The Federal Supreme Court: the right of defense is guaranteed, and the confidentiality of the investigation is a “temporal procedure”.

The Federal Supreme Court confirmed that making the investigation confidential is “temporal procedure” that related to the security of the community. The Court added that the investigation could be reviewed by public after the circumstances are removed, emphasizing that this procedure is submitting to challenge according to the law, and the right of defense is guaranteed.

The spokesman of the Court Ayas Al-Samouk said “the Federal Supreme Court had convened its session Headed by the Judge Madhat Al-Mahmoud with the attendance off all member Judges, and the Court examined a challenge presented by the Barristers were they litigated the Speaker of the Iraqi Council of Representatives/ being in this capacity”.

Al-Samouk added “the plaintiffs had challenged the article (57/alif) of the criminal procedure law No. (23) for 1973 (amended) which stipulated ((the accused, the complainant, the civil right claimant and whom responsible of the accused behavior in addition to their agents can attend the investigation procedures. The Judge or the investigator has the right to inhibit each one of them from attendance if necessary, and he must mention the reasons of this inhibition in the minutes. When the necessity is removed, all the above-mentioned can review the investigation. They can’t speak just for those whom permitted for, if not, the reasons must be mentioned in the minutes)). 

He pointed to, the legislator didn’t make the agent of the plaintiff attendance obligatory during the session of investigation, but voluntarily. It also allowed the judge or the investigator to inhibit any of the above-mentioned from attendance. This matter violates the provision of the clause (4th) of the article (19) of the Constitution which stipulated ((the right to a defense shall be sacred and guaranteed in all phases of investigation and the trial)).

He also said that the ((plaintiffs had requested to judge by unconstitutionality of the article (57/alif) of criminal procedure law because it violates the text of the article (19/4th) of the Constitution)).

The Court had listened to both parties, and it found that the restrain which set by the legislator according to the article (57/alif) which is challenged for unconstitutionality and related to the attendance of the litigants the investigation sessions is a temporal restrain for a specific cases related to the community’s security, as well as to maintain the public interest)).


((The Federal Supreme Court mentioned that what occurs during their absence will be declared after the circumstances of confidentiality are removed. They can challenge this procedure according to the law)).

He confirmed ((the Federal Supreme Court found that granting the freedom of discussion between the complainants and the witnesses without taking permission from the Court will lead to interrupt the session, and the well conduct)).

((The Federal Supreme Court confirmed that registering the trial session or the investigation is entrusted to the Court’s Head according to the article (63/1) of the civil procedure law No. (83) For 1969 and the articles (64 & 168) of the criminal procedure law No. (23) For 1971 (amended)).

Moreover ((the Federal Supreme Court mentioned that the claim of restricting the attendance of the defense during the investigation only, the other texts confirmed his attendance during the trial procedure. If the accused hasn’t a Barrister, the Court shall appoint a Barrister for him and the general budget burdens his fees)).

Finally ((the Federal Supreme Court adjudged that the article (57/alif) of the unconstitutional challenged article of the criminal procedure law had guaranteed the right of the defense of the accused. Therefore, it’s corresponding to the article (19/4th) of the Constitution, and doesn’t violates it)).