Posted on | November 8, 2009
See court structure diagram and criminal cassation pathways diagram.
Iraq is a party to the International Covenant on Civil and Political Rights which states at Article 14(5) “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” The mechanism by which Iraq meets this obligation is explored below.
Under the Criminal Procedure Code No. 23 of 1971, Book 4 entitled ‘Review of Decisions’ طرق الطعن في الاحكام there are four methods of review of a court judgment:
1. objection to judgment in absentia (Articles 243-48);
2. cassation (Articles 249-65);
3. correction of cassation decision (Articles 266-69);
4. re-trial (Articles 270-79).
Added to this could be the administrative court function of the Shura Council and some of the the various functions of the Federal Supreme Court. However those bodies are not discussed in this paper.
Even if we define ‘appeal’ very broadly as “the review of a case before a higher tribunal” then only method 2 above would come within that definition.
We have used the term ‘appeal’ as a translation of الإستئناف (al-isti’naf)
This is to be distinguished from the term ‘cassation’ which we have used as a translation of التمييز (al-tamiiz).
The term طعن (ta’an) means the process of submitting a case for review or appeal.
In Iraqi law, an appeal is a re-hearing. Cassation is a review (almost always on the papers).
In Iraqi civil (as opposed to criminal) courts, there are three levels – first instance (bida’a); appeal (al-isti’naf) and cassation (tamiiz). However in the two level criminal system, there is no appeal stage.
Routes to Cassation
• The Felony Court sitting in Cassation reviews the simple infraction jurisdiction of the investigative judge (under Criminal Procedure Code Article 134(D)) and the infraction jurisdiction of the Misdemeanour Court (under Criminal Procedure Code Article 265).
• The Court of Appeal, strictly speaking, does not have any role to play in criminal cases as an appellate court.
• The Court of Appeal in its Cassation Function reviews the decisions of the Misdemeanour Court and the Juvenile Court in Misdemeanour Cases (RCC Resolution 104 of 1988).
• The Court of Cassation Penal Board has the jurisdiction to review decisions of the Felony Court and the Juvenile Court in Felony Cases (Criminal Procedure Code Article 257(A)).
• The Court of Cassation General Board has the jurisdiction to review cases where a death sentence or life imprisonment has been imposed; where the Presiding Judge of the Court of Cassation is involved; where the Penal Board has referred the cases; or in other exceptional situations set down by law (Criminal Procedure Code Article 257(B)).
1. Objection to judgment in absentia
الاعتراض على الحكم الغيابي
An objection to a judgment in absentia is not an “appeal” in the common law sense of the word because it does not go to a different court. However, it is a challenge to the judgment of the court, the submission of which falls within the same Arabic term, ta’an, as an appeal. After the convicted person has been informed about the in absentia verdict, he can object to same court in which the judgment was made or to any police station within 30 days if the verdict is for an infraction, 3 months if it is for a misdemeanour and 6 months if it is for a felony. Otherwise, the verdict will be considered in the same manner as a decision made in the presence of the parties and be subject only to cassation and correction of cassation decision (Criminal Procedure Code Article 243).
The court normally faces three kinds of situations when the defendant submits its objection to an in absentia judgment (Criminal Procedure Code, Articles 244 to 248).
• First, if the defendant does not appear in the court on the specified time and date without any reasonable justification, the objection will be dismissed and that decision will have the status of a decision made in the presence of the parties.
• Second, if the defendant submits his objection to the in absentia judgment after the limitation period has lapsed; the court must dismiss the objection request. Those rules are not applied in the case of a sentence of death or life imprisonment.
• Third, if the defendant is present at the session of the objection to the in absentia hearing, then the court has to re-hear the witness and experts, record the defendant’s testimony and questioning and decide whether to affirm, amend, or remand its prior decision. Then the court can determine the proper punishment, but without increasing the sentence over that imposed in the absentia decision when the defendant is charged with misdemeanor. In the case of a felony, the court will hear the case as if it is a new case without giving any consideration to the in absentia decision.
‘Cassation’ is the general review process that exists under Iraqi criminal law. It is a review of the final decision of the trial court for any legal errors. Criminal Procedure Code Article 249 sets out potential reasons for cassation review when there is:
1. Breach of the law;
2. Mistake in application or interpretation of the applicable law;
3. Fundamental error in standard procedures; for example, preventing a defendant from defending himself;
4. Mistake in assessing the validity of evidence;
5. Mistake in assessing the required punishment.
The cassation process does not usually require the court to review the factual record in detail, or to re-examine witnesses and the like.
