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One of the most frequently asked question about the evidence is “how come the judge would deny a picture that is presented to him as a document which proves that the act of violence took place? At the same time, a similar document would be presented to another judge and he would admit it and rely on it for his judgement. Isn’t it the same law in Kuwait ?”
Well, the answer to this question has two parts:
The first part is about the power of evaluating the documents given to the judge under the criminal law and it basically means that the judge has the right to either consider these documents as evidence and hence base his judgment on such documents, or he could also exclude these documents.
It’s a matter of a logical evaluation; the judge will examine the case-file while considering all facts and evidence surrounding the case and examine these documents to determine if they are accurate and reliable. If they are not accurate and reliable then they will be excluded. For example: if there is a picture that is not clearly visible, appears to be photoshopped or it’s cropped in a way that reveals that it’s trying to hide a story. In such a scenario the picture will not be admitted.
The second part of the answer concerns the type of evidence presented, whether it’s a voice recording, a picture or a video can determine if the judge would admit it or not.
Recording voice, taking a picture or a video of someone have to be with a prior permission by the law. If such recordings took place with no prior permission, then they shall be considered as a violation of an individual’s privacy right and this act will be a subject for criminalization and imprisonment if found guilty for a period that does not exceed two years according to Law Number 9\2001.
Moreover the criminal law does not consider these materials as evidence once they are presented to the court, the judge would need an eye- witness or a documentary evidence to be presented with these recordings in order to rely on them for a judgment, but once they’re presented with no “back up”, this kind of documents would not be considered as evidence, but then again the law gives the judge the power to evaluate each material presented to him and then maybe if he trusted those materials he would take them as evidences.
By Atyab Alshatti, Esq.