Kuwaiti laws on proceeds of corruption

Kuwaiti law defines proceeds of crime^{[1] [2]} and identifies specific measures directed at such ill-gotten benefits - the main thrust of this chapter. These measures can be classified into two categories: interim and provisional measures and confiscation and forfeiture.

Interim and provisional measures

Illicit assets can be hidden or moved outside a jurisdiction. Thus, it is critical that expeditious, preventive actions are taken when an investigation begins to preserve assets (liable to confiscation) from dissipation, loss, or transfer to third parties. Law enforcement authorities can apply several preservation methods, most importantly freezing and seizure orders that are directed at natural and legal persons or properties.^[3] According to Kuwaiti law, the power to issue such restraint orders is granted to the Public Prosecution Office (PPO), which is a judicial actor.^[4]

In general, the Anti-Corruption Authority (hereinafter NAZAHA) is responsible for receiving reports related to all forms of corruption offences and for conducting an initial investigation. If it can be interred from this investigation that a public money offence or IEO has been committed, NAZAHA then passes the dossier of the case to the PPO, which has the authority of investigation and prosecution.^[5] For the IEO, special investigation measures (commensurate with its nature) have been established.^[6] In relation to ML, the Kuwait Financial Intelligence Unit (KFIU) was re-established in 2013 as an independent administrative body that is responsible for requesting, receiving, and analysing suspicious transactions reports (STRs) that are suspected to be proceeds of crime and are related and linked to, or could be used in, ML.^[7]

If there are reasonable grounds to suspect that offences against public funds,^[8] IEO,^[9] or ML have been committed,^[10] the PPO can take any provisional measure to restrain the suspect from disposal and administration of the relevant property, whether it is in the possession of the suspect or other individuals. These provisional measures will not be discharged until the financial sanctions are enforced (or the case is dismissed).^[11] Alongside the PPO, victim state institutions may take any type of provisional measures to prevent the disposal, dissipation, and movement of assets, whether in Kuwait or abroad.^[12]

Confiscation and forfeiture

Beside the pre-conviction provisional measures, Kuwaiti laws have long recognised forfeiture and confiscation as post-conviction legal tools to prevent offenders from benefiting from their criminal enterprises. In all criminal cases, the courts arc empowered to forfeit any property that was used, or could be used, in committing an offence. Forfeiture extends to the assets derived from that criminal property.^[13] In public funds offences, each judgement shall include an order to confiscate the assets as part of the sentence.^[14] The PPFA opts for a value-based confiscation where the convicted person is obliged to pay ‘an amount of money equivalent to the value of their criminal benefit.’^[15] To facilitate confiscation, transactions that were carried out with assets associated with crimes to prevent the authorities from recovering them shall be rendered invalid.^[16]

In the case of IEO, the judgement shall include a forfeiture order in relation to the ill-gotten gains, whether in the possession of the offender or his or her spouse and minors.^[17] The courts, however, can extend the order to cover any individual or legal entity that has benefited from IEO so that the confiscation or forfeiture order can be effective against them.^[18] The court can, in IEO and other corruption cases, exempt the offender from punishment if the offender enables the authorities during the investigation process to identify or locate the assets.^[19]

For the ML crime, the courts shall order the forfeiture of the following funds and instrumentalities: (a) proceeds of crime and the funds intermingled with, or derived from, or exchanged for these proceeds; (b) income and other gains from

Proceeds of corruption crime 221 proceeds of crime; and (c) the objects of crime.^[20] If the forfeiture of funds and instrumentalities is not possible because they cannot be located or are no longer available, the court shall issue a confiscation order equivalent in value to the tainted funds and instrumentalities.^[21] In this way, any hard boundary between the nature of forfeiture and confiscation orders is avoided in Kuwaiti law.

• [1] On the scale, ‘0’ is highly corrupt, and TOO’ is very clean. (See ). Of course, it is important to acknowledge that the CPI is based on ‘perceptions.’
• [2] See AML/CFT Act 106/2013, s.l.
• [3] Greenberg, T.S., Samuel, L.M., Grant, W., and Gray, L., Stolen Asset Recovery: A Good Practices Guide for Non-Conviction Based Asset Forfeiture (World Bank, 2009) 51.
• [4] PPFA, s.24; ACAA, s.36. See further .
• [5] Statutory Instrument No. 300/2016 of the ACAA, s.56.
• [6] ACAA, ss.30-36.
• [7] The KFIU was first established in 2003. Jusic, A., ‘Kuwait’s administrative risk-based model for the prevention of money laundering: Costs and benefits of compliance with the Financial Action Task Force (FATF) Standards’ (2017) 31(2) Arab Law Quarterly 101, 108-109.
• [8] PPFA, s.24.
• [9] ACAA, s.36.
• [10] AML/CFT Act, s.22.
• [11] PPFA, s.27.
• [12] /Wrf.,s.24.
• [13] Criminal Law Act 16/1960, s.78.
• [14] PPFA, s. 16.
• [15] UNODC, Manual on International Cooperation for the Purposes of Confiscation of Proceeds of Crime (UN, 2012) 19.
• [16] PPFA, s.28.
• [17] ACAA, s.48.
• [18] /Wrf.,s.55.
• [19] /«¿.,s.44.
• [20] AML/CFT Act, s.40.
• [21] Ibid., s.40.