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[size=30]About the plight of the judiciary in Iraq[/size]
[You must be registered and logged in to see this image.]5/7/2021 10:18:43 PM1490 Views
Yahya Al-Kubaisi
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[rtl]Since the establishment of the modern Iraqi state, until the moment of the occupation in 2003, the Iraqi judiciary has been subject to the executive authority.If the Basic Law of 1925 attempted to approach the concept without explicitly stipulating it, then the republican constitutions beginning in 1958 completely abrogated this concept.Whether through not being mentioned in successive provisional constitutions (1958, 1964, 1968, 1970) or through political practice that witnessed a monopoly of powers;Consequently, the phrase "the independence of the judiciary" mentioned in these constitutions had no real content![/rtl]
[rtl]After the year 2003, the Americans imposed the principle of separation of powers, whether through Order No. 35 of 2003, which reconfigured the Supreme Judicial Council to be completely independent from the executive authority / Ministry of Justice, or through the temporary State Administration Law issued in March 2004. This principle Which was adopted by the Iraqi constitution of 2005 when it defined the nature of the authorities as: “The legislative, executive and judicial authorities shall exercise their competencies and tasks on the basis of the principle of separation of powers” (Article 47).However, the Iraqi political elites have not understood, up to this point, the principle of balanced distribution of power between the three authorities: legislative, executive, and judicial, and the need to activate mutual control between them: Power should be a check to power, and this requires, in the beginning, respect for all An authority for its powers defined by the constitution, as any of them monopolizing power threatens to replace the law with tyranny and tyranny.[/rtl]
[rtl]The judiciary in Iraq has failed to guarantee this independence, and has allowed political actors to use it as a tool in their struggles, through excessive ease in issuing arrest warrants, through its lack of compliance with the constitutional and legal frameworks for places of detention, and through the introduction of investigations conducted by the security authorities without review, and the introduction of confessions obtained under duress. And under torture, or by not giving the accused the opportunity to defend themselves, and through trials that do not adhere to the procedures imposed by the Criminal Procedure Law, and to fair trial standards.[/rtl]
[rtl]In the report of the United Nations Mission in Iraq issued in January 2020 entitled “Trials under the anti-terrorism laws and the implications for justice, accountability and social cohesion in the aftermath of the ISIS phase,” the mission spoke of its grave concern “about the lack of respect for basic standards of a fair trial.And she warned that failure to comply with procedural guarantees and fair trial standards may lead to the emergence of new grievances, whether real or foreseeable, and to maintain the drivers of conflicts, such as structural discrimination, injustice and impunity, which has previously made some individuals choose the option of violence and the empowerment of ISIS To find support for him in Iraq.[/rtl]
[rtl]And if the United Nations mission is observing “unfair” trials related to those accused of belonging to ISIS, and thus its concern about “harsh punishments that fail to distinguish between degrees of criminal responsibility,” that is, without discrimination ”between those who participated in acts of violence and those who joined ISIS in pursuit of or under Coercion ».The "reduced penalties" that fail to distinguish between degrees of criminal responsibility are also unfair trials, and they make the entire judicial system a source of grave concern![/rtl]
[rtl]On April 8, 2021, the Mosul Criminal Court convicted an officer of the crime of "beating that leads to death" in accordance with the provisions of Article 410 of the Penal Code, and sentenced him to imprisonment for "five years and one month."According to the statement of the Supreme Judicial Council, the reasons for the ruling are summarized as "that the convicted person arrested the imam and preacher of one of the mosques in Nineveh without an arrest warrant or a search decision, and took him to the headquarters of the special secret and interrogated him and tortured him, which caused his death."[/rtl]
[rtl]Returning to Article 410 of the Iraqi Penal Code, we will find that it appears in the chapter entitled “Beating that leads to death and killing by mistake.” The article states that “whoever deliberately beats, wounds, or violently or by giving a harmful substance or by committing another act in contravention of the law, and he did not intend to kill him,” But it led to his death. He is punished with imprisonment for a period not exceeding fifteen years. ”This is an article that has absolutely nothing to do with the four crimes that the accused committed first, and the worst of that is that the judge sentenced him to five years and a month only in order for the“ imprisonment ”ruling to apply to him because the law distinguishes between Imprisonment and imprisonment for the first being less than five years, while the second being five years or more!Consequently, the verdict was "reduced" in an incomprehensible way![/rtl]
