Identifier
Created
Classification
Origin
06KUWAIT1594
2006-05-06 11:50:00
CONFIDENTIAL
Embassy Kuwait
Cable title:  

APPEAL OF PENINSULA LIONS VERDICT: JUDGE REFERS

Tags:  PTER PREL PHUM PGOV JO IZ SA KU TERRORISM 
pdf how-to read a cable
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DE RUEHKU #1594/01 1261150
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O 061150Z MAY 06 ZDS
FM AMEMBASSY KUWAIT
TO RUEHC/SECSTATE WASHDC IMMEDIATE 4308
INFO RUCNISL/ISLAMIC COLLECTIVE PRIORITY
RUEHBY/AMEMBASSY CANBERRA PRIORITY 0569
RUEAIIA/CIA WASHDC PRIORITY
RUEHKU/OMC-K KUWAIT KU PRIORITY
RUEHKU/USDAO KUWAIT KU PRIORITY
RHWSMRC/USCINCCENT MACDILL AFB FL PRIORITY
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
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