The Legal Presence of the Accused in the Provisions of Iraqi Law

))See the text of Article 145 of the Iraqi Code of Criminal Procedure No. 21 of 1971, as amended.

( )See: the text of Article 146 of the Iraqi Code of Criminal Procedure No. 21 of 1971, as amended.

( )See: the text of Articles: 243-244-245-246-247-248 of the Iraqi Code of Criminal Procedure No. 21 of 1971, as amended.

( ) Abu al-Fadl Jamal al-Din Muhammad (Ibn Manzur): “Lisan al-Arab”, Volume 4, Dar Sader, 2003, p. 196.

))Abdul Wahid Karam: “Dictionary of Legal Terms”, Dar Al-Kutub Al-Qanuniyya, 2013, p. 289.

))Abu al-Fadl Jamal al-Din Muhammad (Ibn Manzur): “Lisan al-Arab”, Volume 1, Dar Sader, 2003, p. 38.

))Mustafa Muhammad Abdul-Muhsin: “Criminal Judgment: Principles and Assumptions”, n.p., Egypt, 2003, p. 367.

))See: Sameh Fikry Hassan: "The Presence of the Accused Before Criminal Courts," a research paper published at the following link, accessed on 26/8/2018, at 0012 p.:https://www.mohamah.net/law/

))The Supreme Constitutional Court of Egypt states that: “The right to defense is a principle encompassing a set of fundamental guarantees which, in their entirety, ensure a concept of justice that generally conforms to contemporary standards applied in civilized countries.” (Supreme Constitutional Court of Egypt ruling of January 14, 2007, in Case No. 124 of the 25th Constitutional Judicial Year, Collection of Constitutional Court Rulings, Part One, p. 149). Regarding the defendant’s right to defense, see: Dr. Hassan Sadiq Al-Marsafawi: Guarantees of Trial in Arab Legislations, Institute of Arab Research and Studies, League of Arab States, Cairo, 1973; Dr. Ahmed Fathi Sorour: Constitutional Legitimacy and Human Rights in Criminal Procedures, Dar Al-Nahda Al-Arabiya, Cairo, 1995, p. 39 et seq.

))See: Jamal Muhammad Mustafa: “Explanation of the Code of Criminal Procedure,” Al-Zaman Press, Baghdad, 2005, p. 142 and beyond; Dr. Baraa Munther Kamal Abdul Latif: “Explanation of the Code of Criminal Procedure,” Lebanese Foundation for Academic Books, Beirut, 2014, pp. 320-321; Dr. Abbas Al-Hassani: “Explanation of the New Code of Criminal Procedure,” Volume Two, Al-Irshad Press, Baghdad, n.d., p. 150 and beyond.

))Regarding the interpretation of penal texts, see: Dr. Ali Adel Kashif Al-Ghita and Ghosoun Ali Abdul Zahra: Interpretation of Penal Texts under the Principle of Penal Legality, a research paper published in the Kufa Journal of Legal and Political Sciences, Volume 6, Issue 15, 2013, p. 100 and beyond.

))One application of the provisions of this article is generally found in the ruling of the Kurdistan Region Court of Cassation, which stated: "Whereas... preparatory decisions do not prevent the continuation of the case, and such decisions are not subject to appeal by way of cassation pursuant to the provisions of paragraph (c) of Article (249) of the Criminal Procedure Code, therefore, the Criminal Court was required to reject the appeal submitted by the aforementioned defendant's lawyer on procedural grounds and not to address the merits of the case." See: Decision 47/Cassation/ issued by the Presidency of the Kurdistan Region Court of Cassation - Criminal Division, dated 19/2/2008, available at the following link:http://www.iraqld.iq/VerdictsTextResults.aspx

Similarly, the Federal Court of Appeal of Dhi Qar, acting in its capacity as a court of cassation, stated: “Upon review and deliberation, it was found that the appeal was directed against a preliminary decision that cannot be appealed individually, based on the provisions of Article 249/C of the Code of Criminal Procedure No. 23 of 1971, as amended. Therefore, it was decided to dismiss the appeal on procedural grounds.” See: Decision 252/T/H/2012, issued by the Federal Court of Appeal of Dhi Qar, dated May 31, 2012, available at the following link:http://www.iraqld.iq/VerdictsTextResults.aspx

))See: Dr. Nizam Tawfiq Al-Majali: “The rule of personal attendance of the complainant (suspect or accused) for trial proceedings and the effect of his absence on criminal judgments - a comparative study”, research published in the Journal of the College of Law/Al-Nahrain University, Volume 12, Issue 8, 2005; Mustafa Muhammad Abdul-Muhsin: previous reference, p. 368.

