# Reg 12: Iraq Property Claims Commission

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COALITION PROVISIONAL AUTHORITY
REGULATION NUMBER 12
IRAQ PROPERTY CLAIMS COMMISSION
Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA), and
under the laws and usages of war, and consistent with relevant U.N. Security Council resolutions,
including Resolutions 1483 and 1511 (2003) and 1546 (2004),
Noting that the Statute of the Establishment of the Iraq Property Claims Commission, which was
promulgated pursuant to Coalition Provisional Authority Regulation 8, Delegation of Authority
Regarding an Iraq Property Claims Commission, (CPA/REG/14 January 2004/8), did not provide
adequate mechanisms for the appointment, management, and operation of the Iraq Property
Claims Commission,
Recognizing that the Statute of the Establishment of the Iraq Property Claims Commission
requires amendment to ensure that the Iraq Property Claims Commission can function properly,
Acknowledging that an initial set of Instructions for Operation are needed to implement the Statute
of the Establishment of the Iraq Property Claims Commission so that claimants, court officials,
and administrators can understand better the claims process of the Iraq Property Claims
Commission, and
Desiring to amend the Statute of the Establishment of the Iraq Property Claims Commission and
to promulgate the Instructions for Operation of the Iraq Property Claims Commission,
I hereby promulgate the following:
Section 1
Amended Iraq Property Claims Commission Statute
The Statute of the Establishment of the Iraq Property Claims Commission, which became
effective on January 15, 2004 pursuant to Coalition Provisional Authority Regulation 8,
Delegation of Authority Regarding an Iraq Property Claims Commission, (CPA/REG/14
January 2004/8), is hereby amended and restated in full in the form attached hereto as
Annex A.
Section 2
Promulgation of Instructions for Operation
The Instructions for Operation of the Iraq Property Claims Commission which are attached
hereto as Annex B shall implement the Statute of the Establishment of the Iraq Property
Claims Commission and shall apply to all claims filed before the Iraq Property Claims
Commission.
CPA/REG/23 June 2004/12
� Annex A
Establishment of the Iraq Property Claims
Commission (As Amended and Restated)
SECTION ONE
Establishment
Article One
This Statute hereby establishes the Iraq Property Claims Commission (the
“IPCC”), which shall resolve real property claims in a fair and judicious manner.
The IPCC shall encourage the voluntary resolution of claims.
SECTION TWO
Organization
Article Two
The IPCC shall consist of the following structures established by the Iraqi Interim
Government:
A.
An Appellate Division, composed of judges and established as a
separate chamber of the Iraqi Court of Cassation;
B.
Regional Commissions established in each governorate in Iraq, and a
maximum of three regional commissions in the Kurdistan Regional
Government area. The Appellate Division may then establish more
than one Regional Commission in a governorate; and
C.
A National Secretariat which shall be responsible for overseeing all
operational and management activities of the IPCC.
Article Three
A. The Appellate Division of the IPCC shall be composed of five judges, one of
whom shall be nominated by the judicial authority in the Kurdistan Regional
Government, who have experience in adjudicating property disputes. They may
be retired or serving judges and are to be appointed by the Council of Judges. .
B. Each Regional Commission shall be composed of (i) a judge, appointed by
the Council of Judges, who shall preside as chairman, (ii) the Director of the
Office of Real Estate Registry in the Governorate, or his representative, and (iii)
the Director of State Property of such Governorate, or his representative. The
Regional Commission may also request the assistance of persons who are
experts on the subject of any claim.
C. The National Secretariat shall be composed of (i) a Head of the National
Secretariat who shall serve as the highest official of the National Secretariat, (ii)
� Annex A
operational managers, auditors, data managers, legal advisers, public relations
personnel, and any other staff necessary to ensure the orderly functioning of the
National Secretariat, (iii) Regional Secretariats situated in each Governorate with
all necessary staff to ensure the IPCC’s orderly functioning, including Regional
Commission Clerk’s offices, which shall provide operational and legal support as
necessary to each Regional Commission, and (iv) an Appellate Secretariat with
the necessary staff to ensure the Appellate Division’s orderly functioning,
including an Appellate Division Clerk’s office which shall provide operational and
legal support as necessary to the Appellate Division.
Article Four
The Iraqi Interim Government shall ensure that the IPCC has the necessary
funds to discharge its administrative duties and that the Regional Commissions
and Regional Secretariats are provided with appropriate premises from which to
operate in the capital of the relevant Governorate or Kurdistan Regional
Government area or at any such locations as shall be deemed expedient by the
IPCC.
SECTION THREE
Procedures
Article Five
A. The IPCC shall designate the form of documents for submission of claims
and for administrative purposes.
B. The process of adjudicating claims filed with the IPCC shall commence
with the claimant(s), or his representative filing a claim in the proper form
at any IPCC office, including any properly designated IPCC office outside
Iraq.
Article Six
A. Following receipt of a properly completed claim form, the Regional
Secretariat shall open a claim file and record the claim in the intake
register in the order received.
B. After receipt of a properly completed claim form, the relevant Regional
Secretariat shall serve notice of the claim on any interested parties,
including natural or juridical persons, in accordance with the Guidelines
issued by the National Secretariat and Instructions for Operation approved
(if before June 30, 2004) by the Administrator or (if after June 30, 2004)
the Iraqi Interim Government.
