Explained: How Did Decree No. 40 Make Unlicensed Construction a Felony?

Article 2 of Decree No. 40 of 2012, which addressed the removal of so-called unlicensed structures (structures built without proper licence), stipulated that such structures be removed if they had been constructed after the issuance of the 2012 decree. This measure would apply no matter the type, location, investment category or usage of an unlicensed structure in question, which would be demolished and the rubble subsequently removed at the expense of whomever had benefited from the structure. 

Article 2 also imposed a fine on anyone responsible for building the unlicensed structure, which could include the owner, contractor, supervisor, or construction engineer, as well as any employees of the local administrative body who failed in their duty to monitor and halt the unlicensed construction project. 

Finally, Article 2 also stipulates measures for a special case: If the unlicensed structure is found in a report by the relevant governorate’s Public Safety Committee to be insufficiently durable and at risk of collapse, then those proven responsible for constructing it face three years imprisonment. If the structure collapses and leads to the death of one or more individuals, then the punishment increases to at least 10 years hard labour and three times the usual fine, in addition to addressing the rights of the deceased individuals’ heirs.

There are sporadic campaigns across Syria to demolish structurally unsound buildings in accordance with Decree No. 40. Such campaigns have targeted both licensed and unlicensed structures. It is unclear whether anyone has been convicted yet under Decree No. 40 in such cases.

Essentially, Decree No. 40 includes penalties that transform unlicensed construction from a small offence punishable by fine into a misdemeanour deserving of at least three years imprisonment and, in certain cases, even a felony punishable by longer prison terms and hard labour. Under the law, felonies are considered the most serious crimes, a list that also includes murder. A misdemeanour, on the other hand, is a smaller crime and could include theft, while “violations” are the least serious category of crimes, in view of the lack of harm resulting from them. 

Here Decree No. 40 appears to have a legal loophole in one special case, in which the classification of an unlicensed construction can change from a mere “violation” into a felony without the will of the perpetrator and regardless of the original intent of the structure. That loophole appears in cases where an unlicensed structure built after the issuance of Decree No. 40 collapses or is at risk of collapse–not because it was insufficiently durable at the time of its construction, but rather because of direct bombing, wartime combat or the residual structural impacts of bombardment. 

Instead of punishing the parties responsible for the bombardment that caused the structural damage, Decree No. 40 holds the builders of the unlicensed structure legally responsible should the structure collapse or face the risk of doing so. 

Since Decree No. 40 was issued in 2012, many buildings that had been constructed without proper licences collapsed due to cracks caused by direct bombardment as well as indirect nearby bombings that nevertheless wrought structural damage. 

This grey area–in which Decree No. 40 may target structures that have collapsed or risk collapse due to war damages rather than poor construction–still exists. For example, around 3,000 buildings are at risk of collapsing in east Aleppo, according to a report by the Public Safety Committee issued in 2020. In September 2020, the head of that committee suggested that the structural safety issues were due to a “flaw in the construction engineering and materials used in construction.” By this reasoning, those responsible for the structural dangers and deserving of strict penalties were those who had built the unlicensed buildings, with no regard for the heavy bombardment that hit east Aleppo by the regime forces when the area was under opposition control in 2012-2016. 

The provisions of Decree No. 40 remain in force today, and have not been amended despite this loophole. This is also despite the subsequent issuance of Law No. 3 of 2018, which stipulates the removal of rubble from buildings damaged by natural or unnatural causes, or buildings that are subject to laws that require their demolition. That is, Law No. 3 did not directly address unlicensed construction or stipulate penalties for those found responsible, but rather codified removing the rubble of buildings that had been demolished under Decree No. 40.