))Article 151 states: “The accused who is absent after presenting his defense and before the decision is issued, without informing the court of his legitimate excuse, shall be considered as the accused who is present. The court, before issuing the decision, may order the arrest of the accused and bring him before it to inform him of it.” With this text, it did not specify the accused in terms of the seriousness of the crime.

))Article 99 of the Iraqi Code of Criminal Procedure stipulates: “The accused shall be brought in by issuing an arrest warrant if the crime is punishable by imprisonment for a period exceeding one year, unless the judge deems it appropriate to bring him in by means of a summons. However, it is not permissible to issue a summons if the crime is punishable by death or life imprisonment.” By referring to the provisions of Article (147/A) of the same law, which stipulates: “The trial of the accused who is present shall be conducted in his presence, while the trial of the fugitive accused and the accused who is absent without a legitimate excuse, despite being notified, shall be conducted in his absence,” we find that it has regulated the provisions for the fugitive accused, and thus he is excluded from the provisions of constructive presence, unless the detained accused fled after the completion of the procedures against him and presented his defense before the court and the conditions of Article 151 apply to him. In the researcher’s opinion, he can be included in the provisions of Article 151, that is, he shall be considered as a “constructive” accused, despite the Iraqi legislator’s silence on addressing this situation.

))Regarding the accused's right to a speedy trial in criminal proceedings, see: Dr. Adel Yousef Al-Shukri: "Guarantees of the Accused in a Fair Trial in Light of International Covenants, Instruments, and Declarations Concerning Human Rights: A Comparative Study with the Provisions of International Criminal Law and Criminal Legislation," Zein Legal Publications, Beirut, 1st ed., 2018, p. 452 et seq.; Judge Lafteh Hamel Al-Ajili: "The Right to Speedy Trial in Criminal Procedures," 1st ed., Al-Halabi Legal Publications, Beirut, 2011; Dr. Aqeel Yousef Muqabala: "The Right of the Accused to a Speedy Trial," a paper presented to the Seventh Annual Conference of the Scientific Society of Arab Law Faculties entitled: Facilitating Litigation Procedures in Arab Legislations, Morocco, 2007, p. 110 et seq.; Dr. Fathia Mohammed Fourari: "The Accused's Right to a Trial Within a Reasonable Period - A Comparative Study in the Anglo-American and Latin Systems," a paper published in the Journal of Law, issued by the Scientific Publishing Council of Kuwait University, Issue 3, Year 30, September 2006.

))Dr. Kamel Al-Saeed: Explanation of the Code of Criminal Procedure - A Comparative Study, Dar Al-Thaqafa, 2001, p. 20.

))Regarding the provisions of Article 147 of the Iraqi Code of Criminal Procedure, see: Judge Ashti Ahmed Ahmed: “Trial in Absentia in Criminal Cases”, a promotion research paper submitted to the Judicial Council in the Kurdistan Region of Iraq, p. 5 and beyond.

))Among the judicial applications is the ruling issued by the Presidency of the Federal Court of Appeal of Baghdad - Al-Karkh, in its capacity as a court of cassation, which stated: "Upon reviewing the appealed judgment, it was found to be correct but contrary to the law for the following reasons: ... The court did not hear the defendant's final statements, nor did it announce the conclusion of the trial in accordance with paragraphs (d) and (e) of Article (181) of the aforementioned law, and it proceeded to issue the decision without doing so. Therefore, it was decided to overturn the appealed judgment and return the case file to the lower court for a new trial. The decision was issued unanimously." See: Judgment No. (213/212/Misdemeanors/2012), issued on: 09-09-2012, published on the Iraqi Legislation Database website at the following link:

http://www.iraqld.iq/VerdictsTextResults.aspx

))In contrast to this view, see: Dr. Youssef Mustafa Rasoul: "The Legal Truth and its Applications in the Code of Criminal Procedure - An Analytical Study," a paper presented to the Third International Conference on Legal Issues (ILIC 2018), organized by the College of Law, Ishik University, in Erbil, on 5/10/2018.

))The Egyptian Court of Cassation, No. 1303 of the 29th year, session of 11/28/1959, and No. 1282 of the 35th year, session of 12/6/1965, mentioned by: Dr. Muawad Abdel-Tawab: Criminal Judgments and Orders, University Press, Cairo, 1988, pp. 17-18.

