Criminal Procedure Code 23 of 1971 (as amended to 14 March 2010)




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GJPI Annotated and Amended Translation

17 April 2016

Criminal Procedure Code 23 of 1971

(as amended to 14 March 2010)
Law Number 23 of 1971

Decree number 230

In the name of the People

The Revolutionary Command Council:

Based on the provisions of the 42nd article, sub-paragraph a, of the temporary Constitution 1970, and derived from the submissions of the Minister of Justice.

The Revolutionary Command Council has decided, in its session held on 14 February 1971, to issue the following law: Number 23 of 1971



Criminal Procedure Code1


Contents

Introduction

List of Amendments to the Criminal Procedure Code 1971 to 2009




Criminal Procedure Code 23 of 1971




Articles

Book 1: Criminal Proceedings




Section 1

1-20

Chapter 1: The Civil Plaintiff

10-20

Section 2: Abandonment, suspension and termination of Civil Cases

21-29

Section 3: General Prosecution

30-38 (deleted)







Book 2: Investigation of Offences, Collection of Evidence and Initial Investigation




Section 1: Investigating Offences

39-46

Section 2: Notification of Offences

47-48

Section 3: Investigations Conducted by the Police

49-50

Section 4: The Initial Investigation

51-86

Chapter 1: General Provisions

51-57

Chapter 2: Hearing Witnesses

58-68

Chapter 3: Appointment of Experts

69-71

Chapter 4: Search

72-86

Section 5: Methods or Compulsion to Attend

87-136

Chapter 1: Summons

87-91

Chapter 2: Arrest

92-108

Chapter 3: Detention and Release of the Accused

109-120

Chapter 4: Seizure of Possessions of an Accused Person who has Absconded

121-122

Chapter 5: Questioning of the Accused

123-129

Chapter 6: Decisions of the Judge after the End of the Investigation

130-136







Book 3: Courts




Section 1: Types of Penal Court and Their Jurisdiction

137-142

Section 2: Appearance in Court of Defendant and Other Litigants

143-151

Section 3: Court Procedure

152-229

Chapter 1: General Principles in the Trial

152-166

Chapter 2: Court Procedures in non-Summary cases

167-182

Chapter 3: Seizure of Defendant’s Assets

183-186

Chapter 4: Charge

187-193

Chapter 5: Conciliation

194-198

Chapter 6: Cessation of Criminal Proceedings

199-200

Chapter 7: Trials in Summary Cases

201-211

Sub-chapter 1: Trial and Ruling

201-204

Sub-chapter 2: Penal Order

205-211

Chapter 8: Rulings and Their Reasons

212-226

Sub-chapter 1: The reasons

212-221

Sub-chapter 2: The ruling

222-226

Chapter 9: Arguments of Provisions and Decrees

227-229

Section 4: Proceedings Against those with Diminished Responsibility

230-242

Chapter 1: Insane Persons

230-232

Chapter 2: Juveniles

233-242







Book 4: Methods of Reviewing Judgements




Section1: Objection to Judgement in Absentia

243-248

Section 2: Cassation

249-265

Section 3: Correction of the Cassation Decision

266-269

Section 4: Re-trial

270-279







Book 5: Implementation




Section 1: General Principles

280-284

Section 2: The Execution

285-293

Section 3: Implementation of Custodial Sentences and Fines

294-299







Book 6: Miscellaneous




Section 1: Conclusion of a Criminal Case

300-307

Section 2: The Handling of Impounded Goods

308-316

Section 3: Commitment to Keep the Peace and to be of Good Behaviour

317-330

Chapter 1: Commitment to Keep the Peace

317-320

Chapter 2: Commitment to Good Behaviour

321-324

Chapter 3: Joint Rulings to Keep the Peace and by of Good Behaviour

325-330

Section 4: Conditional Discharge

331-337

Section 5: Pardon by the Victim

338-341

Section 6: Rehabilitation

342-351 (deleted)

