APPEAL OF PENINSULA LIONS VERDICT: JUDGE REFERS

C O N F I D E N T I A L SECTION 01 OF 03 KUWAIT 001594 SIPDIS SIPDIS STATE FOR NEA/ARP AND S/CT, LONDON FOR TSOU, PARIS FOR ZEYA C O R R E C T E D C O P Y ("likely" added at end of Para 1) E.O. 12958: DECL: 05/03/2016 TAGS: PTER PREL PHUM PGOV JO IZ SA KU TERRORISM SUBJECT: APPEAL OF PENINSULA LIONS VERDICT: JUDGE REFERS CONVICTIONS TO CONSTITUTIONAL COURT REF: A. KUWAIT 838 ¶B. KUWAIT 260 ¶C. 05 KUWAIT 5270 KUWAIT 00001594 001.2 OF 003 Classified By: Ambassador Richard LeBaron for reasons 1.4 (b) and (d) ¶1. (SBU) Summary: The trial of the remaining 36 Peninsula Lions defendants took a new turn on May 3 when the Chief Judge of the Court of Appeals referred the original 37 cases to the Constitutional Court for a decision on the constitutionality of the charges relating to collaboration to commit a crime. A Constitutional Court committee consisting of five of the Court's seven judges will determine whether certain articles of the penal code used to sentence the defendants are constitutional. If the December 2005 verdicts are overturned, a significant portion of the charges will be thrown out. Other charges will be unaffected and those convictions will likely stand. End summary. ¶2. (SBU) Kuwait Appeals Court Chief Judge Al-Obaid referred on May 3, 24 of the original 37 Peninsula Lions cases to the Constitutional Court for a decision on the constitutionality of the charges relating to collaboration to commit a crime. He told courtroom observers that he transferred the cases because he felt it was "not fair" that those who thought of committing crimes and planned to commit crimes were being charged as if they actually committed the crimes. Al-Obaid's decision was met by cheers and shouts of "Allahu Akbar" from the 15 jailed defendants who apparently were briefed on its significance beforehand. Other defendants, released on bail or previously acquitted, reacted mutely as confusion and questions about the decision spilled out of the courtroom and into the hallway. The judge was forced to hold an extraordinary conference session after the hearing to explain the ramifications of his decision to journalists and foreign embassy staff present. ¶3. (C) The Constitutional Court must now review the text of Article 56 of the 1961 Penal Code, as amended, to determine its constitutionality. Article 56 stipulates that those planning a crime with the intent to carry it out must be charged as if they committed the crime, although they will be sentenced to a lesser jail term. One of the defense attorneys challenged this article as it relates to Article 33 of the constitution which defines crime as personal. (Note: Attorney and former Kuwait University Law School Dean Dr. Badria Al-Awadi explained to us separately that the two-word Arabic sentence in the constitution means that punishment must be meted out on an individual basis and its intent was to deter punishing family members and acquaintances for crimes committed by others. End note.) The review process is likely to take several months as most courts hold limited sessions in the summer months. ¶4. (C) If the December 27, 2005 verdict is overturned, a significant portion of the 35 charges faced by 24 defendants will be thrown out. This does not mean, however, that the defendants will go free. Dr. Al-Awadi told PolChief that their convictions can be upheld, with possible sentence modification, under Articles 47 and 48 of the Penal Code. Article 47 defines a criminal ("full actor" according to Dr. Al-Awadi) as someone who individually or with others commits a crime, an abettor, or someone who incites an individual of limited mental capacity to commit a crime. Article 48 defines a criminal participant as someone who knowingly encourages the commission of a crime, agrees to commit a crime, or who makes a crime possible. Dr. Al-Awadi described Judge Al-Obaid as well educated and fair. She added that since the attorney questioned the constitutionality of the sentences, Al-Obaid had no choice but to refer the matter to the Constitutional Court. She said it was "absolutely the right decision" with regard to human rights and respect for democratic principles, but said the legal decision was prompted by a "trick from a very clever lawyer." She declined to speculate on what the Constitutional Court committee would decide, but was confident the Peninsula Lions would be punished. Although many of the original 35 criminal charges against the defendants are linked to collaboration, there are still charges directly linked to specific defendants which need to be addressed in court. Among them are murder of security personnel, possession of unlicensed weapons and manufacturing of explosives, funding terrorist groups through charitable donations, and issuing fatwas to help facilitate hostile acts. KUWAIT 00001594 002.2 OF 003 ¶5. (SBU) The original trial had 37 defendants (see para 6), identified in court and documents by number only. Defendant 31, Nuha Al Enezi, died in February 2006 in London (ref A). Defendant 35 had his acquittal upheld while number 36 was acquitted after already serving his original sentence of four months of hard labor. Defendant 37 was found innocent but was required to sign a promise of good behavior and was still sentenced to one year in prison but given credit for time served. Numbers one through 34, excluding 11, 14, 15, 16, 20, 21, 22, 28, 33, had their cases referred to