Challenging procedures and decisions in integrity cases
In an integrity case many decisions are made before judgment: arrest, detention, travel bans, attachment, referral and refusals of requests. The recurring question is which can be challenged, before whom, and within what time. The office of lawyer Ali Barakat in Baghdad answers from the Criminal Procedure Law, together with what concerns the Integrity Commission under its own law.
First: investigative judge decisions
Paragraph (a) of article 265 allows a cassation challenge before the felony court against decisions of the investigative judge, by the interested parties listed in article 249, within thirty days from the day after the decision. Paragraph (d) gives the felony court in these cases the powers of the Federal Court of Cassation, and its decisions are final.
Under article 249 the interested parties are the public prosecution, the accused, the complainant, the civil claimant and the person civilly liable. Article 14 of the Commission's law makes the Commission a party to every corruption case its investigators do not handle and gives it the right to challenge judgments and decisions in those cases.
What cannot be challenged separately
Paragraph (c) of article 249, to which paragraph (c) of article 265 refers, provides that no separate cassation challenge is accepted against decisions on jurisdiction, preparatory and administrative decisions, or any other decision that does not decide the case, unless it prevents the case from proceeding. The exceptions are decisions on:
- arrest,
- detention, and
- release, with or without bail.
A detention decision can therefore be challenged on its own, while a preparatory decision is challenged together with the decision that decides the case. Article 250 provides that a challenge to the judgment or deciding decision covers all earlier related judgments and decisions.
Decisions at the end of the investigation
Article 130 sets the investigative judge's decisions after the investigation: rejecting the complaint and closing the case finally, referral, or release and provisional closure. These are deciding decisions challengeable under article 265. A complainant or the Commission may challenge a release, and an accused may challenge a referral if he or she considers the evidence insufficient or the legal description wrong.
Second: judgments of the misdemeanour and felony courts
Article 249 allows a challenge before the Federal Court of Cassation against judgments, decisions and measures of the misdemeanour or felony court if based on a breach of law or an error in applying or interpreting it, or if there was a material error in procedure or in assessing evidence or penalty that affected the judgment.
Paragraph (a) of article 252 provides that the challenge is made by petition to the court that issued the judgment, any other criminal court, or the Federal Court of Cassation directly, within thirty days from the day after a judgment delivered in the presence of the parties. A detained person may file through the detention administration. Paragraph (c) of article 251 provides that the appellant is not to be worse off because of the challenge unless the judgment was based on a breach of law.
Article 264 allows the Federal Court of Cassation to call up any criminal case to review what was decided in it, on its own motion or at the request of the public prosecution or any interested party.
Third: challenging subject-matter jurisdiction
If the accused considers that the act attributed to him or her does not fall within the definition of a corruption case in the first article of the Commission's law, the enlarged criminal panel of the Federal Court of Cassation held in decision 11/2020 that such an act lies outside the integrity court's jurisdiction. The objection is raised before the judge, and the decision on it is a jurisdiction matter not separately challengeable under paragraph (c) of article 249 unless it prevents the case from proceeding. See integrity courts and what they hear.
Fourth: matters concerning the Commission
- Shelved reports: the investigative judge may call up any report shelved by the Commission's head and act on it under the second paragraph of article 13. Reporting is covered on reporting a corruption offence.
- Refusal to transfer a case: the Commission may challenge in cassation the investigative judge's refusal of its request to complete the investigation through its investigators, under the third paragraph of article 14.
- Investigative steps: article 12 requires a decision by the competent judge before persons are summoned.
Legal basis and sources
- Criminal Procedure Law No. 23 of 1971, articles 130, 249 to 252, 264 and 265 (Official Gazette, issue 2004 of 31/5/1971)
- Integrity Commission Law No. 30 of 2011 as amended, articles 12, 13 and 14 (Official Gazette, issue 4217 of 14/11/2011)
- Federal Court of Cassation, decision 11/enlarged criminal panel/2020
Frequently asked questions
A detention order was issued against me in an integrity case. Can I challenge it now?
Yes. Arrest and detention decisions are excepted from the bar on separate challenges and are challenged before the felony court within thirty days.
Can the felony court's cassation decision on an investigative judge's decision be challenged?
Paragraph (d) of article 265 makes its decisions in these cases final.
When does the time to challenge a judgment start?
From the day after a judgment delivered in the presence of the parties, under article 252. The investigation route is on the investigation route in integrity cases.
Related topics and articles
- 01The investigation route in integrity cases: the Commission, the investigative judge and the public prosecutionHow corruption cases are investigated: Integrity Commission investigators under the investigative judge's supervision, the priority of the Commission's jurisdiction, notice to its legal department, requests to take over a case, and the judge's decisions after investigation, under the Commission's law and the Criminal Procedure Law.
- 02Integrity courts: the cases they hear and the limits of their jurisdictionWhich cases the investigative and felony courts designated for integrity cases hear, the central anti-corruption felony court in Baghdad, and how the Federal Court of Cassation confined their jurisdiction to the offences in article 1 of the Integrity Commission Law.
- 03Reporting a corruption offence: where to go and what happens nextReporting corruption offences under articles 1, 47, 48 and 49 of Iraq's Criminal Procedure Law No. 23 of 1971, keeping the reporter's identity confidential, an official's duty to report, and the Integrity Commission head's power to shelve reports under article 13 of its law.
- 04The Federal Integrity Commission: mandate, structure and limitsThe eight duties of the Federal Integrity Commission in article 3 of Iraq's Integrity Commission and Illicit Gain Law No. 30 of 2011 as amended, its head, deputies and departments, oversight by the Council of Representatives, and the limits on its work inside ministries.
- 05Illicit gain in Iraqi law: definition, proof and penaltyThe definition of illicit gain in the seventh paragraph of article 1 of Iraq's Integrity Commission and Illicit Gain Law No. 30 of 2011 as amended, when a file opens, the ninety days to prove sources, and the penalties and return of value in article 19.