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Introduction

Quick Summary of the Context

Iraq is an Arabic word meaning ‘Arabic settlement’. The area of Iraq was founded in the 7th century and it formed part of the Ottoman Empire until its collapse. Great Britain seized Baghdad during the First World War (in 1917) and formed the modern state of Iraq when they amalgamated the three disparate provinces of Basra, Baghdad and Mosul. Following the end of WW 1 the League of Nations approved British mandate in Iraq, prompting nationwide revolt. Iraq became independent in 1932 but was re-occupied by the British during World War II following a pro-Axis coup in 1941.

The country suffered a coup d’état in 1958 (fostered by the Iraqi army). Following this the newly created Republic of Iraq decayed under the dictatorship of Abd el-Karim Qassim, who maintained the power until he was overthrown by the Baathist party.

Following another coup d’etat in 1968 the Baathists installed their followers into power and eventually Saddam Hussein, an important member of the party seized power in 1979. The following year, Saddam waged war against Iran in the so-called Iran-Iraq War and the conflict became infamous due to the usage of chemical weapons against the civilian and the military.

In 1990, Iraq occupied Kuwait, claiming this territory as a part of Iraq’s Republic. Resulting from this military action, an international coalition, led by the United States, attacked and expelled the Iraqi army from Kuwait (the so-called First Gulf war).

In 2003 a United States led invasion toppled Saddam Hussein's government, marking the start of years of violent conflict and instability in Iraq with different groups competing for power. Saddam Hussein was executed for crimes against humanity in December 2006.

The country still suffers from sectarian violence and the region is marred by political and extremist violence. Following Parliamentary elections in May 2018 the political bloc of Shia cleric Moqtada al-Sadr won most votes. Conflict along the many lines of cleavage in Iraqi society, rural versus urban, Sunni versus Shia, landholder versus peasant, Kurd versus Arab, and even Kurd versus other Kurd, continues to the present.

Type of System

The Republic of Iraq's legal system is in a period of transition in light of the 2003 invasion that led to the fall of the Baath Party. Iraq does have a written constitution, as well as a civil, criminal and personal status law. Article 1 of the Iraqi Constitution determines that “The Republic of Iraq is a single federal, independent and fully sovereign state in which the system of government is republican, representative, parliamentary, and democratic.” The Iraqi Legal system has strong ties to Western legal systems, particularly continental civil law, with Islamic principles. From the British mandate, through its nascent independence, and even in its contemporary state, a variety of forces—both external and internal—have worked to shape the development of Iraqi law. Of all these factors, two pieces of legislation stand out as the most significant in their influence: the Mejelle and the Egyptian Civil Code. [1]

Legal Aid Situation in the Country

Legal aid in Iraq effectively operates in two distinct sections. Firstly, the ‘internal system’ operating within the courts: In this instance, in line with legal provisions, judges assign a lawyer to those without legal representation through the court budget. The service is based on the defendant’s capacity to pay for defense counsel. This system is more accurately described as a public defenders service as opposed to a legal aid service, as it deals with those brought before the courts as opposed to those who wish to access the courts.

Secondly, a range of ‘external’ or externally funded initiatives, which seek to provide a ‘legal aid’ or access to justice services, to those who need to legal seek assistance or need to take cases through the courts. This system is solely operated by civil society groups variously funded by UN Agencies, the EU, USAID and national governments.

A third model has been implemented as part of the UNDP Rule of Law programme. Through the model courts programme, three legal help desks were established within selected courts. The programme effectively brings the access to justice model, i.e. a service through which people seek assistance, into the court structure.[2]

The Civil Procedures Law (No. 83, 1969) articles 293 to 298 specifically provide for legal aid for indigent applicants and requires proof of means. The provision of legal aid is to be decided by the court, which effectively rules on the request (article 294(2)). In terms of actually operating the service this falls to the Bar Association which is responsible for forming a Committee for Legal Aid. It is this Committee which allocates cases to lawyers. Lawyers are not able to refuse legal aid cases (Article 49).

Sources of Defendant's Rights

National Sources of Defendant's Rights

National sources of defendant’s rights in Iraq include the following: - The Iraqi Constitution (2005); - The Iraqi Penal Code 1969; - The Iraqi Criminal Procedure Code 3 of 1971 (the “CPC” as amended to 14 march 2010); - The Iraqi Civil Procedures Law (No. 83, 1969); and - The Basic Human Rights Manual For Detention Officers in Iraq.

