How to cite this article / Come citare questo articolo
Akbari, A.A.; Ghanbari, A. (2026). Third-Party Objection to Criminal Judgments: Challenges and Solutions under Iranian Law Abstract. Aequitas Magazine, 7, 48-58.
DOI: https://doi.org/10.5281/zenodo.21100130
ABSTRACT (EN) Third-party objections to criminal judgments constitute one of the most debated issues in Iranian criminal procedure, as they involve the complex interaction between the protection of third-party rights, the principle of judicial jurisdiction, and the separation between civil and criminal adjudication. Using a descriptive-analytical methodology, this article examines the legal framework, scholarly opinions, and judicial practice governing jurisdiction over third-party objections, with particular emphasis on the impact of Supreme Court Precedent No. 818. The analysis demonstrates that the persistent divergence in judicial practice originates from the tension between the principle of inherent judicial jurisdiction and a practice allowing criminal courts to decide property-related disputes without the initiation of an independent civil action. The study highlights the principal shortcomings of this approach, including the potential erosion of the principle of the natural judge, the weakening of jurisdictional specialization, and inconsistencies with Article 111 of the Iranian Code of Criminal Procedure. From a de iure condendo perspective, the article proposes legislative and procedural reforms aimed at clarifying jurisdictional boundaries, harmonizing procedural rules, establishing dedicated mechanisms for third-party claims, and strengthening consistency through legislative intervention and authoritative judicial guidelines. By addressing both theoretical and practical issues, this research contributes to the development of a more coherent procedural framework capable of enhancing legal certainty, protecting procedural guarantees, and promoting the effective administration of justice.
ABSTRACT (IT) L’opposizione di terzo avverso le sentenze penali rappresenta uno dei temi più controversi del diritto processuale iraniano, in quanto coinvolge il delicato rapporto tra tutela dei diritti dei terzi, principio della competenza giurisdizionale e separazione tra giurisdizione civile e penale. Il presente contributo, sviluppato mediante metodologia descrittivo-analitica, esamina i fondamenti normativi, gli orientamenti dottrinali e la prassi giurisprudenziale relativi alla competenza a decidere sulle opposizioni di terzo, con particolare attenzione agli effetti prodotti dal Precedente della Corte Suprema n. 818. L’analisi evidenzia come le persistenti divergenze interpretative derivino dal conflitto tra il principio della competenza funzionale del giudice e una prassi che attribuisce al giudice penale poteri decisori su questioni di natura patrimoniale, anche in assenza di un’autonoma azione civile. Lo studio sottolinea le criticità derivanti da tale impostazione, tra cui il rischio di compromissione del principio del giudice naturale, l’indebolimento della specializzazione delle giurisdizioni e le incongruenze applicative rispetto all’art. 111 del Codice di procedura penale iraniano. In prospettiva de iure condendo vengono formulate proposte volte a chiarire i confini della competenza, armonizzare la disciplina processuale, introdurre specifici meccanismi procedurali per la tutela dei terzi e rafforzare l’uniformità interpretativa attraverso interventi legislativi e linee guida giurisprudenziali. Il contributo offre una riflessione sistematica su una questione di rilevante interesse teorico e pratico, proponendo soluzioni suscettibili di migliorare la certezza del diritto e l’effettiva tutela delle garanzie processuali.
SUMMARY: 1. Introduction – 2. Statement of the Problem – 3. Analysis of the Causes of the Challenge of Third-Party Objection before Criminal Authorities – 4. Acceptance of the Unity of Proceedings System in Written Procedure – 5. Legal Obligation of the Judge to Issue a Restitution Order Without Filing a Claim – 6. Types of Third-Party Objection before Criminal Authorities – 7. Examination of Challenges – 8. Proposed Solutions – 9. Conclusion.
