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Background doc: CPA Iraqi Penal Code Best Andreas ------------------------- http://www.aina.org/books/cpapenalcode.htm COALITION PROVISIONAL AUTHORITY ORDER NUMBER 7 PENAL CODE Pursuant to my authority as head of the Coalition Provisional Authority (CPA), relevant U.N. Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war, Reconfiguring the provisions of General Franks' Freedom Message to the Iraqi People oŁ April 16, 2003, Recognizing that the. former regime. used certain provisions of the penal code as a tool of repression in violation of internationally recognized human rights standards, Acting on behalf of, and for the benefit, of the Iraqi people, I hereby promulgate the following: Section 1: Judges, police and prosecutors All judges, police and prosecutors shall perform their duties in accordance with Regulation No. l (CPA/REG/23 May 2003/01 and in accordance with any other Regulations, Orders, Memoranda or instructions issued by the CPA. Section 2: Suspension of Certain Provisions of Penal Code 1) Without prejudice to the continuing review of Iraqi laws, the Third Edition of the 1969 Iraqi Penal Code with amendments, registered in Baghdad on the fifth day of Jumada 11389 or the nineteenth day Of July 1969, shall apply, with the exception that i) Part Two, Chapter Two, Paragraph 200, and ii) Part Two, Chapter Three, Section One, Paragraph 225 are hereby suspended. 2) Legal proceedings may be brought with respect to the following offenses only vvith the written permission of the Administrator of the CPA: a) Part One, Chapter Four; Para graphs 81-84, publication offenses: b) Part Two, Chapter One, Paragraphs 156-189, offenses against the external security of the state. c) Part Two, Chapter Two., Paragraphs 190-195; 198-199; 201-219, offenses against the internal security of the state. d) Part Two, Chapter Three, Section One, Paragraphs 223-224-,226-228, offenses against public authorities. e) Part Two, Chapter Three, Section Two, Paragraph 229, offense of insulting a public official. Section 3: Penalties 1) Capital punishment is suspended. In each case where the death penalty is the only available penalty prescribed For an offense, the court may substitute the lesser penalty of life imprisonment., or such other lesser penalty as, provided for in the Penal Code. 2) Torture and cruel, degrading or inhuman treatment or punishment is prohibited. 3) No person will be prosecuted for aiding, assisting, associating with, or working for Coalition Forces or the CPA. Section 4: Nondiscrimination In exercising their official functions, all persons undertaking public duties or holding public oil-ice, including all police, prosecutors, and judges, must apply the law impartially No person will be discriminated against on the basis of sex, race, color, language, religion, political opinion, national, ethnic or social origin or birth. Section 5: Delegation of Authority The Administrator of the CPA may delegate his authority under this Order. Section 6: Entry into Force This Order shall enter into force on the date of signature L. Paul Bremer, Administrator Coalition Provisional Authority Signed June 10th, 2003 COALITION PROVINCIAL AUTHORITY ORDER NUMBER 13 (REVISED) THE CENTRAL CRIMINAL COURT OF IRAQ Pursuant to my authority as head of the Coalition Provisional Authority (CPA) and the laws and usages of war, and consistent with relevant U.N. Security Council resolutions, including Resolution 1483 (2003), Committed to promoting the development of a judicial system in Iraq that warrants the trust, respect and confidence of the Iraqi people, Noting the continuing need for military support to maintain public order, Furthering the CPA's duty to restore and maintain order and its right to ensure its security and fundamental standards of due process, Recognizing the role that Iraqi jurists and legal systems must assume in addressing those serious crimes that most directly threaten public order and safety, Acting on behalf, and for the benefit of the Iraqi people, I hereby promulgate the following: Section 1: Establishment of Central Criminal Court of Iraq 1) There shall be established a Central Criminal Court of Iraq (hereinafter ',the Central Court"), which shall sit in the city of Baghdad and in such circuit sessions in other locations in Iraq as provided for in this Order. The Central Court shall have national jurisdiction over matters referred to it in accordance with Section 20. 2) The Central Court shall consist of two chambers: a) an Investigative Court; and b) a Trial Court. Section 2: The Investigative Court 1 The Investigative Court shall consist of a single judge, and will operate in accordance with the requirements and procedure of Investigative Courts under the Iraqi Law on Criminal Proceedings of 1971, as amended, and as further modified by any CPA Orders, Implementing Memoranda and this Order. 2) The Investigative Court shall have jurisdiction over all criminal offenses assigned to it by the Administrator. 