Abdolvahid Zahedi; Nasrin Mehra
Abstract
Being guilty in criminal law is one aspect of criminal proceeding and being prosecuted and punished is another one. In fact, it is on the basis of procedural rules that crime is proved and the offender is sentenced and punished. What is of significant importance in proving the crime and culpability ...
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Being guilty in criminal law is one aspect of criminal proceeding and being prosecuted and punished is another one. In fact, it is on the basis of procedural rules that crime is proved and the offender is sentenced and punished. What is of significant importance in proving the crime and culpability of the accused is 'burden of proof of the crime and the presented defenses' in criminal trial. The burden of proof is the answer to the question that which person or authority should prove his claim in criminal trial. What is discussed in here is not the existence of proof but the important is the responsibility and duty to prove it. Should the prosecution undertake the burden of proving his claim, in case of not succeeding in it, the defendant will be acquitted. Conversely, if it is the defendant who should bear the burden of proving his claim, in case of failure to provide adequate and appropriate proof, he will be sentenced. Obviously, the outcome of trial is in close connection with placing the burden of proof upon the defendant or the prosecution. The general rule in criminal prosecution puts the burden of proof of constituting elements of crime on the prosecution. Iranian Constitution considering this important matter has allocated its Article 37 to the 'presumption of innocence' which says: "Innocence is the basic principle. No person is considered legaly guilty, except in cases where his guilt is established in a competent court" and thus the defendant is exempt from proving his innocence. But in respect of the defenses including justifications and excuses, it's the defendant who claims existence of them during the commitment of crime. The question raised here is that in spite of the presumption of innocence, is the burden of proof of the existence of justifications and excuses on the defendant? or is it the duty of the prosecution, as the public authority of prosecution, to prove all elements of crime and absence of all impediments to prosecution and punishment? This question becomes even more important when the new approach of criminal law considering crimes such as economical crimes and security crimes, moves toward limiting the presumption of innocence and wastage of suspected persons rights.
Mohammad Ali Rajab
Abstract
Use of Bail is one of decisions allowed for judiciary authorities within Criminal Procedure particularly during the pre-trial investigations and forensic searches in order to assure the accessibility to and presence of the accused or defendant for trial. However, at the same time taking any kind of Bail ...
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Use of Bail is one of decisions allowed for judiciary authorities within Criminal Procedure particularly during the pre-trial investigations and forensic searches in order to assure the accessibility to and presence of the accused or defendant for trial. However, at the same time taking any kind of Bail or pre-trial detention actually limits the accused’s rights and liberties or even, deprives him thereof. Therefore, this will be a scene of the dual status of criminal procedure again: to protect the society and to guaranty the rights and prerogatives of the defendant-which makes the case a reasonable ground to survey this challenge again. There are principles and frames like legality or limitations on pre-trial searches and forensic investigations which are provided to ensure the respect for rights and liberties of citizens. Amongst all, the principle of proportionality for bails and pretrial detention must be construed as a resort to restrict the appliance of public authority in unnecessary cases. In other words, the public authority must be merely restricted to the cases it is necessary to achieve a legitimated good according to the principle of proportionality. Therefore, if there is a goal of ensuring the accessibility and presence of the defendant then it must be restricted to the minimum level of penal intervention of state as far as the goal is obtained. This article is to provide an analysis of principle of proportionality with respect to other principles of public law and then, having an inquiry over the judicial practices of legal systems - particularly jurisdictions of the European Court of Human Right (ECHR), we shall try to assay for legal grounds of the principle in Iranian legal system.
Mehdi Khaghani Esfahani; Mohammad Ali Hajidehabadi
Abstract
Theorizing and commentating in the field of criminal policy is severely needed for our country on the note that lack of a solid and coherent domestic pattern for managing reactions against crime and deviance will cause disharmony among responsible governmental sectors, and this will in turn cause a decrease ...