C. The Regional Secretariat shall serve notice of the claim on the General
Directorate of Real Estate Registration, and the General Directorate of
Real Estate Registration shall cause the official title record to be endorsed
with the date and reference number of the claim.
� Annex A
D. The Regional Secretariat shall verify the claim administratively, and
authenticate the identity of the parties.
E. The Regional Commission Clerk’s Office shall then review each claim file,
and, prior to submitting the file to the Regional Commission, prepare for
the Regional Commission a case report which summarizes the factual
background of the case, the legal issues involved, the parties’ arguments,
and the Clerk’s Office’s recommendation, made by a legal advisor, as to
how the case should be decided.
F. The Regional Commission may request the assistance of other
governmental and non-governmental parties for purposes of valuation of
interests and other related matters.
G. The Regional Commission shall issue its decision with respect to the
claim, but the Regional Secretariat shall be responsible for notifying the
claimants and any known interested parties of the Regional Commission’s
decision.
Article Seven
A. Any appeal of a decision of the Regional Commission must be filed within
sixty days from the date of the decision.
B. Orders issued by the Regional Commission shall be final and binding
unless appealed within sixty days.
C. A decision of the Regional Commission will not be enforceable until the
requisite period for filing an appeal has passed and no appeal has been
lodged.
D. A decision made by the Appellate Division is final and binding in respect of
any IPCC related matter.
E. The final order of the Regional Commission or Appellate Division, as
appropriate, shall be issued to all relevant parties and the appropriate
competent authorities for enforcement.
F. If the property in question is occupied, possessed or used by the non- prevailing party, and such party has no other property, then the non- prevailing party would be granted a prescribed period of time to surrender
possession of the premises. The Regional Secretariat shall also inform the
displaced person(s) of the availability of any services for assistance.
SECTION FOUR
General Principles
Article Eight
The IPCC shall comply with, but not be limited to, the application of the following
examples when resolving real property claims:
A.
Any properties that were confiscated or seized, or on which liens or
other encumbrances were placed by the former governments of Iraq
� Annex A
(not in the ordinary course of commercial business), but with title
remaining in the name of the original owner shall be returned to the
original owner, freed and discharged from any such liens or other
encumbrances.
B.
Any properties that were confiscated or seized and whose title was
transferred to the former governments of Iraq, or an agent thereof, and
which were not sold to a third party, shall be returned to the original
owner.
C.
Any properties confiscated by the former governments of Iraq that
were used as mosques, other places of worship, religious schools,
charities or were associated with such uses shall be returned to the
appropriate waqfs (religious endowments) connected to such uses or
to the appropriate holders of title to such properties prior to their
confiscation.
D.
Any properties whose title is in the name of senior members of the
former governments of Iraq shall be returned to the rightful owners, if it
is established that such properties were improperly acquired.
E.
If a property was confiscated and subsequently sold to a buyer (the
“First Buyer”), and (i) title remains in the name of the First Buyer and
(ii) no improvements were made to the property, then title to the
property will be transferred back to the original owner, and the First
Buyer would not be entitled to compensation from the original owner.
F.
If the property was an unimproved property (that is, a property not built
upon) when confiscated or otherwise seized, and then subsequently
sold to the First Buyer, and the First Buyer has improved the property
by building upon it, then the original owner would be entitled to either
(i) having title transferred to him, provided that he pays the First Buyer
the value of the improvements or (ii) being paid appropriate
compensation for the property (as an unimproved property).
G.
If the property was sold to the First Buyer, who subsequently acquired
an adjoining property from the state, then title to both the original
property and the adjoining property shall be transferred to the original
owner, provided that such original owner pay the First Buyer the
amount that such First Buyer paid for the adjoining property.
H.
If the property has a building on it and then was sold to the First Buyer,
who subsequently demolished the original building and built a new
building on it, then the original owner of the property may (i) request
that title be transferred to him, after paying for the new building, less
the value of the old demolished building, or (ii) may request that the
First Buyer acquire the property, including the demolished building
(less any amounts paid by the First Buyer to the former governments
of Iraq).
I.
If the property was subsequently sold by the First Buyer to other
buyers, then the original owner could either (i) request that title be
transferred to him, or (ii) request compensation for the value of the
� Annex A
property. If the original owner chooses option (i) above, then the final
buyer would be entitled to compensation for the value of the property.
J.
If the property was charged as security to a lender for a loan to the
First Buyer, then title to the property would be freed and discharged
from any such charge, and the lender would then have a right of action
against the First Buyer to recover any outstanding balance due under
the loan.
K.
If the property was unimproved and a building was built on it by the
First Buyer, and the property was charged to a lender as security for a
loan, then any amounts due to the First Buyer by the original owner
(pursuant to Paragraph F above) would be paid by the original owner
direct to the lender to fully or partially satisfy the loan.
L.
If the property was confiscated and sold in a public auction and was
purchased by either the original owner or his heirs, then they will be
entitled to compensation from the state in an amount equivalent to the
purchase price.
M.
If the property is currently being used for a public or charitable
purpose, the property shall continue to be used for that purpose, and
the Government or current owner, user or possessor shall provide the
original owner, user or possessor with compensation.
