Journal of Criminal Law Research

How to re-prosecution the accesed after the issuance of a restaining order through the court

Document Type : Research Paper

Authors

Abbas Zaraat 1
Saied Qomashi, 2
Farshad Shirzadifar 3

1 professor department of criminal law and criminology ، Kashan University.* Kashan.Iran

2 associated professor department of criminal law and criminology ، Kashan University.* Kashan.Iran.

3 PhD student of Kashan University. Kashan, Kashan. Iran.

https://doi.org/10.22054/jclr.2023.63378.2384
Abstract
Re-prosecution of the accused after the issuance of a restraining order is one of the solutions envisaged by the legislature to ensure justice for persons who did not have access to sufficient reasons or reasons at the time of the trial. The grounds for re-prosecuting the accused are in line with the objectives of the criminal proceedings. These include achieving the Judicial truth, preventing norm-breaking in society. The main source of criminal investigation is the prosecutor's office, so the legislator has made the possibility of re-prosecuting the accused based on Article 278 of the Code of Criminal Procedure in this institution. In some cases, depending on the type of charge, the judicial organization and the personality of the perpetrator, step-by-step investigations are carried out in a source other than the prosecutor's office, and it is possible to issue a restraining order. according to the silence of the legislator, this ambiguity has arisen as to what the procedure of re-prosecution will be if the court issues a restraining order? Depending on the position of the court in Judicial system, if a restraining order is issued by the court at the preliminary investigation stage, it is possible to re-prosecute the accused, but contrary to Article 278, if the restraining order is finalized in a higher authority, there is no need to prescribe a higher authority because the court has independence. It is not like the prosecutor's office.

Keywords

Prohibition of prosecution
protest
court
re-prosecution
the principle of innocence
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Journal of Criminal Law Research
Volume 11, Issue 40
Summer 2022
Pages 221-245

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