International Sources of Defendant's Rights

Iraq is a signatory to the following human rights treaties: - Convention on the Prevention and Punishment of the Crime of Genocide (acceded to in 1959); - International Covenant on Economic Social and Cultural Rights (signed in 1969 and entered into force on 3 January 1976); - International Convention on the Elimination of All Forms of Racial Discrimination, signed 1969 (ratified in 1970 and entered into force on 12 February 1970); - International Convention on the Elimination of All Forms of Discrimination Against Women (acceded to in 1986 and entered into force on 12 September 1986); - Convention on the Rights of the Child, acceded 1994 (entered into force on 15 July 1994); - Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention for the Protection of All Persons from Enforced Disappearance; - International Covenant on Civil and Political Rights (ICCPR, signed in 1969 and entered into force on 23 March 1976);

Insofar as relating to the ICCPR Iraq has not signed the first optional protocol (giving the right to individual petition to the Human Rights Committee) or the second optional protocol (aimed at the elimination of the death penalty).

Pre-trial Procedures

Police Procedures

Most of the rights regarding pre-trial procedures are found in the Iraqi Constitution, The Criminal Procedure Penal Code and, additionally, in the Basic Human Rights Manual For Detention Officers in Iraq.

Complaint/information

Criminal proceedings are initiated by means of an oral or written complaint submitted to an investigative judge, a [judicial] investigator, a policeman in charge of a police station, or any crime scene officer by an injured party, any person taking his place in law, or any person who knows that the crime has taken place. In addition any one of those listed can notify the Public Prosecution unless the law says otherwise (See Article 1 of the - CPC).

The complaint can only be set in motion on the basis of a complaint from the aggrieved party or someone taking his place in law in relation to the offences established by the law (See Article 3 of the CPC).

The complaint may not be dropped, cancelled or withdrawn from nor can the judgment issued on it be withdrawn from or not executed, except under the circumstances explained in the law (See Article 2 of the CPC).

Complaints are subject to a prescription period: A complaint (as set out in Article 3 of the CPC) will no longer be accepted once three months have passed from the date when the aggrieved party became aware of the offence or from the disappearance of any compelling excuse which prevented the submission of the complaint and complaints will be dropped in the event of the death of the aggrieved party unless the law stipulates to the contrary (See Article 6 of the CPC).

Arrest, Search, and Seizure Laws

One of the basic principles established by the Basic Human Rights Manual For Detention Officers in Iraq is that detainees are not being held in detention as a punishment. On the contrary, they are waiting to be tried or convicted. For this reason, both national and international regulations are fixed in order to guarantee such special status.

Arrests

The CPC determines that the arrest or apprehension of a person is permitted only in accordance with a warrant issued by a judge or court or in other cases as stipulated by the law. The arrest warrant should contain the full name of the accused, with his identity card details and physical description as well as place of residence, profession, and the type of offence to which the warrant relates. Additionally, it should contain the legal provision applied, the date of the warrant and it should be signed and stamped by the court (See Articles 92 and 93 of the CPC).

Notwithstanding these rules, the CPC also recognizes the possibility that any person may arrest another person accused of a felony or misdemeanour without an order from the authorities if:

(a) the offence is committed in front of witnesses; (b) if the person to be arrested has escaped after being arrested legally; or (c) the arrested has been sentenced in his absence to a penalty restricting his freedom.

A person may also arrest another without an order from the authorities if such a person is found in a public place in a clear state of intoxication and confusion and has created trouble or has lost his reason (See Article 102 of the CPC).

The Basic Human Rights Manual for detention Officers in Iraq also provides the following guidelines to detention officers as regards arrest:

- All detainees and prisoners lose their right to freedom of movement but they keep their rights as human beings when they are in detention; - They must not be treated in an inhuman or degrading way; and - International standards forbid all forms of torture. Torture does not just mean 
inflicting physical or mental pain. It includes all forms of inhuman or degrading treatment (See Section 1 of the Manual).

