‘Weak oversight’ led to funds embezzlement at MoI market

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Court ruling serves as deterrent: Al-Dousari

KUWAIT CITY, Aug 25: On a bright new page from the pages of the lofty Kuwaiti judiciary, the text of the Court of Cassation ruling on the issue of embezzlement that took place in the Ministry of Interior’s Employee Supermarket carried with it many meanings, messages and contents, stipulating that funds of the above-mentioned market are public money and should not be appropriated, while it considered the workers public employees who are subject to account and oversight, in accordance with laws in force, reports Al-Rai daily.

Commenting on the ruling, Professor of International Law at the Faculty of Law in Kuwait University Dr Ali Hussain Al-Dousari said, “The Police Association is one of the public facilities of the Ministry of Interior, as it serves the ministry and its personnel by providing subsidized consumer products. Therefore, everyone who works there provides public service to the ministry under its supervision, and they’re considered to be actual public employees, which places them under the scope of legal accountability. And, funds of the association are considered public funds, because support for all products sold through the sector comes from the Ministry of Interior, while Ministry of Interior funds are public funds that must be protected in accordance with applicable laws.”

Accused
Al-Dousari added that “some public officials accused in this case have greatly infl ated accounts, which led to their subsequent monitoring, and results of the investigation showed ‘a major financial embezzlement’, considering this ruling revealed a very weak oversight during the period in which the embezzlement occurred and leading to funds obtained without accountability. It was assumed that a financial accountant was available to monitor the incoming and outgoing funds through official letters, but weak oversight led to embezzlement.”

He pointed out that “the manipulation of accounts led to the embezzlement of funds, and that the ruling serves as a deterrent, extending to all who participated in this act penalties of up to 15 years imprisonment and varying from each person’s action, in addition to returning the money to the state treasury. This is benign and legitimate, as the funds were obtained unlawfully. There is a need for a plan to monitor funds in the sector or its affiliated facilities and to verify the balances of all public employees to significantly reduce inflation and preserve public money.”

For his part, Doctor of Criminal Law at the Faculty of Law in Kuwait University Muhammad Nasser Al- Tamimi disclosed that the ruling of the Court of Cassation in the Criminal Department during the session of July 26, 2020, known as “the police association embezzlement case”, provided direct and indirect basic rules for a number of legal regulations such as the interpretation of what is subject to the concept of public funds according to Law 1/1993 in the matter of protecting public funds, and in relation to money laundering crimes, according to the text of Article 2 of Law 106/2013 in the matter of combating money laun- Photo by Rizk Taufiq Capital Governorate Governor Sheikh Talal Al Khaled during his visit to one of the Husseiniyas.

Photo by Bassam Abu Shanab Ministry of Electricity and Water installed transformers temporarily after Hawalli area witnessed power outage due to technical fault. dering and terrorist financing. The judicial wealth in this ruling is represented in discrepancies in the judicial interpretation between the Court of Appeal and the Court of Cassation regarding the attribution of public funds and the implications for police association’s funds. Al-Tamimi asserted that the ruling bestowed the status of public funds on the funds of the Police Association, something the Court of Cassation went for, contrary to what the Court of Appeals said, which denied the status of public funds on the money of the Police Association.

The opinion of the Court of Cassation and the appeal of Public Prosecution are based on the text of Article 2 of Public Funds Law, which indicated that public funds are intended to be owned or subject to the law with which the state is governed. The Court of Cassation also based its opinion on the status of the accused as a public servant, regardless of the problem of his possession of money and the subject of embezzlement or issue of jurisdiction or dependency of the victim, he said. “It has been proven from the reality of the case that some defendants issued 24 checks, based on receipts and fake bills, and the second accused presented those checks at varying intervals to the bank for their maturity. This constitutes a picture of successive crimes in a group of independent acts that are by nature separate crimes, except that the unity of the assaulted right and unity of the criminal enterprise make the acts the fruit of a single criminal enterprise, which by its nature constitutes one crime and not separate crimes, as adopted by the Court of Cassation without explicit reference”, he pointed out.

He also mentioned the fifth defendant as moving the money to conceal the illegal source with which the crime of money laundering had been accomplished. The court built the accusation according to Money Laundering and Combating Terrorism Law, and the verdict refers to an organized criminal group. Al-Tamimi provided a reading of the verdict in relation to money laundering and said, “The Court of Cassation dealt with the crime of money laundering from several angles, which in its entirety, constitutes a framework for its stance towards proving the criminal responsibility of that crime”.

Statement
The court indicated, in its statement to prove misappropriation and money laundering operations, that funds were transferred to the accounts of the first accused – the Market Manager – and into accounts closely connected to him, which indicates that part of those funds went into accounts related to the accused and not to him. It is understood from this view that the issue of attachment to the accused is measured in several aspects such as knowledge, kinship, agreement, material and moral control over those accounts or what he exercises of the infl uence over them that yields to him the material or moral benefit. Al-Tamimi added, “In its statement on the legal structure of money laundering crime, according to Article 2 of Money Laundering and Combating Terrorism Law, the general criminal intent in money laundering crime is sufficient if the matter is related to paragraph (c) of the article concerning the acquisition, possession or use of funds; in that any acquisition, possession or use of money – whatever the form – obtained from a crime with the perpetrator’s knowledge, constitutes money laundering by nature”.

For example, any possession of money obtained from falsifying medicals, receipts, or bills is a crime of money laundering in nature. This is called automatic money laundering or what is known in French jurisprudence as auto-blanchiment. He said, “The Public Prosecution relied on indictment, with regard to the crime of money laundering, citing Article 30, Paragraph (b) of Money Laundering Law, which stiffens the penalty if the perpetrator commits the crime by taking advantage of the power or infl uence of his position”.

We believe that the Public Prosecution had the ability to rely on Paragraph (a) as well, which is the case of the crime being committed through an organized criminal group, and the fact that the incidents reported by the Court of Cassation clearly indicates the existence of prior agreement between the accused and the organization on roles that establish in reality the pillars of an organized criminal group, as the latter, as an unlawful entity, does not limit itself in a specific way or a specific structure.

Rather, every behavior by its nature predicts establishing the group structurally through the distribution of roles and objectives and the allocation of shares and proceeds. Dr Muhammad Nasser Al-Tamimi dealt with the issue of the return of the embezzled funds and the fine, saying, “In the text of its verdict, the court ruled on all of the defendants, except the fifth, to return the embezzled amount exceeding one million dinars, and fined them double the aforementioned amount, under the implementation of Article 16 of Public Funds Law”.

The truth is that the implementation of restitution ruling is based on the benefit or money that has accrued to each convict, meaning the implementation of restitution is not by mathematical division of equality, but the real benefit of the fruits of the crime. As for the fine being a complementary and obligatory penalty in this regard, he said “its execution is independent among each convicted person, and not enforced by dividing equally. Rather each of them has a fine double the sum appropriated or facilitated for others to embezzle or profit from

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