Offences against public money are among the most consequential for a professional career, because the penalty does not stop at imprisonment and fine but extends to restitution, dismissal and forfeiture of rights. Precision in characterisation is decisive.
Contents
1) The Capacity of Public Official
The Kuwaiti Penal Code broadens the notion of public official in the chapter on offences of office to cover — alongside officials in the administrative sense — anyone charged with a public service, and those working in bodies to which the description is extended by law.
2) Embezzlement
It consists of an official appropriating property that came into their possession by reason of their office, converting incomplete possession into full possession with the intention of ownership.
- Material element: the act of appropriating money, papers or documents.
- Condition of delivery: the property must have been entrusted by reason of the office and not on some other basis.
- Mental element: the intention to own the property and permanently deprive the entity of it.
3) Damage to Public Funds
Intentional damage
Deliberately harming the interests or funds of the entity, or facilitating that for another, with a view to gain or to cause harm.
Negligent damage
Damage resulting from gross negligence or breach of the duties of office without criminal intent; the penalty is lighter.
4) Bribery
The essence of bribery is trading in office: an official soliciting or accepting a gift or promise in return for performing an act of their office, refraining from it, or breaching its duties.
- The offence is complete on solicitation or acceptance, even if the act is never performed.
- The giver, the taker and the intermediary each answer according to their role.
- The act sought need not be unlawful; consideration for a lawful act is equally bribery.
5) Trading in Influence
Exploiting real or supposed influence to obtain a benefit from a public body, for oneself or another, in return for a gift or promise. It differs from bribery in that the offender may have no competence over the act sought.
6) Principal and Ancillary Penalties
The penalty does not stop at imprisonment and fine; it carries lasting consequences for a career:
- Restitution of the sums involved, and in some forms a fine equal to them.
- Dismissal from office and disqualification from holding public office.
- Confiscation of the proceeds of the offence.
- Effects on pension entitlements under the applicable regulations.
7) Principal Defences
- Absence of the capacity of public official or its equivalent.
- No connection between the entrustment and the office in embezzlement.
- Absence of intention to appropriate, explaining the shortfall as administrative or accounting error.
- Absence of criminal intent, shifting the characterisation from intentional to negligent damage.
- Challenging the accounting expert report and seeking a further panel.
- Nullity of investigation, seizure or search procedures.
8) Practical Guidance
For the accused official
- Do not make statements before reviewing the accounting records.
- Request a copy of the audit or inspection report.
- Document the working system, delegated powers, and who shared custody.
For the injured entity
- Secure the records and custody chain early.
- Quantify the loss precisely and support it with documents.
- Pursue the civil claim in parallel with the criminal case.