1. Introduction
Third-party objection is considered one of the extraordinary means of challenging court judgments. Addressing the jurisprudential foundations and diverse opinions regarding third-party objection—including the mandatory nature of examining its nature, the issues concerning the relative nature of court judgments and the possibility or impossibility of challenging the rights of third parties, the conditions for accepting such objections, the effect of the pecuniary or non-pecuniary nature of the original claim on third-party objection, and so forth—is not the subject of the present study. In fact, the subject of this research is third-party objection before criminal courts. In this regard, unlike third-party objection in civil courts, research is quite limited, some of which has been utilized in this study.
A small volume has been published by the Judiciary Research Institute regarding third-party claims in criminal matters, which describes third-party objections and their types before criminal courts, the possibility of objecting to decisions of public and revolutionary prosecutor’s offices, and so forth. The writing style is such that it is consistent with Supreme Court Precedent No. 818 regarding the jurisdiction of criminal courts to hear third-party objections to judgments containing criminal convictions and restitution orders. Explaining the present issue and addressing its ambiguous aspects—such as the types of third-party objections before criminal courts—is necessary both because comprehensive and analytical scholarly work has not been conducted on the subject, and because the Supreme Court Precedent was issued without considering the scientific foundations of the matter and without attention to models employed in other countries, and particularly by neglecting the specialized jurisdiction of criminal and civil courts, it may create serious problems. In addition to the two aforementioned issues, the present article also addresses the fact that the drafters of the 1332 (1953) Code of Criminal Procedure, in Article 111, which is based on the principle of specialization and considers third-party objection to security orders issued by criminal authorities to fall within the jurisdiction of civil courts, have been overlooked. Therefore, it deserves critical analysis.
Considering the foregoing, this research first examines the types of third-party objections before criminal courts and then proceeds to analyze and critique the recently adopted Supreme Court Precedent. Before addressing the main issue, it should be noted that third-party objection can be conceived in two forms in the criminal process or proceedings. The first form is third-party objection to the restitution, seizure, or confiscation of property in a judgment issued by a criminal court, which in practice is known as “primary third-party objection.” It should not be inferred from this designation that it is contrasted with “incidental objection.” This term is used to clarify the contrast between this type and the other type, which is “enforcement third-party objection” and relates to the enforcement stage of criminal judgments and Articles 141 and 146 of the Code of Civil Procedure. An example of the first type of third-party objection is when in a criminal court, in a case involving the transfer of another’s property, in addition to a conviction for imprisonment and a fine, a judgment is issued for restitution of an apartment unit to the detriment of Mr. A and in favor of Mr. B, while person C, upon reviewing the judgment, intervenes as a third-party objector and claims that the apartment belongs to neither A nor B but is owned by them. An example of the second type is when A is convicted to pay blood money (diyah) to B, and due to non-payment, the judge enforcing criminal judgments orders the seizure of a pickup truck. Person C appears and claims ownership of the pickup truck. Thus, the distinction between these two forms of objection is that in the first, the objection concerns the transfer of property, while in the second, it concerns the seizure of property.
2. Statement of the Problem
The problem facing the present research is whether, fundamentally and from a scientific perspective, one can accept third-party objection before a criminal authority, or whether third-party objection falls within the inherent jurisdiction of civil courts. The reason for the emergence of this challenge in judicial practice is the adoption of the “unity of proceedings” system—meaning that, as in French procedure, it is possible to file a civil claim alongside a criminal claim before a criminal court, and this is, of course, accepted in the Code of Criminal Procedure. This challenge becomes more pronounced when the legislator exempts certain crimes from the requirement of filing a private lawsuit and obligates the judge to order restitution or compensation. For example, one can refer to crimes such as fraud, theft, embezzlement, bribery, etc. In cases where compensation or restitution requires the filing of a claim and a civil lawsuit—in other words, where the criminal case simultaneously involves both a private plaintiff and a civil claimant—there is no challenge. In such cases, the judge is obligated to observe the formalities of civil procedure, and therefore third-party objection, in both its primary and incidental senses, as well as at the enforcement stage of criminal judgments, may be raised before the criminal court. In fact, in such cases, the criminal court judge faces both the prosecutor’s indictment on one side and the claim filed by the private plaintiff on the other, issuing judgments based on criminal procedure for the indictment portion and, like a civil judge, observing the formalities of civil procedure for the claim portion. It is quite self-evident that third-party objection to the civil judgment issued by the criminal judge will be heard in the same court and in accordance with civil procedure formalities, with no jurisdictional dispute arising. Therefore, the subject of the present research pertains to cases where, in a criminal case, the judge, pursuant to a statutory obligation—such as that contained in Article 1 of the Law on Aggravating the Punishment of Perpetrators of Bribery, Embezzlement, and Fraud regarding restitution—issues a judgment ordering restitution of property, and subsequently a person intervenes as a third-party objector without a private plaintiff having filed a claim to recover their property. The question is whether, in such cases, the competent authority to hear the third-party objection is the same criminal court or, due to the nature of the matter, it falls within the inherent jurisdiction of the civil court.
