Pretrial detention and release on bail during a criminal investigation
When someone is arrested, the family's first questions are nearly always the same. Will he be kept in custody? For how long? Can he be released on bail? Iraq's Criminal Procedure Code No. 23 of 1971 answers with rules that change according to how serious the offence is. The office of lawyer Ali Barakat explains those rules here in plain terms. How a judge applies them in a given file always turns on that file's facts.
The starting point: a judge's order
Article 92 forbids arresting or holding anyone except under an order from a judge or a court, or in the situations where the law permits it. Arrest and detention are not the same thing. Arrest brings a person before the authorities; detention keeps that person in custody for a period the judge sets. Article 113 requires a detention order to state the detainee's name, the legal provision relied on, and the dates on which detention begins and ends, signed by the judge and stamped with the court's seal.
Once the accused has been brought in, article 123 requires the Investigating Judge or investigator to question him within twenty-four hours, after confirming his identity and telling him what he is accused of.
Three tiers, set by the penalty
Lighter offences. If the offence carries a prison term of up to three years, or only a fine, article 110 makes release the rule: the judge must let the person go on an undertaking, with or without a surety, unless letting the person go would damage the investigation or prompt him to flee. For petty offences (mukhalafat), detention is not allowed at all unless the accused has no fixed place of residence.
More serious offences. If the offence carries a prison term above three years, or fixed-term or life imprisonment, article 109 leaves the judge two options. The judge may order detention, or may release the accused on an undertaking backed by a personal guarantor or without one, if satisfied that release will not lead to flight or damage the investigation.
Offences punishable by death. Detention is compulsory, and it is extended as often as the investigation requires until a decision disposing of the case is issued.
How long can it last?
Article 109 places three time limits on detention:
- each detention order lasts no more than fifteen days, after which the matter returns to the judge for any extension;
- the combined periods must stay within a quarter of the highest penalty the law sets for the offence;
- and in any event the combined periods may not pass six months unless the judge refers the case to the Court of Felonies, which may allow a suitable extension, still within a quarter of the highest penalty, or may order release.
Under article 111, the judge who ordered detention may release the accused before the period ends and may detain him again if the investigation requires, subject to the rule for capital offences.
How undertakings and sureties work
Article 114 says the sum of the undertaking or surety is fixed case by case, matched to the kind of offence and the accused's situation. A surety is accepted once the judge, investigator or officer in charge at the police station is satisfied that the guarantor can pay, and the sum may also be lodged in cash with the court or police station. Under article 115, as soon as the undertaking, surety or cash is provided the accused walks free, unless held for a different offence.
A guarantor is not tied in forever. Article 117 lets a guarantor ask to be released, provided he brings the accused before the judge or hands him over to a police station. If a guarantor dies or the surety turns out to be defective, article 116 lets the judge order the accused's arrest or require a new surety. If the accused breaks the undertaking, or the guarantor the surety, article 119 sends the matter to the Court of Misdemeanours, which may collect all or part of the sum or waive it where the breach was due to circumstances beyond the person's control.
Can a detention decision be challenged?
The general rule in paragraph (c) of article 249 is that decisions which do not finally dispose of a case cannot be appealed on their own. The same paragraph expressly excepts decisions on arrest, detention, and release with or without bail. Article 265 then allows decisions of the Investigating Judge to be challenged before the Court of Felonies, sitting as a court of cassation, within thirty days beginning the day after the decision; its ruling on that challenge is final.
Legal basis and sources
Frequently asked questions
Can someone be held without being brought back before a judge?
No. Each detention order lasts fifteen days at most, after which the matter goes back to the judge.
Is bail available for every offence?
No. It is the rule for offences punishable by up to three years or a fine, discretionary for more serious ones, and not available during the investigation of capital offences.
Where is a refusal of release challenged?
Before the Court of Felonies acting as a cassation court, within thirty days, under articles 249 and 265.
Related topics and articles
- 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.
- 03Conciliation (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.
- 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.