3) The Investigative Court shall not have jurisdiction over any civil matter, other than victim compensation claims associated with a criminal matter before the court, or any matter not assigned to it by the Administrator. Section 3: Trial Court 1) The Trial Court shall be constituted as a three member judicial panel, which will operate in accordance with the requirements and procedures of Felony Trial Courts under the Iraqi Law on Criminal Proceedings of 1971, as amended, and as further modified by any CPA Orders, Implementing Memoranda and this Order. 2) The Trial Court shall have jurisdiction only over matters referred to it by the Investigative Court of the Central Court. Section 4: Applicable Law In exercising its jurisdiction, the Central Court shall apply the 1969 Penal Code of Iraq, as modified by CPA Order No 7 (CPA/ORD/9 June 2003/07) and the 1971 Criminal Proceedings Code of Iraq as modified by CPA Implementing Memorandum No 3 (CPA/MEM/18 Jun 2003/03). The Central Court shall have jurisdiction over crimes committed in Iraq since 19 March 2003, such as are referred to it by the Administrator in accordance with Section 20. Section 5: Judges of the Central Court 1 The judges of the Central Court shall be appointed for a term of one year by the Administrator, following recommendations from the Judicial Review Committee. The term of appointment may be extended by agreement. Judges shall be appointed in accordance with the following criteria: a) be an Iraqi national; b) be of high moral character and reputation; c) have a background of either opposition to the Ba'ath Party, non-membership of the Ba'ath Party or membership that does not fall within the leadership tiers described in CPA/ORD/16 May 2003/01 and entailed no involvement in Ba'ath Party activity; d) have no criminal record unless the record is a political or false charge made by the Ba'ath Party regime; e) have had no involvement in criminal activities; f) have demonstrated a high level of legal competence; and g) be prepared to sign an oath of office. 2) A judge of the Central Court may only be removed by the Administrator where there is clear evidence of unlawful or unethical conduct, breaches of the requirements of this Order, or incompetence on the part of the member. 3) The Administrator may appoint reserve judges of the Central Court in accordance with the criteria set out in this section. Reserve judges may act as judges of the Central Court when a panel member is for any reason unable to perform his or her duties, or otherwise provide additional support as necessary. 4) Judges of the Central Court shall not disclose any information or personal data related to or obtained in the discharge of their functions, except where authorized by the Administrator for public information or research purposes. Section 6: Independence of the Judiciary 1) Judges of the Central Court shall perform their duties independently and impartially, and in accordance with applicable laws in Iraq and the oath or solemn declaration given by them to the Administrator pursuant to this Order. 2) Judges of the Central Court shall decide matters before them without discrimination on the grounds of race, nationality, ethnicity or religion and in accordance with their impartial assessment of the facts and their understanding of the law, without improper influence, direct or indirect, from any source. 3) Any hierarchical organization of the judges or any difference among judges in grade or rank shall in no way interfere with the duty of the judge, whether exercising jurisdiction individually or acting collectively on a panel, to pronounce judgment in accordance with this Order. 4) While in office, judges and prosecutors of the Central Court shall be barred from accepting political or any other public office, or from accepting any employment, including for teaching law, participating in the drafting of law, or carrying out legal research on a part-time basis, unless for honorary unpaid purposes. Section 7: Refusal of Justice No judge of the Central Court may refuse to hear, try or decide a case that is brought before the court in accordance with the relevant procedural provisions. Section 8: Disqualification of Judges 1) The Administrator may, at the request of a judge or a party to a proceeding, excuse that judge from the exercise of a function in any case in which the impartiality of the judge might reasonably be doubted on any ground. 2) A judge of the Central Court shall be disqualified from a case in accordance with this Order if that judge has previously been involved in any capacity in that case before the court. 3) A judge of the Central Court shall be obliged to request that the Administrator excuse him or her from the exercise of a function in any case in which a party to the proceedings is a spouse, relative of second degree or other close relationship of that judge. 