Exemption from criminal penalty for foreign nationals

Attorney at law: Noor Jawad Jassim

Translation: Ali H. Jasim

Traveling from one country to another may expose individuals to various legal issues, among which is the fact that certain acts not considered crimes in their home countries may indeed constitute criminal offenses in the countries they travel to. For example, the consumption of qat in Yemen is not deemed a crime, whereas in the Republic of Iraq, mere possession of qat constitutes a criminal offense. The same applies to hashish (marijuana), as its use is permitted in Canada and some U.S. states for medical or recreational purposes under specific regulations, while its possession or use in the Republic of Iraq .constitutes a serious crime

Such situation gives rise to a question. what is the position of the Iraqi Penal Code regarding a foreign national arriving in Iraq while in possession of qat or marijuana?

The same question arises in the context of gambling, where the operation of casinos and participation in gambling activities is legally .permitted in the U.S. city of Las Vegas, yet is considered a criminal act in the Republic of Iraq

What is the position of the Iraqi legislator when a foreign national commits an offense within Iraqi soil, knowing that the act is not punishable nor criminalized under the laws of their home country?

The position of the law with respect to the aforementioned scenario is that such acts are criminalized. However, by way of exception, the court is granted discretion to exempt the foreign national from punishment, provided by Article 37 of the Iraqi penal code that the following three conditions are met:

.A. The foreign national must have committed the offense within seven days from the date of his arrival in the Republic of Iraq
.B. He must prove his ignorance of the Iraqi law
.C. The law of his place of residence must not consider the act punishable

,If the conditions are met, the court may, at its discretion, exempt the foreign national from punishment

Consequently, ignorance of the law or misunderstanding its provisions does not negate the mens rea (mental element), as knowledge of the law and its .provisions is presumed for all individuals, even if this presumption occasionally conflicts with reality

Furthermore, the expression “ignorance of the law” encompasses both lack of knowledge of the law and misinterpretation thereof. If a person commits a crime believing that the law applies to a different act than the one committed, such misunderstanding or misinterpretation does not effect criminal liability. .The proper interpretation of a legal provision is the meaning intended by the legislator, not the interpretation perceived by the individual