Order of Non Prosecution

Order of Non Prosecution

All cases brought before the courts are reviewed, and a decision is issued in each case. Judicial decisions are issued in two forms: judgments and orders.

A court decision is considered a judgment when it addresses the substance of the claim or definitively resolves the dispute. In such cases, the judicial proceedings end upon the issuance of the judgment.

In civil matters, a judgment resolves the dispute, whereas in criminal matters, it determines the punishment and its extent. A judgment is issued exclusively by a judge.

Another form of judicial decision is an order. An order has a temporary effect and is issued for a specific procedural purpose. Under the Civil Procedure Code, when a decision does not address the substance of the dispute and does not conclusively resolve it, it is classified as an order. Therefore, any decision that lacks the characteristics of a judgment is considered an order. It should be noted that while a judgment may only be issued by a judge, an order may be issued by a judge, a prosecutor, an assistant prosecutor, or similar judicial officials.

Grounds for Issuance of an Order of Non-Prosecution

Preliminary Orders

Preliminary orders are issued to prepare the case for a final decision and to examine the evidence presented by the parties. These orders are also referred to as preparatory orders. Examples include orders for verification of authenticity, referral to expert examination, and similar measures.

Final Orders

Final orders conclude the preliminary investigation and result in either archiving the case or referring it to the court. A final order removes the case from the investigative cycle or transfers it from one procedural stage to another. Such orders involve an assessment of whether the alleged offense occurred and of the evidence related to it.

Since the legislator has not provided a precise, explicit definition of final orders, differing opinions exist about which orders fall within this category. According to one view, only orders for referral to trial, suspension of prosecution, and non-prosecution are considered final orders. Another view addresses the order of jurisdictional issues among final orders.

Final Orders Issued by the Prosecutor’s Office

• Order of non-prosecution.
• Order for archiving the case.
• Order for suspension of prosecution.
• Order for suspension of investigations.
• Order for referral to trial.

Order of Non Prosecution

The issuance of an order of non-prosecution by an investigating judge or an assistant prosecutor indicates that, in the view of the competent authority, there is insufficient evidence to attribute the alleged offense to the accused, or that the subject of the complaint does not constitute a crime under the law.

For example, an individual may file a complaint alleging fraud against another person, but fail to prove the existence of deceptive conduct. If the absence of fraud or deceit is established and no other criminal charge can be attributed to the accused, the prosecutor’s office will issue an order of non-prosecution.

Grounds for Issuance of an Order of Non-Prosecution

The first ground for issuing an order of non-prosecution is the absence of criminality of the alleged act. This means that the act has not been criminalized under the law, or that although the act constitutes a crime, it did not occur in the specific case under investigation. An example is an allegation of kidnapping in situations where the alleged victim is legally competent, and it is established that they voluntarily accompanied the accused.

The second ground arises when the act is criminal, but there is insufficient evidence to attribute the offense to the accused. For example, in a homicide case where the victim exists, but investigations demonstrate that the accused did not commit the crime.

Objection to an Order of Non-Prosecution

Under the Criminal Procedure Code, it is possible to object to an order of non-prosecution. Individuals residing in Iran have 10 days from the date of notification to file an objection. For individuals residing abroad, the objection period is one month from the date of notification.

Pursuant to Article 274 of the Criminal Procedure Code, if the court finds the complainant’s objection to be justified, it may issue an order for referral to trial and return the case to the prosecutor’s office for completion of the necessary investigations. Otherwise, the order of non-prosecution will be upheld. Such a decision is final and not subject to further objection.

Frequently Asked Questions Regarding the Order of Non-Prosecution