Pre-Trial Detention

The Iraqi Constitution explicitly prohibits illegal detention, as well as pre-trial imprisonment or detention in spaces not subject to the State’s control. Article 19(12) of the Iraqi Constitution states that: A. Unlawful detention shall be prohibited. B. Imprisonment or detention shall be prohibited in places not designed for these purposes, pursuant to prison laws covering health and social care, and subject to the authorities of the State.

Article 19(13) of the Iraqi Constitution also determines that “The preliminary investigative documents shall be submitted to the competent judge in a period not to exceed twenty-four hours from the time of the arrest of the accused, which may be extended only once and for the same period.” The CPC stipulates the following as regards pre-trial detention:


Article 109 [3]

A. If the person arrested is accused of an offence punishable by a period of detention exceeding 3 years or by imprisonment for a term of years or life imprisonment [4] , the judge may order that he be held for a period of no more 15 days on each occasion or order his release on a pledge with or without bail from a guarantor, and that he attend then requested if the judge rules that release of the accused will not lead to his escape and will not prejudice the investigation.

B. If the person arrested is accused of an offence punishable by death the period stipulated in sub-paragraph A may be extended for as long as necessary for the investigation to proceed until the investigative judge or criminal court issues a decision on the case on completion of the preliminary or judicial investigation or the trial.

C. The total period of detention should not exceed one quarter of the maximum permissible sentence for the offence with which the arrested person is charged and should not, in any case, exceed 6 months. If it is necessary to increase the period of detention to more than 6 months, the judge must submit the case to the Felony Court to seek permission for an appropriate extension, which must not itself exceed one quarter of maximum permissible sentence, or he should order his release, with or without bail, subject to paragraph B.


Article 110

A. If the person arrested is accused of an offence punishable by a period of detention of 3 years or less or by a fine, the judge must release him on a pledge with or without bail unless he considers that such a release will obstruct the investigation or lead to the accused absconding.

B. If the person arrested is accused of an infraction, he may not be held unless he has no particular place of residence.


Article 111

The judge who issued the decision to detain the accused may decide to release him on a pledge, with or without bail, before the end of the period of detention stipulated in sub-paragraph B of Article 109, and he may return him to the holding detention if necessary for the investigation.”

The Basic Human Rights Manual for detention Officers in Iraq also provides the following guidelines to detention officers as regards detention:


Lawful detention order

- People can only be detained in accordance with Iraqi law. - The police may hold someone in detention for 24 hours on reasonable suspicion that 
they have been involved in a crime. - After the first 24 hours detainees can only be held on the orders of an Investigative 
Judge. - You must not receive anyone into detention without a valid order from a judge (See Section 2 of the Manual).

The Basic Human Rights Manual for Detention Officers in Iraq also sets out in clear detail they physical standards and conditions of detention for example, hygiene, food, water, accommodation, clothing, exercise and access to other individuals (See Section 3 of the Manual).


Searches

Article 72(A) & 72(B) of the CPC sets out the basic parameters for searches:

Article 72

A. The searching of any person or entry of any house or any business premises for the purposes of a search are not permitted other than in cases stipulated by law.

B. The search should be undertaken by the investigative judge, [judicial] investigator or a member of the police force by order of the judge, or anyone granted authority by the law.

The searching of any person or entry of any house or any business premises for the purposes of a search are not permitted other than in cases stipulated by law. Articles from 73 to 86 of the CPC establish in detail the rules on how searches must be carried out in order to be lawful.

In particular, if it is a female suspect to be searched the search must be conducted by a female appointed for the purpose, with the identity or the searcher being recorded in the record (See Article 80 of the CPC).

Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures)

Section 6 of the Basic Human Rights Manual For Detention Officers in Iraq stipulates that detainees and prisoners who feel that their rights have been violated are entitled to make a complaint without fear of reprisals. Section 6 makes the following clear:


Submitting a complaint

Detainees and prisoners must be able to submit a complaint without fear of reprisals. You must also allow someone acting on behalf of the detainee or prisoner to submit a complaint for him. Detainees and prisoners should have an opportunity each day to submit requests and complaints to the director of the detention center or his representative.


Response to complaints

All requests and complaints must be dealt with as quickly as possible and investigated where appropriate. An appropriate response must be given to the detainee or prisoner as quickly as possible.