))Mustafa Muhammad Abdul-Muhsin: Previous reference, p. 367.

( )The discriminatory decision No. 1349 / Criminal / 84 / 85 dated 10/3/1986.

( )Abbas Qasim Mahdi Al-Daqouqi: “Judicial Reasoning: Its Concept, Cases, and Scope - A Comparative Study with Islamic Jurisprudence”, 1st ed., National Center for Legal Publications, Cairo, 2015, p. 339 and beyond.

( ("Penal Procédure Code", published on the same site:

http://codes.droit.org/CodV3/procedure_penale.pdf

))See: Egyptian Criminal Procedure Code No. 150 of 1950 and its amendments, available at the following link:

https://manshurat.org/node/14676

))See: Jordanian Criminal Procedure Law No. 9 of 1961 and its amendments, available at the following link:

http://www.jiacc.gov.jo/documents/83092324-6665-4984-9c61-0bada77eed4c.pdf

))See: UAE Criminal Procedure Law No. 35 of 1992 and its amendments: available at the following link:

http://www.dji.gov.ae/Lists/DJIBooks/Attachments/38/Egraat%20%20Gazaai.print.pdf

))The Algerian Code of Criminal Procedure of 1966 and its amendments are available at the following link:

https://www.joradp.dz/trv/appenal.pdf

( ) Cass crim:21 juin 1995. Semaine juridique 1995-2347P cass, crim.10 mail 1995. Semaine juridique 1995-2000.

))See: University of Minnesota Publications - Human Rights Library: "Convention for the Protection of Human Rights within the Council of Europe, Rome, November 4, 1950," available at the following link:

http://hrlibrary.umn.edu/arab/euhrcom.html

))See: University of Minnesota Publications - Human Rights Library: "The International Covenant on Civil and Political Rights of December 16, 1966, entered into force on March 23, 1976, in accordance with the provisions of Article 49," available at the following link:

http://hrlibrary.umn.edu/arab/b003.html

))Bouzaq Reda: "Guarantees for the accused absent from the trial session in Algerian and comparative legislation," Master's thesis submitted to Larbi Tesbi University, Faculty of Law and Political Science, 2016, p. 24.

))Dr. Omar Al-Saeed Ramadan: Principles of Criminal Procedure Law: Rules of Trial, 2nd ed., Dar Al-Nahda Al-Arabiya, Cairo, 1984, p. 140.

( )“Penal Procédure Code” Published on the following page:

http://codes.droit.org/CodV3/procedure_penale.pdf

See also: Jean Pradel: Questions related to the French procédure, please publish on the relevant site:

http://www.fondation-droitcontinental.org/fr/wp-content/uploads/2014/01/garanties_du_prevenu_etude-fr.pdf

))Dr. Nizam Tawfiq: Previous reference, p. 51.

))See: Professor John Bradell: "The Rights of the Accused," research published at the following link (accessed on 9/27/2018, at [time]).3:40 PM):

http://jusoor.org/NewsManager/templates/?a=51&z=10

))See: Dr. Ahmed Fathi Sorour: “The Mediator in Criminal Procedure Law”, Dar Al-Nahda Al-Arabiya, Cairo, 2016, p. 822 and beyond; Dr. Hassan Sadiq Al-Marsafawi: “Al-Marsafawi in Criminal Procedure Law”, Mansha’at Al-Maaref, Alexandria, 2007, p. 714 and beyond; Dr. Fawzia Abdel-Sattar: “Explanation of Criminal Procedure Law”, Cairo University Press, University Book, Cairo, 1986, p. 594.

))Dr. Ramsis Behnam: “Criminal Procedures: Foundations and Analysis”, Atlas Press, Cairo, 1984, p. 630.

))Dr. Nizam Tawfiq Al-Majali: Previous reference, p. 54.

( )See: Mamoun Salama: “Criminal Procedures in Egyptian Legislation”, Cairo University Press, University Book, Cairo, Vol. 2, 1977, p. 167; Dr. Omar Al-Saeed Ramadan: Previous reference, p. 485; Dr. Mahmoud Mahmoud Mustafa: “The Development of the Criminal Procedure Law in Egypt and Other Arab Countries”, 2nd ed., Cairo University Press, Cairo, 1985, p. 173.