4) Any question as to the disqualification of a judge shall be decided by the Administrator. Section 9: Legal Cooperation 1) All Courts in Iraq shall cooperate with a request by the Central Court to: a) question witnesses who are registered or permanently accommodated in the area of the requested court's jurisdiction; b) carry out at-the-scene examinations or re-enactments of crimes in the area of the requested court's jurisdiction; c) serve summonses of the Central Court on witnesses in the requested court's jurisdiction; d) serve decisions of the Central Court on individuals in the requested court's jurisdiction; e) execute the decisions of the Central Court if the subject of dispute is located in the requested court's jurisdiction; f) access files of the requested court for information purposes or decision. Section 10: Hearings Hearings of the Central Court and deliberations, generally, shall take place at the seat of the court in Baghdad and in such circuit locations in any other part of Iraq as the Administrator determines. 2) The panel of judges or, here applicable, the individual judge may decide to hold hearings of the court in places other than at the seat of the court or circuit locations, if the interests of justice require. In making the decision, the panel of judges or the individual judge shall be guided by the particular circumstances of the case and their responsibility to facilitate equal access to justice. 3) The hearings of the court, including the pronouncement of the decision, shall be public, unless otherwise determined by the Secretary or by Iraqi law. 4) Radio and television broadcasting within the courtroom is prohibited, except for the broadcast of a final judgment in appropriate cases. 5) The hearings of the Central Court, including the pronouncement of the decision, shall be public, unless otherwise determined by the judge or judges in accordance with Iraqi law or due to security considerations. 6) The deliberations of a judge or judges shall remain confidential. Section 11: Transcript of Proceedings The Secretary shall ensure that, in each hearing conducted by the Trial Court, a transcript of the proceedings. The transcript will be made available, on request, to all parties to the proceedings, including their legal counsel. 2) In the case of the Investigative Court the judge shall take, as appropriate, notes of the proceedings and submit them to the files. 3) Upon request, the transcript or notes shall be made available to the public, unless a determination has been made under this Order that the hearing shall not be public. Section 12: Translation Service The Central Court shall provide translation and interpretation services in every case where a party to the proceedings, or a judge, or a witness, or expert witness does not sufficiently speak or understand the language spoken in that court. Section 13: Penalties The penalties imposed by the Central Court shall be as prescribed for their equivalent courts under Iraqi law, as modified by CPA/ORD/9 June 2003/07or subsequent CPA Implementing Memoranda or Orders. Section 14: Prosecution Service 1) The Public Prosecutor's Office shall have the authority to recommend proposed charges to the Investigative Judge, in matters that are to be brought before the Central Court. 2) The Public Prosecutor's office shall be represented at every stage of proceedings before any of the chambers of the Central Court and will appear as a full servant of the court to present witnesses, examine or cross examine all witnesses and adduce admissible evidence. 3) There shall be three Prosecutors appointed by the Administrator to the Central Court who shall serve for terms to be determined by the Administrator. The Administrator shall have the authority to remove a Prosecutor. Section 15: Court Registry There shall be a Registry for the Central Court. The Registry shall have responsibility for the receipt of documents to be filed in the court, for organizing court documents and ensuring security of court documents, and for such other functions as are permitted by Iraqi law and by CPA Order or Memorandum. 2) The staff of the Registry shall have legal and administrative skills, and shall be appointed by the Ministry of Justice Section 16: Court Staff 1) Each chamber of the Central Court shall have such qualified staff as may be required for the proper functioning of the chambers and the discharge of the responsibilities of its judges. 2) Each panel of judges or each individual judge shall be assisted during the trial sessions by a member of the court staff. 3) The court staff shall be selected by the Ministry of Justice. Section 17: Investigative Support 1) The Investigative Court or Prosecutor shall be able to request the investigation of matters arising from material presented to the judge. Investigative support will be coordinated through the Senior Adviser of the Ministry of Justice. 2) The Prosecutor may draw on Iraqi and Coalition resources in order to meet the requests of the Investigative Court. Any material produced by Coalition resources will be admissible in evidence if it satisfies the requirements of Iraqi law as modified by any CPA Order or Memorandum. 