The legal handling of movable and immovable properties confiscated under a final judicial ruling, as per Law No. 26 of 2023, does not represent an exceptional case within Syrian legislation. Instead, it can be seen as an extension of previous laws such as the Code of Criminal Procedure (Law No. 112 of 1950), Penal Code No. 148 of 1949, and the Antiterrorism Court Law No. 22 of 2012.
Law No. 26 of 2023 is concerned with the management, investment and transfer of ownership of movable and immovable properties belonging to convicted individuals, which have been confiscated under a final judicial ruling issued by any court, whether it is specialised in felonies or terrorism, and under various preceding laws.
Code of Criminal Procedure
Article 322 of the Code of Criminal Procedure (Law No. 112 of 1950) stipulates placing the assets of a defendant convicted in absentia under government control. This is done to exert pressure and compel the individual to surrender themselves for a direct trial concerning the alleged charges. Defendants are tried in criminal courts for crimes deserving a penalty of more than three years imprisonment, including premeditated murder, aggravated theft, forgery of official documents and intentional harm leading to permanent disability.
The criminal court adheres to the procedural rules set out in Law No. 112 of 1950 when issuing an absentee ruling to seize the defendant’s properties. It is obligated to retry the defendant when they are arrested or surrender themselves.
Before the start of an absentee trial, the Criminal Court notifies the fugitive defendant with a “deadline notice,” granting them ten days to turn themselves in. The notification of the deadline is posted at the defendant’s last known residence, in the public square of their town, and on the door of the Criminal Court. If the deadline expires without their appearance, the court’s president issues a decision to place the defendant’s assets under government management. The public prosecutor sends a letter to the Directorate of Cadastral Affairs and State Property Management to seize the defendant’s real estate assets. Only after these steps are completed, does the defendant’s trial in absentia begin. Following the issuance of the absentee judgement, the Criminal Court places the defendant’s properties under state management according to the procedures for managing the assets of an absent person, as per the Personal Status Law No. 59 of 1953.
These assets do not enter the state treasury but are managed by a guardian appointed by the Sharia Court. Article 328 of Law No. 112 of 1950 does not permit the confiscation of the assets of a defendant convicted in absentia, but only their management through a guardian, with the assets to be returned to the convicted individual or their heirs (beneficiaries) once the absentee judgement is nullified. The convicted person in absentia may reclaim their properties upon the lapse of the absentee judgment by limitation or the cancellation of the judgement following the arrest of the defendant or their surrender. At this point, the proceedings of the in-absentia trial and the issued judgement are nullified, and a retrial is conducted in the Criminal Court.
In this case, Law No. 26 of 2023 allows the management and investment of the properties of a person convicted in absentia before the Criminal Court despite not transferring ownership to the public treasury. This includes renting out the property, where the rental income goes to the public treasury. However, the property remains owned by the person convicted in absentia.
Article 69 of the Syrian Penal Code No. 148 of 1949 grants the Criminal Court overseeing the crime the authority to confiscate all items resulting from a felony or intentional misdemeanour or items used or prepared for committing the crime. Thus, Penal Code No. 148 of 1949 covers the actions of the Criminal Court and the Court of First Instance in misdemeanour crimes.
The confiscated assets do not include all of the convicted person’s properties but are limited to the items that were used in the commission of the crime or were prepared for its commission. The Penal Code only specifies that these confiscated items cannot be reclaimed. The law does not provide any provisions regarding the management, investment, transfer of ownership to the state or disposal of these confiscated assets in any manner.
Consequently, Law No. 26 of 2023 does not have a clear role in cases considered to be under the provisions of the Penal Code No. 148 of 1949.
Antiterrorism Court Law
Meanwhile, Antiterrorism Court Law No. 22 of 2012 stipulates the confiscation of properties of the defendant convicted in absentia and the transfer of their ownership to the public treasury. Law No. 22 of 2012 exempts the Antiterrorism Court from following standard legal procedures. It does not oblige it to retry the convicted individual unless they voluntarily surrender themselves. Therefore, an in-absentia trial is considered a legal basis for convicting the accused, which contradicts the guarantees established for a fair trial. This is because an in absentia judgement does not consider the defendant’s right to defend themselves, to be informed of the charges against them or to monitor the correctness of the procedures.
The Antiterrorism Court has extensive powers regarding the assets of the defendant. According to the court’s law, the public prosecutor issues an order to freeze the movable and immovable assets of the defendant, whether they are being tried in person or in absentia. Then, after the verdict is issued, their assets are confiscated for the public treasury’s benefit, following the Ministry of Finance procedures.
Here, Law No. 26 of 2023 authorises transferring the ownership of assets confiscated by a judgment issued by the Antiterrorism Court.