ADVANTAGES

Access to lawyers is insufficient and the quality of legal representation is poor, significantly undermining the fairness of criminal proceedings. Most defendants meet their lawyer for the first time during their first hearing and have limited access to counsel during pretrial preparation. Defendants also report that they are not able to choose their defense lawyers. In terrorism cases, detainees are frequently held incommunicado, and many defense lawyers have reportedly ceased trying to obtain access to their clients during terrorism-related interrogations, especially when they are held for interrogation at detention facilities controlled by the Ministries of Interior and Defence, because interrogators believe that the right to have legal counsel present during interrogation applies only to interrogations conducted before an investigating judge. Compounding this problem is the routine violation of Article 123 of the Code of Criminal Procedure, which provides that an arrested person must be brought before the investigating judge within 24 hours of arrest. In practice, detainees may be held for weeks before being brought before a judge. It is during this initial pre-judicial phase that most detainees make their first confessions. Many detainees, defendants, and human rights organizations have averred that these confessions are frequently the result of torture or ill-treatment.

Additionally, there are many reports of interference with defense counsel’s work and threats to lawyers who represent death-eligible defendants. In December 2011, the Ninewa Bar Association reported that three lawyers were detained and tortured by the military without judicial approval for attempting to represent individuals charged with terrorism. One of the lawyers was detained for three months. In February 2012, the same Bar Association reported that five lawyers had been detained by the security forces because they had attempted to represent individuals detained by the military.

In several reported cases, defendants facing the death penalty were deprived of legal representation at critical phases of their capital murder proceedings. In one case, the defendant, who was 16 at the time of the crime, reportedly received no legal representation before being sentenced to death. In another reported case, an illerate woman was reportedly tortured into signing a stack of pages which she only learned was a confession one year later, when she first had access to a lawyer. She was sentenced to death for kidnapping and murder, and suffered permanent physical injury from the torture she suffered.

The availability of quality legal representation for sectarian minority individuals accused of terrorism, a capital offense, is particularly limited. Lawyers who agree to represent sectarian or ethnic minority individuals put themselves at risk of threats and intimidation. For instance, when Karzan Karim, a journalist with the Kurdistan Post, was arrested on terrorism charges, his lawyer received threats from security forces after publicizing his extended detention without trial. As a result, some lawyers refuse to represent individuals accused of terrorism, particularly individuals of sectarian minorities.

People tried by the Supreme Iraqi Criminal Tribunal, which was set up to try Saddam Hussein and his collaborators for crimes against humanity and war crimes, face particular challenges in obtaining legal counsel. Several lawyers involved in cases before the SICT have been attacked and killed.

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