N. Any other relevant situation in line with these provisions.
SECTION FIVE
Other Matters
Article Nine
This Statute governs claims:
A. (1) Arising between July 17, 1968 and April 9, 2003, inclusive;
(2)
Involving immovable property, assets affixed to immovable
property, easements or servitudes (“real property”), or an interest in
real property;
(3)
That was confiscated, seized, expropriated, forcibly acquired for
less than full value, or otherwise taken, by the former governments
of Iraq for reasons other than land reform or lawfully used eminent
domain. Any taking that was due to the owner’s or possessor’s
opposition to the former governments of Iraq, or their ethnicity,
religion, or sect, or for purposes of ethnic cleansing, shall meet this
standard; or
B. (1) Arising between March 18, 2003 and June 30, 2005, inclusive;
(2)
Involving real property, or an interest in real property;
(3)
That was confiscated, seized, expropriated, forcibly taken for less
than full value, or otherwise acquired and/or reacquired:
� Annex A
i.
as a result of the owner’s or possessor’s ethnicity, religion, or sect,
or for purposes of ethnic cleansing, or;
ii.
by individuals who had been previously dispossessed of their
property as a result of the former Ba’athist governments’ policy of
property confiscation.
Article Ten
A. Newly introduced inhabitants of residential property in areas that were
subject to ethnic cleansing by the former governments of Iraq prior to April
9, 2003 may be (i) resettled, (ii) may receive compensation from the state,
(iii) may receive new property from the state near their residence in the
governorate or area from which they came, or (iv) may receive
compensation for the cost of moving to such area.
B. The Ministry of Displacement and Migration shall be responsible for
administering this policy.
Article Eleven
A. Claims must be filed in the proper form and properly completed by June
30, 2005. Any claims filed with the IPCC after such date will not be
accepted.
B. Any claims with respect to properties within the jurisdiction of this Statute
but filed subsequently to June 30, 2005 may be referred to the Iraqi
Courts, which shall apply the principles included in this Statute. This
provision is not available to any claimant who has already filed a claim
with respect to the same property with the IPCC.
C. The IPCC is to have exclusive jurisdiction over all claims involving
immovable property, assets affixed to immovable property, easements or
servitudes on property or land or other interests in real property brought in
accordance with Articles 9A and 9B. Any such cases pending must be
transferred by the relevant court to the jurisdiction of the IPCC.
Article Twelve
The terms of this Statute shall take precedence over any provisions in resolutions
or orders or laws that are inconsistent.
Article Thirteen
The National Secretariat shall issue Guidelines which will set forth the
procedures to be followed by the IPCC.
The National Secretariat may issue interpretative memoranda which set forth the
manner in which it shall construe the Instructions for Operation.
� Annex A
Article Fourteen
The Iraqi Interim Government means the Government appointed on June 1,
2004, and assuming sovereignty on July 1, 2004. The authority of the Iraqi
Interim Government for the purposes of this Statute will transfer to the successor
governments of Iraq.
Article Fifteen
Transfers of real property pursuant to this Statute shall not be subject to income
tax, a tax on a transfer of real property, or any other tax or duty.
Article Sixteen
This Statute will become effective on 1 July 2004.
� Annex B
Iraq Property Claims Commission INSTRUCTIONS FOR OPERATION
SECTION ONE
General Provisions
Article 1
These Instructions implement the Statute of the Establishment of the Iraq
Property Claims Commission (As Amended and Restated) (the “Statute”) and
apply to all claims filed before the Iraq Property Claims Commission (IPCC).
Unless otherwise stated, references to Articles are Articles in these Instructions.
Article 2
Together with the Statute, these Instructions govern:
a. The composition of the IPCC;
b. The submission of claims before the IPCC;
c. The reception of claims by the IPCC;
d. The process for deciding claims;
e. The legal effectiveness of IPCC decisions.
SECTION TWO
Composition of the IPCC
Article 3
In accordance with Article 2 and Article 3 of the Statute, the IPCC shall consist of
a National Secretariat, an Appellate Division and one or more Regional
Commissions in each governorate or Kurdistan Regional Government area.
1
� Annex B
National Secretariat
Article 4
a. A National Secretariat for property claims shall be established. The initial
Head of the National Secretariat shall be appointed by the Administrator after
consultation with the Iraqi Interim Government for a term of two years which may
be renewed once at the discretion of the Prime Minister of Iraq. The initial Head
of the National Secretariat shall then take action to manage the work of the
National Secretariat by setting up an office, including but not limited to, the
following staff:
i. Operational managers to oversee IPCC operations, to coordinate
among the different branches of the IPCC, and, where appropriate, to issue user
manuals and operating guidelines to direct certain functions of the IPCC;
ii. Auditors to inspect IPCC operations for fraud, waste or
mismanagement;
iii. Data managers to enter into the national database of claims the
information on forms submitted to the IPCC, and to review the national database
for cases with similar and recurrent factual patterns;
iv. Legal advisers to ensure consistent application of IPCC rules, to
oversee orders of compensation, and, where appropriate, to request that the
Appellate Division issue an advisory opinion addressing an unresolved issue of
law or fact;
v. Public relations personnel to advertise the existence of the IPCC, the
location of IPCC offices, the rules of procedure of the IPCC, and other issues it
deems appropriate;
vi. Appellate Division Secretariat and Regional Secretariats in accordance
with Article 3(C) of the Statute and Article 8, Article 9, Article 16, and Article 17;
and
vii. Any other staff necessary to ensure an orderly functioning of the
National Secretariat in accordance with the responsibilities outlined in these
Instructions.
b. All subsequent appointments to the office of Head of the National
Secretariat shall be for four years, without term limits, and made in accordance
with the following procedure:
The Council of Judges shall recommend three candidates to be considered for
appointment as Head of the National Secretariat. The Iraqi Interim Government
2
� Annex B
or successor Government of Iraq shall then appoint one of these candidates as
Head of the National Secretariat.