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Theorizing and commentating in the field of criminal policy is severely needed for our country on the note that lack of a solid and coherent domestic pattern for managing reactions against crime and deviance will cause disharmony among responsible governmental sectors, and this will in turn cause a decrease in criminal justice factors in the Iran. Although paving the path toward criminal justice in Iran is first of all and naturally influenced by Islamic teachings, the term ‘Islamic Criminal Policy’ confronts many theoretical and practical challenges religious and legal literature in our country; challenges that should be recognized and solved whereas if not, we cannot claim preparation for moving towards designing ‘the theory of Islamic-Iranian Criminal Justice’. Studying the performed research in the country in the field of criminal policy shows that there are a couple of important dialogues in this regard. As we can consider ethical dialogues which are specifically in the field of criminal policy which are indirectly effective on basics, structure, and changes in Islamic criminal policy. This paper intends to use an analytical dialectics approach in order to perform a pathology on both famous and effective approaches with insist on philosophy of Fiq-h, and describes how a relation may be established between policies ruling over criminal Fiq-h and Islamic criminal policies. The final goal of this research is to draw a framework of Islamic criminal policy which itself is a part of a broader theory; namely, the Islamic Iranian pattern of criminal policy.
Ali Akbar Izadifard; Hossein Kaviar; Ali Hasanjani
Abstract
Survey of meeting option in electronic contracts is one of The topics that rarely have been considered. In this paper, after examining the meeting option concept and its elements, we plan to survey this question whether the meeting option - in meaning of traditional sale - applies in electronic ...
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Survey of meeting option in electronic contracts is one of The topics that rarely have been considered. In this paper, after examining the meeting option concept and its elements, we plan to survey this question whether the meeting option - in meaning of traditional sale - applies in electronic contracts? If the answer to this question is positive, undoubtedly there is meeting option for the transacting parties. This hypothesis is parallel with the discussion of the rights of consumers.
Leila Sadat Asadi
Mansour Amini; Mona Abdi
Abstract
By development of commerce and significant speed of commercial Transactions, Specialization of affairs, existence of increasingly varied needs, Formation of legal Entities, ...
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By development of commerce and significant speed of commercial Transactions, Specialization of affairs, existence of increasingly varied needs, Formation of legal Entities, formation of universal economy and many Other Factors, direct actions And stewardship for all legal activities have Been reduced. Such issues reinforce The importance and necessity of attention to agency institution. Among the different types of agencies, apparent agency is one of the most Important and practical and also the newest kind of agency which is a Combination of two theory: theory of agency and theory of appearance. According to a general principle of agency field, an unauthorized agent is Not Able to bind his principal to contract with third parties. Apparent Agency is its Exception. Despite of being exceptionality, apparent agency has been realized And accepted in two main legal systems – common law Systems and civil law Systems - and also in different countries regardless of Level of development. This theory has new scopes and applications that in our legal system have not been considered by legislators, judges, and legal writers. This article introduces these applications that have been used by countries specially in common law systems in recent years and also will introduce some model of legislation in relation with entering this theory into the civil law systems.
Raziyeh sabzehali; Mahmood Ashrafy; Masoud Heidari
Abstract
Since the formation of communities, there have been different reactions to the phenomenon of crime. In the past, in the process of defining the punishment, offender’s character was not taken into consideration but only the crime and its consequences. By positivism school, the offender’s character, ...
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Since the formation of communities, there have been different reactions to the phenomenon of crime. In the past, in the process of defining the punishment, offender’s character was not taken into consideration but only the crime and its consequences. By positivism school, the offender’s character, “this newly emerged in criminal law”, was taken into consideration. Since then, criminal justice was realized not only according to the crime but also with respect to the offender’s character and understanding the circumstances which led to the commission of a criminal act. Since early twentieth century, it was felt the necessity of filing character dossier alongside with the criminal case in order to adopt a response proportional to the offender’s character to achieve refinement and treatment goals and to plan effectively the prevention and recidivism programs. Character dossier which is necessary to reform criminals is a record containing the comments by specialists in psychology, psychiatrist, psychologist and social workers about the criminal’s character in order to be used by the authorities to adjust the punishment to offender’s character. In Criminal Procedure Law 2013, Articles 203 and 286 predicts explicitly the character dossier filed against adults and also children. Obviously, according to changes in the Islamic Penal Code in 2013, some new proposed mechanisms including alternatives to imprisonment, probation, suspension of punishment, postponed sentencing, exemption from punishment all of which require appropriate response to the offender’s character, are not applicable without filing character dossier.
Hasan Mohseni
Abstract
An action that one of the litigants proceeds against another litigant during a proceeding is related action. If this action has perfect relation by that action which is in course of proceeding, proper administration of justice and preventing to issuing paradoxical judgments requires to ruling all of ...
