‘Alternative Penalties’ for reforming and rehabilitating convicts of minor crimes

Dr. Muhammad Al-Tamimi, Professor of Criminal Law at Kuwait University, stated that the alternative penalties project embraces a modern penal policy focused on rehabilitation rather than punishment for offenders of minor to moderate crimes. This approach, seen in advanced penal systems like those in France and modern European countries, aims to keep low-risk or incidental offenders out of prison to prevent exposure to hardened criminals and repeat offenders.

Prison Environment

Dr. Al-Tamimi added, that the prison environment often facilitate the exchange of criminal experiences and pose a financial burden on the state due to obligations like providing food, security, medical care, and infrastructure. The concept of alternative penalties was introduced to address these challenges, achieving both general and specific deterrence through more innovative means.

Corrective Treatment

Regarding corrective measures, Dr. Al-Tamimi explained that alternative penalties serve as an effective rehabilitative approach for first-time offenders of minor crimes with no criminal records. However, traditional penalties, like imprisonment, remain necessary for hardened criminals and repeat offenders who are entrenched in criminal behavior.

The draft law on alternative procedures and penalties, submitted by the Ministry of Justice, proposes two main approaches to enhance reformative penal policy:

First: Alternative Procedures to Criminal Proceedings: Dr. Al-Tamimi noted that, under current law (Criminal Procedures and Trials Law No. 17 of 1960), the powers of investigative authorities (Public Prosecution and the General Department of Investigations) are limited to two options: either to close the investigation or to refer the case to court if sufficient evidence indicates the accused’s involvement in the crime.

Dr. Al-Tamimi added that limiting the options for handling investigations to the two current choices places a burden on the judiciary, particularly in cases involving minor to moderate crimes. These cases often result in either a fine, the refusal to impose a punishment, or a suspended sentence.

Criminal Laws

Dr. Al-Tamimi emphasized that the draft law aligns with modern penal systems by offering a third option for investigating authorities. This option allows for alternative procedures instead of simply closing the investigation or referring the case to court.

If the investigating authority determines, based on the circumstances of the crime or the accused, that there is little risk of reoffending, or if the crime is deemed minor, then it can propose alternative measures.

These alternatives involve the accused being bound by a set of obligations, which are proposed by the investigating authority and must be approved by the accused.

Criminal Case

Dr. Al-Tamimi explained that to ensure the success of alternative procedures, the draft law offers benefits to the accused that may not be available through the traditional criminal lawsuit route.

If the accused agrees to the alternative procedures and the court president approves, these procedures will not create a criminal record or disrupt the accused’s social, family, or work life.

Instead, the accused will be required to fulfill specific obligations within a set time frame. He further highlighted a key safeguard in the draft law: the judiciary’s involvement in approving or rejecting the alternative procedures.

This ensures that the court can make a final decision based on the severity of the crime, the circumstances of its commission, and the personality of the offender, granting the alternative procedure a judicial character in the final decision.

Dr. Al-Tamimi further noted that the draft law includes crucial guarantees for both the accused and the investigating authority. For the accused, the law ensures the right to be accompanied by their lawyer throughout the implementation of the alternative procedures.

Additionally, it requires the investigating authority to consider the accused’s age, gender, and social, health, and mental circumstances when applying the procedures.

Regarding the investigating authority’s guarantees, Dr. Al-Tamimi emphasized that the law allows it to monitor the accused’s compliance with the obligations imposed.

If the accused fails to adhere to these procedures in bad faith, the law provides for penalties, including the cancellation of the alternative procedures and the initiation of a criminal case against the individual. This approach ensures that the alternative procedures serve their intended purpose while maintaining accountability.

Second: Alternative Penalties: Dr. Al-Tamimi explained that the draft law introduces alternative punishments, expanding the options for judges beyond traditional penalties like execution, imprisonment, and fines. This reform aims to focus on rehabilitation and reintegration, providing more appropriate penalties for lesser crimes and enhancing the effectiveness of the justice system.

The validity of the judgment is subject to full implementation

Dr. Mohammed Al-Tamimi noted that the project introduced an important procedural change, making the validity of a criminal ruling with an alternative punishment dependent on its full implementation, rather than the appeal dates. This addresses cases where individuals sentenced to alternative punishments ‘in bad faith’ attempt to evade their execution.

House arrest as an alternative to imprisonment

Dr. Al-Tamimi explained that the project introduces house arrest as an alternative to imprisonment, aiming to achieve two key goals: preventing the convict from mixing with other prisoners and exchanging criminal experiences, and reducing the financial burden on the state by keeping the convict in their natural social and family environment instead of keeping in the correctional institutions.

Widespread electronic surveillance

Dr. Al-Tamimi emphasized that the draft law approves the widespread use of electronic monitoring, both as an alternative to pretrial detention and as part of alternative criminal proceedings.

He continued that the project recognizes that electronic monitoring is a tool, not a goal in itself, and thus requires the decision-maker to link it with any other alternative procedures.

A qualitative leap and legislative development

Dr. Al-Tamimi viewed the project as a significant step for Kuwait, marking a legislative shift in penal policy.

It aims to achieve three key goals; First: changing the stereotype of minor offenders. Second: reducing the state’s economic burden from growing incarceration rates. Third: reinforcing Kuwait’s commitment to international human rights standards.