Conciliation (sulh) in a criminal case, and the victim's pardon after judgment
Iraqi law offers a third path between a criminal dispute and a court's verdict: the victim and the accused reconcile, and the case comes to an end. That path is not open for every offence, and the conditions vary. The office of lawyer Ali Barakat explains here the rules on conciliation (sulh) in the dedicated chapter of the Criminal Procedure Code No. 23 of 1971, and then the pardon that remains possible even after judgment.
Which offences: those that depend on a complaint
Article 194 provides that conciliation is accepted by a decision of the Investigating Judge or the court when the victim, or someone legally acting for the victim, requests it, in cases where prosecution can only begin on the victim's complaint. The scope therefore follows the list in article 3: among others, insult and defamation, revealing secrets, threats, and assault where the target was not a public servant on duty; certain property offences between spouses, ascendants and descendants; and damage to property other than State property without aggravating circumstances. The list is set out on the filing a criminal complaint page.
Offences prosecuted without any complaint, such as those against public property, fall outside conciliation in this sense, because the right to pursue them belongs to society.
When the judge must approve
Article 195 distinguishes three situations:
| Situation | Conciliation |
|---|---|
| Complaint-based offence carrying up to one year's imprisonment, or a fine | Accepted without the approval of the judge or court |
| Complaint-based offence carrying more than one year's imprisonment | Accepted only with the approval of the judge or court |
| Threats, assault, or damaging or destroying property | Approval needed even where the penalty is one year or less |
The third row reflects the legislature's concern with offences involving an attack on a person or their property: agreement between the parties alone is not treated as enough.
Conditions on the request
Article 196 sets two conditions:
- a request to reconcile with one accused does not extend to another, so where there are several accused each needs a separate conciliation;
- conciliation is not accepted if it is made subject to a condition. A request that ties the conciliation to something that has not yet happened, for example reconciling "if the accused does such-and-such", will not be accepted in that form; the request has to be unconditional.
Timing and effect
Article 197 allows a conciliation request to be made and accepted at any point, from the opening of the investigation until the court gives its decision in the case. If the legal conditions are met, the Investigating Judge or court accepts it and releases the accused if he is in detention.
Article 198 gives a decision accepting conciliation the same effect as a judgment of acquittal. No conviction remains against the accused in that case, which is what separates conciliation from a pardon given after sentence.
Conciliation and withdrawal compared
Withdrawing a complaint is an act of the complainant alone. Under article 130 it closes the case for good only where the offence is one that may be settled without the judge's approval. Where the law requires approval, conciliation by decision of the judge or court is the route. Withdrawal and its effect on compensation are covered on the waiver of the personal right page.
Pardon after judgment
If the case ends in a sentence without conciliation, the victim's pardon (safh) is still available. Article 338 lets the court that gave judgment accept a pardon for a person sentenced to a principal custodial penalty for an offence in which conciliation is allowed, whether or not the judgment has become final. Under article 339 the request must come from the victim or a legal representative, and from all victims where there are several. It cannot be withdrawn and is not accepted if conditional. The court must accept it where the offence is one that may be settled without its approval, and has discretion in other cases.
When it accepts a pardon, the court cancels what remains of the principal and secondary penalties, except confiscation, and orders immediate release, under article 340. Under article 341 the file is then sent within ten days to the Federal Court of Cassation for review of the decision.
Legal basis and sources
Frequently asked questions
Can a minor assault be settled without involving the judge?
No. Article 195 requires the approval of the judge or court for threats, assault and property damage even where the penalty is a year or less.
Is conciliation possible after the case has been sent to trial?
Yes. A request may be made until the court gives its decision, under article 197.
What does conciliation mean for the accused's record in that case?
A decision accepting conciliation has the effect of an acquittal, under article 198.
Related topics and articles
- 01Waiving 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.
- 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.
- 03Iraq'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.
- 04Pretrial 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.