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An action that one of the litigants proceeds against another litigant during a proceeding is related action. If this action has perfect relation by that action which is in course of proceeding, proper administration of justice and preventing to issuing paradoxical judgments requires to ruling all of them in one proceeding as one case. In these two cases: “annulling the title of defendant in half of portion” and “demanding remuneration for total portion” we can see that Iranian procedural laws cannot suggest any reliable solution for solving the paradox between their final judgments. Therefore, how we can collect these actions at pleading stage, in during the proceeding and in using the way of attack against judgments (reviewing stage) and even if in execution of judgments and finding a solution in Civil Enforcement Law is the main subject of this article.
Eghbalali Mirzaei
Abstract
The abandoned law is a law which is not come into force in courts and other executive bodies, regarding the capability and possibility of the enforcement. Hence, the law abandoning criteria is failure in executing the same by official authorities and law enforcement bodies. Therefore, we should separate ...
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The abandoned law is a law which is not come into force in courts and other executive bodies, regarding the capability and possibility of the enforcement. Hence, the law abandoning criteria is failure in executing the same by official authorities and law enforcement bodies. Therefore, we should separate such concept from the similar ones. Occasionally, the legislator shall temporarily cease the enforcement of a certain law for any reason. Such law is not obsolete, but also the execution thereof has remained as suspended. Also, a law may not be enforced for not having any subject and credit and its execution is suspended. If a law is disobeyed by the people, it shall not be obsolete, provided that the courts shall not forbear from applying the law in respect of the offenders. Because, the law violating behaviors which, from time to time, prevail in the society do not have the customary cause in real concept. In other words, the prevalence of public violation from a law shall not cause to remain it obsolete, although the dignity of the law is diminished. If the ordinary people makes indifferent to the law, the breach of law is achieved not its abandoning. Notwithstanding, the law abandoning, contrary to its abrogation, shall not cause to invalidate the law, because only the legislator can abrogate or annul the law, as he makes or enacts a law.
Ahmad Fallahi
Abstract
OneofthecontroversialissuesinIslamicCriminalLawisthephilosophyandpurposeofpunishmentinIslamicreligion. Theinterpretationofthisissuehascausedcontroversybetweenthetext-orientedandthepurpose-oriented .Uponthisbasis, somebelievethatthepurposeofpunishmentinIslamicreligioniscastigation, specialandgeneralpreventionandvictim’srelief, ...
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OneofthecontroversialissuesinIslamicCriminalLawisthephilosophyandpurposeofpunishmentinIslamicreligion. Theinterpretationofthisissuehascausedcontroversybetweenthetext-orientedandthepurpose-oriented .Uponthisbasis, somebelievethatthepurposeofpunishmentinIslamicreligioniscastigation, specialandgeneralpreventionandvictim’srelief, andothersareoftheopinionthatinIslamicCriminalLaw, themaingoalofenactingandexecutingpunishmentsisthechastisement, correctionandrehabilitationof theoffender; hardshipisnotthefinalgoalbutinsteaddependsonthekindandexecutionofpunishment.
Mohsen Rejali; Mehdi Rashvand Bokani; Amin Badee Sanaye Esfahani
Abstract
One of the most noteworthy subjects in the area of merging companies is determination of its effects and consequences on the market, shareholders, non-shareholder creditors and debtors and even consumers. Public companies, however, take precedence over these subjects. Merger is (a course of action by ...
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One of the most noteworthy subjects in the area of merging companies is determination of its effects and consequences on the market, shareholders, non-shareholder creditors and debtors and even consumers. Public companies, however, take precedence over these subjects. Merger is (a course of action by which several companies establish a new single legal entity or are merged within another existing legal entity, as well as eliminating their own legal entity) and as a result, all the assets, claims, debts and obligations of the merged company are transferred to the merging company. Inclination toward merger is considerably high among public companies due to its various advantages. In this paper, we have addressed nature-discernment of debts transfer from a merged company to the merging company and therefore with analyzing and comparing the theories regarding debt transfer, credit transfer, obligation alteration and succession, we have examined merger effects of companies on the rights and obligations of non-shareholder creditors and debtors and have also bolstered the well-known opinion. Needless to say, selection of any opinions mentioned above, would have different legal impacts on those people and consequently companies’ shareholders, being parties in the merger contract.
Manouchehr Tavassoli Naeini; Ghodratollah Khosroshahi; Zohreh Nasrollahi
Abstract
The Principle of Equality of Arms means that each party in an action shall present her claim in an environment so that this does not put him in a worse condition compared to the other party of the trial. This principle has been internationally and locally embraced by authorities. From the perspective ...