Section 7: Requests for Legal Assistance and Extradition of Criminals

352-368

Chapter 1: Requests for Legal Assistance

353-356

Chapter 2: Extradition of Criminals

357-368

Section 8: Transitional Provisions

369-370

Section 9: Final Paragraphs

371-373



Introduction
The University of Utah, SJ Quinney College of Law, Global Justice Project: Iraq is funded by a grant from the US State Department, Bureau of International Narcotics and Law Enforcement Affairs.
The Iraqi Criminal Procedure Code 23 of 1971 replaced the Baghdad Procedure Code of 1919. It was modelled on the Egyptian Criminal Procedure Code 150 of 1950, which itself was based upon the Napoleonic Codes adopted in Egypt in the late 19th Century.
Although widely referred to in English as ‘The Criminal Procedure Code’ the word for word literal translation of the Arabic (qanun usul al-muhaakamaat al-jizaiyya) is principles of penal (jazaiyya) trials (muhaakamaat)
The original translated text of the Criminal Procedure Code 23 of 1971 was taken from the PDF file incorporating amendments up to 1986 which is freely available in a number of places including:

http://www.unhcr.org/refworld/docid/468a674a2.html

http://law.case.edu/saddamtrial/documents/Iraqi_Criminal_Procedure_Code.pdf
The translation was revised in part by GJPI; many omissions and errors were identified and amended; all post-1971 amendments were checked against the texts in the Arabic Official Gazette, the English language Official Gazette, published between 1959 and 2002, the CPA era Official Gazette published in English and Arabic in 2003 – 2004 and GJPI English translations of the post CPA era Official Gazette where relevant.
We can say that it is better than when we first started, but we cannot guarantee the accuracy of the translation. A number of errors have come to light only when we deepened our understanding of the way that the law operated and we cannot claim to have perfected this understanding.
Some anomalies remain:

The CPA Orders would appear to have been written in English and then translated into Arabic. Sometimes the translation gives a different result when the order is applied to an English translated text compared to the Arabic text. We have tried to capture the effect on the Arabic text.


CPA Memorandum 3, which amends a number of provisions of the Criminal Procedure Code, exists in two versions – the version signed on 18 June 2003 and published in the Official Gazette, issue 3978 of 17 August 2003 and a revised version, signed on 27 June 2004, which was never published in the Official Gazette (which is the version on the CPA archive website at http://www.cpa-iraq.org/regulations/index.html).

In so far as it directly applies to the text of the Criminal Procedure Code No. 23 of 1971, the primary substantive difference is that Article 179 was purportedly amended to delete the words “A refusal to answer will be considered as evidence against the Defendant” in the original published CPA Memorandum 3, but not in the revised unpublished version. This difference may have been cause by the fact that the phrase actually contained in Article 179 of the Criminal Procedure Code has the opposite meaning (“A refusal to answer will not be considered as evidence against the Defendant” [our emphasis]) and therefore did not need amendment. There is also a different numbering scheme between the two versions. CPA orders and memoranda are said to have come into force upon the date of signature (rather than publication) and are not made under any of Iraqi’s pre-2003 constitutions. However publication in the Official Gazette would appear to be being regarded as a de-facto requirement and Iraqi Arabic texts and commentaries2 do not follow the revised version – and nor do the laws which have been passed to amend or repeal various provisions of CPA Memorandum 3, such as the Law Re-establishing the procedures concerning the Death Penalty No. 13 of 2007, which refers to the organisational structure of the original CPA Memorandum 3. We have therefore relied upon the text and structure of the original CPA Memorandum 3.


In both versions of Memorandum 3, the text providing the right to legal representation whilst in detention3 is poorly translated. The aim in English was to give those accused suspected of a felony [jinaiyya] offence the right to legal representation whilst in detention (although free legal representation does not seem to be envisaged). Instead the Arabic translation uses the term [jinaiyya jazaiyya] this conveys the meaning merely of a criminal offence generally (not specifically a felony).
Articles 285 to 293 (operation of the death penalty) were suspended by CPA Memorandum 3, Section 4(m) and then restored by Law 13 of 2007 which purported to have retrospective effect. One consequence of that retrospective effect would be that any one executed other than in accordance with these provisions in the intervening period was not lawfully executed.
The are a number of references to the Ministry of Justice or the Minister of Justice within the text of the Criminal Procedure Code which are clearly designed to refer to the Ministry in its former role in authority over the judiciary. CPA Order 35 re-established the Council of Judges independent of the Ministry of Justice (the Council of Judges later evolved into the Higher Judicial Council pursuant to CPA Order 100 Section 3(13) and Article 45 of the Transitional Administrative Law). Section 7 of CPA Memorandum 12, signed on 8 May 2004, published in the Official Gazette, issue 3985 of July 2004 rather unhelpfully states:

