A criminal complaint and its course
The Law Office of Ali Barakat in Baghdad follows questions about the criminal complaint: how a case is instituted, what takes place in the preliminary investigation before the Investigating Judge (قاضي التحقيق), when detention or release on bail arises, before which court the trial is held, and how a judgment is challenged in cassation. The governing texts describe the general path of the complaint, the investigation and the challenge.
The source is Criminal Procedure Law No. 23 of 1971, published in the Official Gazette (الوقائع العراقية), issue 2004, on 31/5/1971, according to the Iraqi Legislation Database. The title "Court of Misdemeanours" (محكمة الجنح) replaced the phrase "Court of Penalties" (محكمة الجزاء) by Article 65 of Law No. 160 of 1979, as the Database records in its note on Civil Procedure Law No. 83 of 1969. This page uses the names now in force: the Court of Misdemeanours, the Court of Felonies (محكمة الجنايات), and the Federal Court of Cassation (محكمة التمييز الاتحادية).
How is a criminal case instituted?
Article 1 provides that a criminal case is instituted by an oral or written complaint submitted to the Investigating Judge, a judicial investigator, any official at a police station, or any judicial police officer, by the person harmed by the offence or by a person who legally stands in that person's place, or by any person who learns that the offence has occurred, or by a report of an offence (إخبار) submitted by the Public Prosecution (الادعاء العام) to any of them, unless the law provides otherwise. In a flagrant offence, the complaint may be made to any police officer or sergeant who is present.
The path in practice is therefore not a single door. A file may begin at a police station, before a judicial investigator, or directly before the Investigating Judge, and a member of the Public Prosecution may initiate it by a report. The complainant asks for criminal measures and for a penalty to be imposed, and may at the same time claim the civil right for direct harm, under the rules on the civil claim that follows the criminal case.
In offences listed in Article 3 — including defamation, insult, disclosure of secrets, threat, and assault other than where the victim is a public official in the course of duty, and certain property offences between spouses or between ascendants and descendants, and other offences which the law makes to depend on a complaint by the victim — the case is not instituted except on a complaint by the victim or by a person who legally stands in the victim's place. Article 6 makes a complaint in those offences inadmissible after three months from the day the victim learned of the offence or from the end of a force majeure excuse, and the right to complain lapses on the victim's death unless the law provides otherwise. After a complaint has been filed, the complainant is also treated as having waived it if it is left without follow-up for three months without a legitimate excuse, and the Investigating Judge then issues a decision rejecting the complaint and closing the case finally, under Article 8.
What takes place before the Investigating Judge?
The Investigating Judge conducts the preliminary investigation: the complainant and the witnesses are heard, the accused is questioned, experts may be appointed where the law allows, searches and seizures may be ordered within the statutory limits, and the judge finally decides to reject the complaint, to close the case, or to refer the accused to the Court of Misdemeanours or the Court of Felonies according to the class of the offence. The judicial investigator works under the Investigating Judge's supervision, and judicial police officers gather the first inquiries.
Detention and release are not automatic in every complaint. Article 109 distinguishes. If the person arrested is accused of an offence punishable by imprisonment for more than three years, or by temporary or life imprisonment, the Investigating Judge may order detention for a period not exceeding fifteen days on each occasion, or may order release on an undertaking with a personal surety (kafala) or without one, if the judge finds that release will not lead to flight and will not harm the investigation. If the charge is punishable by death, the person arrested must be detained, and detention is extended whenever the investigation so requires, still observing the fifteen-day period on each occasion, until a decisive decision is issued after the investigation or the trial ends.
The total of detention periods may not exceed one quarter of the maximum penalty, and may not in any event exceed six months. If a longer extension is required, the judge places the matter before the Court of Felonies, which may authorise a suitable extension that does not exceed one quarter of the maximum penalty, or may order release with or without bail, still observing the rule on charges punishable by death. Under Article 111, the judge who ordered detention may release the accused on an undertaking with or without bail before the detention period ends, and may detain the accused again if the investigation so requires, still observing the paragraph on capital charges.
These periods are general statutory limits. Whether the judge finds a risk of flight or harm to the investigation is a question of the file.
Referral, trial, and cassation
After the investigation, an accused in a felony is referred to the Court of Felonies in a non-summary case. An accused in a misdemeanour is referred to the Court of Misdemeanours in a non-summary case if the penalty is imprisonment for more than three years, and in a summary or a non-summary case in other situations, under Article 134. An accused in a contravention is referred to the Court of Misdemeanours in a summary case, subject to the exception later added to the text: the Investigating Judge is to decide at once contraventions in which no claim for compensation or return of property has been made, without referring them to the Court of Misdemeanours, and a sentence of imprisonment is not executed until it has become final.