3) The Central Court shall not be able to compel the production of Coalition documentary or other material or the attendance of Coalition personnel. Section 18: Amicus Curiae Any CPA or Coalition Forces personnel shall have the right to appear before any of the chambers of the Central Court as am cus curiae for the purpose of adducing or proving evidence. Section 19: Duration of Central Court The Central Court shall remain in operation for a period to be determined by the Administrator or as provided by an internationally recognized, representative government established by the people of Iraq which assumes the responsibility of the CPA. The functions, constitution and jurisdiction of the Central Court may be subject to adjustment by further Orders or Implementing Memoranda of the CPA or as provided by an internationally recognized, representative government established by the people of Iraq which assumes the responsibility of the Authority Section 20: Selection of Matters 1) The Administrator, on the advice of the CPA General Counsel, shall determine the matters that are to be submitted to the Central Court. In malting this determination the following criteria shall be applied: a) The accused is suspected of committing a felony that: i) is intended to destabilize government institutions or processes, in Iraq; ii) involves violence of a scale or organization that transcends provincial boundaries; iii) involves race, nationality, interethnic c or religious based violence; iv) is related to the instigation of the removal by force of any government, the CPA or competent Iraqi authorities; v) involves the illegal trafficking in weapons, drugs or persons across provincial boundaries or international borders; or vi) involves the use of fraudulent practices across provincial boundaries and international borders. b) The accused held a position of influence within the prior regime, and as a result of that position, may still be capable of influencing the decisions of the judiciary or other governmental institutions. c) The accused is suspected of committing a crime of violence that involves multiple victims. d) The accused, either acting alone or as part of a group, is engaged in criminal and or terrorist activities that are directed at the civilian population or members of the CPA or Coalition Forces operating legally within Iraq. e) The accused is suspected of an offense that involves bribery, solicitation of a bribe or any form of public corruption or misconduct. 2) Requests for referrals of cases to the Central Court shall be forwarded by the Senior Adviser of the Ministry of Justice to the Administrator. The Senior Adviser may file such requests on his own initiative or in response to an application: a) accused persons under Iraqi law; b) any Iraqi court; c) the Commander Coalition Forces; and d) the Senior Adviser of the Ministry of Interior. 3) This Order shall not apply to courts-martial, military commissions, provost courts and other military tribunals convened by member states of the Coalition. Nothing in this Order shall deprive courts-martial, military commissions, provost courts or other military tribunals of jurisdiction that exists under the law of war or law of occupation. Coalition Forces shall not be permitted to retry any person dealt with b the Central Court for substantially the same offense. 4) No other Iraqi court shall be permitted to retry or punish any person already convicted or acquitted by the Central Court for substantially the same offense. Section 21: Appeals 1) The accused, the plaintiff and the Prosecutor shall have the right of appeal from the decisions of the Investigative Court to the Trial Court. 2) The accused, the plaintiff, and the Prosecutor shall have the right of appeal from the decisions and judgments of the Trial Court to the Court of Cassation. 3) All appeals arising from Central Court proceedings shall be heard in accordance with the 1971 Criminal Proceedings Code of Iraq, as amended, and as modified by CPA Implementing Memorandum No 3 referred to herein. Section 22: Representation of the Accused 1) All accused persons appearing before the Central Court, shall have the right to representation by an attorney of their choice. Where an accused person is unable to afford the services of an attorney the Central Court will provide them with a suitably qualified attorney. 2) Any counsel provided for the accused in accordance with relevant Orders and Implementing Memoranda of the CPA shall have at least five years trial experience. Section 23: Entry into Force This Order shall enter into force on the date of signature. L . Paul Bremer, Administrator Coalition Provisional Authority July 11, 2003 COALITION PROVISIONAL AUTHORITY MEMORANDUM NUMBER 3 CRIMINAL PROCEDURES Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA) and the laws and usages of war, and consistent with relevant U.N. Security Council resolutions, including Resolution 1483 (2003), Recognizing the CPA's obligation to restore law and order, provide for the safety of the people of Iraq, and ensure fundamental standards for persons detained, Acting, in particular, consistent with the Fourth Geneva Convention of 1949 Relative to the Treatment of Civilians in Time of War (hereinafter "the Fourth Geneva Convention"), Noting the deficiencies of the Iraqi Criminal Procedure Code with regard to