Prosecution appeal rejected

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KUWAIT CITY, April 17: The Court of Appeals, presided over by Judge Nasr Al- Heid, yesterday rejected the appeal filed by the Public Prosecution against the ruling issued to acquit the dean of Kuwaiti journalism and Editor-in-Chief of the Arab Times and Al-Seyassah newspapers Ahmed Al-Jarallah who was accused of broadcasting false and tendentious rumors about the country’s internal situation via the X platform. This new ruling is added to the series of rulings by the lofty Kuwaiti judiciary that are written in luminors letters, upholding the constitution and the law, consolidating freedom of opinion in the country, and promoting constructive criticism through press outlets on their electronic platforms and on paper.

Based on allegations raised by the Department of the State Security, the Public Prosecution had charged Al-Jarallah with deliberately spreading false and malicious rumors about the internal situation of the country by publishing posts on his Twitter (now renamed to X) account called @ahmadaljaralah during the period from December 26, 2021 to November 5, 2022. The Public Prosecution explained that the social media program “X” is available to everyone both inside and outside the State of Kuwait.

Such posts would have weakened the prestige and reputation of the State of Kuwait and harmed the country’s national interests, as revealed in the investigations. The suspect deliberately misused smart phones to commit the crime. He committed the felony and misdemeanor stipulated in article 15 of law No. 31/1970 amending some provisions of Penal Code No. 16/1960, and article 70 of law No. 37/2014 on the establishment of the Communications and Information Technology Regulatory Authority (CITRA). In its accusation report before the Criminal Court, the Public Prosecution demanded that the accused be punished by the aforementioned two articles.

However, Lawyer Nahis Al-Enezi insisted that the accusations against Al- Jarallah are invalid, and submitted a defense memorandum, at the end of which he called for acquittal. Lawyer Al-Enezi explained that the indictment was invalid for several reasons, the most important of which are the absence of criminal intent, the lack of the material element of the crime, laxity in reporting the incident, and the indictment’s contradiction between the record and the description, in addition to what the witness and the indictment authority assumed wrongly that the accused committed the alleged incidents outside the country.

Article 1 of the Penal Code stipulates that “the act is not considered a crime and no punishment may be imposed for it except based on a text in the law”. The legislator alone is the one who determines the crime and the punishment prescribed for it, and determines everything related to the crime, including elements, conditions, and circumstances, and places in the text related to that crime. Hence the idea of the “legal model of crime.”

Crime
What is clear from the aforementioned text is that the final say in the present crime is identifying the extent of the existence of the crime that requires criminal liability against the accused regarding the facts presented in the investigation, or denying that crime on his part. The decision of the esteemed body to reach this result is governed by the Constitution and the law. What is proven in the Twitter posts and the press articles attributed to the accused is that they repeated what was stated in proven facts in the papers of case No. 1854/2021 in terms of felonies, and they are not false rumors or different news, as they included some facts but not the entire facts of the case.

Hence, it becomes clear that there was no criminal intent in the Twitter posts that are the subject of the accusation and that were published on Twitter or through the accused’s electronic newspaper, given that the reporting of the news was partial and not complete, which proves that no harm was committed against the accused by reporting this news. Lawyer Al-Enezi said, “The witness, and the indictment authority mistakenly assumed that the accused committed those alleged incidents outside the country, Based on that, he was criminalized by article 15 of the aforementioned penalty, even though there is nothing in the papers to prove that at all.” Al-Seyassah was established in the State of Kuwait. The accused’s Twitter account was also created in the State of Kuwait and not abroad. Neither the newspaper nor the Twitter account has an option or electronic feature that would make it directed outside the country.

There is not a single piece of evidence in the papers that confirms that the accused made these articles or posts outside the country, or even intended to direct them outside the country.” The defense lawyer said in his memorandum, “All of the Twitter posts address relevant state officials and are related to an internal matter. There is not a word or phrase that indicates that they are directed to any person outside Kuwait. Also, the accused did not issue such information to any television or radio channel outside the country.” Lawyer Al-Enezi stressed that the papers did not contain any indication of the presence of followers of the accused’s Twitter account or newspaper from abroad.

He said, “What is also confirmed in the photos of the Twitter posts is that there is no one who commented on them from abroad or even viewed the accused’s Twitter page. The papers also did not indicate whether the accused had readers outside the country at all or not so that it could be imagined that the basic element for the crime to occur was present. In addition, the witness was negligent in writing the report of the incident for about eleven months, which would have been sufficient for him to mention any impact it had, whether positive or negative, outside the country. This was not mentioned in the papers. The facts described in the criminal papers presented are nothing but permissible criticism of the conduct of a public employee working in the State Security Department regarding an incident related to his job work in terms of case No. 1854/2021 that was addressed in the Twitter posts.

This description applies to article 214 of the Penal Code and not article 214 of the Penal Code 15 mentioned above. Looking at the act of attribution contained in the indictment, it becomes clear that the phrases contained therein are comprehensive without specifying the incriminating description of the crime attributed to the accused. They referred to what was stated in the words and phrases mentioned in the investigations, and they had to be specifically and conclusively specified. The charge sheet contradicted the registration and the description, as it was stated in the newspaper, in the description section, that the incident occurred within the department of the State Security Service in the State of Kuwait. The registration stated that the incident occurred outside the country. For your information, neither this nor that agrees with the true law or reality. By reviewing the charge sheet, it becomes clear that the Public Prosecution charged the accused with the crimes listed and described based on the phrases contained in the posts on the Twitter account only, and without the articles published in Al-Seyassah that were included in the report submitted by the witness of the incident. Therefore the scope of the accusation was limited to those Twitter posts only.

Incident
Looking at the dates of these posts, we find that they contain many signs of bad faith, as their dates were all in the year 2021 and then January 2022. The officer did not write his report on the incident until November 23, 2022, that is, about a year later. When he became aware of this, he pulled out the recent Twitter posts and appended it to the facts. He attached to his report the post published on November 5, 2022, which he regarded as the end line of the crime, and considered to be continuing from 2021 until the end of 2022. This recent post that he added to his record without justification did not contain any phrases that constitute a crime, but was just a thank you addressed to the Minister of Defense and the Minister of Interior regarding the cancellation of security restrictions that was issued by the Minister of Interior and was published on the ministry’s website and circulated by all Kuwaiti newspapers.

By deleting the aforementioned post dated November 5, 2022 from the accusation, all the Twitter posts subject to the accusation will have dates in the year 2021 and January 2022. Despite this, the incident officer did not file his report until November 23, 2022, that is, about a year later, which is considered laxity in reporting. The portfolio of documents submitted included a copy of the website of the Ministry of Interior, Al- Rai newspaper, and other newspapers, in which the same news was published about the accused posting on Twitter on November 5 regarding the cancellation of security restrictions. There is no logical justification for the inaction of the witness of the incident during all these periods that began on December 26, 2021, as he described.

How could the Public Prosecution state in the charge sheet that the crime occurred during the period from December 26, 2021 to November 5, 2022, given that these periods carry an extension that is unacceptable to logic and contradicts what is established in the papers?! This laxity in reporting, if it indicates anything, indicates the absence of a sinful act against the accused, and that the procedures undertaken by the incident officer are fraught with doubts, suspicions, and fabrication of evidence, if any, and were served for a purpose hidden within him.”

Al-Seyassah / Arab Times report

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