Disagreement Between the Prosecutor and the Investigator Regarding the Grounds for Issuance of a Non-Prosecution Order

Amiri, Milad

doi:10.22034/jclc.2025.2052958.1167

Disagreement Between the Prosecutor and the Investigator Regarding the Grounds for Issuance of a Non-Prosecution Order

Document Type : Original Article

Author

Milad Amiri

Ph.D. Candidate in Criminal Law and Criminology, Department of Law, Islamic Azad University, Semnan Branch, Semnan, Iran.

10.22034/jclc.2025.2052958.1167

Abstract

According to Article 269 of the Code of Criminal Procedure (2013), whenever the Prosecutor disagrees with the Investigator’s opinion and the Investigator persists in their stance, the case must be referred to the competent court for dispute resolution, and the court’s decision shall be final. A critical legal ambiguity arises when the Investigator issues a non-prosecution order based on “insufficiency of evidence,” yet upon review, the Prosecutor—while agreeing with the issuance of the order itself—disagrees with the specific legal ground invoked, arguing instead for a “lack of criminal element”. If the Investigator maintains their original reasoning, does this constitute a dispute requiring court intervention due to the Investigator’s refusal to yield, or is the Investigator legally bound to follow the Prosecutor’s instruction regarding the grounds for the order? Since the Code of Criminal Procedure is silent on disagreements concerning the grounds (rather than the essence) of a non-prosecution order, judicial practice is divided. Some jurists argue that the Investigator must submit to the Prosecutor’s view, while others maintain that judicial resolution is required. Among those advocating for court intervention, opinions further diverge on whether jurisdiction is established under Article 272 or Articles 269 and 271 of the Code. Employing a descriptive-analytical method, this study examines these divergent approaches and argues in favor of court intervention based on the application of Articles 269 and 271 to ensure procedural justice and adherence to the principle of res judicata.

Keywords

Prosecutor

Investigator

Non-prosecution order

Disagreement

Insufficiency of evidence

Lack of criminal element

Res judicata

Subjects