fundamental standards of human rights, I hereby promulgate the following: Section 1: Purpose 1) This Memorandum implements CPA Order No. 7 by establishing procedures for applying criminal law in Iraq, recognizing that the effective administration of justice must consider: a) the rehabilitation of the Iraqi investigative and trial capability; b) the continuing involvement of Coalition forces in providing critical support to many functional aspects of the administration of justice; c) the need to transition from this dependency on military support; d) the need to modify aspects of Iraqi law that violate fundamental standards of human rights; e) the ongoing process of security internee management as provided for by the Fourth Geneva Convention; and f) the possibility of the exercise of jurisdiction by Coalition authorities regarding the commission of war crimes against Coalition forces. 2) The procedures set out in this Memorandum will be subject to review and amendment as circumstances warrant, to continue to improve the rights of Iraqis and the administration of justice in Iraq. The provisions set out herein give effect to the requirements of international humanitarian law. Section 2: Relation of Jurisdictions 1) The provisions of this Memorandum do not apply to, bind, or in any manner affect any military courts, commissions or tribunals or any associated process, established by the Coalition or any of its member States. 2) Nothing in this Memorandum shall deprive courts martial, military commissions or military tribunals of their jurisdiction as provided for under the laws of a Coalition member State or in accordance with the laws and usages of war. 3) No Iraqi court, including the Central Criminal Court of Iraq as established by CPA/ORD/18 Jun 2003/13, shall have jurisdiction over any personnel of a Coalition member state in any matter, whether civil or criminal. Section 3: Preservation of Laws All provisions of the Iraqi Law on Criminal Proceedings of 1971, as amended (hereinafter "the Procedure Code"), shall continue in force unless expressly modified by this Memorandum. Section 4: Suspension and Amendment of Provisions The following provisions of the Procedure Code shall be suspended and or amended: a) In paragraph 61 (c) delete the word "may" and insert the word "must". b) In paragraph 70 delete the words "As far as possible". c) In paragraph 123 add the following; "(b) Before questioning the accused the examining magistrate must inform the accused that: i) he or she has the right to remain silent and no adverse inference may be drawn from accused's decision to exercise that right; ii) he or she has the right to be represented by an attorney, and if he or she is not able to afford representation, the Court will provide an attorney at no expense to the accused; (c) The examining magistrate or investigator must determine if the accused desires to be represented by an attorney before questioning the accused. If the accused desires an attorney the examining magistrate or investigator shall not question the accused until he or she has retained an attorney or an attorney has been appointed by the Court." d) Paragraph 136 is hereby suspended. e) In paragraph 144 (a) delete the words "at a rate of no less that 10 dinars and no more than 50 dinars, with the cost borne by the state treasury.", and in 144 (b) delete the words "of no more than 50 dinars". f) In paragraph 168 (b) delete the words "via the court". g) in paragraph 179 delete the words "A refusal to answer will be considered as evidence against the defendant." h) In paragraph 184 (a) delete the word "must" and insert the word "may". i) In paragraph 199 (a) delete the words "based on permission from the Minister of Justice". j) In paragraph 213 (c) delete the words "and if there is no other evidence which proves it to be a lie." k) In paragraph 218 delete everything in the paragraph after the word "coercion" where occurring for the first time. 1) Paragraph 221 is hereby suspended. m) Paragraphs 285-293 are hereby suspended; n) In paragraph 298 delete the words "by one half of one dinar" wherever occurring. o) In paragraph 299 (b) delete the words "one day for each one half of one dinar outstanding" and insert in place the words "reduced proportionally to the amount outstanding". p) Paragraph 306 is hereby suspended. q) In paragraph 320 delete the words "and with the payment, within a specified period, of surety of not less than 20 dinars and not more than 200 dinars. r) In paragraph 324 delete.the words "of no less than 50 dinars and not exceeding 500 dinars". s) Paragraph 371 (b) is hereby suspended. Section 5 Advice of Rights At the time an Iraqi law enforcement officer arrests any person, the officer shall inform that person of his or her right to remain silent and to consult an attorney. Section 6: Criminal Detentions 1) Consistent with the Fourth Geneva Convention, the following standards will apply to all persons who are detained by Coalition Forces solely in relation to allegations of criminal acts and who are not security internees (hereinafter "criminal detainees"): a) Upon the initial