Security Approval Now Required for Absentee Power of Attorney
The Hama governorate has completed a census of pistachio farmlands in the rural northern part of the governorate as well as neighbouring parts of southern Idlib governorate. The lands belong to farmers who were forcibly displaced by regime forces to opposition-held territory further north. The spatial technical committees formed by the governorate submitted lists of the farmlands that will be offered for investment in public auctions to be held this week.
On July 5, the General Secretariat of Hama Governorate announced for the first time that the governorate had determined the conditions and method for the public auctions to invest in lands cultivated with pistachios. It announced three successive auctions to be held in the Hama governorate building on 12, 13 and 14 July. The contracts awarded at the auctions would be for one season, with the option to extend for another without a further auction, assuming the “approval of both parties”. Those two parties are the governorate and the investors, and do not include the actual landowners.
According to the announcement, investors must pay SYP 70,000 as an initial deposit for the pistachio farms, as well as 10 percent of the initial offer for the value of the land investment stipulated in the auction. These deposits are to be paid by certified check or bank guarantee. Investors must also submit a technical file for bidding issued by the contracts department at the General Secretariat of Hama Governorate. The file costs SYP 10,000. Applicants were also required to include a “no conviction” document and a proof of residency.
The auctions were announced by Hama Governor Decree No. 4991, issued under Minister of Agriculture Letter No. 169 on June 9, 2021, which in turn was issued under Public Contracts Law No. 51 of 2004. The law deals with contracts related to public properties. The auctions announced last year in Hama, however, were held under Military and Security Committee decrees, in accordance with Administrative Order No. 3077 for the census of pistachio farms and Administrative Order No. 4400 for the census of fruit tree farms.
Many of the farmlands currently up for auction are Amiri Lands. Syrian Civil Code grants those in possession of Amiri Lands the right to exploit, use and cultivate such properties as they choose. However, according to Article 775: “The right of disposal of Amiri Lands is forfeited if it is not cultivated, or if it is not used for a period of five years.” This means in such cases the land reverts to state property. The regime may be attempting to exploit this loophole in order to seize the lands from their forcibly displaced owners.
At the same time, Article 379 of the Civil Code states: “The five-year statute of limitations does not apply to anyone who does not have the capacity, or to absentees, or to those convicted of felonies if they do not have a legal representative.” In other words, the Civil Code does not allow application of the deadline for forfeiting the right to dispose of Amiri Lands for absentees. This legal detail makes it very difficult for the regime to seize Amiri lands from forcibly displaced farmers; the regime must somehow prove their absence without the right to keep possession of the lands.
Therefore, it is unclear what the legal basis is for the governor announcing auctions under Law No. 51 of 2004, which is related to contracts for public or state property. If the auction decree considered these lands state property, that would be a serious and unprecedented violation of the property of displaced farmers. The rights of property owners and users are protected under the Syrian Civil Code and the Agrarian Reform Law. According to Article 770 of the Civil Code: “The owner of a thing has the right to all its fruits, products and accessories, unless there is a text or agreement to the contrary.” Meanwhile, Law No. 61 of 2004, which amends some state land distribution decrees, states: “The beneficiary of state land (agrarian reform or private state properties) is considered the owner of the land distributed to him from the date of approving the distribution by the governorate accreditation committee. The land is registered in his name in the Land Registry by request of the competent directorate of agriculture and agrarian reform.”
On the other hand, if the current reliance on Law No. 51 of 2004 lies only in the method for carrying out public auctions, with no consideration for assets or private properties, then this entails serious violations of due process, the Civil Code and even the Anti-terrorism law. Assuming that the trials of landowners or beneficiaries were carried out under the Anti-Terrorism Law, then Law No. 51 may not be applied to their private properties. Instead, courts must adhere to the procedures laid out in the Criminal Procedures Code regarding the seizure and implementation of the convicted person’s assets.
The lists of farmlands being offered for investment were displayed on advertisement boards across the Hama governorate, including in the various districts and sub-districts of Souran, Mhardeh, and Salamieh and in the agricultural outreach units – outreach units are affiliated with the Ministry of Agriculture and Agrarian Reform; they include agricultural experts and engineers and provide technical support to farmers. For example, 51 lists were published in the outreach units in Morek, within the Souran district. The Syria Report obtained 35 copies of the lists, which included pistachio farms in Morek and the nearby town of Al-Lahayeh.
The lists included boxes with the details of the lands under auction, such as surface area, the number of trees, the name of the land’s “possessor” which is defined as the “actual investor of the land in 2010, according to the records of the outreach unit, the farmer league or the testimony of the village headman”. Here it appears yet again that the regime is attempting to exploit a legal loophole, this time involving the issue of the “possessor” of a plot of land, in order to take ownership of landowners. Possession is an individual’s control over something, such as having the right of usufruct, or to utilise a piece of real estate. Possession is temporary, if there is a sufficient justification, reason, or project underway to seize the property. The right of usufruct is the right to use something that belongs to others. This right grants its holders direct authority over the property so that they may use it without the owner’s permission.
The lists also included the age of the trees and their expected rate of production, according to estimates made by the spatial-technical committees. These estimates are to serve as a basis for the bidding process. The lists were signed by a specialised agricultural engineer, the village mayor, the outreach unit president, the farmer’s union president and the secretary of the party team. The signatories are themselves members of the spatial-technical committee.
The auctions were preceded by the formation of a committee that was meant to consider the objections submitted by rights holders whose farmlands were included in the lists. Objections had to be accompanied by a real estate registration statement and any documents available to remove their lands from the lists. Sources told The Syria Report that the committee has not yet received any objections, as any legitimate rights holders are displaced and now live in outside regime territory, making them unable to present objections in person.
A copy of Circular No. 30
