Illicit gain in Iraqi law: definition, proof and penalty
An illicit gain charge differs from bribery or embezzlement: it does not start with a specific act attributed to an official, but with a gap between what he or she owns and what his or her resources should allow. That is why officials who file financial disclosure statements, and their families, ask about it so often. The office of lawyer Ali Barakat in Baghdad explains the definition as rewritten by the 2019 amendment, how a file proceeds, and the penalty.
The definition: three elements
The seventh paragraph of the first article, as replaced by Law No. 30 of 2019, defines illicit gain as any increase of more than twenty percent a year in the wealth of the filer, spouse or children that is out of proportion to their ordinary resources and for which the filer shows no lawful cause. There are three elements:
- An annual increase of more than twenty percent in wealth.
- Disproportion to the ordinary resources of the filer and family.
- Failure by the filer to prove a lawful cause for the increase.
The text adds that property a natural person is shown by a final court judgment to have obtained jointly with the filer is also illicit gain.
Who is the filer, and who counts as children?
Under the fourth paragraph of the first article, the filer is the person legally required to submit a financial disclosure report, being one of those listed in the first paragraph of article 16. The text defines the filer's children broadly: minor children, unmarried children, and those not financially independent of the filer even if married or adult. A married son living at his father's expense is therefore counted.
Who else can face an illicit gain inquiry?
The matter is not confined to the officeholders listed in article 16. Its second paragraph allows the Commission to require any official or person in public service to disclose his or her finances where a report supported by credible evidence points to illicit gain in his or her wealth or that of the spouse or children, and also to require disclosure from anyone suspected of obtaining property jointly with a filer. The third paragraph of article 17 provides that failure to file does not prevent the Commission from inquiring into the finances of the filer, spouse and children.
How a file opens
Under article 17 the file proceeds in stages:
- The Commission examines the form and checks its details, and may ask any official body for data and documents, including confidential ones.
- If it finds a large increase out of proportion to resources, it must summon the filer to inform him or her and explain the increase it found, under the sixth paragraph.
- It refers the filer to the investigative judge in whose local jurisdiction the filer lives, to consider requiring proof of lawful sources for the increase within ninety days, under the seventh paragraph.
The summons before the Commission is a first chance to explain the source of the increase, and the ninety days before the judge are the decisive stage. Proof is usually built on official documents for sources of income: salaries, an inheritance and its deed, a registered sale, documented gifts, and returns from lawful activity.
Penalties in article 19
Article 19 sets the penalties, without prejudice to any heavier penalty in another law:
- A filer listed in article 16, first paragraph, who fails to prove a lawful cause for a large increase in his or her wealth or that of the spouse or children: imprisonment for at least seven years and a fine equal to the value of the illicit gain.
- Others whose increase in wealth the court finds unlawful: detention for at least three years and a fine equal to the value of the gain.
- Concealing information or giving false information in the form, shown to be connected with illicit gain: detention for at least one year.
Return of the gain's value
The fourth paragraph of article 19 requires the court to order return of the value of the illicit gain, and a convicted person is not released until the fine is discharged and the value returned. The end of the criminal case by death does not prevent enforcement of the order to return the value. Recovery is covered on recovering corruption proceeds.
Legal basis and sources
- Integrity Commission Law No. 30 of 2011, articles 1, 16, 17 and 19 (Official Gazette, issue 4217 of 14/11/2011)
- First Amendment to the Integrity Commission Law, Law No. 30 of 2019, article 2 (Official Gazette, issue 4568 of 23/12/2019)
Frequently asked questions
Is every increase in an official's wealth illicit gain?
No. It must exceed twenty percent a year, be out of proportion to resources, and the filer must fail to prove its lawful cause.
How long is there to prove sources of wealth?
Ninety days, set by the investigative judge under the seventh paragraph of article 17.
Is the wife's property counted?
Yes; the text covers the wealth of the filer, spouse and children. Filing is covered on the financial disclosure form.
Related topics and articles
- 01The financial disclosure form: who must file and whenWho must file a financial disclosure statement under Iraq's Integrity Commission and Illicit Gain Law No. 30 of 2011 as amended, the ninety-day and January deadlines, answering observations within sixty days, salary suspension, and confidentiality.
- 02Recovering corruption proceeds: the recovery department, the Iraq Funds Recovery Fund and return of illicit gainThe legal tools for recovering corruption proceeds: the Integrity Commission's recovery department, court orders to return the value of illicit gain even after death, and the Iraq Funds Recovery Fund established by Law No. 9 of 2012 and its time scope.
- 03The 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.
- 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.
- 05Reporting 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.