[rtl]This means that the court, for some reason, did not adhere to the correctness of the law, and deliberately failed to sentence the accused according to Article 421 of the Penal Code, which deals with crimes affecting freedom and inviolability of the human being, and the arrest, kidnapping and detention of persons.The article that was amended in 2003 according to Order No. 31 stipulated that “Whoever apprehends, detains, or deprives a person of his liberty by any means without an order from a competent authority shall be punished with life imprisonment.” The original article before the amendment had intensified the punishment of such The verb when the verb is accompanied by "physical or psychological torture"!Rather, Article 425 states that if the indicated torture leads to the death of the "kidnapped", the punishment is death or life imprisonment, "even without the amendment that was made in 2003.[/rtl]
[rtl]It also means that the court has not adhered to the correct constitution, which stipulates the prohibition of “all kinds of psychological and physical torture and inhuman treatment,” although Iraqi law does not contain truly deterrent penalties in relation to torture, which contravenes Iraq's obligations under the Convention against Torture and Other Forms of Treatment. The cruel, inhuman or degrading law of 1984 ratified by Iraq in 2008, which stipulated in Article 4 that member states ensure that all acts of torture are considered crimes under their criminal law. However, the Iraqi Penal Code is still, of course, far from the spirit of the constitutional article, the provisions Articles 332 and 333 of the Penal Code punish every public servant who tortured, ordered torture, or used cruelty, and as it is clear, we are here facing largely "lenient" penalties, and not at all deterrent, yet the court did not turn to the case. Torture in its rule absolutely![/rtl]
[rtl]Finally, what is the logic for sentencing an accused who kidnapped, tortured and killed a citizen under this torture under Article 410 relating to manslaughter?Or beatings leading to death?As if the act took place in a quarrel in a cafe, or on a public road!It is not under Article 406, which punishes the death penalty for someone who deliberately kills a soul in the case of "the perpetrator using brutal methods in committing the act", especially since it is linked to two other crimes, namely kidnapping and torture, which the court "forgot"![/rtl]
[rtl]The judiciary can be an effective and essential tool in building the state and society, and at the same time it can be a factor in undermining both of them, and issuing harsh or lenient judgments through unfair trials that can only be in the path of this undermining![/rtl]
[rtl]After the year 2003, the Americans imposed the principle of separation of powers, whether through Order No. 35 of 2003, which reconfigured the Supreme Judicial Council to be completely independent from the executive authority / Ministry of Justice, or through the temporary State Administration Law issued in March 2004. This principle Which was adopted by the Iraqi constitution of 2005 when it defined the nature of the authorities as: “The legislative, executive and judicial authorities shall exercise their competencies and tasks on the basis of the principle of separation of powers” (Article 47).However, the Iraqi political elites have not understood, up to this point, the principle of balanced distribution of power between the three authorities: legislative, executive, and judicial, and the need to activate mutual control between them: Power should be a check to power, and this requires, in the beginning, respect for all An authority for its powers defined by the constitution, as any of them monopolizing power threatens to replace the law with tyranny and tyranny.[/rtl]
[rtl]The judiciary in Iraq has failed to guarantee this independence, and has allowed political actors to use it as a tool in their struggles, through excessive ease in issuing arrest warrants, through its lack of compliance with the constitutional and legal frameworks for places of detention, and through the introduction of investigations conducted by the security authorities without review, and the introduction of confessions obtained under duress. And under torture, or by not giving the accused the opportunity to defend themselves, and through trials that do not adhere to the procedures imposed by the Criminal Procedure Law, and to fair trial standards.[/rtl]
[rtl]In the report of the United Nations Mission in Iraq issued in January 2020 entitled “Trials under the anti-terrorism laws and the implications for justice, accountability and social cohesion in the aftermath of the ISIS phase,” the mission spoke of its grave concern “about the lack of respect for basic standards of a fair trial.And she warned that failure to comply with procedural guarantees and fair trial standards may lead to the emergence of new grievances, whether real or foreseeable, and to maintain the drivers of conflicts, such as structural discrimination, injustice and impunity, which has previously made some individuals choose the option of violence and the empowerment of ISIS To find support for him in Iraq.[/rtl]