Article 5
The National Secretariat shall:
a. Ensure consistent implementation of, and compliance with, the Statute, these
Instructions, any legal determinations made by the Appellate Division, and any
IPCC Guidelines issued by the National Secretariat;
b. Audit IPCC offices;
c. Establish a national database of claims, and enter into that database the
information received from the Regional Secretariats, IPCC offices or from
persons living outside Iraq.
d. Review the national database for cases with similar and recurrent factual
patterns and common legal issues, and notify the Regional Commissions or
Appellate Division, as necessary, of such cases for coordinated treatment.
e. Coordinate among the different branches of the IPCC, and between the IPCC
and the Ministry of Housing, the Ministry of Justice, the Council of Judges, the
Ministry of Displacement and Migration, and the Ministry of Finance, and any
other resource as necessary;
f. Issue user manuals and operating guidelines;
g. Manage IPCC public relations and communications;
h. Oversee orders of compensation and the implementation of orders requiring
persons to surrender possession of their property;
i. Support the Appellate Division and Regional Commissions; and
j. Accomplish other tasks assigned to it herein or in future IPCC Instructions.
Appellate Division
Article 6
The Appellate Division shall be an independent review body within the IPCC
located in Baghdad and established as a separate chamber of the Iraqi Court of
Cassation. It shall hear appeals of decisions made by the Regional
Commissions.
3
� Annex B
Article 7
a. In accordance with Article 3(A) of the Statute, the Appellate Division shall be
comprised of five retired or serving judges who have experience in adjudicating
property disputes, to be appointed by the Council of Judges. The judges of the
Appellate Division shall represent a cross section of the Iraqi population. Each
Judge shall have a deputy who must be approved by the Council of Judges.
b. To the extent that the Council of Judges appoints to the Appellate Division
any serving judges, such judges shall be transferred to the IPCC to serve on a
full-time basis.
c. Each judge of the Appellate Division shall act as Chief Judge in turn, in an
order of appointment to be determined by the Council of Judges. Each
appointment shall have a maximum duration of two years.
Article 8
In accordance with Article 3(C) of the Statute, an Appellate Division Secretariat
shall be established for the Appellate Division to assist in the IPCC’s
administration. The Appellate Division Secretariat shall report to, and take
guidance and instructions from, the National Secretariat. To establish the
Appellate Division Secretariat, the National Secretariat shall appoint a Head of
the Appellate Division Secretariat, who shall then take action to establish a
support service for the Appellate Division by setting up an office, including but not
limited to, the following staff:
a. Receptionists to ensure the orderly flow of people through the office, and to
answer basic questions relating to the IPCC.
b. Persons tasked with notifying the Regional Commissions and Regional
Secretariats of Appellate Division decisions, as required by these Instructions.
c. Persons trained in: (i) distributing and receiving claim, response and appeal
forms, and (ii) entering such forms into a computer and sending the electronic
data to the National Secretariat for data processing.
d. Docket managers to oversee case files and issue final orders.
e. Any other staff necessary to ensure the orderly functioning of the Appellate
Secretariat, in accordance with the responsibilities outlined in these Instructions
Article 9
4
� Annex B
In accordance with Article 3(C) of the Statute, an Appellate Division Clerk’s Office
shall be established in the Appellate Division Secretariat and provide operational
and legal support as necessary to the Appellate Division. The Appellate Division
Clerk’s Office shall report to, and take guidance and instructions from the
Appellate Division Secretariat and (as necessary) the National Secretariat.
To establish the Appellate Division Clerk’s Office, the Head of the Appellate
Division Secretariat (in consultation with the Head of the National Secretariat)
shall provide the Chief Judge of the Appellate Division with a list of ten
candidates qualified to serve as the Head of the Appellate Division Clerk’s Office.
The Chief Judge of the Appellate Division (in consultation with all other Appellate
Division Judges) shall then appoint one candidate from the list of ten candidates
provided by the Appellate Division Secretariat as the Head of the Appellate
Division Clerk’s Office. The Head of the Appellate Division Clerk’s Office shall
then set up an office in the Appellate Division Secretariat which shall be
composed of legal advisors who shall review case files and prepare for the
Appellate Division a case report which summarizes:
(i) the factual background of the case;
(ii) the legal issues involved;
(iii) the parties’ arguments; and
(iv) the Clerk’s Office’s recommendation, made by a legal adviser, as to
how the case should be decided.
Article 10
In accordance with Article 2(B) of the Statute, the Appellate Division may
determine that a governorate or Kurdistan Regional Government area would
benefit from more than one Regional Commission, and, if it does, shall establish
the territorial boundaries of each Regional Commission within a governorate or
government area. The Appellate Division also may determine that a Regional
Commission should operate in more than one governorate.
