Document Type : Research Paper
Authors
1 Professor, Department of Criminal Law and Criminology, University of Tehran, Tehran, Iran
2 Assistant Professor, Department of Private Law, Allameh Tabataba’i University, Tehran, Iran
3 PhD Candidate in Criminal Law and Criminology, Tarbiat Modares University, Tehran, Iran
Abstract
Res judicata is recognized as one of the foundational principles of modern judicial systems. In civil law, its primary aim is to prevent the re-litigation of disputes and to avoid conflicting judgments. Accordingly, invoking this principle in civil cases requires the identity of subject matter, cause of action, and parties. However, due to fundamental distinctions between civil and criminal law, these conditions cannot be applied identically in criminal proceedings.
In criminal law, res judicata is not only based on the avoidance of contradictory rulings but also firmly grounded in the principle of ne bis in idem—a principle enshrined in numerous international and regional legal instruments and widely recognized as an essential element of the right to a fair trial. Thus, criminal res judicata is also considered a human right.
In the criminal context, res judicata bars prosecution only where the new case involves the same person and the same conduct. Yet, due to inherent differences between civil and criminal procedures—such as the doctrine of privity in civil law versus the importance of public order in criminal law—there are significant analytical distinctions, particularly concerning the identity of parties.
This study is theoretical in nature and adopts a descriptive-analytical method. Data have been collected through a comprehensive review of legal sources, including Iranian statutes—especially the Criminal Procedure Code—and scholarly writings in criminal law and procedure. The study critically explores the legal concept of res judicata within Iran’s criminal justice system and compares it with its civil counterpart. Through doctrinal analysis, the research identifies conceptual and procedural differences, focusing specifically on the principle of ne bis in idem.
Structural distinctions between the two fields—such as the relative nature of legal relationships in civil matters, the neutrality of civil judges (e.g., their prohibition from gathering evidence), the relativity of judgments, the role of public order in criminal law, and differing understandings of "cause," "person," and "parties"—highlight that applying civil res judicata standards to criminal proceedings is both analytically flawed and legally problematic.
While classical civil doctrine requires the identity of subject matter, cause of action, and parties—a widely accepted standard in civil procedure—criminal res judicata is limited to two conditions: (1) the identity of the conduct, and (2) the identity of the parties. The first condition means that a single criminal act may only be prosecuted and adjudicated once. Even if the act can be classified under multiple legal categories, it must give rise to only one final judgment. Any attempt to issue additional judgments based on alternative classifications of the same act violates ne bis in idem.
Regarding the second condition, the concept of "party identity" in criminal law must be interpreted in light of the distinct roles of private complainants and public prosecutors. Although the term appears in both civil and criminal doctrines, it carries different legal implications in each. Once prosecution has concluded—whether initiated by a private complainant or a public prosecutor—a new prosecution for the same conduct is barred under criminal res judicata. However, victims may still pursue civil claims for damages in competent courts.
Moreover, a person prosecuted, tried, and sentenced for a specific act as a principal or accomplice cannot later be prosecuted for the same conduct under a different classification (e.g., aiding and abetting). Similarly, a final conviction for direct perpetration precludes the prosecution of others as direct perpetrators unless they are shown to have acted as accomplices.
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Translated Referrences into English
- Abedi, Ahmadreza, Criminal Procedure, 2nd Edition, (Tehran: Press and Publications Center of the Judiciary, 2020). [In Persia]
- Ashouri, Mohammad, Criminal Procedure, Vol. 1, 21st Edition, (Tehran: Samt, 2019). [In Persia]
- Ghamami, Majid, “The Validity of Res Judicata in the Appellate Stage”, Judicial Opinions Review Biannual, Autumn & Winter, No. 2, (2022). [In Persia] DOI: 10.22034/analysis.2023.701516
- Goldust Jouybari, Rajab, Criminal Procedure, 17th Edition, (Tehran: Jangal Javdaneh, 2022). [In Persia]
