Practical Study
Dr. Fahad Nashmi Al Rashidi
Assistant Professor of Criminal Law
Saad Al Abdullah Academy for Security Sciences
State of Kuwait
Abstract:
This research paper deals with the topic of controls and provisions for the preservation of papers in light of the Kuwaiti Criminal Procedures and Trials Law No. 17 of 1960, which is the stage undertaken by the investigation authority represented by the Public Prosecution and the General Department of Investigations in the State of Kuwait which has the powers of investigation or accusation and administrative powers represented in filing the investigation.
This research gains its importance from the imbalances that accompany the decision to the preservation of papers, which relates, on the one hand, to the rights of the community represented by the Public Prosecution and the General Department of Investigations, and on the other hand, to the rights of the victim, which requires clarifying the limits and controls of the rights of each of them in light of the provisions of the law and the directions of the judiciary. The problem of the research is to explain when the decisions of the investigating authority are considered an act or a procedure of investigation or an act of collecting inferences, and thus clarifying their nature and legal effects, and how to challenge them and limit the arbitrariness that may occur in their practice.
In his research, the researcher relied on the comparative descriptive and analytical approach to clarify the legal regulation of the decision to the preservation of papers and the extent of the compatibility enjoyed by the investigative authority in filing or continuing cases, relying on the opinions of jurisprudence and jurisprudence, both Kuwaiti and comparative. The researcher presented the subject in two terms; The first dealt with the definition of the decision to the preservation of papers and its legal basis, while the second explained the reasons for the decision to the preservation of papers and its legal effects.
The research concluded with a set of results, the most important of which are: that the regulation of the preservation of papers is mostly carried out by procedural laws, and that the decision to the preservation of papers is an order or an administrative action issued by the investigation authority as an accusing authority, and therefore it is not considered a judicial act.
It also concluded that the decision does not require its reasoning and may be reversed. The research recommended a set of recommendations, including the necessity of activating a number of legal texts to properly overcome deficiencies and shortcomings, including Articles (47/5), Article (102), and Article (104) of the Kuwaiti Criminal Procedures and Trials Law No. 17 of 1960. It also recommended the re-legislation of the direct criminal case in misdemeanors, and the amendment of the Public Prosecution’s decisions regarding the preservation of papers in order to comply with the correct law.
Keywords: investigation procedures, investigation authority, public prosecution, general administration for investigations, grievance against the decision to the preservation of papers.