LEGAL ANALYSIS OF PROPERTY RETURN IN CRIMINAL MATTERS

Abstract

Both the law and Islamic jurisprudence respect individuals' ownership rights. In Islamic jurisprudence, the importance of ownership is highlighted through the principle of taslīṭ (authority) and the rule of ʿalā al-yad (possession by hand). Article 45 of the Constitution and various legal principles in Islamic jurisprudence, such as the consensus of jurists (ijmāʿ), customary practice, and the rational consensus of the community, affirm the duty to return property acquired through criminal acts, making it a recognized legal principle in Islam. Accordingly, if someone unlawfully removes another person’s property without consent or legal authorization, they are required to return it to their rightful owner. The return of criminally obtained property refers to the process of transferring recovered or discovered goods from the offender to the owner or their legal representative. This return is not considered a form of punishment but is a legal procedure introduced into criminal law to reduce litigation costs and avoid lengthy trials. Therefore, it is an independent institution within criminal law. Since the return of property is a legal matter, it is necessary to follow civil procedural formalities. In such cases, submitting a petition is typically required, unless the legislator has explicitly stated otherwise, allowing criminal courts to rule on the return of property without the need for a petition. While there is no dispute over the return of property in fraud cases handled by criminal courts, challenges arise in cases not specifically addressed by the law. There are three approaches to property return in such cases: the restrictive approach, the semi-restrictive approach, and the expansive approach. The restrictive approach is regarded as the most logical and principled method, but judicial practice, following the expansive approach, faces several challenges. The return of criminally obtained property is a form of restoring the previous status, and while it shares similarities with confiscation and expropriation, the two differ fundamentally and are not directly related.