the Constitutional Court for review. Numbers 11, 14, 15, 20, 21, 22, 28, and 33 had their appeals process halted because they are still fugitives. Updated Defendants' List -------------- ¶6. (SBU) The following is the updated list of defendants and sentences as listed by the Court of Appeals on May 3, 2006. The list places the initial verdicts and defendant locations first, followed by the May 2 verdict. ¶1. Mohammed Sa'ad Ali Bin Oun, Kuwaiti - (in prison) sentenced to death - transferred to constitutional court ¶2. Ahmed Masameh Mohsen Majed Al Mutairi, Kuwaiti - (in prison) sentenced to death - transferred to constitutional court ¶3. Abdullah Saeed Habib Al Shimmari aka Abdullah Bu Arwa, Kuwaiti - (in prison) sentenced to death - transferred to constitutional court ¶4. Ahmed Mutlaq Nasser Al Mutairi, Kuwaiti - (in prison) ten years hard labor - transferred to constitutional court ¶5. Misha'al Muta'ab Mohammed Al Shimmari, Bidoon/Stateless - (initially a fugitive, turned himself in March 8, 2006) ten years hard labor followed by deportation - transferred to constitutional court ¶6. Salman Hamed Suleiman Al-Shimmari, Saudi - (fugitive) fifteen years hard labor followed by deportation - transferred to constitutional court ¶7. Ahmed Naqimash Abdulaziz Al-Enezi, Bidoon/Stateless - (in prison) sentenced to death - transferred to constitutional court ¶8. Mohammed Essa Nawaf Al-Shimmari, Bidoon/Stateless - (in prison) sentenced to death - transferred to constitutional court ¶9. Salah Abdullah Rabea Khalaf aka Salah Rabea Al Shimmari, Bidoon/Stateless - (in prison) sentenced to death - transferred to constitutional court ¶10. Mohammed Sareh Thafour Al Ajmi, Kuwaiti - (in prison) life with hard labor plus three years on additional charges - transferred to constitutional court ¶11. Mohsen Fadl Ayad Al-Fadhel/Al-Fadhli, Kuwaiti - (fugitive) ten years hard labor - appeal process halted ¶12. Majed Mayyah Jeza'ah Al-Mutairi, Kuwaiti - (in prison) seven years hard labor - transferred to constitutional court ¶13. Maqbul Fahd Fahhad Al-Maqbul, Kuwaiti - (in prison) seven years hard labor - transferred to constitutional court ¶14. Khaled Abdullah Falah Al-Dosairi, Kuwaiti - (fugitive) ten years hard labor - appeal process halted ¶15. Hamed Nawaf Hamdi Al-Harbi, Kuwaiti - (fugitive) seven years - appeal process halted ¶16. Mohammed Jama'an Safaq Al-Mutairi, Kuwaiti - (in prison) seven years hard labor - waived his right to appeal ¶17. Hussam Yousef Abdul-Rahim Yousef, Jordanian - (in prison) four years hard labor followed by deportation - transferred to constitutional court KUWAIT 00001594 003.2 OF 003 ¶18. Abdulla Adel Abdulatif Al Rabei, Kuwaiti - (in prison) four years hard labor - transferred to constitutional court ¶19. Mohammed Abdullah Mohammed Al-Otaibi, Kuwaiti - (in prison and brother of #20) acquitted - transferred to constitutional court ¶20. Ahmed Abdullah Mohammed Al-Otaibi, Kuwaiti - (fugitive) seven years and four months hard labor - appeal process halted ¶21. Abdul Latif Abdullah Abdul Hadi Al Juwaisri, Kuwaiti - (fugitive) four years and four months hard labor - appeal process halted ¶22. Mohammed Abdul Razzak Sheikh Essa, Somali - (fugitive) four years and four months hard labor followed by deportation - appeal process halted ¶23. Fahed Shakheer Abdullah Al-Enezi, Kuwaiti - (on bail) four years and four months hard labor - transferred to constitutional court ¶24. Nassir Ali Saniyatan Al-Otaibi, Kuwaiti - (fugitive) Acquitted - transferred to constitutional court ¶25. Mohammed Shuja'a Faraj Al-Otaibi, Kuwaiti - (in prison) four years hard labor - transferred to constitutional court ¶26. Osama Ahmed Habib Al-Monawer, Kuwaiti - (on bail) Acquitted - transferred to constitutional court ¶27. Bandar Ali Wanas Al-Shimmari, Bidoon/Stateless - (in prison) acquitted - transferred to constitutional court ¶28. Adel Habib Ghatti Al-Shimmari, Bidoon/Stateless - (fugitive) two years hard labor followed by deportation - appeal process halted ¶29. Nouri Mutashar Mutlal Quwair, Bidoon/Stateless - (on bail) acquitted - transferred to constitutional court ¶30. Faisal Amir Mohammed Abu Qazila, Kuwaiti - (in prison) five years hard labor - transferred to constitutional court ¶31. Nuha Mohammed Roumi Al-Enezi, Kuwaiti - deceased ¶32. Talal Al-Adri, Australian - (in prison) four years hard labor followed by deportation - transferred to constitutional court ¶33. Faisal Fahd Falah Al-Dossari, Kuwaiti - (fugitive) four years hard labor suspended sentence with 1000 Kuwaiti Dinar fine (approximately 3,400 USD) - appeal process halted ¶34. Hamed Abdullah Hamed Al-Ali, Kuwaiti - (on bail) - acquitted - transferred to constitutional court ¶35. Yassin Joudat Fa'aq Mustapha, Jordanian - (on bail) acquitted - court reaffirmed acquittal ¶36. Mohammed Sa'ad Zamel Al-Rashidi, Kuwaiti - (on bail) four months hard labor - overturned, acquitted on appeal - released ¶37. Ahmed Mohammed Wahish Al-Mutairi, Kuwaiti - (in prison) two years suspended sentence, 500 Kuwaiti dinar fine (approximately 1,700 USD) and probation - overturned on appeal but with one year sentence (served) with signature of a certificate of good behavior - released ********************************************* * For more Embassy Kuwait reporting, see: http://www.state.sgov.gov/p/nea/kuwait/?cable s Or Visit Embassy Kuwait's Classified Website: http://www.state.sgov.gov/p/nea/kuwait/ ********************************************* * LEBARON