References in Iraqi law to the Ministry of Justice or the Minister of Justice shall, where necessary and proper in light of CPA Order 35 or the Law of Administration for the State of Iraq for the Transitional Period, or where otherwise necessary and proper to maintain the independence of the judiciary, be construed to refer to the Council of Judges or its President, or to the Court of Cassation or its Chief Judge, or to the Supreme Federal Court or its Presiding Judge, as appropriate. The courts shall have sole jurisdiction to adjudicate disputes in this connection.
We have made reference to this change wherever relevant. There is one reference (in Article 136(A)) where it is arguably neither necessary nor proper to alter the text from Minister of Justice to a judicial figure given the political nature of the decision making envisaged.
Where it appears necessary to improve clarity, we have indicated in square brackets before the word ‘judge’ that the reference must mean [investigative] judge4. We have also indicated in square brackets where the word ‘investigator’5 must mean [judicial] investigator6 (a class of persons employed by the Higher Judicial Council) or in the alternative a police investigator who has formally been given the powers of a judicial investigator pursuant to Article 51(E) of the Criminal Procedure Code and RCC Resolution 12 of 1995. We have used the rather inadequate translation ‘crime scene officer’ as a translation of ‘a’dah’ al-dhabit al-qadai’.7 ‘Accused’ is used as a translation of mutahim rather than ‘defendant’ which relates to civil cases. The words iqrar (admission) and i’tiraf (confession) appear to have been used interchangeably.
A separate text contains the law as it applies in the Kurdistan Region of Iraq. Following Kurdish Decree 11 of 1992, the view of Kurdish lawyers, judges and legislators is that save for laws relating to the exclusive federal powers as listed in Article 110 of the 2005 Constitution, post 1992, new laws and amendments to existing law originating from Baghdad are not recognised as applicable in the Kurdistan Region of Iraq unless expressly endorsed by legislation of the Kurdistan Parliament. This includes the CPA orders issued in 2003 / 2004 - despite the wording of Articles 26 and 54(B) of the Transitional Administrative Law.

It may be noteworthy that the recommendations presented to the Council of Representatives by the sub-committee to the Constitutional Review Committee have proposed that Criminal (and Civil) Procedure matters become part of the exclusive federal jurisdiction. Only time will tell if these amendments are passed.


List of Amendments and Supplements to the Criminal Procedure Code No. 23 of 1971

*Law 61 of 1972 (First amendment to the Criminal Procedure Code No. 23 of 1971) published in the Official Gazette, issue 2149 of 8 June 1972

*Law 34 of 1974 (Second amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2333 of 27 March 1974

*Law 65 of 1974, (Third amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2348 of 7 May 1974

*Law 193 of 1975 (Fourth amendment to the Criminal Procedure Code No. 23 of 1971, published in the Official Gazette, issue 2504 of 15 December 1975

*Law 91 of 1976 (Fifth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2545 of 23 August 1976

*Law 35 of 1977 (Legal System Reform), published in the Official Gazette, issue 2576 of 14 March 1977

*Law 201 of 1978 (Sixth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2691 of 8 January 1979 (re Article 136(b))

*RCC Decision 997 of 30 July 1978, published in the Official Gazette, issue 2667 of 7 August 1978

*RCC Resolution 218 of 1979, published in the Official Gazette, issue 2699 of 26 February 1979

*Law 159 of 1979 (Public Prosecution Law), published in the Official Gazette, issue 2746 of 17 December 1979

*Law 160 of 1979 (Judicial Organisation Law), published in the Official Gazette, issue 2746 of 17 December 1979

*Law 33 of 1980 (Seventh amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2757 of 18 February 1980

*Law of Implementation No 45 of 1980, published in the Official Gazette, issue 2762 of 17 March 1980

*Law 201 of 1980 (Eighth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 2807 of 15 December 1980

