Antiterrorism_Court – Syria Report

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Explained: Laws for Handling the Properties of Criminal Convicts

30-01-2024/in Analysis & Features, HLP /by Rand Shamaa

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.

Penal Code

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.

Explained: Syria’s Law on the Disposal of Confiscated Properties

16-01-2024/in Analysis & Features, HLP /by Rand Shamaa

After its approval by the Parliament on October 30, President Bashar Al-Assad ratified the Law on the Disposal of Movable and Immovable Properties Confiscated under a Final Judicial Ruling. This Law, No. 26, was issued on December 7, and published in the Official Gazette.

Law No. 26 of 2023 contains only seven articles. Article five granted the prime minister the authority to issue special regulations for the management, investment, and transfer of ownership and allocation of confiscated properties under a final judicial ruling based on a proposal by the ministers of finance and agriculture and agrarian reform.

The Law also assigned the Ministry of Finance the tasks of managing and investing in real estate within zoning plans and managing movable properties and company shares if they were confiscated by a final judicial ruling issued by either the Antiterrorism Court or the Criminal Court. Meanwhile, the government gave the Ministry of Agriculture and Agrarian Reform authority to manage lands outside of zoning plans that were confiscated under the aforementioned judicial rulings.

Article three stipulated the transfer of ownership of confiscated properties and assets to public entities under a final judicial ruling. The prime minister, based on the suggestion of the concerned minister, determines these entities via decree. The Law also applied its provisions to properties that were confiscated before its issuance, where they are seized for the management, investment, and transfer of ownership to public entities in the state.

Law No. 26 sparked widespread controversy due to its potential violations of housing, land, and property rights. Therefore, the Ministry of Finance published a document detailing the justifications for enacting the Law. The ministry clarified that the legal framework for confiscation rulings under a final judicial decision was based on the provisions of the Penal Code, the Antiterrorism Law No. 19 of 2012 and other existing laws.

The justificatory document was issued without a number or date. It rationalised the need for Law No. 26 of 2023 due to the lack of legislative texts governing the management and investment of movable and immovable properties confiscated under a final judicial ruling, and the absence of legislative provisions for transferring the ownership of such properties to public entities. Previously, these procedures were organised through ministerial decisions. The document considered Law No. 26 as a regulation for transferring the ownership of confiscated properties to the state and determining the entity responsible for their management, thereby preserving them and ensuring their optimal investment.

The justificatory document focused solely on justifying the need for a law to legislate the management of confiscated properties and their ownership transfer to the state. However, it did not justify the property rights violations within the Law itself. The final judicial confiscation rulings, especially in crimes classified as “terrorism,” are based on show trials that lack legal principles and the rules followed in criminal procedures. The exceptional courts that issue these rulings do not possess the characteristics of neutrality and independence, and the defendants do not have the opportunity to defend themselves. Often, the outcomes of these trials are predetermined and politicised, aiming to impose the harshest penalties on opponents of the regime and confiscate their properties.

For instance, the membership of antiterrorism courts includes security officers, which contradicts the conditions for appointing judges as stipulated in the Judicial Authority Law No. 98 of 1961, creating a flaw in the formation of these courts.

Additionally, the trials conducted before them do not adhere to the legal procedures outlined in the Code of Criminal Procedure. The accused in these courts do not have the guarantees of a fair trial in terms of the trial’s public nature, presence and the right to defence. Article 7 of the Antiterrorism Court Establishment Law No. 22 of 2012 exempts the court from adhering to legal procedures in all prosecution and trial stages. Under this Law, the court can issue a conviction and confiscate properties in absentia. The terrorism court also violates the defendant’s right to appeal, as its in absentia judgments are not subject to retrial if the accused is apprehended, which contradicts the general rules that the annulment of an in absentia criminal judgment upon the apprehension of the accused and the initiation of a new trial.

These violations are sufficient to invalidate the rulings issued by the terrorism court, including the confiscations of the convicts’ properties. The nullity extends to all procedures for transferring ownership of confiscated properties to the state under Law No. 26 of 2023.

Here, it is essential to distinguish between Law No. 26 of 2023 and Law No. 43 of 2023, which pertains to establishing the General Commission for the Management and Protection of State Properties. Law No. 43 included provisions for organising a general commission for managing and protecting state properties, its formation and defining its tasks. Its main functions focus on managing, maintaining, and investing state properties, which may include assets previously confiscated by a final judicial ruling from the terrorism court and then had their ownership transferred to the state under Law No. 26.

Explained: New Law for Managing Funds Confiscated via Judicial Rulings

05-12-2023/in Analysis & Features, HLP /by Rand Shamaa

The Parliament approved a bill on November 30 granting the Presidency of the Council of Ministers the authority to manage movable and immovable assets confiscated under final judicial rulings. The bill will now be sent to the President for ratification, issuance, and subsequent publication in the Official Gazette.

The bill stipulates that confiscating assets and properties must be based on a final, unappealable ruling. That is, if the judgement were appealable, the transfer of ownership from the defendant to the state cannot be executed.

The law has not yet been published. Official media only published some articles about it. According to the available information, the bill could target political opponents accused of “terrorism” in special courts. The assets of these accused are provisionally seized then confiscated under judgments issued by the Antiterrorism Court, established under Law No. 22 of 2012. This court has the authority to issue judgments, either in the presence or absence of the defendant, whereby it confiscates all movable and immovable properties of the defendant. The legal norms of litigation do not bind the Antiterrorism Court, and its judgments lack the necessary guarantees for fair trials.

This new law also could apply to verdicts issued by criminal courts that order the confiscation of movable and immovable assets, regardless of the nature of the case. This appears in harmony with the official statements that indicated that those convicted of corruption cases may be included in this law.

This new bill differentiates between properties located within and outside zoning plans in managing real estate assets. Within zoning plans, the responsibility of managing these properties lies with the Ministry of Finance, which also has the authority to manage movable assets, shares, or stakes in a company. The Ministry of Agriculture and Agrarian Reform will manage properties outside of zoning plans.

The law stipulates that the Prime Minister is empowered to issue a decision, upon the request of the relevant minister, to transfer the ownership of confiscated movable and immovable assets to public entities. If the beneficiary public entity is administrative, i.e., a public facility based on public service, such as a municipality or a government department, no fees, taxes, or other compensation are owed. If the beneficiary public entity is of an economic nature, i.e., a public sector company engaged in commercial, agricultural, industrial or financial activities, then a financial compensation has to be paid to the public treasury.

The Prime Minister can allocate a portion of seized properties to any public entity upon the request of the relevant minister.

The new law gives the Council of Ministers the authority to issue a special system or executive instructions based on the Ministers of Finance and Agriculture proposal. This will include defining the mechanism for managing, investing, transferring ownership and allocating these movable and immovable assets transferred to the state.

This new law applies retroactively, meaning it applies even if the confiscation occurred under judgments issued before the enactment of this law. The final article of the law states that “without prejudice to the rights accrued to others under the effective laws and without affecting them, the provisions of this law shall apply to movable and immovable assets confiscated under a final judicial ruling, whether the ruling was issued before or after the enactment of this law.” This contradicts a well-known principle in criminal law, which prohibits the retrospective application of criminal and penal provisions and requires immediate application to subsequent instances only.

Article 10, paragraph 1 of the Syrian Penal Code states: “Any new law that amends the method of executing a punishment in a way that changes its nature shall not apply to acts committed before its enforcement unless it is more favourable to the defendant or the convict.” This means that the retrospective effect of the new law in procedural matters is only permissible if it benefits the convict. However, the new law stipulates its retrospective application despite being against the interests of the convict.