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[size=36]The judiciary issues an explanation about the role of the Court of Cassation in preserving public money[/size]
Political | 09:17 - 02/02/2020
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Baghdad - Mawazine News
, The Supreme Judicial Council issued a clarification on Monday about the role of the Federal Cassation Court in preserving public funds.
And it came in the clarification: The
embodiment of the legislative authority's keenness in various ages to preserve the public money. Article (97) of the Municipal Administration Law No. (165) of 1964 in which it was stated (registered in the name of the municipality without compensation for all the streets within its borders and left to use for public benefit) The ones that exist when this law comes into effect or that occur after that according to the laws in force or that fall within its boundaries when they are changed, and the Land Registry departments must correct the registration of these streets in the name of the municipality directly if they are registered in the name of others without a fee). From the analysis of this text, it is required to apply it to the real estate covered by the following: -
1. That there be an open street within the municipal boundaries, and therefore it does not include streets and roads outside the municipal boundaries whose provisions are regulated by other laws.
2. That this street be used for the public benefit by the actual public.
3. And if this street was previously open when the law came into effect on 10/13/1964.
(As for the streets that were created after its entry into force, the provisions of Article (97)) were restricted by the provisions of the Expropriation Law No. (54) for the year 1970, which was repealed by the Expropriation Law No. (12) of 1981 which replaced it.
The fulfillment of these conditions shall result in the following: -
1. The ownership of these streets is considered from the date of the issuance and enforcement of Article (97) in the name of the municipality and its registration is considered a disclosure of the state of its ownership of the streets rather than its origin. Transfer of ownership has been made by law.
2. Because these streets took place long ago for the public interest and provided countless services to the public, and for this reason, their registration for the public interest is free of charge.
Based on the foregoing, the judicial work settled in all the courts of Iraq and at all levels of litigation, foremost of which is the Federal Court of Cassation, on the necessity of verifying whether the property included in the public street is covered by the provisions of Article (97) of the Municipal Administration Law or not when filing lawsuits to prevent the opposition or demand a fee of the same from Before realtors that did not register the streets in the name of the municipality in the Real Estate Registration House, the judgments of the civil judiciary in Iraq and the principles of the Federal Court of Cassation settled the lawsuit to prevent the opposition filed by the owner of the property going to the public street or demand a fee of the same if it was covered by the provisions of Article (97) To say otherwise leads to the disruption of a vital public facility, which is the public street, and affects the public interest and public money in the heart. Because the legislative wisdom from the legislator’s age for this article is to protect public money from one side and achieve the public interest and ensure the continuity of the public facility from providing its services to citizens. This legislative wisdom is the result of the intrinsic relationship to the subject of expropriation of real estate in the public interest and its association with public money for real reasons related to the era of the old past To open these streets by the state in the fifties, fifties and thirties of the last century or earlier than that, for example opening streets (cities of Kadhimiya, Adhamiya Karrada, Mansour, Bab Sharqi, Bab Al-Muadham, Al-Rashid Street, Al-Nahr Street A Street Kifah, Saadoun Street) as well as the streets of all of Iraq’s cities, for example (Mosul, Basra, Najaf, Karbala, Nasiriyah, Hilla, Kirkuk, Ramadi, etc.).
To advance the time period for opening these streets and because of the statute of limitations on the state and the position of the municipality on it and the use of it as streets that are used for public benefit, then this continuous possession of the municipality and its use for the public benefit shall be conclusive evidence of its ownership of these streets and the issuance of Article (97) except for the determination of this property.
Although this text, whose legislation has passed for more than fifty-six years, according to which public money and infrastructure ownership represented in public streets have been preserved, the direction of the Federal Supreme Court with its decision issued in the number (108) and its unit (124 / Federal / 2019) on 1/20/ 2020, which ruled the constitutionality of the provisions of Article (97) of the Municipal Administration Law raises suspicion, surprise, and motives that called on the President of the Federal Supreme Court to adopt the issuance of such a decision and in these sensitive circumstances that the country is going through coupled with the difficult economic conditions that the state is in spite of that any text Legal is legislated to save public money The public interest is one of the sacred axioms consent to the Constitution.
What came with the above decision in the event of its adoption will lead to a real financial catastrophe that falls on the state and weighs its treasury with absolutely infinite deficit and debts and billions of dinars resulting from the value of these streets and their benefits, and the state is obligated to pay them to real estate owners whose condition has been in the streets for more than half a century.
Consequently his judicial capacity ceased, his nomination and then his appointment as an original member of the Federal Supreme Court are absent, and the consequence of this is that when issuing the ruling that ruled the constitutionality of Article (97) of the Municipal Administration Law missing, it lacks its legal form, and its ruling is non-enforceable and this article is still In effect, enforceable, and enforceable, this principle was approved by the General Authority of the Federal Court of Cassation in its decision issued in the number (2 / General Authority / 2020) on 27/1/220 regarding the audit of the lawsuit of the dispute between the Basra Municipality Directorate and the General Company for Grain Processing regarding Sponsor the plot of the subject of the lawsuit, as the Federal Court of Cassation ruled the implementation of Article (97) of the Municipal Administration Law No. (165) for the year 1964, due to the fact that the ruling was unconstitutional issued by the Federal Court by Decision No. (108 / Unit 124 / Federal / 2019) on January 20 / 2020 The legal form was lost as it was issued by a quorum incomplete court
, The Supreme Judicial Council issued a clarification on Monday about the role of the Federal Cassation Court in preserving public funds.