According to the Iraqi criminal procedure, there are two types of cassation: required cassation and optional or non-required cassation. The court to which the cassation is made depends on which form of cassation it is.
a. Required Cassation
Required cassation which is also called direct cassation is required only in felony cases where a defendant is punished to death or life imprisonment and in juvenile cases where the juvenile has been convicted of a felony. It is brought directly to the Court of Cassation without requiring one of the parties to initiate an appeal. The trial court has to send all the required papers within 10 days of the decision to the general prosecutor’s office. The general prosecutor has to give his opinion on all the decisions related to original as well as secondary punishment decided by the lower court and send its opinion to the Court of Cassation, within 30 days, for their consideration. Further, the defendant can also submit an additional memoranda to state reasons why the Court of Cassation should not uphold the trial court’s decision whether in the criminal or civil case.
b. Cassation by Petition
This kind of direct request for a review is the other method available to a defendant to object to the lower courts judgments against him. Here any party with the right to request a review must submit papers to the relevant court within a specified time; otherwise a party will lose his right to appeal. Under Criminal Procedure Code, Article 249, the parties who have the right to request a review are the general prosecutor, the defendant, the victim, the plaintiff to the civil case and the person responsible to the plaintiff in the civil case.
This form of cassation is brought to the relevant court as set out above.
Criminal Procedure Code Article 264 gives the right to the Court of Cassation to supervise the lower courts’ decisions sua sponte (either on its own accord or at the request of an interested party), but without having any power to aggravate or convict the defendant if he was found not guilty, unless it is requested to do so within 30 days. Moreover, article 264(B) specifically states that the court can interfere to use its supervisory power even when the court itself has dismissed or would otherwise dismiss a cassation by petition because of the lapse of the period of limitation for appeal.
3. Correction of Cassation Decision
تصحيح القرار التمييزي
This is a review of an original Court of Cassation decision by the Court of Cassation on the basis of a legal error. The Criminal Procedure Code Articles 266-69 explains this method of review. The parties that have the right to request this method are the general prosecutor, the convicted person or all others connected with a criminal case. The request must be submitted within 30 days of the date the defendant was notified of the original cassation decision or the date that the trial court receives the case documentation from the Court of Cassation.
The decisions those are not subject to such cassation correction are set in the Criminal Procedure Code Article 267 as:
A. A decision for reversal and re-trial or a second judicial investigation;
B. A decision issued for the return of case documentation for review of the judgement;
C. A decision issued by the Court of Cassation General Board.
Otherwise, all other decisions of the Court of Cassation are subject to this method of review. The law is not clear but on the basis that Resolution 104 of 1988 gives the Court of Appeal in its Cassation Function the powers of the Court of Cassation, they might be presumed to also have this power. It might also be possible to argue that the Court of Cassation itself would have this power – although this offends against the principle of a cassation court as the final review body. It would not appear to be available for the cassation decisions of the Felony Court sitting in Cassation or the Court of Appeal in its Cassation Function (Criminal Procedure Code Article 265(D) states that the decision of the Felony Court sitting in Cassation is ‘final’).
The panel of judges that determines the correction of cassation is an expanded one from the panel that hears the cassation. Under Criminal Procedure Code Article 268, if the panel agrees that there has been a legal mistake, it can:
(i) declare the cassation decision void and hold the lower court decision as valid;
(ii) vacate the cassation decision and issue a new cassation decision and send the case to the lower court to look at it in accordance with the new cassation decision; or
(iii) vacate the original court’s decision and issue a new cassation decision.
Criminal Procedure Code Article 269 states that a request for a correction of a cassation decisions can be accepted only once, and a decision to accept or reject a request for correction cannot itself be corrected.
Criminal Procedure Code Article 270 states the situations in which a re-trial is allowed in misdemeanor and felony cases. These are limited and unusual cases:
A. Where there has been a guilty verdict for murder then later the victim is found alive;
B. When there are two people convicted for the same crime;
C. Where the conviction is based upon the evidence of an expert or specialist or document and later a verdict is issued against that expert or witness on the basis of having borne false witness or the document is shown to be a forgery;
D. If after the judgment is issued, facts come to light, or documents are presented which were not known at the time of the trial, and these prove the innocence of the convicted person.
E. If the judgment was based on a judgment which was quashed or annulled by lawful means.
F. If a guilty or not guilty judgment, or a final decision for discharge was issued on the basis of a criminal act, either separate or related to the original offence;
G. If for any lawful reason the offence or sentence no longer apply to the accused.
Re-trial is allowed only after the decisions reach final judgment. The only parties who can request re-trial are the defendant or his defense lawyer, and spouse or any relative of a dead defendant (Criminal Procedure Code Article 271). The party requesting re-trial should submit his/her request and supporting his position with reasons, to the general prosecutor who will investigate the requesting party’s supports for re-trial. Then, the prosecutor will submit the request and papers with their opinion about the request to the Court of Cassation where the Court of Cassation will either dismiss the request or send the request to the lower court that heard the case for re-trial. Criminal Procedure Code Article 279 states that if a request for re-trial has been dismissed by the court, the requesting party shall not request for another re-trial based on the same reasoning unless new reasons can support the request.