When is a State employee referred to the courts under the discipline law?
Under the Law on the Discipline of State and Public Sector Employees, not every internal investigation means that the employee has been sent before a criminal court. The official path starts as a disciplinary matter: an investigative committee or questioning, then a recommendation to close the file or to impose a service penalty. Referral to the courts arises when the act attributed to the employee appears to be a crime that grew out of the post or was committed in an official capacity. The general line between the two paths follows from the texts below.
The office sets out the detail in the sections that follow, and in State employee discipline.
What is disciplinary accountability under this law?
The reference is the Law on the Discipline of State and Public Sector Employees No. 14 of 1991, as amended. The original text was published in the Iraqi Official Gazette, issue 3356, on 3/6/1991, according to the Iraqi legislation database. The title of the law (formerly “the Law on the Discipline of State and Socialist Sector Employees”) was amended by the First Amendment Law No. 5 of 2008 (Official Gazette, issue 4061, 14/2/2008). A second amendment then followed as Law No. 51 of 2012, published in issue 4250 on 10/9/2012.
Under Article 2, as replaced by Article 3 of Law No. 5 of 2008, the law covers those who work in State departments and in the public sector. It does not apply to members of the armed forces, the internal security forces, the National Intelligence Service, judges, or members of the public prosecution (al-iddi‘a’ al-‘amm), unless a provision in their own statutes applies its rules.
Disciplinary accountability here is accountability for a breach of official duties, not a criminal case. Article 10 lays down a written investigative path: a committee of a chair and two members with experience of the work, one of whom must have studied law at first university degree level. The committee investigates in writing, hears the employee and witnesses, and then makes reasoned recommendations: that the employee not be held to account and that the investigation be closed, or that one of the penalties set out in the law be imposed. In limited cases the text allows the minister or head of department to impose certain penalties after questioning, without forming a committee (Article 10, Fourth, confined to the penalties in Article 8, First to Third). The table of penalties and the limits of questioning without a committee are read from Article 8 and Article 10 of the law.
When must the committee recommend referral to the courts?
The line this article asks about appears in Article 10, Third: if the committee considers that the act of the employee referred to it constitutes a crime that grew out of the post or was committed in an official capacity, it must recommend referral to the Court of Investigation, and then the Court of Misdemeanors or the Criminal Court according to the nature of the act.
This is not a description of every service breach. The recommendation is tied in the text to two elements together: that the act is a crime, and that the crime grew out of the post or was committed in an official capacity. Examples often mentioned in academic writing — bribery, embezzlement, forgery, or harm to public funds — remain illustrations. They are not an exhaustive list on which the office advises in a particular case.
The administration has a parallel path in Article 24 after the 2008 amendment: if it appears to the minister, the head of department, an official authorised by the minister, or the body then named the General Discipline Council, that the act or the charge discloses a crime that grew out of the post or was committed in an official capacity, referral to the Court of Investigation, and then the Court of Misdemeanors or the Criminal Court according to the nature of the act is required.
The phrase “General Discipline Council” is the wording of the 2008 amendment. The Court of Employees’ Judiciary (Mahkamat Qada’ al-Muwazzafin) later replaced that council wherever it appeared in laws, regulations and instructions, under the Fifth Amendment to the State Shura Council Law, Law No. 17 of 2013. The State Council Law No. 71 of 2017 then renamed the State Shura Council as the State Council and transferred its courts, including the Courts of Employees’ Judiciary, to it. Replacement of the council by the Court of Employees’ Judiciary changes the forum for official appeals. It does not make that court the criminal court to which a crime is referred.
Must the administrative investigation be completed before any criminal step is taken? Iraqi studies discuss whether the administrative investigation must come first. What matters is the text in force and what the Court of Investigation, the Court of Misdemeanors or the Criminal Court settles in the file, not a generalisation of that writing into an absolute rule.
Does disciplinary accountability end if the employee is acquitted?
No. Article 23 is clear on this point: the employee’s acquittal, or a discharge from the act for which the employee was referred to the Court of Investigation, and then the Court of Misdemeanors or the Criminal Court according to the nature of the act, does not prevent the imposition of one of the penalties set out in this law.
In general terms: the criminal path and the disciplinary path are not one path. The employee may be held to account officially for a breach of duty, and may be held to account criminally if the act bears the description of a crime. The end of the criminal case in an acquittal or a discharge does not mean, under this article, that the administration is necessarily barred from considering the official aspect. Referral to the courts, by itself, also does not mean that a service penalty has been imposed, or that a criminal conviction has been established; each path has its own forum and its own evidence.
Referral is a step; a penalty is a later decision; the criminal judgment is a third path. The law does not treat referral itself as automatic dismissal.
