Filing a criminal complaint and reporting an offence
"I want to make a complaint" and "I want to report a crime" sound like the same request. Iraq's Criminal Procedure Code No. 23 of 1971 treats them differently, and the difference has consequences. The office of lawyer Ali Barakat sets out here what separates a complaint from a report, who is entitled to make each, and the time limits that can extinguish the right if they are ignored. Where to go first, the police station or the judge, is covered on its own page: police station or Investigating Judge.
Complaint or report?
A complaint (shakwa) is made by the person who suffered from the offence, or by someone legally entitled to act for them, such as a guardian or an authorised agent. Article 9 explains that a complaint carries the criminal claim, meaning a request that action be taken against the offender and a penalty imposed. A written complaint also carries the civil claim for compensation, unless the complainant expressly says it does not.
A report (ikhbar) simply informs the authorities that an offence has taken place. Article 47 gives that right to the victim and to anyone who knows of an offence that can be prosecuted without a complaint, or who knows of a suspicious death. The person reporting may be a neighbour, a witness, or anyone with no personal stake.
In practice, the complainant becomes a party with rights in the case: to withdraw, to seek compensation, and to challenge decisions. The person who reports hands information to the authorities, and the public criminal case then runs on its own.
Where to lodge it
Article 1 allows a complaint, spoken or written, to be lodged with the Investigating Judge, a judicial investigator, any officer in charge at a police station, or any member of the judicial police. The Public Prosecution may also bring a report to any of them. Where an offence is caught in the act, the complaint may be made to whichever police officer or non-commissioned officer is present.
The same article defines an offence caught in the act (al-jurm al-mashhud): one seen while it is committed or very shortly after, one where the victim or the public pursue the offender straight afterwards, or one where the offender is found soon after carrying tools or items suggesting involvement.
Under article 53, the place of investigation is set by where all or part of the offence, or any of its results, occurred. It may also be set by where the victim was found, or where the property ended up after being moved.
Offences that need the victim's complaint
Article 3 lists offences in which no case can be started except on a complaint from the victim or a legal representative. They include:
- insult and defamation, revealing secrets, threats, and assault, provided the target was not a person in public service attacked while on duty or because of that duty;
- theft, rape, breach of trust and fraud where the victim is the offender's spouse, ascendant or descendant, under the conditions set in the text;
- damaging or destroying property other than State property, when there is no aggravating circumstance;
- trespass on property, entering cultivated land, and throwing stones at vehicles or houses.
Article 8 adds that for these offences no step may be taken against the offender until the complaint is made. Where there are several victims, article 4 makes a complaint by one of them enough.
Deadlines that end the right
For the offences in article 3, a complaint will not be accepted once three months have run from the day the injured person found out about the act, or from the day an overwhelming obstacle preventing the complaint was removed. The right to complain also dies with the victim, under article 6. If the victim dies after the complaint is lodged, the case continues unaffected, according to article 7.
Once lodged, a complaint left without follow-up for three months without a legitimate excuse is treated as withdrawn, and the Investigating Judge dismisses it and closes the case for good, under article 8. Following up is part of keeping the right alive.
When reporting is a duty
Article 48 makes reporting compulsory and immediate for three groups: anyone in public service who learns of an offence prosecutable without complaint in the course of, or because of, their work; anyone who gives medical help in circumstances suggesting a crime; and anyone present when a felony is committed. Paragraph 2 of article 47 lets a person reporting offences against State security, economic sabotage or offences punishable by death or imprisonment ask that their identity not be disclosed.
What happens next
The officer in charge at the police station writes down the statement at once, takes the signature of the person reporting, sends a report to the Investigating Judge or investigator, and enters a summary in the station register, under article 49. The investigation then begins with the statement of the complainant or person reporting, followed by the victim and the witnesses, under article 58.
Legal basis and sources
Frequently asked questions
Can a complaint be made orally?
Yes. Article 1 allows a complaint to be spoken or written.
How long is there to complain about insult or threats?
Three months from when the injured person found out about the act, or from when an overwhelming obstacle ended, under article 6.
Does a complaint automatically include compensation?
A written complaint includes the civil claim unless the complainant says otherwise, under article 9.
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.
- 02Waiving 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.
- 03Police Station or Investigating JudgeWhere to file a criminal complaint in Iraq and how police stations, investigators and investigating judges differ: who receives complaints, territorial jurisdiction, arrest and detention, and following up.
- 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.
- 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.