As mentioned, this issue is first and foremost the product of the acceptance of the “unity of proceedings” system in Iranian criminal procedure, and secondly, the result of the particular model adopted in separating certain crimes from others and obligating the judge to issue a financial judgment in a case without the backing of a formal claim. It should be emphasized that a precise examination of the two systems—unity and separation of proceedings, the model requiring the filing of a claim in all crimes (as in the criminal procedure of countries such as Italy), and the model separating certain crimes from others and not requiring a claim in certain cases—along with a foundational analysis of the challenges and objectives of each of these two systems and models, is undoubtedly important but falls outside the scope of the present research. This study seeks to explain the possibility or impossibility of accepting third-party objection before criminal courts and, in fact, to examine the issue of jurisdiction. Naturally, the study will first address the factor giving rise to this issue, then the two types of third-party objection before criminal courts—primary and enforcement—and finally present its conclusions. Despite the divergence in judicial practice, the General Board of the Supreme Court convened and issued Precedent No. 818 on April 1, 2021 (1400/1/4), which states that third-party objection to judgments issued by criminal courts can be heard in the same criminal court, and consequently, the civil court lacks jurisdiction over this matter. Undoubtedly, this precedent faces several serious challenges, which will be examined in the text of the research.
3. Analysis of the Causes of the Challenge of Third-Party Objection before Criminal Authorities
Fundamentally, the reason for the emergence of the issue of accepting or not accepting third-party objection before criminal authorities is the legislator’s adoption of the unity of proceedings system. Typically, this approach—accepting private claims alongside public claims in criminal authorities—is prevalent in codified (written) criminal procedure systems (Shams, 1401, p. 101) and is largely absent in uncodified (common law) systems, which adhere firmly and absolutely to the principle of specialization: criminal courts deal solely with the crime, and civil courts deal with compensation (Khaleghi, 1401, p. 169). This section examines the basis for the emergence of the challenge of third-party objection in Iranian criminal procedure as one of the countries belonging to the written (codified) tradition.
4. Acceptance of the Unity of Proceedings System in Written Procedure
It is generally the case that in written criminal procedure systems, it is possible to file a private claim before a criminal court in conjunction with the crime and for the purpose of compensation, whereas in uncodified systems, the crime is completely separated from compensation or restitution, and only the former is addressed in criminal courts. A royal court in England never issues a judgment for compensation, and its function is solely to adjudicate the crime (Ashworth, 2020, p. 119). Concerning the reasons for accepting private claims in written procedure and rejecting them in uncodified procedure, extensive debates have taken place, and addressing this topic is not relevant to the present research. It suffices to mention that historical, cultural, and social factors in each country are absolutely effective in the adoption of the system governing criminal procedure. Essentially, the acceptance of the unity of proceedings system is the product of the direct relationship between the harmful act and the criminal behavior; a condition is accepted under which the loss arising from the crime is considered the direct claim of the private claimant. Those who subscribe to this system believe that the offender, with their criminal behavior, has caused financial loss, and by referring to the civil court, the right to compensation may be delayed; therefore, in addition to the punishment, the criminal court is competent to issue a judgment regarding compensation or restitution at the request of the private claimant. However, proponents of the separation system regard the first objection to the other system—requiring the criminal judge to issue a judgment on matters outside their expertise and violating the principle of judicial specialization—as the entry of a criminal judge into non-specialized work, while maintaining that the right to compensation can be obtained in the shortest possible time by referring to the civil court (Karimipour, 1401, p. 21).