How does referral to the courts differ from the Court of Employees’ Judiciary?
Two different bodies are sometimes confused: the Court of Employees’ Judiciary and the Administrative Judiciary Court.
- Referral to the Court of Investigation, and then the Court of Misdemeanors or the Criminal Court according to the nature of the act in Articles 10 and 24 concerns an act that appears to be a job-related crime. The forum here is those courts, not the investigative committee itself.
- The Court of Employees’ Judiciary — formerly the General Discipline Council in the wording of the 2008 amendment — is the body described as hearing appeals against disciplinary penalty decisions and public-service disputes, within the State Council. That is an administrative-court path for challenging an official decision, not a criminal trial of the crime.
- The Administrative Judiciary Court (Mahkamat al-Qada’ al-Idari) is another body within administrative justice. Its jurisdiction is not inferred from its name alone; it is set by Article 7 of State Shura Council Law No. 65 of 1979 as amended (challenges to final administrative decisions that do not fall under the Court of Employees’ Judiciary).
A person on whom a disciplinary penalty has been imposed, and who wishes to challenge it, is asking about the Court of Employees’ Judiciary and about the time limits for grievance and appeal — a separate question, set out in Grievance and appeal to the Court of Employees’ Judiciary. A challenge to a State administrative decision that is not a disciplinary penalty is discussed in When is a State decision challenged before the Administrative Judiciary Court?.
Where is the disciplinary path set out on the office site?
A person who wants the detail of the penalties, the committee, or a grievance before the Court of Employees’ Judiciary will find separate pages in State employee discipline: The investigative committee, Grievance and appeal, and The difference between the two courts. A challenge to an administrative decision that is not a disciplinary penalty is in When is a State decision challenged before the Administrative Judiciary Court?. These links do not change the line drawn in this article: referral to the criminal courts if the act appears to be a job-related crime.
Legal basis and sources
- Law on the Discipline of State and Public Sector Employees No. 14 of 1991
- Iraqi Official Gazette, issue 3356, 3/6/1991
- First Amendment Law No. 5 of 2008
- Second Amendment Law No. 51 of 2012
- Fifth Amendment to the State Shura Council Law, Law No. 17 of 2013
- State Council Law No. 71 of 2017
- State Shura Council Law No. 65 of 1979, as amended
Frequently asked questions
Does every administrative investigation mean that the employee is a criminal suspect?
No. An administrative investigation under the discipline law may end in the closing of the file or in a recommendation of an official penalty, without referral to the courts. Referral arises if the act appears to be a crime that grew out of the post or was committed in an official capacity.
If the committee recommends referral, is the official file closed automatically?
The text does not make referral a complete substitute for disciplinary accountability. Article 23 leaves open the possibility of a disciplinary penalty even after an acquittal or a discharge for the same act. How the two procedures run together is read in the file before the two competent bodies.
Does an acquittal cancel a disciplinary penalty?
Under Article 23, an acquittal or a discharge from the act referred to the courts does not prevent the imposition of one of the penalties set out in the law. That does not mean that every acquittal is necessarily followed by an official penalty; it means that the acquittal alone is not an absolute legal bar.
Does this law apply to judges and to members of the public prosecution?
Article 2, after the 2008 amendment, excludes them, together with members of the armed forces, the internal security forces and the National Intelligence Service, unless a provision in their own statutes applies its rules. Accountability of those groups is read from their own legislation.
What is the difference between the Court of Employees’ Judiciary and the criminal courts?
The Court of Employees’ Judiciary is described as the forum for challenging an official or disciplinary decision. Referral of the employee to the Court of Investigation, and then the Court of Misdemeanors or the Criminal Court according to the nature of the act because of a job-related crime is a separate criminal path.
If the committee recommends referral to the courts, does the official investigation close?
The official investigation does not close automatically merely because referral has been recommended. The two paths are independent in the text: disciplinary accountability may continue, or a service penalty may be imposed, while the criminal case proceeds before the Court of Investigation and then the Court of Misdemeanors or the Criminal Court according to the nature of the act.
Disciplinary accountability and referral to the courts are independent paths, read from the Law on the Discipline of State and Public Sector Employees No. 14 of 1991, as amended, in particular Articles 10 and 23: the investigative committee is the instrument of administrative investigation; referral arises when the act appears to constitute a crime arising from the post or committed in an official capacity; and an acquittal or a discharge in respect of the act referred does not, of itself, prevent a disciplinary penalty. An official decision is challenged before the Court of Employees’ Judiciary, while the criminal path proceeds before the Court of Investigation and then the court competent for the type of offence.