Research and development in criminal law and criminology

Research and development in criminal law and criminology

Examining the Jurisdiction of the Prosecution in Issuing Case Archiving orders : A Comparative of Study of Procedural Law in France and Iran

Articles in Press

Document Type : Original Article

Authors
Milad Amiri 1
majid asadi 2
nasibeh hasheminejad 3
1 Judge, PhD student in Criminal Law and Criminology, Islamic Azad University, Semnan Branch, Semnan, Iran
2 Judge, Master's degree in Criminal Law and Criminology, Shahid Beheshti University, Tehran, Iran.
3 Judge, Master's degree in Family Law, Imam Sadeq University, Tehran, Iran.
10.22034/jclc.2025.2058126.1181
Abstract
In the third chapter, the second section of the Iranian Code of Criminal Procedure (2013r, by adopting Article 40 of the French Code of Criminal Procedure, the legislator has referred to the powers and duties of the public prosecutor to issue an order to the archiving of a case by "judicial authority" in offenses of the seventh and eighth degrees. With reference to the above-mentioned provision, the question arises whether, despite the direct investigation and detection of crimes by the court, the word "judicial authority", in the mentioned offenses refers to the prosecuting prosecutor and whether the prosecutor has the authority to issue such an order, or whether it should solely be the competence of the court? The research findings indicate that, contrary to the opinions of some judges, the prosecutor has the authority to issue this order. This has also been observed in the practice of certain public prosecutors. According to the Code of Criminal Procedure, the term” direct referral of the case of the court” does not mean the direct presentation of the complaint or judicial officers to the court, rather, after the identification of instances of direct filing by the prosecutor the public prosecutor, as applicable, the case must be referred directly to the competent court either by an order of lack of jurisdiction (in relation to the Conciliation Court) or without such order (regarding other criminal courts). The prosecutor in this context has the right to utilize alternative measures to prosecuting the accused, as provided in the Criminal Procedure Code, such as filing the case away (archiving the case and thereby prevent the continuation of the case in the court. Accordingly, this does not negate the court’s authority to issue an order for case archiving. This criminal research employs a descriptive-analytical method to examine the subject.
Keywords
Prosecutor'
s office
prosecutor
court
order of case archiving
judicial authority
direct investigation

