المسؤولية الجزائية لامتناع الأفراد عن تنفيذ القرارات الإدارية ( دراسة مقارنة )

Criminal liability for individuals’ failure to implement administrative decisions ( A comparative study )

Administrative decisions are one of the important means of exercising the administrative function and undertaking administrative activity with the aim of achieving the public good. Through administrative decisions, the administration can express its binding will towards others in order to achieve the goals or carry out the duties assigned to it in the best way possible. There is no doubt that failure to comply with these decisions would lead to obstructing the achievement of the desired goals. Because decisions are issued to be implemented and to produce the intended effects, in practical reality those decisions have no importance if they are not implemented on the ground.
Thus, administrative decisions constitute a distinct importance among the interests that the penal legislator seeks to protect, and in view of the extreme importance that administrative decisions enjoy; The Iraqi legislator has paid special attention to it by stipulating the criminalization of refraining from implementing them in the Penal Code and some of the special laws complementary to it, which contributes to achieving general deterrence for individuals who refrain from implementing administrative decisions, and obliges them to implement them by law. However, the criminalization of this abstention by the Iraqi legislator shows many legal problems in the scope of criminalization and punishment on the one hand, and in the legal procedures that must be followed in order to raise criminal liability on the perpetrator on the other hand. Therefore, we decided to highlight the criminal liability for individuals’ failure to implement administrative decisions in the legislation of both (France and Egypt) and compare it with Iraqi legislation. In order to demonstrate the importance of confronting this crime through criminal means to reduce its serious effects, and to highlight the most important deficiencies in the legal texts that regulate this responsibility in Iraqi legislation; Then access to a set of suggestions that may be useful in this aspect. This is done by dividing the study into two chapters. We devoted the first chapter to explaining the nature of criminal responsibility for individuals’ failure to implement administrative decisions in two sections. In the first, we discussed the concept of this responsibility in terms of defining it and explaining its nature, in which we discussed its most important characteristics and what distinguishes it from suspected crimes. We devoted the second chapter to explaining the legal basis for criminal liability for individuals’ abstention from implementing administrative decisions, their legal nature, and the interest considered in them. As for the second chapter, we discussed the provisions of liability for individuals’ abstention from implementing administrative decisions in two sections. In the first, we addressed the specific and general elements of the crime from which this liability arises. The specific element in this crime is an administrative decision effective against the individuals to whom it is addressed. As for the general elements, they are the material element and the moral element. As for the second section of it, we have dealt with the procedural provisions, which are the general procedures for initiating a criminal case in terms of the authority competent to initiate it and the party to whom it is carried out. Initiating the criminal case before it without going into the rest of the procedural provisions related to the investigation and trial; The crime that is the subject of the study is subject to the general rules of the Code of Criminal Procedure and is not characterized by any specificity related to those provisions. We also discussed in this section an explanation of the penalty prescribed for the crime and the judge’s authority to individualize it.
Through this study, it was revealed that there are some legislative deficiencies in the legal regulation of this responsibility in Iraqi legislation. The Iraqi legislator did not clarify the form of abstention, whether in its general sense, which includes explicit and implicit abstention, total and partial abstention, or in its narrow meaning, which includes only explicit abstention, as was left to the judge. Discretionary authority in choosing the appropriate punishment and the gravity of the committed act, such that it be either a simple imprisonment punishment or a fine. This is considered leniency by the legislator in confronting the perpetrator of this crime, as this punishment is not capable of deterring the perpetrators and preventing them from committing the crime, ignoring the negative effects resulting from it. Therefore, we call on the Iraqi legislator to intervene to address this deficiency by amending the criminal text for the crime of individuals refraining from implementing administrative decisions, which is contained in Article (240) of the Iraqi Penal Code, to include forms of refraining from implementing all administrative decisions, not just direct and explicit abstention, and toughening the penalty prescribed for the crime of individuals’ failure to implement administrative decisions by making the penalty of a fine imposed in addition to the penalty of imprisonment. Along with a number of other conclusions and proposals that we reached during this study.