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The Principle of Equality of Arms means that each party in an action shall present her claim in an environment so that this does not put him in a worse condition compared to the other party of the trial. This principle has been internationally and locally embraced by authorities. From the perspective of international documents, the acceptance of this principle is partly influenced by the acceptance of global principle of fair trials which has been shaped by a shift toward the criminal justice system, especially in preliminary investigation phase. This requires that at the first encounter of the accused, the victim and etc. with the criminal justice system that is formed on the basis of a criminal case, i.e. police preliminary investigation phase, facilities of the aforementioned persons shall be specified and basic rules are predicted in law in order to comply with them. Fortunately, Iranian Criminal Law which was approved in 2013 has generally considered acceptance of the Principle of Equality of Arms inspired by international documents as one of the strategic principles of Criminal Law and apparently has predicted some of the basic rules of the Principle of Equality of Arms at the Judicial Police Investigation phase and it has established some of the regulations based on the alignment of each party in a claim. However, these innovations are confronted with limitations in some criminal cases and have inevitably tarnished the total equality of the parties including the relative balance of the accused, the prosecuting attorney and the victim at the police investigation phase.
Mohammad Moloudi; Mahdi Hamze Howeyda
Abstract
The task of judge is todiscover the truth. There arevarioustheoriesabout the truth.this paper studies three important theories (correspondence, coherence and pragmatic theory).Correspondence theory follows arealistperspective and its logicalfoundationsareacceptable. This definition isalsoaccepted in ...
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The task of judge is todiscover the truth. There arevarioustheoriesabout the truth.this paper studies three important theories (correspondence, coherence and pragmatic theory).Correspondence theory follows arealistperspective and its logicalfoundationsareacceptable. This definition isalsoaccepted in trials. Coherence theory, because of different considerations and some philosophicalviews, canbe a criterion of truthinsomelegalmatters. Also in pragmatic theory, truth is definedin the light ofnotionsof profit andexpediency.Judge should search for philosophical concept of truth and the terms of legal truth and formal (relative) truth should not change its concept.
Hojjat Sabzevarinezhad
Abstract
The victim is one of important elements of crime and a critical factor of determining punishment in criminal systems. Victim’s characteristics have always been noticed. Despite the assertion of laws and claims of executors of criminal justice on equality of people against the law, today victim’s ...
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The victim is one of important elements of crime and a critical factor of determining punishment in criminal systems. Victim’s characteristics have always been noticed. Despite the assertion of laws and claims of executors of criminal justice on equality of people against the law, today victim’s religion and race is a fundamental factor in determining punishments in criminal laws and the procedure of criminal justice executors. These characteristics have acted sometimes to mitigate and sometimes to aggravate the punishment. This paper has tried to study the role of victim’s religion and race in determining punishment by looking at criminal laws and legal procedures in Iran and England.
Farideh Shokri
Abstract
The viewpoint of the most Imamieh jurists is that the Collateral must be a on real object and be handed to the mortgagee and the debt must be a fixed debt. Accordingly, they rescinded the mortgage of the debt & interest. This is the same standpoint prescribed by legislator in Iranian civil code. ...
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The viewpoint of the most Imamieh jurists is that the Collateral must be a on real object and be handed to the mortgagee and the debt must be a fixed debt. Accordingly, they rescinded the mortgage of the debt & interest. This is the same standpoint prescribed by legislator in Iranian civil code. In the recent years, the credit transactions were increased, remarkably and the borrowing process for commercial activists were facilitated and following them, in some Act and regulations governing on bank affairs, contrary to civil Act order, the mortgage of cases not to be a real object like debt mortgage has been recognized. Irrespective of difference in standpoints among law authors in explanation and/or illustration of mortgage order, it seems that in view of the requirements of civil Act, the priority of mortgagee effects on such contracts such as debt mortgage can be recognized till it is not inconsistent with the rights of other creditors, otherwise in case of inconsistency, the priority of mortgagee in such mortgage in respect of other creditors is considered as cancelled.
Seyed Hamid Shacheragh
Abstract
Advent of industrial revolution in 19th century aside from economic evolutions of developed societies led to change or modification of institutions and concepts of criminal law. Negative response to this question whether in new crimes arising from mechanical and industrial life, should we emphasize on ...