Right to complain to an independent body

The detainee or prisoner should be permitted to see and complain to the Ministry for Human Rights monitors and/or the Public Prosecutor. All detainees and prisoners should be allowed to see representatives of the Ministry of Human Rights in private during their weekly visits and/or the Public Prosecutor. You must also allow them to contact the Ministry by letter or telephone. The prisoners’/detainees’ requests to see these visitors and their visits must be recorded.


Interrogation

Article 123 of the CPC stipulates the procedure to be followed when questioning an accused:

Article 123[5]

A. The investigative judge or [judicial] investigator must question the accused within 24 hours of his presentation[6] , after proving his identity and informing him of the offence of which he is accused. His statements on this should be recorded, with a statement of evidence in his favour. The accused should be questioned again if necessary to establish the truth.

B. Before questioning the accused the investigative judge must inform the accused that:

(i) he or she has the right to remain silent and no adverse inference may be drawn from the accused’s decision to exercise that right;

ii) he or she has the right to be represented by an attorney, and if he or she is not able to afford representation, the court will provide an attorney at no expense to the accused;

C. The investigative judge or [judicial] investigator must determine whether the accused desires to be represented by an attorney before questioning the accused. If the accused desires an attorney, the investigative judge or [judicial] investigator shall not question the accused until he or she has retained an attorney or until an attorney has been appointed by the court.


The use of any illegal method to influence the accused to extract an admission is not permitted. Mistreatment, threats, injury, enticement, promises, psychological influence or use of drugs or intoxicants are considered illegal methods (See Article 127 of the CPC). Any confession coerced by force, threat or torture must not be relied on.


Article 37(C) of the Iraqi Constitution expressly prohibits torture or degrading treatment as a method of obtaining information from an accused and regulates as follows:

“All forms of psychological and physical torture and inhumane treatment are prohibited. Any confession made under force, threat, or torture shall not be relied on, and the victim shall have the right to seek compensation for material and moral damages incurred in accordance with the law.”


Statements of the accused are recorded in the written record by the judge or [judicial] investigator and signed by the accused and the judge or [judicial] investigator. If the accused is unable to sign, this should be recorded on the written record (See Article 128 of the CPC).


Additionally, torture and questioning standards in Iraq are guaranteed by international treaty law: The International Covenant on Civil and Political Rights, which obliges state parties to ensure an “effective remedy” for persons whose Covenant rights have been violated (article 2 (3)) as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment, (ratified by Iraq in July 2011).


Despite this legal framework there have been reports from several agencies alleging serious rights violations: Torture and ill treatment of detainees is alleged to occur frequently in Iraq and in the Kurdistan Iraqi Region. Amnesty International (2014) and the HRC (2013) claim that torture normally takes place during arrest and investigation, during pre-trial detention and after conviction – and is committed in particular by the police and the army.[7]
  1. http://www.law.fsu.edu/docs/default-source/journals/jtpl/previous-issues/volume-16-number-1.pdf?sfvrsn=4
  2. https://info.undp.org/.../Legal%20Aid%20Mapping%20Iraq%202012.doc
  3. CPA Order 31, signed 10 September 2003, published in the Official Gazette, issue 3980 of March 2004 in Section 6 states, "Notwithstanding the bail provisions contained in Paragraph 109 of the Criminal Proceedings Law No. 23 of 1971 the reviewing judge may order a person suspected of committing an offense punishable by life imprisonment to be held without bail until trial." The Arabic version of this section makes it clear that the reference is to offences punishable by ‘life which means life’ – rather than just life imprisonment as defined in Article 87 of the Penal Code
  4. As defined in Article 87 of the Penal Code No. 111 of 1969 to mean 20 years in prison rather than the concept introduced by the CPA of ‘life which means life’ for a limited range of offences
  5. Sub-sections (B) and (C) were added by CPA Memorandum 3, Section 4(c), signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003. Note also CPA Memorandum 3, section 5 which provides the right to be informed upon arrest of the right to remain silent and the right to an attorney. Note also CPA Memorandum 3, section 8, which expands the right of representation at trial beyond those accused of felonies to those accused of any crimes.
  6. hudurahu meaning the point at which the accused presents himself to the authorities following a summons or is presented following an arrest. Note that the constitution in paragraph 19(13) requires the file to be produced before the investigative judge within 24 hours of an arrest
  7. https://www.hrw.org/news/2013/01/31/iraq-broken-justice-system