Iraq's criminal process is built around the investigating judge. Unlike systems where prosecutors direct investigations, in Iraq a criminal matter is placed before an investigative court, and it is the investigating judge who holds the power to issue summonses and arrest warrants, direct the investigation, and decide whether the case goes forward to trial.
Understanding that structure matters whether you are the complainant or the accused, because the investigative stage is where most criminal cases in Iraq are effectively decided.
How a criminal case begins
A criminal matter is set in motion either by the authorities acting on an offence that has come to their attention, or by a complaint from the injured party or their representative.
In practice a complaint is commonly made at the police station, where a statement is taken and the complainant and the written statement are then referred to the competent investigative court. From that point the matter is under judicial supervision.
Some offences can only be pursued on the complaint of the injured party, and in that category the complainant's position carries particular weight, including in relation to withdrawal. Whether your matter falls into that category is one of the first things worth establishing.
The investigative stage
The investigating judge, assisted by judicial investigators, gathers and tests the evidence. Statements are taken from the complainant, from witnesses and from the accused. Physical evidence, documents and expert examinations are collected as needed. Only the investigating judge has the authority to issue the orders the investigation requires, including summonses and arrest warrants.
This stage is not a formality preceding a trial. It is the stage at which the file is built, and it substantially shapes everything that follows. Evidence not raised here is far harder to introduce later; statements given here follow the case throughout.
At the conclusion, the investigating judge decides how the matter proceeds — whether the file is referred to the competent criminal court for trial, or the case is closed or released for want of sufficient evidence.
Anyone giving a statement in an investigative court, in any capacity, should have advice beforehand. A statement given without understanding its implications is very difficult to walk back.
Arrest and detention
Iraqi law prohibits arrest or detention except by order of a competent judge or court, or in the circumstances the criminal procedure legislation permits.
A person taken into custody must be brought before an investigating judge promptly — the Constitution and the Criminal Procedure Code frame this in terms of hours rather than days — so that the detention is placed under judicial supervision at the earliest stage rather than left in the hands of the arresting authority.
If a family member has been detained, the immediate practical priorities are establishing which investigative court the file sits before, ensuring they are brought before the judge, and arranging legal representation before any statement is taken.
Rights of the accused
The Iraqi Constitution and criminal procedure law guarantee a defendant the presumption of innocence until proved guilty, the right to be deprived of liberty only by a competent judicial authority, the right to a defence at all stages of investigation and trial, the right to a fair trial, and freedom from torture and inhuman treatment.
The right to a defence "at all stages" is the point most often overlooked. It attaches during the investigation, not only at trial — and the investigation is precisely where representation does the most good.
If you are the complainant
Prepare before you complain. A complaint supported by documents, records, messages, medical reports, or identified witnesses gives the investigating judge something to work with. A complaint that rests on assertion alone frequently ends for want of evidence.
Where the offence has caused you loss, consider the civil dimension early, since compensation for harm arising from a criminal act is a distinct claim and how the criminal matter proceeds can affect it.
Common questions
Can I withdraw a complaint? For offences that may only be pursued on complaint, withdrawal has real effect. For others, the matter is not in the complainant's hands once it has begun. Establish which applies before assuming either.
Should I answer questions without a lawyer? You are entitled to a defence during the investigation. Statements taken at this stage carry through the whole case, so take advice first.
What if I am summoned as a witness? A summons from an investigative court should be complied with, but take advice beforehand — the line between witness and suspect is not always where you assume it is.
Can a case closed for want of evidence be reopened? Depending on the basis on which it ended, a matter may be capable of being revisited if significant new evidence emerges.
Practical takeaway
The investigative stage decides most Iraqi criminal cases. Get representation before any statement is given, whether you are complaining or answering. Build the evidence file early. If someone has been detained, act immediately to locate the file and ensure they are brought before the investigating judge.
Talk to us
We represent complainants and accused persons before investigative and criminal courts in Baghdad and across Iraq, attend investigations, prepare complaints and evidence files, and pursue compensation arising from criminal conduct.
If you are involved in a criminal matter in Iraq, contact our office, or read about our criminal law practice.