))See: Dr. Muhammad Zaki Abu Amer: “The Flaw of Error in Criminal Judgment”, University Press, Alexandria, 1985, p. 93 and beyond; Dr. Mahmoud Mahmoud Mustafa: “Explanation of the Criminal Procedure Law”, 12th ed., Cairo University and University Book, Cairo, 1988, p. 491 and beyond.

))Among those guarantees related to the conduct of the trial are: the presence of the accused, the public nature of the trial, the principle of publicity, the right of the accused to defend himself, and the right to seek the assistance of a lawyer.

See:Dr. Saddam Hussein Yassin Al-Obaidi, Judge Awad Hussein Yassin Al-Obaidi: The Judiciary and its Guarantees for Human Rights in Islamic Law and the Law - An Analytical and Fundamental Study, 1st Edition, Zain Al-Huquqi Publications, Beirut, 2018, p. 265 and beyond;Marzouk Mohamed: "The Right to a Fair Trial," PhD thesis submitted to Abou Bekr Belkabed University, Tlemcen, Faculty of Law and Political Science, 2016; Gharib Taher: "Guarantees of a Fair Trial in the Code of Criminal Procedure," Bachelor's thesis, submitted to the Faculty of Law and Political Science, Kasdi Merbah University, Ouargla, Algeria, 2014; Noureddine Daoudi: "Guarantees of the Accused During the Trial - A Comparative Study between Islamic Law and the Algerian Code of Criminal Procedure," Master's thesis, submitted to the University of Shahid Hamma Lakhdar, Faculty of Social and Human Sciences, 2015; Chahira Bou Lahia: "Constitutional Guarantees for the Accused During the Trial," PhD thesis, submitted to Mohamed Khider University of Biskra, Faculty of Law and Political Science, 2016; Mabrouk Ltida: "Guarantees of the Accused During the Trial in Light of the Algerian Code of Criminal Procedure," Master's thesis, University of Algiers, Faculty of Law; Khairi Khader Hussein: “Guarantees for the accused during the stages of arrest and interrogation within the stages of investigation in Iraqi law,” research paper submitted to the Judicial Council in the Kurdistan Region of Iraq, p. 5 and beyond.

))According to the judge in the Supreme Court of the United States of AmericaIn one of his court rulings, Powel argues that the defendant's right to a speedy trial aims to protect three rights and interests:

1- Preventing the arbitrary detention of the accused for a long period before trial.

2- To reduce the effects of fear and anxiety that afflict the accused before he is charged.

3- Limiting the possibility of infringing on the rights of the defense.

Referred to by: Dr. Aqeel Yousef Muqabala: Previous reference, p. 113.

))See: Professor Abdul Amir Al-Akeeli, Z. Salim Ibrahim Harba: "Explanation of the Code of Criminal Procedure, Part Two," Legal Library, Baghdad, p. 199 et seq.; Dr. Hussein Abdul Sahib Abdul Karim and Dr. Tamim Taher Ahmed."Explanation of the Code of Criminal Procedure"Legal Library, Baghdad, p. 336 and beyond.

( )D. Ahmed Fathi Sorour: previous reference, p. 363

( )Mustafa Radwan: “The Public Prosecution and Administrative Control: Jurisprudence and Judiciary”, Al-Maaref Establishment, Alexandria, 1972, p. 115.

( )Dr. Hassan Allam: "A Summary of Algerian Judicial Law," National Publishing and Distribution Company, Algeria, 1972, p. 215

( )Abdul Sattar Salem Al-Kubaisi: “Guarantees of the accused before and during the trial, a comparative study”, PhD thesis submitted to the Faculty of Law - Cairo University, 1981, p. 1013.

( )Ahmed Abu Al-Wafa: Civil and Commercial Pleadings, 1st ed., Dar Al-Maaref Press, Egypt, 1952, p. 363.

Among the legislations that adopted the doctrine of legal nullity are the Italian legislation of 1865, and the French Code of Criminal Procedure of 1808. See: Dr. Ahmed Hassouni Jassim Al-Ithawi: “The nullity of criminal investigation procedures in the preliminary investigation stage”, 1st ed., Legal Library, Baghdad, 2012, p. 155.

