Posted on | September 21, 2009
Amendments to the Criminal Procedure Code in the rest of Iraq are dealt with here.
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, and following Kurdish Decree No. 11 of 1992 (arabic), new laws and amendments to existing laws originating from Baghdad after 23 October 1991 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. Criminal procedure does not fall within the exclusive Federal jurisdiction set out in Article 110 of the Constitution and therefore the Criminal Procedure Code No. 23 of 1971 can be freely amended by the Kurdish Parliament to apply as amended in the Kurdistan Region of Iraq.
The Kurdish legislature has made a number of amendments to the Criminal Procedure Code No. 23 of 1971 in particular by Law No. 22 of 2003 (arabic) (as amended itself by Law No. 6 of 2006 (arabic)) which include the following amendments:
Law No. 22 of 2003:
Article 1: amends sub-paragraph (C) of Article 61 [interpreters] to make the appointment of an interpreter mandatory rather than discretionary. The new text states:
C. If a witness does not understand the language in which the investigation is being conducted, or is deaf or dumb, a person will be appointed to translate what the witness says, or interpret the witness’s sign language, after taking an oath that he will translate or interpret truthfully and faithfully.
Article 2: amends Article 70 [physical examination] – this comprises changes in wording which would not appear to be substantive changes, other than requiring rather than merely desiring that a female is searched by another female.
Article 3: adds 2 extra sub-paragraphs to Article 123 [questioning of the accused]:
B. the accused has a right to a lawyer and if he cannot afford one the state must appoint one for him without any expense to him.
C. before an accused can be interrogated before an investigatory judge or investigator, the accused must be asked if he wishes to have a lawyer. Then the investigatory judge must stop the interrogation until a lawyer is appointed by the court.
Article 4: suspends the application of all of Article 136 [restrictions upon transfer for trial].
Article 5: amends the application of Article 144 (the amendment takes out the maximum and minimum amount of attorneys’ fees when the court appoints them to represent a suspect).
Article 6: amends section (B) of Article 168, in two respects:- firstly it now gives the right to a witness to testify in writing if he cannot speak for whatever reason. (The older law says that a witness can testify in writing only if the witness cannot talk for a reason such as disability); secondly it removes the requirement that questioning of a witness be ‘through the court’ rather than directly.
Article 7: amends section (A) of Article 184. This article is amended to prevent the immediate precautionary confiscation of an accused person’s assets when the action of the accused constitutes a crime affecting the nation’s rights and property. The category of crimes affecting the internal or external security of the state is also removed.
Article 8: amends section (A) of Article 199 so that permission from the Ministry of Justice is not required in order for the Chief Prosecutor to ask for suspension of investigation or trial provisionally or finally at any stage when there are reasons to justify it.
Article 9: amends Article 218. This amendment takes out part of the original language of the code which now states:
It is a condition of the acceptance of the confession that it is not given as a result of coercion.
Article 10: suspends the application of Articles 221 [the truth of official reports in infraction cases] and 306 [special amnesty edicts] .
Article 11: suspended section 2 of Book 5 of the Code relating to the implementation of the death penalty, which starts with article 285 and ends with article 293. However, that suspension has been subsequently repealed and these articles (285-293) reinstated by Kurdistan Law No. 6 of 2006 [resumption of applicability of the death penalty]. Article 2 of Law No. 6 of 2006 amends the words (president) to (president of the region) and (presidential order) to (regional order).
Article 12: amends Article 320. This amendment only takes out the last sentence of the original language of the code leaving it to read as follows:
On the appointed day, the judge undertakes an investigation of the veracity of the information and listens to the defence of the person reported to him. Once the investigation is concluded, he issues a decision, either rejecting the application if no steps to keep the peace are required or accepting it and binding over the person concerned, with or without bail.
Article 13: amends Article 324. This amendment only takes out the last sentence of the original language of the code leaving it to read as follows:
On the appointed day, the judge undertakes an investigation into the veracity of the information and listens to the defence of the person reported to him. Once the investigation is concluded, he issues a decision, rejecting the application if no steps to keep the peace are required, or accepting it and binding over the person concerned, with or without bail.
Article 14: suspends section (B) of Article 371 (stating that every stipulation of any other law conflicting with the provisions of this law in general is void).
Article 15 states that no law shall be enacted that contradicts this law. This seems odd and can’t attempt to bind future Kurdish laws – it may be an attempt to reinforce that no future Baghdad made Iraqi wide laws can amend the Kurdish amended texts.
We have attempted to construct a translation of the Criminal Procedure Code No. 23 of 1971 as it applies in the Kurdistan Region of Iraq.