Subjects

Abedi, Ahmad Reza(2019), Criminal Procedure Code, First Edition, Tehran, Judiciary Press and Publication Center. (In Persian)
Ashouri, Mohammad (1400), Criminal Procedure Code, Volume 1, 22nd Edition, Tehran, Samt. (In Persian)
Aubert, L. (2010). Systématisme pénal et alternatives aux poursuites en France: une politique pénale en trompe-l’œil, Editions juridiques associées "Droit et société". (in french)
Babakhani, Erfan (1400), Criminal Agreement and Alternative Mechanism to Public Prosecution (Comparative Study of Iranian, Belgian and French Law), Comparative Law Research Journal, Year 5, Issue 1. (In Persian)
Bernard Bouloc (2019),procédure pénale, 16 ème édition, paris, Dalloz. (in french)
Corinne Renault-Brahinsky;(2006) “procédure pénale Manuels”; Gualino éditeur. (in french)
Fathabadi, Hossein, Mahdavi Sabet, Mohammad Ali (2019), Analysis of Prosecution Approaches in the Light of the Policy of Individualizing Criminal Justice, Criminal Law and Criminology Research, 16th Issue. (In Persian)
Goldoust Jouybari, Rajab(2015), Criminal Procedure Code, Fifth Edition, Tehran, Jangal. (In Persian)
Hajitabar Firouzjaei, Hassan (2019), Applied Criminal Procedure, Second Edition, Tehran, Mizan. (In Persian)
Javanmard, Behrouz (1394), Criminal Procedure Code, Volume 1, Second Edition, Tehran, Jangal. (In Persian)
Khaleghi, Ali (2016), Criminal Procedure, Volume One, Thirty-third Edition, Tehran, Shahrdanesh. (In Persian)
_________ (2016), Points in Criminal Procedure, Tehran, Shahrdanesh. (In Persian)
Koushki, Gholam Hassan(2012), Criminal Procedure Code, Volume 1, Second Edition, Tehran, Jihad Daneshgah. (In Persian)
_____________(2002), Examining the Powers and Duties of the Prosecutor in the Procedure of Iran and France, PhD Thesis, Faculty of Law, Shahid Beheshti University. (In Persian)
_____________(2009), Alternatives to Public Prosecution in the Criminal Procedure System of Iran and France, Law Research, Year 12, Issue 29. (In Persian)
Naji Zavareh, Morteza (2016), Criminal Procedure Code, Volume 1, Tehran, Khorsandi. (In Persian)
Niazpour, Amir Hassan (2013), Consensualization of Criminal Procedure Code, Second Edition, Tehran, Mizan. (In Persian)
Mahiimi, Khatoon, Roholamini, Mahmoud (2017), Explanation of the Concept and Position of the Order to Archive a Case in the Iranian Criminal Procedure Code, Studies in Political Science, Law and Jurisprudence, Third Volume, No. 2/1. (In Persian)
Milani, Alireza, Pourghasem, Ali (2016), Criminal Case Archives, Social Science Studies, Volume 2, Issue 1. (In Persian)
Mohajeri, Ali (2016), Procedure in the Court of Justice, Volume 1, Eleventh Edition, Tehran, Feker Sazan Publications. (In Persian)
________(2016), Procedure in the Court of Justice, Volume 2, Eleventh Edition, Tehran, Feker Sazan Publications. (In Persian)
Ramnejad, Seyed Ali Morad, Koushki, Gholamhossein, Moazinzadegan, Hassanali (2018), Iran's Criminal Policy Regarding Alternatives to Criminal Prosecution Against Children and Adolescents, Master's Thesis, Faculty of Law and Political Science, Allameh Tabatabaei University. (In Persian)
Rahamdel, Mansour (2018), Criminal Procedure, Volume Two, Third Edition, Tehran, Dadgostar Publishing House. (In Persian)
Rezapour, Mohammad Sadegh, Janipour, Mojtaba (1402), Principles, Conditions and Effects of the Order to Archive a Case in Iranian Procedural Law with a Look at the Approach and Procedure of Judges and Criminal Courts of Guilan Province, Master's Thesis, Faculty of Law and Political Science, University of Guilan. (In Persian)
Saghian, Mohammad Mehdi, Morsi, Hadi, Absari, Milad (1402), Feasibility Study of the Application of Alternatives to Prosecution against Legal Entities, Journal of Parliament and Strategy, Issue 114. (In Persian)
Rezagholizadeh, E. (2021). Compulsion (legality) and appropriateness of prosecution and its manifestation in the rules of Iranian criminal procedure and the International Criminal Court. Journal of Research and Development in Comparative Law, 4(12), 80-61. doi: 10.22034/law.2021.539052.1113  (In Persian)
Taghipour, Alireza, Salimi, Vahed (1397), The Effect of Criminological Thoughts on Reducing Prosecution Cases in the Criminal Procedure Code, Criminal Law Research Journal, Year 9, Issue 1. (In Persian)
Tahmasbi, Javad, Tahmasbi, Amir Reza (1403), Applied Analysis of the Criminal Procedure Code, Tehran, Judiciary Press and Publication Center. (In Persian)
_________(2017), Criminal Procedure Code, Volume 1, Third Edition, Tehran, Mizan. (In Persian)
Tedin, Abbas (1402), Alternatives to Public Prosecution and Its Developments in French Criminal Procedure Code, Criminal Law Research Journal, Year 4, Issue 2. (In Persian)
_________ (1391), Translation of Criminal Procedure Code, Jacques Bourican and Anne-Marie Simon, Tehran, Khorsandi. (In Persian)
Pradel, Jean(2007), procedure penale, 13e edition, Editions cujas. (in french)
Valette, Vanessa (2018), procédure pénale,11ème édition paris,Ellipses. (in french)
Zandiyeh, Aram, Koushki, Gholam Hossein, Moezin Zadegan, Hassan Ali (1397), Examination of the Order to Archive a Case and Discontinue Prosecution in the Criminal Procedure Code of 1392, Master's Thesis, Faculty of Law and Political Science, Allameh Tabatabaei University. (In Persian)
Research and development in criminal law and criminology

Articles in Press, Accepted Manuscript
Available Online from 11 August 2025