Preventive detention in Kuwaiti law
Remand
First: Definition of pretrial detention: -
It is a deprivation of the accused's freedom for a limited period of time, in accordance with the requirements of the investigation, as stipulated by the law.
Second: The nature of pretrial detention: -
Pre-trial detention is an investigation procedure and not a punishment.
And this despite the fact that it is a custodial penalty because no conviction was passed against it, in accordance with the established principle that no punishment changes a court ruling of conviction.
The Kuwaiti Criminal Procedures and Trials Law regulates pretrial detention in Article (69) and beyond.
Third: Justifications for pretrial detention:
Preventing the accused from escaping.
Preventing the accused from influencing the progress of the investigations.
- The investigation authority is the one who assesses the availability or non-availability of these justifications.
A precautionary detention order may not be issued in the following cases:
Precautionary imprisonment is not permissible if the incident was a misdemeanor for which it is exempt, with imprisonment for a period not exceeding three months or with a fine, or both.
Of course, it is not permissible to detain the accused after his arrest and investigation of the aforementioned misdemeanor crimes.
If the accused is a juvenile under 15 years of age.
Fourth: Whoever has the power to order preventive detention from whoever owns it.
Precautionary detention is issued by the prosecutor for criminal matters and issued by the investigator of the Ministry of Interior in matters of misdemeanor, and it is issued by the court during consideration of the case.
A preventive detention order may not be issued by police officers, in accordance with Article 62.
Fifth: Duration of preventive detention: -
The period of preventive detention is a specified period as a guarantee of the accused's freedom, and this is subject to the following rules:
In no case may the arrested person remain in detention for a period of more than four days in criminal cases and 48 hours in misdemeanor cases without a written order issued by the competent investigator for his preventive detention.
And the new Law No. 35 of 2016 added in Article 60, paragraph 2, if it is felt that the interest of the investigation requires the detention of the accused precaution to prevent him from escaping or affecting the conduct of the investigation, the investigator may imprison him for a period not exceeding three weeks in criminal cases and not exceeding ten days in cases of misdemeanors.
That is, the precautionary detention order applies here for a period not exceeding three weeks from the date of the accused’s arrest, if the crime is a felony, and here the period can be less than three weeks from the date of the accused’s arrest, and the period is calculated here from the date of the accused’s arrest and not from the date of issuance. Imprisonment order.
If the crime is a misdemeanor, it does not exceed ten days.
If the investigator sees the renewal of pretrial detention, he must, before the expiry of the three-week period in the criminal articles and ten days in the misdemeanor articles, present the papers to the head of the High Court to issue his order, after hearing the accused’s statements and his defense, either by renewing or releasing the accused.
If the detention is renewed, the period does not exceed 15 days each time in felonies, provided that the period of renewal of preventive detention does not in any case exceed 80 days.
As for misdemeanors, the president of the plenary court may order the renewal of detention for a period of 10 days, provided that the period of preventive detention in all cases does not exceed a period of 40 days.
Sixth: Permissibility of Grievance Against the Imprisonment Decision:
The amendment was introduced in Article 169, the second paragraph, and stipulated that a grievance against the decision of imprisonment of the accused may be lodged before the head of the competent court to renew the detention, and that the head of the court shall decide on the grievance within a period not exceeding forty-eight hours from the date of its submission, and that the decision is reasoned in case the grievance is rejected.
In this case, the grievance may be submitted at any time, which means that it may be submitted immediately after the issuance of the detention order, which is difficult with it.
Seventh: Fall of pretrial detention: -
Article 63 of the Procedural Code stipulates that the period of validity of preventive detention is three months from the date of its issuance. If the order is not implemented during this period, it is forfeited and may not be executed after that unless an order is issued to renew it.
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