Posted on | December 13, 2009
The Iraqi Penal Code No. 111 of 1969 in article 87 defines the term ‘life imprisonment’ (sijn mua’abbad) as “the confinement of a convicted person in a penal institution set up by law for that purpose for a period of 20 years”. This form of punishment could apply when a serious crime such as intentional homicide is committed without regard to aggravating circumstances. The presence of aggravating circumstances could permit the death penalty to be imposed where the penalty otherwise prescribed was life imprisonment or in the alternative the period of imprisonment could be extended to a maximum of 25 years under article 136(2) of the Penal Code.
Article 140 permits the extension of a period of imprisonment to a maximum of 25 years in cases of similar re-offending before convictions are spent. Under Article 143(1) if consecutive sentences are passed for unrelated offenses with a common purpose, the total combined period must not exceed 25 years.
Article 87 expressly states that the total period of deprivation of liberty may not exceed 25 years under any circumstances.
However, the Coalition Provisional Authority (CPA) introduced a number of reforms to the criminal law including the possibility of ‘actual life imprisonment’ (sijn mada al hayat) which really means life (i.e. for the duration of the prisoner’s natural life). This new sentence was introduced after the suspension of the death penalty by CPA Order 7 , Section 3 and after the increase in crimes and prevalence of certain types of crime after 2003. Under Iraqi law prior to the CPA, those convicted of a wide range of crimes could be sentenced to death.
CPA Order 31 Sections 2, 3, 4, and 5 introduced this maximum penalty of ‘actual life imprisonment’ to the Iraqi Penal code for a number of specific crimes, namely kidnapping, rape, intentional damage to public property and theft of a means of transportation. The CPA order defined ‘actual life imprisonment’, as a sentence for the remaining natural life of a person until death, to be distinguished from the original, and still remaining, ‘life imprisonment’ of 20 years as defined in Article 87 of the Penal Code. Order 31 expressly dis-applies the 25 year maximum sentences in Article 87 of the Penal Code.
By Interim Government Decree No. 3 of 2004, the death penalty was re-introduced to the Penal Code by the Iraqi interim government , but with narrower application than before. Now the death penalty is applicable only for the following crimes in the Penal Code:
– Crimes against the internal security of the state (Articles 190 to 197) including drug trafficking with the aim of financing or abetting the overthrow of the government by force.
– Crimes involving flooding or the use of bacteriological materials (Articles 349 and 351(1))
– Crimes relating to attacking transport systems (Articles 354 and 355)
– Premeditated murder (Article 406)
– Kidnapping (Articles 421, 422 and 423)
To which we can add all of the crimes punishable with life imprisonment where aggravating features are present (Article 136(1)).
Other than the length of the sentence, the primary difference between ‘life imprisonment’ and ‘actual life imprisonment’ concerns remand pending trial. In the case of ‘actual life imprisonment’, CPA Order 31, Section 6 permits the investigative judge to hold the accused without bail indefinitely pending trial. In the case of ‘life imprisonment’, the normal provisions of Article 109 of the Criminal Procedure Code No. 23 of 1971 apply and the investigative judge may only hold the defendant for 15 days, subject to renewals of 15 days for a period not to last longer than six months, unless permission for a longer period is granted by the Felony Court, and even then a defendant cannot be held for longer than one quarter of the maximum sentence pending trial.