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- TUE, 06-08-2021,PM 12:05
- TAYSEER AL-ASSADI
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[size=36]Written by: Judge Iyad Mohsen Damad
There has been discussion for days about the draft law on the recovery of corruption proceeds, which is one of the draft laws that try to create a legal basis to combat the phenomenon of corruption crime in Iraq and to recover the money obtained from it, which has caused great damage to Iraqi public money during the past years. The draft law came in six chapters and included (45 ) A legal article and among those chapters is what dealt with recovering the proceeds of corruption inside Iraq, including what dealt with the recovery of funds outside Iraq. As we appeal at the hands of the legislative and executive authorities to support the judiciary in combating the crime of corruption and recovering funds that represent the proceeds of its crimes, we have some observations that we summarize as follows:
[/size]First: Legislative slack
The most prominent observations that can be given to the draft law is that many of its articles are a duplicate of articles in previously approved laws, where the fight against corruption and the recovery of its money is not done through the legislation of a set of duplicate laws that carry the same provisions and address the same criminal phenomena, but corruption is combated By focusing on activating and implementing the legal texts that already exist, and adapting the executive institutions for this purpose, because the legislation of similar laws is nothing but a useless repetition that affects the legislative system with slack and public opinion feels useless to legislate laws that have already been legislated without achieving the required feasibility.
An example of the repetition of the articles of the draft law is what was mentioned in the articles of the second chapter, which talked about the recovery of funds from the crime of corruption inside Iraq by the judiciary, the Integrity Commission and the Public Prosecution Authority, whatever these funds are, even if they are mixed with other funds and the benefits and revenues derived from them, as well as the seizure and freezing of funds with The Council of Ministers must issue a system to show how to manage the seized and frozen funds. Article 7 of the law obligates financial institutions to take reasonable steps to identify the owners and beneficiaries. All of these articles have repeated the provisions of the Anti-Money Laundering and Terrorist Financing Law No. 39 of 2015 where its provisions are addressed It is necessary to track down and recover the proceeds of all crimes, including felonies and misdemeanours. Certainly, the crimes of financial and administrative corruption are among those crimes dealt with in the Anti-Money Laundering and Terrorist Financing Law, where Article (1 / VI) defines the proceeds of crime as:Funds resulting or obtained directly or indirectly, in whole or in part, from committing one of the predicate crimes, and paragraph (seventh) of the same article defines predicate crimes as: Every crime in Iraqi law of felonies or misdemeanours,Certainly, the crimes of financial and administrative corruption, whether they are felonies or misdemeanors, fall within the provisions of the paragraphs of the above article of the Anti-Money Laundering and Terrorist Financing Law, and paragraphs (fifteenth and sixteenth) of the same article define seizure and freezing, which is intended to stop the movement and transmission of the proceeds of crimes so that the investigation authorities can seize them and from Then confiscated them later, and the same articles of the law gave the investigating judge to place seizure on the proceeds of crimes, and the Committee to Freeze Terrorist Funds in the General Secretariat of the Council of Ministers had the right to freeze the funds. The law explained in Article (23) the competence of the investigating judge to place seizure on funds obtained from crimes, and Article 25 indicated The provisions of attachment and that it is considered a precautionary attachment to which all the provisions stipulated in the Civil Procedures Law shall apply.So, what is the need to stipulate all these provisions in the new draft law despite the fact that they were previously stipulated and in detail in the Anti-Money Laundering and Terrorism Financing Law No. 39 of 2015 and what is the need to give the Council of Ministers the right to issue a system that shows the provisions of the management of seized funds, even though the Anti-Money Laundering Law stipulates that Seizure is a precaution and the provisions of the Civil Procedures Law apply to it. The same thing applies to what was stated in Article (7) of the draft law, which spoke of the obligation of financial institutions to exercise care, as the provisions of diligence that must be taken by financial institutions such as banks are detailed in Chapter Five of The Anti-Money Laundering and Terrorist Financing Law, whereby all financial institutions must impose control over all the actions of high-risk customers such as politicians, general managers and judges, and notify the Money Laundering Reporting Office of any suspicious financial transaction to initiate legal action.