( )See: Ahmed Abu Al-Wafa: The aforementioned reference, p. 362; Dr. Ramzi Saif: "The Intermediate Guide to Explaining the Civil and Commercial Procedure Law," Dar Al-Nahda Al-Arabiya, Cairo, 1967, p. 443; Dr. Ibrahim Al-Najani Ahmed: "The Theory of Nullity and its Impact on Legal Rights in Sudanese Procedural and Criminal Laws," 1st ed., Publications of Naif Arab University for Security Sciences, Riyadh, 2012, pp. 23-24; Muhammad Dheeb Mahmoud Nimr:"The rules of nullity in criminal proceedings - a comparative study between Palestinian and Jordanian law"Master's thesis, submitted to Middle East University, Faculty of Law, 2013, p. 44. Among the legal systems that have adopted the principle of self-nullity are German, Austrian, Lebanese, Algerian, and Moroccan law. See: Dr. Ahmed Hassouni Jassim Al-Ithawi, op. cit., p. 156.

( )Dr. Salah Al-Din Al-Nahi: “A Concise Guide to Civil and Commercial Proceedings - A Comparative Study”, Al-Ahliya Printing and Publishing Company (LLC), p. 403.

( )Merle and Andre Roger: "Vitu, traite de droit criminel", old editions, 1967, p. 994.

))See: Abdul Sattar Salem Al-Kubaisi: Previous reference, 1014; Muhammad Sami Al-Nabrawi: Interrogating the Accused, Dar Al-Nahda Al-Arabiya, Cairo, 1968, p. 547; Medhat Sami Lotfi: “Modern Trends in the Project of Codifying Criminal Procedures”, a research paper published in a book entitled: Modern Horizons in Organizing Criminal Justice, issued by the National Center for Social and Criminal Research, Cairo, 1971, pp. 61-62.

( )See: Dr. Fakhri Abdul-Razzaq Al-Hadithi: “Explanation of the Code of Criminal Procedure,” Al-Sanhuri Library, Baghdad, 2015, p. 307 et seq.; Dr. Baraa Munther Kamal Abdul-Latif: “Explanation of the Code of Criminal Procedure,” Lebanese Foundation, Beirut, 2014, p. 259 et seq.; Dr. Waadi Suleiman Al-Mazrouri: “Explanation of the Code of Criminal Procedure (Theoretically and Practically),” 2nd ed., Nabay Library, Erbil, 2015, p. 211 et seq.; Saeed Hasaballah Abdullah: “Explanation of the Code of Criminal Procedure,” Dar Al-Hikma for Printing and Publishing, 1990, p. 245 et seq.; Salman Obeid Abdullah Al-Zubaidi: “Explanation of the Code of Criminal Procedure No. 32 of 1971,” 1st ed., Publisher: Sabah Sadiq Jaafar Al-Anbari, Baghdad, 2015, p. 245 et seq.

( )See: Dr. Ahmed Hassouni Jassim Al-Aithawi: The previous reference, pp. 171-174.

))Among the judicial applications is the ruling of the Iraqi Court of Cassation, which stated: (Whereas Article 249/B of the Code of Criminal Procedure stipulates that "a procedural error is not considered if it does not prejudice the defendant's defense," and whereas the decision of the Wasit Criminal Court concerning the released defendants K and A, and the subsequent ruling of the Court of Cassation, do not prejudice them, and based on the provisions of Article 259/A-2 of the Code of Criminal Procedure, it was decided to uphold the decision to dismiss the charges and release them due to insufficient evidence. The decision was issued unanimously). See: Federal Cassation Judgment No. 68, issued on 27/10/2010, published on the Iraqi Legislation Database website at the following link:

http://www.iraqld.iq/VerdictsTextResults.aspx

))Among the judicial applications is the ruling issued by the Presidency of the Wasit Federal Court of Appeals – Cassation Panel, which stated: “Upon review and deliberation, it was found that the appellant is neither a complainant nor a civil claimant, nor is he civilly liable. Therefore, he is not entitled to appeal the contested decision. The Court decided to reject the appeal on procedural grounds, based on the provisions of Article 249 of the Code of Criminal Procedure. The decision was issued unanimously.” See: Judgment No. (48/T/Misdemeanors/2012), issued on May 22, 2011, published on the Iraqi Legislation Database website at the following link:

http://www.iraqld.iq/VerdictsTextResults.aspx

))Judge Adnan Zeidan Hassoun Al-Anbaki:"Methods of appealing criminal judgments andmReinforced by discriminatory decisions"Al-Sanhuri Library, Beirut, 2016, p. 55.

( )Dr. Abbas Al-Hassani: Previous reference, pp. 235-236.