The reason for accepting civil claims before criminal courts in Iranian criminal procedure, based on a particular interpretation and approach—albeit without attention to the principle of specialization and the general competence of courts—was that the judge should be the authority for resolving all disputes, both civil and criminal, among the people. People should be able to refer directly to this judge for all their claims. It is noteworthy that in the Code of Criminal Procedure, the topic of jurisdiction is still discussed under the title of “general courts” (Ashouri, 1400, p. 178). The unity of proceedings system faces serious challenges and criticisms. First and foremost is the disregard for the principle of specialization and the impossibility of comprehensive knowledge across all branches of law. Human progress in various branches of science and law is such that specialization is inevitable and necessary for modern society. Imagining the assignment of a petition filed in the civil procedure court to a criminal judge is akin to expecting the same judge to write a research paper in criminology. The second criticism of the unity of proceedings system is that it leads to a lack of focus in the formal process of the criminal justice system, while the primary objective of the criminal justice system is to address criminal phenomena and provide appropriate responses, and the best results are achieved when the principle of focus is emphasized. Entering the claim for compensation into the formal process of criminal procedure as one of the most important parts of the criminal justice system will result in the loss of focus among the executive agents of the criminal justice system, particularly judges.
5. Legal Obligation of the Judge to Issue a Restitution Order Without Filing a Claim
As stated, private claims before criminal courts are accepted in written procedure systems, including Iran. On the other hand, despite the commonality on this point, two different models prevail in the criminal procedure of countries belonging to the written system. In the first model, currently in force in Iran, certain crimes are distinguished from others, and the criminal judge issues a restitution order without the filing of a claim and without observing the formalities of civil procedure. Among these crimes that lead to restitution or payment of money without a claim, one can mention theft, fraud, money laundering, assault and battery requiring payment of diyah (blood money), embezzlement, bribery, etc. In contrast, in the second model, wherever it is necessary to address financial disputes in a criminal court, this is done only on the basis of a formal claim and with observance of civil procedure formalities (Yousefi, 1395, p. 187). The adoption of such a model in Iranian criminal procedure, which does not limit itself to restitution of the specific property but also considers restitution of its equivalent or value, in the absence of the specific property, as part of the criminal judge’s duties, has several shortcomings. The first problem with the model that separates certain crimes from others goes back to the very act of separation. There is no scientific or objective criterion for determining this distinction, and the legislator’s intent and will, rather than an objective criterion, influence the separation. The absence of such an objective criterion has led to, for example, in crimes such as breach of trust, possession of stolen property, issuance of bad checks, etc.—unlike crimes such as fraudulent transfer of property, adverse possession, fraud, theft—where there is no difference in the element of depriving the victim of their property, the victim is required to file a claim.
The second problem is that the challenge of third-party objection arises. Suppose in a fraud case, a judgment is issued for restitution of a property without observing civil procedure formalities. If another person claims a right to this property, they become entangled in the jurisdictional dispute between criminal and civil courts, and it is not clear from Articles 417 and 418 of the Code of Civil Procedure of the Public and Revolutionary Courts to which authority they should submit their objection. On the one hand, what is stated in Article 418 of the Code of Civil Procedure concerns a situation where there was previously a complete civil claim with the filing of a civil lawsuit, and then a third-party objector files their objection claim. The point is that fundamentally, a third-party objection claim is accepted only if there was previously a claim. On the other hand, the civil court can reject the third-party objection and state that no claim was brought in this court for a third-party objection to be admissible. In the criminal procedure of a country like Italy, despite sharing the characteristic of belonging to the written procedure system with Iranian procedure, the model requiring a claim in all crimes prevails, and consequently, the challenge of third-party objection essentially does not arise (Gialuz, 2020, p. 246). In Iranian judicial practice, as mentioned, there is a serious dispute over the acceptance or rejection of third-party objection in crimes where filing a claim is not required, and it should be emphasized that the cause is nothing other than the adoption of such a model in Iranian criminal procedure.
