Disclosure of the secrets between Permissibility and Criminalization

Disclosure of the secrets between Permissibility and Criminalization

judge Nasir Omran

2018-10-28 09:29:00

The personal system of the individual constitutes a set of subjective elements that give each individual his own privacy , including the special secrets associated with his life, his profession and his way of thinking , on which his existential being is made , if man is social in nature, he needs a society , or if he who does not need a society is either an animal or a god as Aristotle considers it.

the disclosure of secrets in violation of the right to privacy of personal facts of a person entrusted to him by virtue of his position or job profession or art,in violation of the law. The duty of confidentiality has been known since ancient times , where it was forbidden to the clergy to reveal the secrets they know from the people by virtue of their status. this duty was gradually extended to the self-employed professions such as lawyers, doctors and others, it is not permissible for them to reveal the secrets that they have know while practicing their profession . prudence of criminalizing the disclosure of secrets is a consecration of honor and honesty .

All laws and the canons  included a duty of preserving secrets and criminalizing their disclosure , not only to protect the owner of the secret , his status , his position and his honor, but also to safeguard the public interest in society , and not to expose the reputation of noble professions and positions to humiliation, or lack of trust and respect such as medicine, law, judiciary, and other posts .

If the patient does not find a doctor to resort to and give his secret , or if the accused doesn’t find a lawyer to reassure him and to tell his secret , this leads to a violation of human rights and damage the society as a whole .

at the time  Article (17) of the Iraqi Constitution stipulates the every individual shall have right to personal privacy as long as it does not contradict the rights of others and public morals , the penal laws criminalized the disclosure of secrets , The Penal Code criminalized the disclosure of secrets in articles (437-438) , the lawmaker has punished by imprisonment for a period not exceeding two years and a fine not exceeding two hundred dinars ,Or by either of these two penalties, for who knows by virtue of his employment , Profession or industry or his art or the nature of his work a secret and disclosed in conditions other than those authorized by law , or use it for the benefit or benefit of another person ,

The crime of disclosure of the secrets can only be done by three elements :-

1- Physical element: disclosure of the secret and there may be difficulties in identifying the legal meaning of the secret , as it is considered by some as a fact or descript is limited to the scope of science in a specified number of persons, or it is all harmful by the disclosure of reputation, dignity , self and money, or that there is a legal interest to remain the acknowledge of a certain fact confined among limited individuals.

It is necessary to specify the meaning of the secret that is permissible censes harm the person of his owner and damage can be material or moral , A patient suffering by a particular disease has an interest to keep the secret of his illness by his doctor only , and It is not permissible to spread the news of his illness , in order to prevent harm  him socially, professionally or morally .

The litigant has an interest in not informing his opponent of the confidential information that he has told his lawyer about defend him . The secret should be limited to specific and limited persons .

If the incident is known to a number of people without discrimination, so it will not be described the secret. But that does not mean a large number of people are aware of the incident it will deny the status of the secret absolutely, if they are exclusively limited , It does not deny that the incident is a secret , such as knowledge of the medical team of the disease infected by a particular patient , so he has the status of secret, because its employees have the status of doctors. The news may be a secret if it is common among an unspecified number of people, if it is uncertain. If the common news will confirmed , it will not be a secret .

The owner of the secret must have a legitimate interest in not disclosing it , the lawyer is not obliged to keep the secret of his client who intends to commit a certain felony as do prepare to kill his opponent , because the interest of confidentiality is illegal. However, the lawyer is committed not to disclose the secrets of his client previous offense , because his mission is to defend in order to reveal the truth and to do the right in accordance with the decision of the competent judge .

No request is required of the owner of the secret , do not disclose it in a way , but may be implied, As the duty of the doctor, lawyer and banker,  not to disclose the secrets of the customer, even if the owner of the secret did not explicitly ask them to keep his secret, and the wife's duty not to disclose the secrets of her husband even after divorce from him .

The custodian is also obliged to keep the secret, even if the owner of the secret does not know of his existence , the doctor finds a patient with a disease unknown to the patient himself, the doctor is not entitled to disclose his illness, based on the patient's presumed willingness not to disclose it .

2- The status of the trustee of the secret : Requires disclosure It has been secretly disclosed to others a third party means any person who does not belong to a group of people who is limited to the scope of the knowledge of the incident or information that is described as confidential, as if to discuss this information  among several doctors within the medical team treating the patient , or a study within the group of lawyers who defend the accused , or talk among bankers who organize accounts of a client, it is not considered to be a disclosure of the secret . It shall also not be disclosed, disclose the incident or information to the owner of the secret , or to give to the latter or to authorize him, a report containing those secrets . Whether it is a secret disclosure to a group is not entitled to know it in  , even if they are close to the owner of the secret, is considered a reason for the crime of disclosure of secrets .

3- The moral element : The crime of disclosing secrets is a deliberate crime that requires the existence of the criminal intent to do so . The accused shall not be considered an offender if he has no criminal intent to disclose the secrets and the intent required in this crime is the general criminal intent, which is based on two elements which are : knowledge and will , if the accused should know that the incident is a secret, it is forbidden to disclose it, and that his will is to reveal that secret, and do so without a legal reason or use his or her own benefit or benefit to another person, if the disclosure is causing damage .

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