Inspection in Iraqi Criminal Law

Abstract

The study of search (inspection) as a procedure within the framework of preliminary investigation reveals that it is carried out by judicial authorities with the purpose of uncovering a crime that has already occurred or for which strong indications suggest its occurrence. Therefore, any procedure that falls outside this scope is not considered a judicial search. Administrative searches, exceptional searches, and preventive searches do not constitute judicial searches and should be limited as much as possible, given that one of the fundamental guarantees of a search is that it is conducted under judicial authority. The Iraqi legislator permits searches in all types of crimes, including minor offenses (infractions). However, since such infractions are neither grave nor serious enough to justify the infringement of individual freedoms or the sanctity of homes, search procedures should be reserved for serious crimes and explicitly excluded in the case of infractions. In practice, it is up to the judiciary to determine whether a crime warrants a search in order to uncover the crime and its perpetrator. It is unlikely that a judge would authorize a search for a mere infraction, as a search must be justified, and in the absence of such justification, it is not permissible. Furthermore, a search warrant must be issued in writing, signed by the judge, stamped with the court seal, and addressed to a specific officer by name or by reference to their official position, making them responsible for executing the order. The subject of the search must be clearly specified to avoid ambiguity, and the warrant must precede the search to ensure its legality. However, in urgent cases, it is common practice for the judge to issue a verbal search warrant to the investigator, either at the investigator’s request or on the judge’s own initiative, provided this is documented in the case file. The warrant expires once the search is completed; a new warrant must be issued for any subsequent search. Since the law does not impose time restrictions on searches, they may be conducted at night, on public holidays, and at any time of day or night.