*RCC Resolution 895 of 1981, published in the Official Gazette, issue 2842 of 27 July 1981

*RCC Resolution 453 of 1984, Article 1, published in the Official Gazette, issue 2991 of 30 April 1984

*RCC Resolution 794 of 1984, published in the Official Gazette, issue 3003 of 23 July 1984

*Law 78 of 1984 (Ninth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3010 of 10 September 1984

*RCC Resolution 748 of 1987 (re-instating Article 136(b)), published in the Official Gazette, issue 3171 of 12 October 1987

*Law No. 119 of 1987 (Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3184 of 11 January 1988

*Law No. 119 of 1988 (Tenth amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3222 of 3 October 1988

*RCC Decree, No. 104 of 1988, published in the Official Gazette, issue 3188 of 2 August 1988

*RCC Resolution No. 460 of 1991 published in the Official Gazette, issue 3387 of 6 January 1992

*Law 9 of 1992 (Eleventh Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3402 of 20 April 19928

*RCC Resolution 76 of 1994, published in the Official Gazette, issue 3517 of 4 July 1994

*RCC Resolution 120 of 1994, published in the Official Gazette, issue 3526 of 5 September 1994

*RCC Resolution 12 of 1995, published in the Official Gazette, issue 3547 of 23 January 1995

*RCC Resolution 42 of 1995, published in the Official Gazette, issue 3562 of 8 May 1995

*Law 10 of 1995 (Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3568 of 19 June 1995

*RCC Resolution 80 of 1996, published in the Official Gazette, issue 3630 of 12 August 1996

*RCC Resolution 137 of 1996, published in the Official Gazette, issue 3647 of 9 December 1996

*RCC Resolution 157 of 1996, published in the Official Gazette, issue 3651 of 6 January 1997

*RCC Resolution 101 of 1999, published in the Official Gazette, issue 3781 of 5 July 1999

*Law 20 of 1999 (Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3785 of 2 August 1999

*Law 30 of 2001 (Amendment to the Criminal Procedure Code No. 23 of 1971), published in the Official Gazette, issue 3872 of 2 April 2001

*Law 87 of 2001 (amendment to Article 331 to exclude those convicted of sex crimes from conditional early release), published in the Official Gazette, issue 3904 of 12 November 2001

*Instructions 3 of 2001, published in the Official Gazette, issue 3874 of 16 April 2001


*CPA Order 7, signed 10 June 2003, published in the Official Gazette, issue 3978 of 17 August 2003

*CPA Order 13 (establishing the CCCI) (revised) (amended), signed 22 April 2004, published in the Official Gazette, issue 3983 of June 20049

*CPA Order 31, signed 10 September 2003, published in the Official Gazette, issue 3980 of March 2004

*CPA Order 41: Notification of Criminal Offences, signed 15 September 2003, published in the Official Gazette, issue 3980 of March 2004

*CPA Memorandum 3, signed 18 June 2003, published in the Official Gazette, issue 3978 of 17 August 200310

*CPA Memorandum 12: Administration of Independent Judiciary, signed 8 May 2004, published in the Official Gazette, issue 3985 of July 2004


*Executive Order 3 of 2004: Reintroducing the death penalty for a limited number of crimes, published in the Official Gazette, issue 3987 of September 2004

*Interim Government Order 14 of 2005 (restoring Article 136(b)), published in the Official Gazette, issue 3995 of 3 March 2005

*Anti-Terrorism Law No 13 of 2005

*Law No. 10 of 2006: Amendment to Public Prosecution Law No. 159 of 1979

*Law No. 13 of 2007: Reintroducing the safeguards contained in the Criminal Procedure Code No 23 of 1971 for the application of the death penalty, published in the Official Gazette, issue 4039 of 18 April 2007

*Military Penal Law No. 19 of 2007

*Military Criminal Procedure Law No. 30 of 2007

*Internal Security Forces Penal Law No. 14 of 2008

*Internal Security Forces Criminal Procedure Law No. 17 of 2008

*Amnesty Law No. 19 of 2008

*Law No. 15 of 2009, published in the Official Gazette, issue 4133 of 17 August 2009 (False Notification of an Offence)

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