As for the provisions that came in the articles of the fourth chapter of the draft law, they are mostly fundamental procedural provisions, some of which do not need a text and some of them provide legal bonds, the provisions of the Code of Criminal Procedure and the Law of the Integrity Commission, as the fourth chapter dealt with the provisions of recovering the proceeds of corruption crimes abroad through a set of procedures Fundamentalism in which the Commission of Integrity cooperates with the National Intelligence Service and the Ministry of Foreign Affairs, and I think that the Commission of Integrity is not new to the issue of recovering smuggled Iraqi funds, whether they are obtained from financial and administrative corruption crimes or other crimes, where the recovery department is making great efforts in it, in cooperation with the judiciary, the Public Prosecution Service and the Ministry of Foreign Affairs In this context, however, these efforts often falter due to the lack of international cooperation to return the Iraqi money, in addition to the fact that most of the countries to which the Iraqi money has escaped are tax havens, which represent an ideal environment for money launderers, and they are countries that depend part of their economyThe local government has obtained money smuggled from Iraq, and therefore it is natural that it does not cooperate with efforts to recover Iraqi funds.
Second: The positive legal principles of the draft law
Despite the diagnosed observations included in the draft law, it came with a legal principle or concept that was not previously mentioned in Iraqi laws, which is the principle of reconciliation over public money or the principle of contracting an agreement or deal with the perpetrator of the crime of corruption, whose provisions came in the articles of Chapter Three of the draft law, which It gave the investigative judge the power to commute the sentence to no less than half of its minimum penalty for the accused who provides sufficient information about the crime of corruption and gives information about his accomplices in committing the crime and testifies against them and contributes to depriving them of the proceeds of crime or discovering them and then recovering them. The articles of Chapter Three of the draft law required The trial courts, whether misdemeanors or felonies, must abide by the investigative judge’s decision to reduce the sentence of the accused with whom the agreement was concluded. Article (19 | First) of the draft law indicated that the perpetrator of the crime of corruption if he reported the crime to the competent authorities and testified against the rest of the shareholders and made a confession Enough about crime and the proceeds of corruptionIt is exempted from punishment if the news came before the investigation authorities received knowledge of the crime. As for the second paragraph of the same article, it indicated that if the news occurred after the knowledge of the competent authorities, it is a mitigating excuse provided that it contributes to revealing some information about the proceeds of crime.
Reconciliation over public money or making a deal with the perpetrators of financial and administrative corruption crimes is a fundamentalist approach stipulated by some fundamental laws of some countries, including the Egyptian Code of Criminal Procedure, which was issued a law amending it in the year 2015 and Article 18 of the aforementioned law was amended, where the amendment came with a methodology that allows reconciliation in cases Public money after concluding a deal with the perpetrators of crimes to recover public funds in return for stopping the implementation of sanctions, and I do not find any objection to the Iraqi legislator resorting to this methodology, perhaps contributing to the recovery of funds that fundamentalist procedures and legal sanctions have failed to recover despite what is taken on this methodology that it allows money manipulators The public and his embezzlers may reconcile whenever they want and be exempted from penalties in return for the money they embezzled.
Regarding the comments that have been mentioned that represent criticism of the draft law and others that represent positive observations, I find that there is no need to legislate a new law in the name of recovering the proceeds of corruption crimes. Rather, I find it appropriate to make an amendment to the Integrity and Illicit Gain Law No. 30 of 2019 and to add to it the articles that It was included in the draft law that concerns lifting the secrecy of bank accounts of officials and the pledges signed by them, as well as articles that allow granting rewards to whistleblowers of corruption crimes, and articles that permit the conclusion of an agreement with the perpetrator of corruption crimes to return the money and disclose the rest of the shareholders in exchange for mitigating the penalty, as the Illicit Gain Law deals with the issue of The employee’s wealth is inflated and punished, and his money must be recovered without the need to prove that he committed the crime, which is the most appropriate law to include some of the good provisions brought by the project to recover the proceeds of corruption crimes, and there is no need to enact a new law in light of the existence of the Anti-Money Laundering and Terrorist Financing Law, which requires seizure and confiscationProceeds of crimes, including corruption crimes and the Integrity and Illicit Gain Law, which requires the punishment of the employee who shows an increase and inflation in his money of more than 20% annually, and then confiscation of the value of the increase. The Integrity and Illicit Gain Law will become ideal by adding the articles I mentioned previously and which were stipulated in the revenue recovery bill Corruption crimes, especially with regard to granting rewards to informants and concluding a deal to detect crime and recover money and oblige the Ministry of Foreign Affairs to conclude bilateral agreements that facilitate the process of recovering smuggled funds outside Iraq.
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