The investigation route in integrity cases: the Commission, the investigative judge and the public prosecution
Many officials come to the office after a summons from "integrity" without knowing whether they are before a Commission investigator or a judge, or who decides on detention or release. The office of lawyer Ali Barakat in Baghdad maps the investigation route in corruption cases as set by the Integrity Commission and Illicit Gain Law and the Criminal Procedure Law.
The rule: investigation belongs to the judge
Article 51 of the Criminal Procedure Law provides that preliminary investigation is carried out by investigative judges, and by investigators under their supervision. Article 52 provides that the investigative judge investigates all offences personally or through investigators. Article 53 fixes local jurisdiction by the place where all or part of the offence, or any result of it, occurred.
On this basis the first paragraph of article 11 of the Commission's law empowers it to investigate any corruption case through one of its investigators under the supervision of the competent investigative judge. The Commission's investigator works within the judge's authority, not in place of it.
Priority of the Commission's jurisdiction
The second paragraph of article 11 gives the Commission's investigative jurisdiction in corruption cases priority over other investigative bodies, including military investigative bodies and those of the internal security forces, and requires them to hand over the papers and documents of a case to the Commission whenever it chooses to complete the investigation.
Tools by the judge's decision
Article 12 allows the Commission to use scientific methods, investigative equipment and evidence gathering, and to summon persons for direct questioning, after a decision by the competent judge. A valid summons rests on a judicial decision, and the person summoned is entitled to know which judicial authority supervises the investigator.
The relationship between the judge and the Commission
Article 14 sets three rules:
- The investigative judge notifies the Commission's legal department when opening an investigation into any corruption case and informs it of progress on request.
- The Commission is a party to every corruption case not investigated by its investigations department, may follow it through a legal representative with a formal power of attorney, and may challenge judgments and decisions in it.
- The investigative judge transfers to one of the Commission's investigators any corruption case the Commission chooses to complete, and the Commission may challenge in cassation the judge's refusal of its request for any reason.
Major cases: a special judicial arrangement
The Supreme Judicial Council announced on 16/10/2019 that cases before the central anti-corruption felony court are investigated by senior investigative judges of the investigative court for integrity cases in the Baghdad/Rusafa and Karkh appeal courts, with the Commission naming enough investigators to carry out preliminary investigation under their supervision. The public prosecution presidency selects those cases after consultation with the Commission. The courts are covered on integrity courts and what they hear.
End of the investigation
When the investigation ends, the investigative judge issues one of the decisions in article 130 of the Criminal Procedure Law:
- Rejecting the complaint and closing the case finally where the act is not punishable.
- Referral to the competent court where the act is punishable and the evidence suffices for trial.
- Release and provisional closure where the evidence does not suffice, with reasons.
A detained accused is released on rejection of the complaint or release, and the judge informs the public prosecution of his decisions. Article 134 provides for referral of an accused in a felony to the felony court and in a misdemeanour to the misdemeanour court.
What helps a person summoned for investigation
- Knowing the legal description of the charge and the applicable article, because whether it falls within the definition of a corruption case determines the competent body.
- Knowing the supervising investigative judge and the case number.
- Giving a statement with a lawyer present and submitting supporting documents.
- Following the judge's decisions and the deadlines to challenge them, explained on challenging procedures in integrity cases.
Legal basis and sources
- Integrity Commission Law No. 30 of 2011, articles 3, 10, 11, 12 and 14 (Official Gazette, issue 4217 of 14/11/2011)
- Criminal Procedure Law No. 23 of 1971, articles 51, 52, 53, 130 and 134 (Official Gazette, issue 2004 of 31/5/1971)
- Supreme Judicial Council, announcement of the central anti-corruption felony court, 16/10/2019
Frequently asked questions
Can a Commission investigator summon me without a judge's decision?
Article 12 requires a decision by the competent judge before persons are summoned for questioning.
I am being investigated by the police. Can the Commission take the case over?
The Commission may choose to complete the investigation, and other bodies must hand over the papers under the second paragraph of article 11.
Where does a file usually start?
With a report, as on reporting a corruption offence, or with examination of a financial disclosure form.
Related topics and articles
- 01Integrity 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.
- 02Reporting 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.
- 03Challenging procedures and decisions in integrity casesRoutes of challenge in corruption cases: cassation against investigative judge decisions before the felony court within thirty days, challenges to judgments before the Federal Court of Cassation, what cannot be challenged separately, and the Integrity Commission's right to challenge and to recall shelved reports.
- 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.