6. Types of Third-Party Objection before Criminal Authorities
Earlier, in the introduction, reference was made to the types of third-party objection before criminal authorities. Third-party objection before criminal authorities is of two types: objection to the principal judgment issued by the criminal court regarding restitution of property, and objection to the seizure of property during the enforcement stage of criminal judgments. This section addresses these two types of objection and the competent authority for their adjudication.
6.1. Primary Third-Party Objection before Criminal Courts
When a judgment is issued by a criminal court without a prior claim, ordering the restitution of property, and subsequently a person appears claiming ownership and raises a third-party objection, there was a divergence in judicial practice regarding the competent authority to hear the objection, leading to the issuance of a Supreme Court Precedent. Prior to the issuance of the Supreme Court Precedent, there was disagreement regarding the acceptance or rejection of third-party objections to judgments with financial aspects issued by criminal courts. The first group maintains that in the aforementioned circumstances, the court that issued the final judgment is competent to hear the objection, based on Article 420 of the Code of Civil Procedure. This group presents the following arguments to support their position:
a. Article 418 of the Code of Civil Procedure has general applicability and grants the third party the right to object to any judgment issued by public and revolutionary courts, and it is quite evident that criminal courts are considered part of the public courts.
b. Article 420 of the Code of Civil Procedure explicitly designates the court that issued the final judgment—without mentioning the civil court by name—as the competent authority to hear third-party objection. It would be illogical for a judgment for restitution of property to be issued by a criminal court and then a civil court to adjudicate the matter.
c. The note to Article 215 of the Islamic Penal Code, along with the provisions mentioned in the Code of Civil Procedure, explicitly states that persons harmed by a criminal court judgment and its decisions regarding objects and properties mentioned in the article can pursue their complaint in the criminal court and even appeal the decision of the first-instance court.
d. What is stated in Article 111 of the Code of Criminal Procedure regarding the jurisdiction of civil courts to hear third-party objections to the seizure of property resulting from the enforcement of a security order is limited to security orders and does not include other forms of third-party objection.
e. The civil court can only hear a third-party objection if a claim was previously brought in that same civil court and that court issued a judgment. Essentially, third-party objection is nothing more than a third party harmed by a final judgment of a court objecting to that same court.
In contrast, the other group believes that in the current situation, where a judgment for restitution of property has been issued by a criminal court without a complete civil claim, the criminal court is not competent to hear the third-party objection, and the third-party objection claim must be filed with the civil court. This group relies on the following arguments to establish their position:
a. Third-party objection is an independent claim filed through a formal petition. This claim can only be accepted before a criminal court if the criminal court, in addition to the criminal case, has dealt with a complete and full civil claim and has rendered a judgment in observance of civil procedure formalities. However, in a situation where the criminal court has issued a restitution order by force of law without a civil claim, it will not be competent to hear the third-party objection.
b. The principle of inherent jurisdiction exists between civil courts and criminal courts, and involving a criminal court in non-specialized matters will undoubtedly have negative consequences. Moreover, in cases of doubt, it is obligatory to refer to the principle, and the prevailing principle in the present case is the specialization of criminal and civil courts. The legislator was aware of this issue and, in Article 111 of the Code of Criminal Procedure, placed third-party objection to a security order issued by a criminal authority within the jurisdiction of the civil court—not the criminal court.
c. Article 215 of the Islamic Penal Code essentially has no connection with the discussion of third-party objection as raised in civil procedure and pertains to property and objects that were the instrument of the crime or obtained through the crime or used in the commission of the crime. These properties and objects include things like alcoholic beverages, discovered weapons, used knives, counterfeit banknotes, etc. Article 215 of the Islamic Penal Code does not in any way encompass crimes such as fraudulent transfer of property, theft, etc.