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Advent of industrial revolution in 19th century aside from economic evolutions of developed societies led to change or modification of institutions and concepts of criminal law. Negative response to this question whether in new crimes arising from mechanical and industrial life, should we emphasize on Mens Rea or not , were one of those fundamental changes. Crimination of acts without qualification of Mens Rea whether intentionally or negligently and automatic qualification of Mens Rea without prosecutor duty to prove mental element of crime, was conclusion of discussions. Like civil liability, proving damages, commission of harmful act by accused and establishing causality between these elements sufficed trial and punishment of perpetrator. These crimes called” Strict Liability crimes” or “crimes based on criminal strict liability”. Final result of this paper is that this approach with little scientific support has not been defined by legislator in Iran law.
Kioumars Kalantari; Fatemeh Zabihollahzadeh
Abstract
Articles 22 and 23 IslamicPunishmentLawconsidertheplaintiff’sforgivenessbeforeissuingdecreeandarticle 277 GeneralandRevolutionCourtsCriminalProcedureLawisdedicatedtohisforgivenessafterissuingdecree. Thepresentpaper, whichisasummaryofacriminalcase, intendstoanswerthequestionthatiftheplaintiffforgivesbeforeissuingtheabsolutedecreeandhisforgivenessistakenintoconsiderationinthedecisionofthecourtoffirstinstance, ...
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Articles 22 and 23 IslamicPunishmentLawconsidertheplaintiff’sforgivenessbeforeissuingdecreeandarticle 277 GeneralandRevolutionCourtsCriminalProcedureLawisdedicatedtohisforgivenessafterissuingdecree. Thepresentpaper, whichisasummaryofacriminalcase, intendstoanswerthequestionthatiftheplaintiffforgivesbeforeissuingtheabsolutedecreeandhisforgivenessistakenintoconsiderationinthedecisionofthecourtoffirstinstance, canforgivenessafterissuingdecisionmitigatethepenaltyornot.
Zeynab Esmati; Hassan Kolivand
Abstract
The shift from "identify the right" to the "rights enforcement", About concepts related to human rights in the twentieth century it reached its full. Social security rights of the categories that have been in the process, has played a mportant role. Social Security is a fundamental human right. So in ...
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The shift from "identify the right" to the "rights enforcement", About concepts related to human rights in the twentieth century it reached its full. Social security rights of the categories that have been in the process, has played a mportant role. Social Security is a fundamental human right. So in this respect for the rights of individuals, need mechanisms to be predicted. This research focus on the concept of the social security right and And that social security, are both human rights and part of the civil rights, in the light of international human rights instruments such as the European Convention on Human Rights and the Court of Human Rights in Europe have important contributions to the Human Rights evolution and grant these rights are guaranteed and pays the right to social security hearing ability. The results of this comparative study, the right to social security in the UK shows that the right to social trial in the legal system of the Islamic Republic of Iran has been the failure such as there is not specific forums to address claims that is social security.For this reason Insured persons in social organization and other organizations and funds about competent authority to deal with complaints in the insurance and protection are confused and Today many countries have witnessed a change in the nature of the right to social assistance, a reflection of a right or legitimate claim to a personal right or legal right. Social assistance is not considered legal in our country. Article 29 of the constitution, which, like other human rights instruments “Benefit from social security" as "the right of everyone" knows, largely not realized it needs serious review of laws and regulations related to it.
Mohammad Jafar Habibzadeh; Hamed Rahmanian
Abstract
Pornography, thatmeanspresentationofexplicitsexualscenesinanartisticorliterarywork, isaphenomenonthat, duetoit’scountlessdestructiveconsequencesonpublicandindividualchastityandmoralityandalsoonfamilycircle, iscriminalizedinthelawofmanyofcountries. IntheIraniancriminallawseveralbehaviorsrelevanttothepornographyhadbeencriminalized, ...
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Pornography, thatmeanspresentationofexplicitsexualscenesinanartisticorliterarywork, isaphenomenonthat, duetoit’scountlessdestructiveconsequencesonpublicandindividualchastityandmoralityandalsoonfamilycircle, iscriminalizedinthelawofmanyofcountries. IntheIraniancriminallawseveralbehaviorsrelevanttothepornographyhadbeencriminalized, ifthereareothercircumstancesrelevanttoperpetrator, victim, recipientoftheseworks, matterofcrime, instrumentofcommitment, andalsoexistenceofmensrea; providedthattheseactionsdonotcommittedforthescientificpurposesoreachotherreasonableinterests. Mostpenaltiesconsideredfortheseoffensesarewhip, prison, finesanddeprivationfromsocialrights; butinsomecaseslegislatorgrantstothejudgesanauthorityforassignmentofperpetrator’sacttothecorruptiononearth (ifsad-fil-arz) andsentencingofexecution. Thisarticle, forbetterpreservationofsocietyfromharmofpornographyandalsopreservationofcitizensanddefendants’srights, revealsthenecessityofcodificationacomprehensivecoderegardingtothepornographyandabolitionofcurrentsporadicandopponentlawstoremoveambiguityfromthem.