Article 11
Upon request of the National Secretariat or a Regional Commission, the
Appellate Division may issue an advisory opinion on any unresolved question of
law or common issue of fact to establish the rule to be applied uniformly to
subsequent similar cases.
Article 12
The term of office of the judges of the Appellate Division shall expire after five
years and may be renewed upon decision by the Council of Judges, except that
the term of office shall terminate upon completion of all claims before the
Appellate Division.
5
� Annex B
Article 13
The standards under which a judge of the Appellate Division shall disqualify
himself or herself from considering a claim are the same as the standards under
which a Regional Commissioner shall disqualify himself or herself. Where a
judge of the Appellate Division is not available to consider a claim, whether
because they disqualify themselves or otherwise, their deputy may sit on the
Appellate Division and act with the full powers of the unavailable judge.
Regional Commissions
Article 14
a. In accordance with Article 2(B) of the Statute, each Regional Commission
shall serve a different governorate or Kurdistan Regional Government area and
shall be located in the capital city of the governorate or Kurdistan Regional
Government area in which it serves, unless the Appellate Division otherwise
determines in accordance with Article 10.
b. Notwithstanding Paragraph (a) of this Article, a Regional Commission may sit
in any part of the territory over which it has jurisdiction if the Chairman of the
Regional Commission or the National Secretariat determines, in their discretion,
that the circumstances so warrant.
Article 15
In accordance with Article 3(B) of the Statute, each Regional Commission shall
be comprised of (i) a judge appointed by the Council of Judges, who shall serve
as the Chairperson; (ii) the Director of the Office of Real Estate Registry in the
Governorate in which the Commission sits, or their representative; and (iii) the
Director of State Property of such Governorate, or their representative.
Article 16
In accordance with Article 3(C) of the Statute, a Regional Secretariat shall be
established for each Regional Commission to assist in the IPCC’s administration.
The Regional Secretariat shall report to, and take guidance and instruction from,
the National Secretariat. To establish the Regional Secretariat, the National
Secretariat shall appoint a Head of the Regional Secretariat, who shall then take
action to establish a support service for the Regional Commission by setting up
any necessary offices, including but not limited to, the following staff:
a. Receptionists to ensure the orderly flow of people through the office, and to
answer basic questions relating to the IPCC.
6
� Annex B
b. Persons tasked with notifying interested parties, as required by these
Instructions.
c. Persons trained in: (i) distributing and receiving claim, response and appeal
forms, and (ii) entering such forms into a computer and sending the electronic
data to the National Secretariat for data processing.
d. Docket managers to oversee case files and issue final orders.
e. Mediators and staff to assist in the voluntary resolution of claims.
f. Any other staff necessary to ensure the orderly functioning of the Regional
Secretariat, in accordance with the responsibilities outlined in these Instructions.
Article 17
In accordance with Article 3(C) of the Statute, a Regional Commission Clerk’s
Office shall be established in each Regional Secretariat and provide operational
and legal support as necessary to the Regional Commission. The Regional
Commission’s Clerk’s Office shall report to, and take guidance and instructions
from the Regional Secretariat and (as necessary) the National Secretariat.
To establish the Regional Commission Clerk’s Office, the Head of the Regional
Secretariat shall provide the Chairperson of the Regional Commission with a list
of ten candidates qualified to serve as Head of the Regional Commission Clerk’s
Office. The Chairperson of the Regional Commission (in consultation with all
other members of the Regional Commission) shall then appoint one candidate
from the list of ten candidates provided by the Head of the Regional Secretariat
as the Head of the Regional Commission Clerk’s Office. The Head of the
Regional Commission Clerk’s Office shall then set up an office in the Regional
Secretariat which shall be composed of legal advisers who shall (in accordance
with Article 6(E) of the Statute) review case files and prepare for the Regional
Commission a case report which summarizes:
(i) the factual background of the case;
(ii) the legal issues involved;
(iii) the parties’ arguments; and
(iv) the Clerk’s Office’s recommendation, made by a legal adviser, as to
how the case should be decided.
Article 18
Members of a Regional Secretariat may be required by these Instructions, by the
Chairperson of the appropriate Regional Commission or by the National
Secretariat to travel to any part of the territory over which the Regional
7
� Annex B
Commission has jurisdiction in order to facilitate the intake or processing of
claims.
Article 19
The commissioners’ term of office shall expire after three years and may be
renewed upon decision by the relevant appointing authority, except that the term
of office shall terminate upon completion of the Regional Commission’s
consideration of the claims before it.
Article 20
a. A Regional Commissioner shall disqualify himself or herself from considering
any claim in which their impartiality might reasonably be questioned.
b. The impartiality of a Commissioner might reasonably be questioned, inter alia,
if:
i.
The Commissioner is a relative of one of the parties;
ii.
The Commissioner or their spouse, child, parent, son-in-law or
daughter-in-law has an ongoing dispute with one of the parties;
iii.
The Commissioner has been a legal advisor for one of the parties,
business partner of any kind, held an interest in a company, or
been a board member of a company in which one of the parties has
a controlling interest;
iv.
The Commissioner or their relative has given advice or an opinion
on the particular case before it reached the Regional Commission;
or
v.