6.2. Enforcement Third-Party Objection
If the effect of the enforceable judgment issued by the criminal court is the seizure, confiscation, or forfeiture of property—whether movable, immovable, or cash—and this seizure results in the violation of a third party’s rights, the third party can object to the seizure of their property under Article 141 of the Code of Civil Procedure. Article 141 of the Code of Civil Procedure provides that whenever a third party claims ownership of movable or immovable property or cash that has been seized, if the claim is based on a final judgment or an official document whose date precedes the date of seizure, the seizure is lifted; otherwise, the enforcement proceedings continue, and the claimant may file a complaint with the court to prevent enforcement proceedings and prove their claim.
Regarding this provision, two issues arise. The first issue is: which authority is competent to hear the complaint of the third-party objector? Suppose in a money laundering case, the criminal court judge orders the forfeiture of the assets subject to money laundering, and the case is forwarded to the enforcement of criminal judgments. The judge enforcing criminal judgments orders the seizure of cash in an account belonging to the accused. After the cash is seized by the bank, a third party appears and claims ownership. The distinction between primary third-party objection and enforcement third-party objection in the judicial practice of criminal courts is clarified by this example. In fact, in the present example, the criminal court did not order the forfeiture of specific property, and its order was merely for the seizure of cash. The enforcement of criminal judgments has seized all accounts belonging to the accused, and the cash claimed by the third-party objector is part of that. It appears that the criminal court is competent to hear the complaint of the third-party objector in cases where the third-party objection occurs at the enforcement stage and in the manner described above. The most important argument for the jurisdiction of the criminal court is that the enforcement of a criminal judgment, which follows a judgment issued by the criminal court, is conducted under the supervision of the criminal court, and fundamentally, the civil court has no role or jurisdiction in this regard. Furthermore, the Code of Civil Procedure uses the general term “court” and does not specify the jurisdiction of civil courts exclusively. This differs from Article 111 of the Code of Criminal Procedure, which places third-party objection to the seizure of property arising from a security order within the jurisdiction of civil courts.
The second issue is: which of the first-instance or appellate courts is competent to hear the complaint or enforcement third-party objection? In this regard, there is no disagreement that because the enforcement is under the supervision of the first-instance court, the first-instance courts hear the enforcement third-party objection and issue the necessary judgment. The judicial practice of criminal courts has also accepted this.
7. Examination of Challenges
One of the most fundamental challenges regarding third-party objection to criminal judgments is the fundamental conflict between two legitimate but incompatible principles: on the one hand, the principle of inherent jurisdiction and the separation of jurisdictional boundaries between civil and criminal courts, and on the other hand, a practice that in some cases requires the criminal judge to issue a judgment with legal effects (such as restitution of property) without following the path of a civil claim. This dual confrontation gives rise to several practical and principled problems: first, fragmentation of judicial practice and lack of judicial certainty, which is harmful to the rights of individuals and the execution of judgments; second, jurisdictional problems and the possibility of issuing judgments outside the sphere of expertise of the issuing authority, which damages both the integrity of the judiciary and the rights of applicants; third, ambiguity in the criteria for accepting or rejecting third-party objections (such as the extent of the requirement to file a prior civil claim, the role of the temporary nature of the criminal judgment, or the time interval between the issuance of the criminal judgment and the filing of the objection), which leads to divergent practices and unequal access to justice; fourth, enforcement complexities and excessive delays in the execution of criminal or civil judgments resulting from the intertwining of judicial paths; and finally, legal gaps or conflicting interpretations of related provisions (such as Articles 111 and the provision subject of the precedent) that enable disproportionate exploitation of rules and endanger the rights of the parties.