[rtl]And if the United Nations mission is observing “unfair” trials related to those accused of belonging to ISIS, and thus its concern about “harsh punishments that fail to distinguish between degrees of criminal responsibility,” that is, without discrimination ”between those who participated in acts of violence and those who joined ISIS in pursuit of or under Coercion ».The "reduced penalties" that fail to distinguish between degrees of criminal responsibility are also unfair trials, and they make the entire judicial system a source of grave concern![/rtl]
[rtl]On April 8, 2021, the Mosul Criminal Court convicted an officer of the crime of "beating that leads to death" in accordance with the provisions of Article 410 of the Penal Code, and sentenced him to imprisonment for "five years and one month."According to the statement of the Supreme Judicial Council, the reasons for the ruling are summarized as "that the convicted person arrested the imam and preacher of one of the mosques in Nineveh without an arrest warrant or a search decision, and took him to the headquarters of the special secret and interrogated him and tortured him, which caused his death."[/rtl]
[rtl]Returning to Article 410 of the Iraqi Penal Code, we will find that it appears in the chapter entitled “Beating that leads to death and killing by mistake.” The article states that “whoever deliberately beats, wounds, or violently or by giving a harmful substance or by committing another act in contravention of the law, and he did not intend to kill him,” But it led to his death. He is punished with imprisonment for a period not exceeding fifteen years. ”This is an article that has absolutely nothing to do with the four crimes that the accused committed first, and the worst of that is that the judge sentenced him to five years and a month only in order for the“ imprisonment ”ruling to apply to him because the law distinguishes between Imprisonment and imprisonment for the first being less than five years, while the second being five years or more!Consequently, the verdict was "reduced" in an incomprehensible way![/rtl]
[rtl]This means that the court, for some reason, did not adhere to the correctness of the law, and deliberately failed to sentence the accused according to Article 421 of the Penal Code, which deals with crimes affecting freedom and inviolability of the human being, and the arrest, kidnapping and detention of persons.The article that was amended in 2003 according to Order No. 31 stipulated that “Whoever apprehends, detains, or deprives a person of his liberty by any means without an order from a competent authority shall be punished with life imprisonment.” The original article before the amendment had intensified the punishment of such The verb when the verb is accompanied by "physical or psychological torture"!Rather, Article 425 states that if the indicated torture leads to the death of the "kidnapped", the punishment is death or life imprisonment, "even without the amendment that was made in 2003.[/rtl]
[rtl]It also means that the court has not adhered to the correct constitution, which stipulates the prohibition of “all kinds of psychological and physical torture and inhuman treatment,” although Iraqi law does not contain truly deterrent penalties in relation to torture, which contravenes Iraq's obligations under the Convention against Torture and Other Forms of Treatment. The cruel, inhuman or degrading law of 1984 ratified by Iraq in 2008, which stipulated in Article 4 that member states ensure that all acts of torture are considered crimes under their criminal law. However, the Iraqi Penal Code is still, of course, far from the spirit of the constitutional article, the provisions Articles 332 and 333 of the Penal Code punish every public servant who tortured, ordered torture, or used cruelty, and as it is clear, we are here facing largely "lenient" penalties, and not at all deterrent, yet the court did not turn to the case. Torture in its rule absolutely![/rtl]
[rtl]Finally, what is the logic for sentencing an accused who kidnapped, tortured and killed a citizen under this torture under Article 410 relating to manslaughter?Or beatings leading to death?As if the act took place in a quarrel in a cafe, or on a public road!It is not under Article 406, which punishes the death penalty for someone who deliberately kills a soul in the case of "the perpetrator using brutal methods in committing the act", especially since it is linked to two other crimes, namely kidnapping and torture, which the court "forgot"![/rtl]
[rtl]The judiciary can be an effective and essential tool in building the state and society, and at the same time it can be a factor in undermining both of them, and issuing harsh or lenient judgments through unfair trials that can only be in the path of this undermining![/rtl]
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