The Commissioner has any other interest (financial or otherwise) in
the claim.
c. For the purposes of these Instructions, “relative” is defined as “a relation
through parentage, marriage or adoption up to the fourth degree”.
d. Where a Commissioner is not available to consider a claim, whether because
they disqualify themselves or otherwise, their position shall be filled by an ad hoc
appointment by the appointing authorities, so that the appointing authority which
appointed the disqualified Commissioner shall appoint the ad hoc replacement.
Submission and Reception of Claims
A) Information on claim submission
8
� Annex B
Article 21
The National Secretariat shall carry out national and international information
programs, and Regional Secretariats shall carry out such programs within the
territories of their respective Regional Commissions, to ensure that potential
claimants receive notice of, and instructions on submitting a claim to the IPCC.
Such programs shall employ notices to be published widely (i.e., both inside and
outside Iraq, as appropriate, and via a number of different media) and repeatedly
in order to reach all potential claimants.
B) Submission of claims
Article 22
Any person, natural or juridical, or their heirs, may submit a claim to the IPCC so
long as the claim:
A. (1) Arose between July 17, 1968 and April 9, 2003, inclusive;
(2)
Involves immovable property, assets affixed to immovable property,
easements or servitudes (“real property”), or an interest in real
property;
(3)
That was confiscated, seized, expropriated, forcibly acquired for
less than full value, or otherwise taken, by the former governments
of Iraq for reasons other than land reform or lawfully used eminent
domain. Any taking that was due to the owner’s or possessor’s
opposition to the former governments of Iraq, or their ethnicity,
religion, or sect, or for purposes of ethnic cleansing, shall meet this
standard; or
B. (1) Arose between March 18, 2003 and June 30, 2005, inclusive;
(2)
Involves real property, or an interest in real property;
(3)
That was confiscated, seized, expropriated, forcibly taken for less
than full value, or otherwise acquired and/or reacquired:
i.
as a result of the owner’s or possessor’s ethnicity, religion, or sect,
or for purposes of ethnic cleansing, or;
ii.
by individuals who had been previously dispossessed of their
property as a result of the former Ba’athist governments’ policy of
property confiscation.
For purposes of the IPCC’s jurisdiction, actions or inactions attributable to the
former governments of Iraq include, but are not limited to:
1. The actions or inactions of any State organ in Iraq, whether of the central
government or of a territorial unit of the State, and whether the organ
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exercised legislative, executive, judicial or any other functions within the
former governments;
2. The actions or inactions of a Ba’ath party member, or of a relative of a
senior official of the Government or party, operating with apparent
authority, or under color of authority, or with the implicit or explicit license
of the former governments.
Claims for damages only are not within the jurisdiction of the IPCC.
Article 23
A claimant who brings a claim in bad faith and with knowledge that such claim is
fraudulent will be deemed to commit a criminal offence under the Iraqi Penal
Code.
Article 24
A claimant who, after issuance of these Instructions, willfully returns to currently
occupied property and takes measures to force the current occupiers to vacate
that property will be deemed to commit a criminal offence under the Iraqi Penal
Code.
Article 25
a. Claims shall be submitted in person, in the prescribed form, at any IPCC
office as required under Article 5 of the Statute.
b. Claims submitted by persons located outside Iraq will be governed by a
separate set of Instructions.
c. Claims will be deemed to be filed once the claim has been accepted by the
Regional Secretariat acting through any IPCC office and the applicant has been
issued an acknowledgement bearing the claim reference number.
Article 26
Where security conditions or geographical conditions so warrant, the Regional
Secretariat may dispatch a mobile team, consisting of members of the Regional
Secretariat, to an area with a concentrated population of potential claimants, to
facilitate the intake and processing of claims.
Article 27
a. Where a representative acts on behalf of a claimant, the representative must
prove their representation. The IPCC shall prescribe the form of evidence of
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representation, and the signature of the claimant authorizing representation on
that form shall be considered sufficient evidence of representation unless there is
reason to believe that such signature was wrongfully obtained.
b. Where property rights are communally held, and the person in whose name
the property is registered cannot be found, other members of the community may
file a claim on behalf of the entire community if such members offer proof of the
registered person’s absence and proof of membership in the community.
Article 28
The claimant, or their representative, shall attach to the claim form any available
evidence, including any testimonial evidence, proving their rights to the claimed
property.
a. Written testimony shall be sworn and notarized, in accordance with Iraqi law.
b. For documentary evidence, the claimant, or their representative, shall submit
a certified copy. Wherever possible, the IPCC shall review and certify, as true
and correct, any original documents pertaining to the claim, but the IPCC will not
accept custody of any original documents.
Article 29
The claimant, or their representative, may withdraw the claim or part of the claim
at any time until a decision is issued.
a. A withdrawal shall be explicit, in the prescribed form, signed by the claimant
and filed in the manner specified for claims in Article 25.
b. Upon receipt of notification of a withdrawal, the Regional Commission may
accept the withdrawal, with or without prejudice, and the Regional Secretariat
shall record in the national database that the claim has been withdrawn.
C) Processing of Claims (in-country claimants)
Article 30
Upon receipt of a claim in the proper form, the Regional Secretariat shall review
the form in the claimant’s presence, or in the presence of their representative, to
ensure that all obligatory information is provided. Where the claim form is
missing obligatory information, the Regional Secretariat shall advise the claimant,
or their representative, of what must be done to provide the missing information
and shall return the claim form to the claimant, or to their representative, without
processing it.
