(Feb. 9, 2009) On November 24, 2008, Adel Hussein, a physician and freelance journalist, was found guilty of offending public decency, in violation of Chapter 8, article 403, of the Iraqi Penal Code. On December 7, 2008, Dr. Hussein was released from prison under a pardon granted by the President of the Kurdish region of Iraq, a practice that is commonplace at the start of every religious festival in both the region and the country.
Hussein had been sentenced to serve six months in the Mahata prison in the city of Erbil, the capital of the Kurdish region of Iraq, and fined 125,000 dinars (about US$109). He was originally prosecuted as the result of a complaint made by the Erbil City public prosecutor concerning an article Hussein had written for a scientific audience, which detailed the ramifications of sodomy. The article was published in April 2007 in the independent Kurdish bi-weekly political newspaper, HAWLATI. ( Reporters Without Borders, Kurdish President Pardons Doctor Who Was Jailed for Writing About Homosexuality, UNHCR Refworld website, Dec. 8, 2008, available at http://www.unhcr.org/refworld/docid/493e3ac319.html (last visited Jan. 16, 2009).)
Chapter 8, article 403, of the Iraqi Penal Code states:
Any person who produces, imports, publishes, possesses, obtains or translates a book, printed or other written material, drawing, picture, film, symbol or other thing that violates the public integrity or decency with intent to exploit or distribute such material is punishable by a period of detention not exceeding 2 years plus a fine not exceeding 200 dinars or by one of those penalties. The same penalty applies to any person who advertises such material or displays it in public or sells, hires or offers it for sale or hire even though it is not in public or to any person who distributes or submits it for distribution by any means.
If the offence is committed with the intent to deprave, it is considered to be an aggravating circumstances [sic].
(Iraqi Penal Code[in Arabic], http://www.iraq-ild.org/LoadLawBook.aspx?SC=030220068157016 (last visited Jan.16, 2009); Ministry of Justice, The Penal-Code with Amendments (No. 111 of 1969) (STS 251/88) [published in AL-WAQAI' AL-'IRAQIYA, No. 2796, Sept. 26, 1980], http://law.case.edu/saddamtrial/documents/Iraqi_Penal_Code_1969.pdf (last visited Jan. 16, 2009).)
The non-profit international organization that defends journalists worldwide, Reporters Without Borders, expressed concern that a case involving the press was tried under the Penal Code, given that Kurdistan's leaders had issued a regional press law that would be applicable – Law 35 of 2007, issued on October 9, 2008 (Reporters Without Borders, supra). The regional law “prohibits the imprisonment of journalists as well as the closure or suspension of newspapers – key demands of press rights advocates and local journalists who fought against prior drafts of the legislation that they claimed were too restrictive.” (Iraqi Crisis Report: Kurdish Press Law Draws Mixed Responses, Institute for War and Peace Reporting website, Oct. 17, 2008, available at http://www.iwpr.net/?p=icr&s=f&o=347233&apc_state=henpicr.) The first provision of the regional press law states:
The press is free and no censorship shall be imposed on it. Freedom of expression and publication shall be guaranteed to every citizen within the framework of respect for personal rights, liberties and the privacy of individuals in accordance with the law, as well as [commitment] to the principles of ethics in the Bordeaux Declaration of Principles on the Conduct of Journalists, adopted by the 1954 World Congress of the International Federation of Journalists, amended in 1986 and annexed hereto.
(Decree No. 24 of 2008: Press Law in the Kurdistan Region (Law No. 35 of 2007), Kurdistan Region Presidency website, Sept. 22, 2008, available at http://krp.org/docs/PressLaw-KRI.pdf; for the text of the Principles on the Conduct of Journalists, see IFJ Declaration of Principles on the Conduct of Journalists, International Federation of Journalists website, http://www.ifj.org/assets/docs/060/151/2bcb53c-c641f97.doc (last visited Jan. 16, 2009).)