induction into a Coalition Force detention centre a criminal detainee shall be apprised of his rights to remain silent and to consult an attorney. b) A criminal detainee suspected of a felony offence may consult an attorney 72 hours after induction into a Coalition Force detention centre. c) A criminal detainee shall be promptly informed, in writing, in a language which they understand, of the particulars of the charges preferred against them. d) A criminal detainee shall be brought before a judicial officer as rapidly as possible and in no instance later than 90 days from the date of induction into a Coalition Force detention centre. e) Access to detainees shall be granted to official delegates of the International Committee of the Red Cross (ICRC). Access will only be denied delegates for reasons of imperative military necessity as an exceptional and temporary measure. ICRC delegates shall be permitted to inspect health, sanitation and living conditions and to interview all detainees in private. They shall also be permitted to record information regarding a detainee and to pass messages to and from the family of a detainee subject to reasonable censorship by the facility authorities. 2) Where any criminal detainee held by Coalition Forces is subsequently transferred to an Iraqi Court, a failure to comply with these procedures shall not constitute grounds for any legal remedy, but any period spent in detention awaiting trial or punishment shall be deducted from any period of imprisonment imposed. Section 7: Coalition Forces Security Internee Process l) Consistent with the Fourth Geneva Convention, the following standards will apply to all persons who are detained by Coalition Forces when necessary for imperative reasons of security (hereinafter "security internees"): a) In accordance with Article 78 of the Fourth Geneva Convention, Coalition Forces shall, with the least possible delay, afford persons held as security internees the right of appeal against the decision to intern them. b) The decision to intern a person shall be reviewed not later than ix months from the date of induction into an internment facility by a competent body established for the purpose by Coalition Forces. c) The operation, condition and standards of any internment facility established by Coalition Forces shall be in accordance with Section IV of the Fourth Geneva Convention. d) Access to internees shall be granted to official delegates of the ICRC. Access will only be denied delegates for reasons of imperative military necessity as an exceptional and temporary measure. ICRC delegates shall be permitted to inspect health, sanitation and living conditions and to interview all internees in private. They shall also be permitted to record information regarding an internee and to pass messages to and from the family of an internee subject to reasonable censorship by the facility authorities. e) If a person is subsequently determined to be a criminal detainee following tribunal proceedings concerning his or her status, or following the commission of a crime while in internment, the period that person has spent in internment will not count with respect to the period set out in Section 6 (1) (d) herein. f) Where any security internee held by Coalition Forces is subsequently transferred to an Iraqi Court, a failure to comply with these procedures shall not constitute grounds for any legal remedy, but may be considered in mitigation of sentence. Section 8: Legal Consultation and Representation 1) With the exception of the circumstances set out in Section 6 (1) (b) all criminal detainees suspected of a felony offense shall have the right to consult with an attorney while in detention. 2) All accused persons appearing before any Iraqi court, including the Central Criminal Court of Iraq, shall have the right to representation by an attorney of their choice. Where an accused person is unable to afford the services of an attorney the Court will provide them with a suitably qualified attorney at no expense to the accused person. Section 9: Entry into Force This memorandum shall enter into force on the date of signature. 6/18/03 L. Paul Bremer ----- Original Message ----- From: "as-ilas" <email@example.com> To: "casi" <firstname.lastname@example.org> Sent: Sunday, November 16, 2003 9:56 AM Subject: [casi] Iraq: Return of Death Penalty Urged > http://www.iwpr.net/index.pl?archive/irq/irq_35_1_eng.txt > > Return of Death Penalty Urged > > Prominent Iraqis call for US-led coalition to restore sentence to deter > violence and punish Ba'athist crimes. > > By Lama Al-Shummary in Baghdad (ICR No. 35, 14-Nov-03) > > Barely six months after US administrator Paul Bremer suspended the use of > the death penalty in Iraq, some influential Iraqis are calling to have it > reinstated. > _______________________________________________ Sent via the discussion list of the Campaign Against Sanctions on Iraq. To unsubscribe, visit http://lists.casi.org.uk/mailman/listinfo/casi-discuss To contact the list manager, email email@example.com All postings are archived on CASI's website: http://www.casi.org.uk