And it came in the clarification: The
embodiment of the legislative authority's keenness in various ages to preserve the public money. Article (97) of the Municipal Administration Law No. (165) of 1964 in which it was stated (registered in the name of the municipality without compensation for all the streets within its borders and left to use for public benefit) The ones that exist when this law comes into effect or that occur after that according to the laws in force or that fall within its boundaries when they are changed, and the Land Registry departments must correct the registration of these streets in the name of the municipality directly if they are registered in the name of others without a fee). From the analysis of this text, it is required to apply it to the real estate covered by the following: -
1. That there be an open street within the municipal boundaries, and therefore it does not include streets and roads outside the municipal boundaries whose provisions are regulated by other laws.
2. That this street be used for the public benefit by the actual public.
3. And if this street was previously open when the law came into effect on 10/13/1964.
(As for the streets that were created after its entry into force, the provisions of Article (97)) were restricted by the provisions of the Expropriation Law No. (54) for the year 1970, which was repealed by the Expropriation Law No. (12) of 1981 which replaced it.
The fulfillment of these conditions shall result in the following: -
1. The ownership of these streets is considered from the date of the issuance and enforcement of Article (97) in the name of the municipality and its registration is considered a disclosure of the state of its ownership of the streets rather than its origin. Transfer of ownership has been made by law.
2. Because these streets took place long ago for the public interest and provided countless services to the public, and for this reason, their registration for the public interest is free of charge.
Based on the foregoing, the judicial work settled in all the courts of Iraq and at all levels of litigation, foremost of which is the Federal Court of Cassation, on the necessity of verifying whether the property included in the public street is covered by the provisions of Article (97) of the Municipal Administration Law or not when filing lawsuits to prevent the opposition or demand a fee of the same from Before realtors that did not register the streets in the name of the municipality in the Real Estate Registration House, the judgments of the civil judiciary in Iraq and the principles of the Federal Court of Cassation settled the lawsuit to prevent the opposition filed by the owner of the property going to the public street or demand a fee of the same if it was covered by the provisions of Article (97) To say otherwise leads to the disruption of a vital public facility, which is the public street, and affects the public interest and public money in the heart. Because the legislative wisdom from the legislator’s age for this article is to protect public money from one side and achieve the public interest and ensure the continuity of the public facility from providing its services to citizens. This legislative wisdom is the result of the intrinsic relationship to the subject of expropriation of real estate in the public interest and its association with public money for real reasons related to the era of the old past To open these streets by the state in the fifties, fifties and thirties of the last century or earlier than that, for example opening streets (cities of Kadhimiya, Adhamiya Karrada, Mansour, Bab Sharqi, Bab Al-Muadham, Al-Rashid Street, Al-Nahr Street A Street Kifah, Saadoun Street) as well as the streets of all of Iraq’s cities, for example (Mosul, Basra, Najaf, Karbala, Nasiriyah, Hilla, Kirkuk, Ramadi, etc.).
To advance the time period for opening these streets and because of the statute of limitations on the state and the position of the municipality on it and the use of it as streets that are used for public benefit, then this continuous possession of the municipality and its use for the public benefit shall be conclusive evidence of its ownership of these streets and the issuance of Article (97) except for the determination of this property.
Although this text, whose legislation has passed for more than fifty-six years, according to which public money and infrastructure ownership represented in public streets have been preserved, the direction of the Federal Supreme Court with its decision issued in the number (108) and its unit (124 / Federal / 2019) on 1/20/ 2020, which ruled the constitutionality of the provisions of Article (97) of the Municipal Administration Law raises suspicion, surprise, and motives that called on the President of the Federal Supreme Court to adopt the issuance of such a decision and in these sensitive circumstances that the country is going through coupled with the difficult economic conditions that the state is in spite of that any text Legal is legislated to save public money The public interest is one of the sacred axioms consent to the Constitution.
What came with the above decision in the event of its adoption will lead to a real financial catastrophe that falls on the state and weighs its treasury with absolutely infinite deficit and debts and billions of dinars resulting from the value of these streets and their benefits, and the state is obligated to pay them to real estate owners whose condition has been in the streets for more than half a century.
Consequently his judicial capacity ceased, his nomination and then his appointment as an original member of the Federal Supreme Court are absent, and the consequence of this is that when issuing the ruling that ruled the constitutionality of Article (97) of the Municipal Administration Law missing, it lacks its legal form, and its ruling is non-enforceable and this article is still In effect, enforceable, and enforceable, this principle was approved by the General Authority of the Federal Court of Cassation in its decision issued in the number (2 / General Authority / 2020) on 27/1/220 regarding the audit of the lawsuit of the dispute between the Basra Municipality Directorate and the General Company for Grain Processing regarding Sponsor the plot of the subject of the lawsuit, as the Federal Court of Cassation ruled the implementation of Article (97) of the Municipal Administration Law No. (165) for the year 1964, due to the fact that the ruling was unconstitutional issued by the Federal Court by Decision No. (108 / Unit 124 / Federal / 2019) on January 20 / 2020 The legal form was lost as it was issued by a quorum incomplete court
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