Amir Hasan Niazpour
Mojtaba Farahbakhsh
Volume 66, Issue 39 , March 2002, , Pages 119-152
Criminal Law
jalal din qiasi; abbas ghalebzadeh
Abstract
Abstract
The prank call crime refers to a new crime with a certain nature that using telephones and other telecommunication devices plays role in its formation. In some cases, the perpetrators commit other criminal acts besides prank call, like insult and threat, and in some other cases, these devices ...
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Abstract
The prank call crime refers to a new crime with a certain nature that using telephones and other telecommunication devices plays role in its formation. In some cases, the perpetrators commit other criminal acts besides prank call, like insult and threat, and in some other cases, these devices are employed just to commit the above-mentioned crimes. There are differences of opinion in distinguishing the application of the rules of multiplicity, whether material or spiritual, or not applying these rules in case of committing this crime simultaneously with other crimes like insult or threat, so that some in judicial procedure and legal doctrine consider it as “special criminal title” and with the certain criminal title of “prank call”. Others consider spiritual and group multiplicity as material multiplicity. In this condition, besides the above-mentioned cases, there is the idea of multiplicity of results; while reviewing the current arguments in judicial procedure and legal doctrine, as well as analyzing the elements of the prank call crime, insult, or threat, the authors agree to accept another approach, i.e. a combination of spiritual multiplicity (multiplicity of titles) and material multiplicity, discussed in detail in the text of the paper.
Criminal Law
farid mohseni; reza rahimian
Abstract
The new criminal laws that have been brought to the Islamic Penal Code by comparative and criminological studies are promising a new discipline in Iran's legislative and judicial criminal policy. Undoubtedly, the adherence of the judicial authority to each of the systems and practices of choosing the ...
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The new criminal laws that have been brought to the Islamic Penal Code by comparative and criminological studies are promising a new discipline in Iran's legislative and judicial criminal policy. Undoubtedly, the adherence of the judicial authority to each of the systems and practices of choosing the type and amount of punishment will have a fundamental impact on the criminal justice system and achieve its stated goals. The lack of comprehensive guidelines for determining punishment in the Criminal Code has led to the formation of non-consistent procedures in Iran's criminal tribunals, which not only resulted in the maximum and unjustified use of penalties such as imprisonment, but, depending on the kind of persuasive or exaggerated judgment, the issuing judge , Has led to the "happening of justice", while the type of crime and its effects are the same and the same. Hence, the principled and scientific procedure for the issuing of criminal sentences requires, on the one hand, comprehensive and precise review of the courts of appeals against the judgments of the first courts. On the other hand, at the level of legislative criminal law, the legislator should be in a set Use legal materials to determine the principles of the Code of Conduct for Determining Penalties to prevent unequal treatment in judicial procedures.
Criminal Law
Mohammad Hadi Zakerhossein
Abstract
The International Criminal Court is unable to prosecute all international crimes that fall within its jurisdiction. The situation selection falls within the Prosecutor’s discretion that is done by conducting a preliminary examination. In this filtering process, three factors are taken into account, ...
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The International Criminal Court is unable to prosecute all international crimes that fall within its jurisdiction. The situation selection falls within the Prosecutor’s discretion that is done by conducting a preliminary examination. In this filtering process, three factors are taken into account, namely jurisdiction, admissibility and the interests of justice. Nevertheless, the Prosecutor prefers to extend its discretion behind the preliminary examination stage. Accordingly, the Prosecutor selects a situation not only to initiate an investigation upon conducing a preliminary examination but also to open a preliminary examination in itself. This article argues that the Prosecutor’s discretion to open a preliminary examination is limited to consider the jurisdiction requirement in a narrow manner, namely to exclude those crimes that are manifestly outside of the Court’s jurisdiction. Due to the role of preliminary examinations in combating the culture of impunity, the Prosecutor shall not adopt a conservative approach to open a preliminary examination.