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Article 31
Once the Regional Secretariat has reviewed the claim form and advised the
claimant, or their representative, of any missing obligatory information, it is the
responsibility of the claimant to complete the form within the filing period. The
claim will not be accepted for processing by the Commission until all obligatory
information is provided.
Article 32
Immediately upon receipt of a properly completed claim form, and, in the
claimant’s presence, or in the presence of their representative, the Regional
Secretariat shall:
a.
Assign the claim a unique claim number;
b.
Affix a pre-printed label with the unique claim number to the claim form;
c. Provide the claimant with confirmation of receipt in the prescribed form
showing the unique claim number for future reference.
Article 33
After assigning a unique claim number to the claim, the Regional Secretariat
shall serve notice of the claim on all identifiable interested parties, in accordance
with Article 6(B) of the Statute.
a. The Regional Secretariat shall serve notice of the claim on interested parties
by:
i.
Physically posting notice for a minimum of one month on the subject
property, at the office of the Regional Commission and in any local or
electronic venues that may attract an interested party’s attention; and
ii.
Communicating the notice in writing to any identifiable interested parties,
unless impracticable.
b. Upon serving or posting notice (whichever is later), the Regional Secretariat
shall record the date of notice.
c. The notice shall provide sufficient details to enable any interested party to file
a response to the claim. Further information relating to the claim may be provided
by the Regional Commission, if the Head of the Regional Secretariat determines
that such information is necessary for the proper filing of a response.
Article 34
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The Regional Secretariat shall identify interested parties by reviewing the
national database for any other claims relating to the subject property, searching
the appropriate property registry for current and previous owners, identifying any
current users or occupiers of the property, and taking any other steps it deems
appropriate.
Article 35
Absent good cause, interested parties shall have forty five days from the date on
which notice is served or posted (whichever is later) to submit a response to the
claim. A response shall be submitted in the prescribed form and shall be
submitted in the manner specified for a claim form in Article 25.
Article 36
For any form received by the Regional Secretariat, the Regional Secretariat shall
enter the data from the form into the computer, and transmit the electronic
version of the form data to the National Secretariat for data processing. The
Regional Secretariat shall also send the original version of the form to the
National Secretariat for filing in the national repository.
Article 37
Upon receiving the data from the Regional Secretariat, the National Secretariat
shall transfer that data into the national database. Upon receiving the original
paper copy, the National Secretariat shall file it at a national repository.
D) Processing of Claims (of out-of-country claimants)
Article 38
The National Secretariat shall process the claims of out-of-country claimants in
the same way that the Regional Secretariats process the claims of in-country
claimants, except as provided herein or in future IPCC Instructions.
Article 39
The appropriate Regional Secretariat remains responsible for notifying all
identifiable interested parties of a claim, and the Regional Commission with
jurisdiction over the area in which the property is located shall decide the claim.
Process for Deciding Claims
Article 40
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The Regional Secretariat or the National Secretariat may, at any time,
consolidate claims that arise out of the same sequence of events or that are
otherwise intertwined, in the interest of expediting the resolution of all claims.
A) Principles
Article 41
The IPCC shall comply with, but not be limited to, the application of principles
set forth in Article 8 of the Statute.
B) Settlement
Article 42
The Regional Secretariat shall encourage the voluntary resolution of claims, and
may arrange mediation or otherwise facilitate the amicable settlement of issues
among the claimant(s) and any identifiable interested parties. The National
Secretariat will provide guidance on the procedures to be followed.
Article 43
Where all parties resolve a claim voluntarily, the claim shall be removed from the
Regional Commission’s docket in one of the following ways:
a. The claimant may withdraw their claim, pursuant to Article 29; or
b. The parties may notify, in the prescribed form, the Regional Secretariat of the
settlement.
c. Where the parties notify the Regional Secretariat of the settlement under
Paragraph (b) above, the Regional Secretariat shall convey that form to the
Regional Commission. The Regional Commission shall then approve or, in
extraordinary circumstances, disapprove the terms of voluntary resolution.
Article 44
Where the Regional Commission approves the terms of voluntary resolution,
such approval shall be final and binding between the parties to that resolution,
not subject to appeal, and of the same force and effect as a Final Order.
a. If the settlement is not submitted to the Commission because the claim is
withdrawn by the claimant, or the Commission disapproves the settlement, the
voluntary resolution will have only the legal effect that it would have had under
Iraqi law in the absence of the Statute and these Instructions.
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b. Where the Commission disapproves the terms of settlement, the claim shall
be adjudicated in accordance with these Instructions, unless the claimant
chooses to withdraw the claim.
C) Adjudication
Article 45
Where the parties do not pursue amicable settlement or fail to resolve the claim
voluntarily, the Regional Commission Clerk’s Office shall review the case file and
prepare for the Regional Commission a case report which summarizes:
(i) the factual background of the case;
(ii) the legal issues involved;
(iii) the parties’ arguments; and
(iv) the Clerk’s Office’s recommendation, made by a legal adviser, as to
how the case should be decided.
Article 46
If, in analyzing the evidence, the Regional Secretariat determines that the
evidence submitted is insufficient or of doubtful reliability, the Regional
Secretariat may initiate evidence collection and/or verification procedures.
