Waiving the personal right in a criminal case
In many criminal cases in Baghdad the two sides reach an understanding, and the complainant goes before the Investigating Judge to declare that he "waives the personal right" (al-tanazul 'an al-haqq al-shakhsi). Many people assume those words end the case whatever the offence. In fact, Iraq's Criminal Procedure Code No. 23 of 1971 sets out their effect quite precisely. The office of lawyer Ali Barakat explains here what a waiver ends and what survives it.
Three claims inside one case
A waiver only makes sense once three things are kept apart:
- The complainant's criminal claim. This is the request that the offender be pursued and punished; article 9 says a complaint contains it.
- The civil claim. This is the demand for compensation for harm, which a written complaint includes unless the complainant says otherwise.
- The public action. This is society's claim to see the offence punished, and it does not belong to the complainant. Article 2 provides that a criminal action may not be halted, obstructed or abandoned, nor the judgment in it waived or its execution suspended, except where the law allows.
What people call "waiving the personal right" may refer to the complainant's criminal claim, to the civil claim, or to both. That is why the wording of the waiver matters.
What a waiver covers
Article 9 lays down the consequences:
- withdrawing the complaint means giving up the criminal claim, but not the civil claim unless the complainant says so expressly;
- giving up the civil claim does not mean giving up the criminal claim, except where the law provides or the complainant says so, and it has no effect whatever on the public action;
- once the complaint or the civil claim is waived, the right given up cannot be revived before any civil or criminal court;
- withdrawing the complaint stops the criminal court from hearing the civil claim, but the complainant may still go to a civil court for compensation unless he expressly gave that up too.
So a complainant can end the prosecution while keeping the right to be compensated, and one who wants to let both go has to say so.
When does a waiver close the case?
This is the key question. Article 130 lets the Investigating Judge reject the complaint and close the case permanently where the complainant has withdrawn it and the offence is one that may be settled by conciliation without the judge's approval. Article 181 applies the same rule before the trial court.
In practice, a waiver is enough by itself for offences that need a complaint to be prosecuted and carry no more than a year's imprisonment or a fine. Threats, assault and damage to property are the exception: article 195 requires the judge's approval for conciliation in those offences even where the penalty is low. For them, and for complaint-based offences carrying more than a year, the case is ended through conciliation approved by the judge or court, explained on the criminal conciliation page.
For offences that are prosecuted without a complaint, the public action continues after a waiver. The waiver then affects only the civil claim and the complainant's own position in the case.
A final decision cannot be reopened
Article 302 provides that a final decision rejecting the complaint because the complainant withdrew it, whether taken by the Investigating Judge under article 130 or by the court under article 181, bars further proceedings against the accused. A decision rejecting the complaint because the complainant failed to attend is different: the complaint may be renewed once if he shows a legitimate excuse for his absence.
Several parties, and waivers by conduct
- Where several people made the complaint, a waiver by some does not bind the others.
- Where there are several accused, a waiver in favour of one does not extend to the rest unless the law says otherwise.
- The right to make a complaint does not pass to the heirs if its holder dies before using it.
A waiver can also arise without any declaration. Article 8 treats a complainant who leaves the complaint unattended for three months without a legitimate excuse as having withdrawn it. Under article 150, the court may infer from a civil claimant's absence that he has withdrawn his complaint.
Legal basis and sources
Frequently asked questions
Is a detained accused released after a waiver?
Where the judge rejects the complaint under article 130, paragraph (d) of that article requires a detained accused to be released.
Can I drop the prosecution but keep my claim for compensation?
Yes. Withdrawing the complaint does not include the civil claim unless that is stated expressly, under article 9.
Can a waiver be taken back?
Article 9 provides that a right once waived cannot be renewed before any court.
Related topics and articles
- 01Conciliation (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.
- 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.
- 04Iraq'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.