8. Proposed Solutions
To address the aforementioned challenges, it is necessary to adopt a set of mutually reinforcing measures at the legal, procedural, and institutional levels:
First, it is recommended that the legislator clearly define or amend the boundaries of jurisdiction regarding third-party objections—for example, by providing a clear rule on the circumstances under which a criminal court can issue a judgment on matters with legal effects, or by requiring the referral of matters involving third parties to the civil court before the issuance of a final judgment.
Second, the issuance of a uniform interpretation directive by the Supreme Court or the establishment of a unifying practice for criminal and civil divisions can prevent fragmentation of practice and regulate the criteria for accepting third-party objections (such as the necessity of a prior civil claim or at least the content of the third party’s claims).
Third, at the organizational level, specialized chambers or combined criminal-civil units can be established so that cases with evident legal effects are heard by a court with specialized composition, preventing the issuance of contradictory judgments.
Fourth, establishing clear procedural practices—including a standard form for third-party objection petitions, determining evidentiary and pleading requirements, the requirements for separating legal and criminal issues, and reasonable timeframes for filing and adjudication—contributes to procedural transparency.
Fifth, reliance on mediation tools or temporary referral of disputes to expert panels in complex cases can prevent prolonged proceedings and violations of the rights of the parties.
Sixth, it is essential to amend or clarify conflicting procedural provisions (including Article 111) and bring them into line with fundamental rights (such as the right of access to court and the principle of fair trial).
Finally, training judges, institutionalizing operational guidelines, and judicial supervision over the implementation of directives will ensure the continuity of uniform practice and improve the quality of judgments. The combination of these measures will both strengthen judicial certainty and prevent unjustified encroachment on jurisdictional boundaries while more effectively safeguarding the substantive and procedural rights of third parties.
9. Conclusion
The present research examined the challenge of third-party objection before criminal authorities. By referring to the criminal procedure of Italy, which, due to its belonging to the written legal system, closely resembles Iranian procedure, it was stated that the cause of the dispute over third-party objection before criminal courts is the adoption of a model in Iranian criminal procedure that, without the existence of a complete civil claim filed through a formal petition, obligates the criminal court judge to issue a restitution order in certain crimes. Due to the divergence that arose in judicial practice, the Supreme Court made a decision in the present case, according to which third-party objection before a criminal court is admissible, and consequently, there is no need to file a claim before a civil court. The flaw in the Supreme Court Precedent is that, fundamentally, a third-party objection claim, as provided in the Code of Civil Procedure, is accepted only if there was previously a complete claim in the legal sense, supported by a formal petition, between two parties, and the judgment issued between these two parties has prejudiced the rights of a third party. Now that the criminal court has issued a judgment for restitution of property without the existence of a claim, in addition to doubts about the possibility of fulfilling the conditions for accepting a third-party objection claim, a dispute arises between civil and criminal courts as to which authority should hear the third-party objection. The authors of this research believe that accepting the unity of proceedings system in criminal procedure is not correct. Judicial experience has shown that the issuance of a civil judgment by a criminal court, due to the lack of expertise of a criminal judge, will result in the violation of the rights of the parties. In fact, the criminal court judge should address the crime, and the civil court judge should address civil matters and compensation, and entrusting one to the other leads to deviation from the standards of fair procedure.
Unfortunately, the legislator did not stop at this point and, as emphasized, singled out certain crimes and obligated the criminal judge to order restitution in those crimes. With this approach, in which the lack of a scientific and objective criterion is evident (for example, theft and fraud are among the crimes in which the criminal judge is obligated to order restitution, whereas in breach of trust this is not the case), the challenge of third-party objection arises. In this research, only a few examples of conflicting judgments were mentioned. Even if we accept the impossibility of eliminating private claims before criminal courts due to factors such as historical and social precedents, it is appropriate that wherever a judgment on a legal matter is required from a criminal court, observance of the formalities of civil procedure should be required to prevent adverse consequences and decisions unsupported by a formal claim. Until this is achieved, it appears that the position of the group that does not consider the criminal court competent to hear third-party objections is correct.