Article 47
Upon receiving the case file and the case report from the Regional Secretariat,
the Regional Commission may, in its discretion, hold a hearing to develop the
factual record.
Article 48
a. In accordance with Article 6(F) of the Statute, the Regional Commission may
request the assistance of other governmental and non-governmental parties for
purposes of valuation of interests and other matters relating to the issues in
dispute.
b. Where the Regional Commission requests the assistance of other
governmental parties, such parties shall provide the requested assistance.
Article 49
The Regional Commission shall decide the claim and the appropriate remedy by
majority vote with three members present.
Article 50
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In making a decision, the Regional Commission shall look to the previous
decisions of other regional commissions for guidance and shall accept the
previous decisions of the Appellate Division as conclusive on any resolved issue
of law or fact.
Article 51
The Regional Commission shall issue a decision that:
a.
identifies the parties’ names;
b. identifies the property at issue;
c.
determines the parties’ respective rights to the subject property, including
ownership rights, rights of possession, and rights of use;
d. provides the legal basis for that determination;
e.
sets forth such legal remedy as the Regional Commission deems appropriate;
and
f.
if applicable, identifies for the parties the availability of any governmental
services or assistance.
Article 52
In accordance with Article 6(G) of the Statute, the Regional Secretariat shall
notify the parties, or their representatives, of the Commission’s decision by
delivering to them a copy of that decision, if such delivery is practicable, and by
posting notice of the decision both at the office of the Regional Commission and
in any local or electronic venues that may attract the parties’ attention.
Article 53
Decisions of the Regional Commissions shall be final and binding on the parties,
unless appealed within sixty days from the date of decision, except that the
Commissions may correct any clerical or technical errors in any earlier decisions.
D) Appeals
Article 54
Any party may appeal a decision of a Regional Commission on the grounds of
new evidence or manifest error.
Article 55
To appeal a decision of the Regional Commission, a party shall file, within sixty
days from the date of the Regional Commission’s decision, an appeal in the
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prescribed form. Such form shall be filed in the manner specified for claims in
Article 25.
Article 56
Upon receipt of an appeal, the Regional Secretariat shall:
a. Stay issuance of a Final Order; and
b. Enter the form into a computer and send the electronic version of it to the
National Secretariat for data processing.
c. Forward the appeal form and the case file to the Appellate Division
Secretariat.
Article 57
The Appellate Division Secretariat shall:
a. Notify the Regional Secretariat of its receipt of the Appeal;
b. Review the case file and the decision being appealed;
c. Transfer the case file and the decision being appealed to the Appellate
Division Clerk’s Office who shall prepare for the Appellate Division a case report
setting forth:
(i) the decision below;
(ii) the ground for appeal;
(iii) a summary of the parties’ arguments; and
(iv) the Appellate Division Clerk’s Office’s recommendation, made by a
legal adviser, as to whether to consider the appeal and how to
resolve it.
Article 58
All decisions by the Appellate Division shall be made by a majority vote and with
five members present. In the event that a Judge is unavailable, their deputy may
sit on the Appellate Division and act with the full powers of the unavailable judge.
Article 59
The Appellate Division may not reconsider its decision, but it may correct any
clerical or technical errors of any earlier decision.
Article 60
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The Appellate Division Secretariat shall notify the appropriate Regional
Commission and Regional Secretariat of the Appellate Division’s decision. The
Regional Secretariats shall be responsible for notifying the parties, or their
representatives, of the Appellate Division’s decision in accordance with the
provisions of Article 52.
Legal Effectiveness of IPCC Decisions
Article 61
Upon issuance of a decision by the Appellate Division, or, where no appeal is
made, fifteen days after expiration of the sixty day period for appeal, the Regional
Secretariat shall issue to the parties and to the appropriate Office of Property
Registration a Final Order confirming that the decision is final and binding. The
Final Order shall identify the name(s) of the rights holders, the subject property,
and the remedy, if applicable. In addition, each Final Order shall have a unique
serial number and shall be verified with an official stamp.
Article 62
In accordance with Article 7(E) of the Statute, Final Orders are directly
enforceable by the competent authorities of the district where the subject
property is located.
Article 63
Final Orders may be reopened only if a person:
a. Files a claim or response before the IPCC within the filing period;
b. Has a claim to the subject property under Article 22; and
c. Demonstrates that they did not know, and could not reasonably be expected
to know, of the previous claim with respect to that property.
Article 64
In accordance with Article 7(F) of the Statute, Final Orders requiring the current
occupants to surrender possession of the property may be enforced after sixty
days if the occupants do not vacate the premises voluntarily. All other Final
Orders may be implemented immediately.
Article 65
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Where a Final Order results in a previous occupier, possessor or user of property
surrendering possession of the premises, the Regional Secretariat shall inform
that person of any services available for assistance, and of any policy of the
Ministry of Displacement and Migration to resettle or compensate such persons,
in accordance with Article 7(F) and Article 10(B) of the Statute.
Article 66
These Instructions may be revised or supplemented by the Iraqi Interim
Government. Additional details regarding the claims process may also be found
in Guidelines, interpretative memoranda, and literature prepared by the National
Secretariat.
Article 67
The National Secretariat may issue interpretative memoranda which set forth the
manner in which it shall construe the Instructions.
19
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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