How is a civil right proved, and what force do electronic messages have?
The Law Office of Ali Barakat in Baghdad sets out how a right is proved in a civil claim before the Court of First Instance, the force of signed paper letters, and the force of electronic documents and signatures under Iraqi statute. The page marks the statutory limits.
What governs proof?
The starting point is Evidence Law No. 107 of 1979, published in the Official Gazette (al-Waqa'i al-Iraqiya), issue 2728 of 3/9/1979, and in force thirty days after publication under article 149, as recorded in the Iraqi Legislation Database. The law applies to civil and commercial cases, to financial matters connected with personal status, and to non-financial personal-status matters unless a special Sharia proof or a provision of the Personal Status Law provides otherwise, under article 11.
Article 6 makes the starting presumption the freedom of a person's liability (براءة الذمة). Article 7 provides that the burden of proof lies on the person who asserts a claim and the oath on the person who denies it, and that the claimant is the one who relies on something other than the apparent position, while the denier relies on keeping the original position. A judge may not decide on the basis of personal knowledge obtained outside the court, while remaining free to take account of matters of general knowledge that everyone is assumed to know, under article 8. The judge may order any party to produce proof in that party's possession; if the party refuses, the refusal may be treated as evidence against that party, under article 9. The fact to be proved must be relevant to the case, material to it, and legally admissible, under article 10.
Official instruments are those in which a public official, or a person charged with a public service, records, in accordance with the legal formalities and within the limits of that official's competence, what took place before that official or what the parties stated in that official's presence, under article 21. Such an instrument is evidence against all persons of the matters the official carried out, or that occurred from the parties in the official's presence, unless it is shown to have been forged by the legally prescribed means, under article 22. An ordinary instrument is treated as issued by the person who signed it unless that person expressly denies the handwriting, signature or thumb-print attributed to him or her, under article 25.
Testimony is admissible in some situations the statute describes and is excluded in others, including those connected with the existence of written proof or with the value of the transaction, as set out in articles 78 and 79. The figure in dinars is read from the text of those articles.
Paper letters and electronic documents
Article 27 of the Evidence Law provides that signed letters have the force of ordinary instruments in proof. Telegrams have the same force if the original deposited at the sending office is signed by the sender, and the telegram is treated as matching its original until the contrary is proved. If the original of the telegram is missing, it may be used only as a supporting indication.
Electronic documents, electronic writing and electronic contracts have the same legal force as their paper counterparts under Electronic Signature and Electronic Transactions Law No. 78 of 2012, published in the Official Gazette, issue 4256 of 5/11/2012, if the conditions of article 13 are met: the information must be capable of being stored and retrieved at any time; it must be possible to retain it in the form in which it was created, sent or received, or in any form that makes it possible to prove the accuracy of the information without alteration by addition or deletion; and the information must identify the person who created or received it and the date and time of sending and receipt. The signatory or the addressee may prove the authenticity of the electronic document by all means of proof recognised by law.
An electronic signature has, in civil, commercial and administrative transactions, the same force as a handwritten signature if it is created in accordance with the conditions of article 5, under article 4. It has force in proof if it is certified by a certification body and the conditions listed in article 5 are met: it is linked to the signatory alone; the electronic medium is under the signatory's sole control; any alteration of the signature is detectable; and it is created in accordance with procedures laid down by the Minister of Communications in instructions.
The provisions of Law 78 of 2012 do not apply to the matters excluded by article 3, second: transactions relating to personal status; the creation of a will or a waqf and amendments to their terms; transactions disposing of immovable property, including powers of attorney relating to it, title deeds, and the creation of real rights over it, except leases of such property; transactions for which the law prescribes a particular form; court procedures, judicial notices, summonses, search warrants, arrest warrants and court judgments; and any document that the law requires to be attested by a notary public. In those matters, an electronic message does not replace the path laid down in the special statute.
Legal basis and sources
- Evidence Law No. 107 of 1979 (Official Gazette No. 2728 of 3/9/1979; in force 30 days after publication)
- Electronic Signature and Electronic Transactions Law No. 78 of 2012 (Official Gazette No. 4256 of 5/11/2012)
Frequently asked questions
Does a signed letter have force in proof?
Yes, within the limits of article 27 of the Evidence Law: signed letters have the force of ordinary instruments. The court still assesses the evidence in the light of the papers in the case.
Does an electronic document always have the force of a paper document?
Only if the conditions of article 13 of Law 78 of 2012 are met, and the transaction is not among the matters that article 3 takes outside the scope of that law.
Does an email replace attestation of a property disposition before a notary public or the Real Estate Registration Department?
Article 3 takes outside the law transactions disposing of immovable property, the related powers of attorney and title deeds, and any document that the law requires a notary public to attest. Registration at the Real Estate Registration Department is a separate path.
Related topics and articles
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