- Hadadi, Maryam and Maghsoudpour, Rasoul and Hosseini-Pouya, Seyed Mohsen, “Foundations and Conditions of Invoking Res Judicata: A Comparative Study in Common Law, Arab Countries, and Iran”, Journal of Comparative Legal Studies of Iran and International Law, Spring, No. 51, (2021). [In Persia] DOI: 10.30495/alr.2021.684628
- HajMohammadi, Asghar and Eftekhar Jahromi, Goodarz and Joneidi, L’aya and Shahla, Mehdi, “Impartiality of the Judge and Its Deriving Rules”, Journal of Private and Criminal Law Studies, Spring, No. 35, (2018). [In Persia]
- Heydari, Alimorad, General Criminal Law (A Juridical-Legal Study of the Reactions against Crime), 1st Edition, (Tehran: Samt, 2015). [In Persia]
- Katouzian, Nasser, “Characteristics of Res Judicata in Criminal Matters; A Critique of an Assistant Prosecutor’s Decision”, Journal of Private Law Studies, Farvardin, Vol. 38, No. 1, (2008). [In Persia]
- Katouzian, Nasser, Res Judicata in Civil Lawsuits, 12th Edition, (Tehran: Mizan, 2022). [In Persia]
- Khaleghi, Ali and Ahmadi, Mohammad Aref, “The Principle of ne bis in idem in Afghan Legal System, International Instruments and Hanafi Jurisprudence”, Criminal Law and Criminology Studies, Spring & Summer, 3rd Year, No. 1 (Consecutive No. 6), (2016). [In Persia]
- Khaleghi, Ali, “Content and Status of the Rule of Double Jeopardy in International and Iranian Criminal Law”, Book of Criminal Sciences (Collected Articles in Honor of Dr. Mohammad Ashouri), 4th Edition, (Tehran: Mizan, 2011). [In Persia]
- Khaleghi, Ali, Criminal Procedure, Vol. 1, 47th Edition, (Tehran: Shahre-Danesh Legal Research Institute, 2023). [In Persia]
- Khazani, Manouchehr, “Res Judicata in Criminal Cases”, Legal Research Journal, Nos. 11 and 12, (1993 & 1992). [In Persia]
- Khodabakhshi, Abdollah, Fundamental Distinction between Civil Law and Criminal Law, 3rd Edition, (Tehran: Shahre-Danesh, 2014). [In Persia]
- Kooshki, Gholamhassan, “The Termination of the Prosecution Decision in Terms of the validity of the Closed Case; Critique of the Final Decision No. 9709970245700529 Branch 5 of the District 2 the Prosecutor’s Office of Tehran”, Judiciary Quarterly, Winter, No. 100, (2019). [In Persia]
- Kousha, Jafar and Kazemi, Samiollah, “Res Judicata of Investigatory and Adjudicative Authorities in Criminal Matters”, Iranian Political Sociology Quarterly, Winter, No. 4, (2020). [In Persia] DOI: 10.30510/psi.2023.416900.4375
- Mirkamali, Alireza and Saleh-Ahmadi, Sahar, Islamic Penal Code in Current Legal Order, Vol. 1, 4th Edition, (Tehran: Gallos, 2021). [In Persia]
- MirMohammadSadeghi, Hossein, “The validity of the Res Judicata in the Statute of the International Criminal Court”, Legal Research, Esfand, Vol. 6, No. 38, (2003). [In Persia]
- Mosadegh, Mohammad, Criminal Procedure Based on the Latest Amendments of the 2015 Law, 1st Edition, (Tehran: Jangal (Javdaneh), 2017). [In Persia]
- Naseri, Parviz and Masti, Mehran, “Establishment and Invocation Conditions of Res Judicata in Criminal Cases”, Legal Excellence Quarterly, Autumn, No. 1, (2018). [In Persia]
- Pradel, Jean and Korstens, Geert and Vermeulen, Gert, Criminal Law of the European Council, Translated by Mohammad Ashouri, 1st Edition, (Tehran: Khorsandi, 2013). [In Persia]
- Rahmdel, Mansour, “Res Judicata”, Judicial Practice (Criminal Law) Biannual, Spring & Summer, No. 1, (2016). [In Persia]
- Shahcheragh, Hamid, Networking of the Criminal Procedure Code (Adopted in 2013 with Later Amendments), 4th Edition, (Mashhad: Sarv-e Talayi, 2023). [In Persia]
- Shams, Abdollah, Civil Procedure; Fundamental Course, Vol. 2, 39th Edition, (Tehran: Derak, 2018). [In Persia]
- Shams, Abdollah, Civil Procedure; Fundamental Course, Vol. 3, 40th Edition, (Tehran: Derak, 2019). [In Persia]
- Sheikh al-Eslami, Abbas, Multiple Offences: Theories and Precedents, 1st Edition, (Tehran: Mizan, 2016). [In Persia]
- Tahmasbi, Javad, Criminal Procedure, Vol. 1, 1st Edition, (Tehran: Mizan, 2017). [In Persia]
- Tavajjohi, Abdolali and Ghorbani Qalajloo, Mahdi, “Prohibition of Double Punishment: Views, Foundations, and Arguments of Proponents and Opponents along with a Comparative Study of the Jurisprudential Views of Authorities in Islamic Jurisprudence”, Journal of Islamic Law Research, Spring & Summer, No. 29, (2009). [In Persia]
- Tavajjohi, Abdolali and Ghorbani Qalajloo, Mahdi, “Prohibition of Re-trial and Punishment in Iranian Criminal Law and Its Conflict with International Documents”, International Law Journal, Autumn & Winter, No. 45, (2011). [In Persia]
- Zera’at, Abbas, Criminal Procedure, Vol. 1, 1st Edition, (Tehran: Mizan, 2014). [In Persia]
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