Involving a criminal court in a non-specialized matter outside its jurisdiction will lead to the issuance of unreliable judgments. Perhaps for this reason, the legislator placed third-party objection to the seizure of property under a security order within the jurisdiction of the civil court. It is emphasized that the authors’ position regarding the lack of jurisdiction of the criminal court concerning third-party objection applies only to crimes where the criminal court judge is obligated to issue a restitution order. Otherwise, in cases where a claim is filed with the criminal court, observance of civil procedure formalities is mandatory, and third-party objection is part of these formalities. It is quite clear that considering the civil court competent to hear third-party objection to a criminal judgment does not mean disregarding the principle that a private or civil claim must follow the public or criminal claim. This principle applies where a final judgment of a criminal court finds a person guilty, and subsequently a claim related to the criminal case is brought in a civil court. The civil court’s judgment cannot contradict the criminal court’s finding regarding the attribution of criminal conduct to a person. In the issue raised in this research, we are faced with a purely legal matter such as ownership, and disputes over ownership should be referred to the civil court, which is inherently competent to hear such cases. The acceptance of the subordination of the criminal authority to the civil authority in the Code of Criminal Procedure proves this claim. Therefore, considering the above, in the authors’ view, the Supreme Court Precedent has fundamental flaws.
First, the precedent effectively disregards the principle of specialization in the current circumstances. Entrusting a purely civil matter and one related to private law rules to a criminal court with a different mission, along with disregarding the principle of specialization, can undoubtedly lead to the violation of the rights of the parties.
Second, the Supreme Court Precedent runs directly counter to Article 111 of the Code of Criminal Procedure. The proponents of the unity of proceedings theory and the possibility of filing a civil claim for third-party objection before a criminal court, who are responsible for the issuance of this precedent, have overlooked this article and have essentially given rise to two absolutely divergent practices regarding the subject of third-party objection. Accordingly, third-party objection to a security order issued by a criminal authority—which in terms of effect is no different from a restitution order—is brought before the civil court, while third-party objection to a restitution order in the special statutory cases where the criminal judge is obligated to order restitution is brought before the criminal court.
Third, in cases such as fraud, theft, fraudulent transfer of property, and the like, the restitution order is issued without a supporting claim, without a civil claim, and sometimes even without a request for compensation from the complainant, merely based on the initial complaint filed with the criminal authority. The reality of judicial practice is that it does not in any way engage with the legal complexities of the matter and merely issues a judgment for restitution based on the evidence presented by the complainant and the prosecutor. One cannot, merely on the pretext that the judgment was issued by a criminal court, consider third-party objection to fall within the jurisdiction of that authority. The most important and strongest argument is that the criminal court, based on the very statement contained in the issued judgment—”The judgment for restitution of property is issued and announced in favor of the complainant”—would have to address the issue of proving ownership, and if a dispute arises between the parties regarding this matter, under Article 21 of the Code of Criminal Procedure, it is obligated to issue a ruling of subordination (anateh, i.e., referring the matter to the competent civil court).
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B) English Sources
- Ashworth, Andrew. (2020). The Criminal Process (5th ed.). Oxford: Oxford University Press.
- Dressler, Joshua. (2019). Understanding Criminal Procedure (3rd ed.). New York: Matthew Bender.
- Delmas-Marty, Mireille, & Spencer, John R. (2015). European Criminal Procedures. Cambridge: Cambridge University Press.
- Gialuz, Mitja. (2020). The Italian Criminal Procedure: Critical Essays. Alphen aan den Rijn: Wolters Kluwer.
- Sanders, Andrew, Young, Richard, & Burton, Mandy. (2010). Criminal Justice (4th ed.). Oxford: Oxford University Press.
