Cassation Court overturns drug conviction citing unlawful search and arrest

The Court of Cassation has overturned the verdicts which were issued by the Court of First Instance and the Court of Appeals, which had sentenced a Kuwaiti citizen to three years’ imprisonment for the alleged use and possession of narcotic substances.

The Court declared the arrest and search conducted on the defendant to be legally invalid, thereby nullifying all evidence derived therefrom, including toxicology reports and the testimony of the arresting officer, reports Al-Rai daily.

Attorney Mohammed Khuraibet, representing the appellant, appeared before the Court of Cassation and presented oral arguments asserting that the defendant’s constitutional and procedural rights were violated.

He emphasized that the provisions of the Code of Criminal Procedure constitute the minimum safeguards required to ensure a fair trial. In his submissions, Khuraibet invoked the principle that “what is built upon invalidity is itself invalid,” arguing that the entire evidentiary basis of the case was tainted by an unlawful search and arrest.

The Court found that the appellant was subjected to a search while merely standing near an individual who was lawfully authorized to be searched. The Court clarified that such proximity, in the absence of direct evidence of involvement in a criminal act, does not meet the legal threshold required to justify an arrest or search.

Referring to Articles 43, 44, and 55 to 57 of the Code of Criminal Procedure and Trials, the Court reiterated that any encroachment on personal liberty — such as arrest or search — must occur strictly under the conditions set forth by law.

These include either the existence of a flagrante delicto (flagrant crime), prior authorization by the Public Prosecution, or other specific circumstances explicitly enumerated by the legislature.

The Court concluded that the factual basis of the lower court’s ruling did not demonstrate that the appellant had committed or was participating in ‘a flagrante delicto’ at the time of his arrest.

Furthermore, the judgment failed to identify any act on the part of the appellant that would constitute criminal participation as defined under Articles 47 and 48 of the Penal Code.

Accordingly, the Court ruled that the arrest and subsequent search of the appellant were carried out without legal foundation and thus invalid.

As a result, all consequential procedures and evidence — including blood analysis and related testimonies — were deemed inadmissible. Based on these findings, the Court nullified the lower courts’ verdict and acquitted the appellant of all charges.