According to the current provisions of the Criminal Procedure Code, especially in the section related to the rules governing the discovery and prosecution of obvious and invisible crimes, any discovery of a crime and the initiation of criminal prosecution that occurs without taking these provisions into account is considered "illegal". The present study uses a descriptive-analytical method to explain the issue of what constitutes a guarantee for the implementation of an illegal initiation of criminal prosecution and how the disposition of evidence and discovered property is determined in this flawed process. The findings of the study show that, contrary to the prevailing practice that is limited to simply eliminating "illegitimate evidence", if the "initiation of prosecution" is inherently illegal (such as unauthorized intervention or unauthorized search), the entire prosecution process is subject to the nullity rule and the investigating authority is required to issue a "suspension of prosecution order". Also, the distinction between "nullity of prosecution" and "invalidity of evidence" is based on Articles 2, 13, and 30 of the Criminal Procedure Code. Finally, the study proves that issuing a suspension of prosecution order due to a lack of legal formalities will not prevent the issuance of an order to seize or destroy prohibited property resulting from a crime (based on Article 215 of the Islamic Penal Code) and these two categories (the fate of the proceedings and the fate of prohibited objects) are independent of each other.

Based on Article 36 of the Constitution, the aforementioned Article 2, and other provisions of the Criminal Procedure Code, a principle has been crystallized that has been identified as the “principle of legality of criminal proceedings”. According to this principle, none of the judicial officers and authorities can resort to illegal behavior to advance the criminal proceedings and collect evidence against the perpetrator. In judicial practice, however, the matter is very different; suppose that judicial officers are informed on a holiday while patrolling or during a phone call that a large amount of explosives have been stored in a residential building and that if they do not take immediate action, these munitions will be used in a sabotage act. They take action, discover and seize the explosives, arrest the perpetrator or perpetrators, prepare a report, and send it to the judicial authority. In another scenario, while inspecting a specific location in accordance with the order of a judicial authority, officers observe and discover tools, instruments, or other evidence of a crime that is unrelated to the order issued by the judicial authority. What is their duty in this situation? Current judicial and law enforcement procedures require them to seize these tools and instruments, prepare a report about them, and report to the judicial authority. It is also the case of discovering prohibited objects or tools and instruments of crime in the trunk or dashboard of a car (invisible) while passing through a stop and being inspected by police or other officers.

The present study seeks to find answers to the above questions using a descriptive-analytical method and library tools.

According to various articles of the law, especially the Criminal Procedure Code, criminal proceedings must be conducted in accordance with the law both at the beginning and at all subsequent stages. If criminal proceedings have been initiated illegally, including when an officer has intervened without legal authorization, which has led to the initiation of criminal prosecution, or if a crime has been discovered and prosecuted through illegal means, such as wiretapping or controlling bank accounts or illegal searches, it is not possible to decide on the permissibility of illegal actions and to continue the prosecution under the pretext of the need to combat crimes or maintain public order and security. Therefore, the effect of the requirement for the legality of criminal prosecution is to invalidate the illegal actions taken, as well as to terminate the illegal criminal prosecution. The judicial authority is obliged to declare the case closed by issuing a stay of prosecution order upon becoming aware and certain that the initial prosecution was initiated illegally. This guarantee of enforcement of nullity is in addition to the guarantee of criminal and disciplinary enforcement, which will be enforced against actors who have acted illegally and whose behavior has led to the discovery of a crime.

Judicial authorities and judicial officers cannot, under any pretext, even if it is to fight crime or maintain order, disregard the legal rules and regulations governing the discovery and initiation of prosecution and resort to illegal actions to discover and prosecute a crime. Since, unfortunately, the invalidation of criminal proceedings due to the illegal initiation of prosecution is not provided for as an explicit provision in the law, the specific proposal of the present study is that, in line with progressive legal systems, especially French law, which in Articles 802 and 170 to 174 of the Code of Criminal Procedure of this country provides for the guarantee of the implementation of invalidation for violations of basic procedures, and also inspired by the practice of the European Court of Human Rights (ECHR), which, based on Article 6 of the Convention (the right to a fair trial), rejects evidence and prosecutions resulting from gross violations of legal procedures, in future amendments to the Code of Criminal Procedure, the requirements and requirements of the principle of legality of proceedings should be explicitly specified in the continuation of the text of Article 2 or in a note under this article in order to prevent the divergence of opinions in the courts. Of course, in the current situation, the judicial authorities have no obstacle to invalidating a prosecution that has been initiated illegally, and making such a decision will have the support and backing of various articles of the law (as studied in this research).