The Antiterrorism Court in Syria is an exceptional entity that contradicts the principles of fair trial, as reflected in the legality of its rulings, including confiscating the properties of those it convicts. Violations are also evident in how outside parties interact with the court’s rulings, for example: people purchasing the properties of convicted “terrorists” in public auctions.
The Antiterrorism Court is composed of officers rather than judges and does not provide any of the legal guarantees meant for the accused, such as the right to defence, representation by a lawyer, transparent procedures, and the right to a second hearing. The court also issues rulings with political motives.
Under Article 12 of Antiterrorism Law No. 19 of 2012, the Antiterrorism Court must confiscate the movable and immovable assets of all the people whom it convicts. After the conviction decision becomes final and is not subject to appeal, the court sends a letter to the Department of State Property, which then carries out the confiscation in one of two ways: by transferring ownership of the property and registering it with General Directorate of Cadastral Affairs under the name of the Syrian Arab Republic or by selling the property by public auction through the judiciary.
The public auction is run by the local Enforcement Department, which is headed by a judge from that region’s local Judicial Department, with the aim of settling the “debts” theoretically owed by the convicted party. These procedures begin with an invitation to a public auction session under the supervision of the enforcement judge. More than one person applies to attend the auction, with the property subsequently awarded to the highest bidder. Afterwards, the judge issues a decision to register the property in the name of the auction winner. Then the Enforcement Department sends a letter to the General Directorate of Cadastral Affairs to put together a contract ensuring the transfer of ownership and official registry of the property in the buyer’s name.
In principle at least, the procedures for carrying out these public auctions are legitimate, as they agree with the legal principles used when implementing judicial rulings. However, their legality is still up for debate, as they are the result of exceptional legal rulings from an arguably impartial court.
Rights Holders who are convicted before the Antiterrorism Court may, in theory, repeal this registration process with the General Directorate of Cadastral Affairs. For example, they may prove the bad intentions of the auction winner in order to invalidate registration of the confiscated property in the winning bidder’s name. According to the procedures for public auctions, the bidder must view the “enforcement bond,” that is, the ruling issued by the Antiterrorism Court. Thus, the buyer cannot claim that they acted in good faith or that they did not know the origin of the bond.
Article 13 of Cadastral Affairs Law No. 188 of 1926 (later amended in 2008) states that it is not permissible for someone to claim ownership of a certain property based on the records within the Land Registry if they know of any defect or reason that ownership right may be stripped from them. Article 14 of the same law also states that documentation within the Land Registry is illegitimate when done without the proper right. Whoever was harmed by the illegitimate transaction may directly claim its illegality against the third party, who in such cases acted in bad faith.
According to its Decree No. 292, issued on May 27, 1962, the Court of Cassation may not uphold the registry of a piece of real estate if it is aware of any legal flaws in the registration process. This principle applies to those who have purchased real estate through public auctions based on rulings from the Antiterrorism Court. In order to invalidate subsequent transfer of property ownership to the party who purchased it in bad faith, the claimant may file a case to terminate registration of the property. The same applies to properties that were confiscated after rulings by the Antiterrorism Court and registered in the name of the Syrian Arab Republic.
In light of the many provisions in place for expropriating Syrians’ properties for political reasons, and through illegal means, recovering such properties to rights holders could be included in a national program to return improperly confiscated or auctioned real estate.