The Court of Misdemeanours decides misdemeanours and contraventions. The Court of Felonies decides felonies and other offences that the law places before it. If either court finds that the decision of the case falls outside its jurisdiction, referral or return proceeds under Article 139, and a decision of the Court of Felonies on that point must be followed.
After judgment, an appeal in cassation is the path drawn by Article 249 and the articles that follow. The Public Prosecution, the accused, the complainant, the civil plaintiff, and the person civilly liable may challenge before the Federal Court of Cassation the judgments, decisions and measures issued by the Court of Misdemeanours or the Court of Felonies in a misdemeanour or a felony, if they were based on a breach of the law or an error in its application or interpretation, or if a substantial error occurred in the procedure, in the assessment of the evidence, or in the assessment of the penalty, and the error affected the judgment. The challenge is filed by a petition within thirty days beginning the day after the judgment is pronounced if it was given in the party's presence, or from the date on which a judgment in absentia is treated as if it had been given in the party's presence. The petition may be submitted to the court that issued the judgment, to any other criminal court, or directly to the Federal Court of Cassation, under Article 252.
In cases whose institution depends on a complaint by the victim, the law admits conciliation (الصلح) by a decision of the Investigating Judge or the court if the victim requests it, under Articles 194 and 195, distinguishing offences in which conciliation is admitted without the judge's approval and offences in which it is admitted only with that approval. The detail of conciliation and of waiving the personal right belongs to later topics. This hub only records that conciliation is a statutory path in a narrow class of cases, and is not a general substitute for trial in every complaint.
What does the office follow?
From its office in Baghdad, the office explains the general path for a complainant, an accused, or a person civilly liable: filing a complaint or a report, the party's position in the investigation, an application for release with or without bail, referral, trial, an appeal in cassation, and a civil claim attached to the criminal case.
Legal basis and sources
- Criminal Procedure Law No. 23 of 1971 (Official Gazette, issue 2004 of 31/5/1971)
- Law No. 160 of 1979, Article 65 (the Court of Misdemeanours replacing the former Court of Penalties), as recorded in the legislation-database note on Civil Procedure Law No. 83 of 1969
- Law No. 160 of 1979 (substitution of court names), as recorded in the legislation-database note on Civil Procedure Law No. 83 of 1969
Frequently asked questions
Must a complaint always be filed at a police station?
No. Article 1 allows it to be submitted to the Investigating Judge, a judicial investigator, an official at a police station, or a judicial police officer, and the case may also be instituted by a report from the Public Prosecution.
When does the institution of the case depend on a complaint by the victim?
In the offences listed in Article 3 and in other offences which the law treats in the same way. In that class, the three-month period in Article 6 applies, unless a special text provides otherwise.
What is the longest detention before the matter is placed before the Court of Felonies?
The total of detention periods may not exceed one quarter of the maximum penalty and may not in any event exceed six months, unless the Court of Felonies authorises a suitable extension under Article 109, subject to the special rule that requires detention on a charge punishable by death.
Who hears a challenge to a judgment of the Court of Misdemeanours or the Court of Felonies?
An appeal in cassation is heard by the Federal Court of Cassation, within thirty days under Article 252, and may be brought by the Public Prosecution, the accused, the complainant, the civil plaintiff, or the person civilly liable, within the limits drawn by Article 249.
Topics in this area
- 01Iraq's Criminal Procedure Code No. 23 of 1971: a map of its six booksAn awareness guide to the structure of Iraq's Criminal Procedure Code No. 23 of 1971: six books from the criminal action and investigation to trial, appeals and enforcement, and key changes to its text.
- 02Filing a criminal complaint and reporting an offenceComplaint versus report under Iraq's Criminal Procedure Code No. 23 of 1971: who may file and with whom, offences that need the victim's complaint, the three-month window, and the duty to report.
- 03Pretrial detention and release on bail during a criminal investigationDetention and release on bail under Iraq's Criminal Procedure Code No. 23 of 1971: the judicial order, three tiers by penalty, the fifteen-day and six-month limits, sureties, and challenging a detention decision.
- 04Waiving the personal right in a criminal caseWhat waiving the personal right does under Iraq's Criminal Procedure Code No. 23 of 1971: withdrawing the complaint versus the civil claim, when it closes the case and when it is not enough, and multiple parties.
- 05Conciliation (sulh) in a criminal case, and the victim's pardon after judgmentConciliation in Iraq's Criminal Procedure Code No. 23 of 1971: which offences qualify, when a judge must approve, timing and its acquittal-like effect, and the victim's pardon of a convicted person after judgment.