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Explained: Freezing and Seizure of Property in New Amendments to the AANES Anti-Terrorism Law

09-07-2024/in Analysis & Features, HLP /by Rand Shamaa

On June 23, the Autonomous Administration in North and East Syria (AANES) amended the Anti-Terrorism Law No. 7 of 2021, without providing justifications for conducting these amendments. Even after the new amendments, the law remains similar to the Syrian regime’s Anti-Terrorism Law No. 19 of 2012, which threatens housing, land, and property rights.

Law No. 7 of 2021 criminalises and punishes anyone who conspires to commit a terrorist act, establishes or joins a terrorist organisation, funds it, or possesses, manufactures, or transports weapons and explosives with the intent to commit a terrorist act, or promotes such acts. Besides imprisonment and fines, the law grants the public prosecution and the court the authority to freeze the movable and immovable assets of anyone who commits these crimes, provided there is sufficient evidence, to protect the rights of the AANES and the victims.

The new amendments to Law No. 7 of 2021 maintain the penalty of freezing the assets of those accused of terrorism but omit its definition without providing an alternative. Originally, Law No. 7 defined the freezing of assets as prohibiting the disposition of movable and immovable assets, including preventing their transfer, conversion, or change in form for a certain period, or during investigation and trial stages. This definition was verbatim from the Syrian regime’s Anti-Terrorism Law No. 19 of 2012.

Law No. 7 of 2021 had granted the public prosecutor discretionary power to freeze the movable and immovable assets of those accused of terrorism if there was sufficient evidence. The purpose of freezing assets is to prevent the accused from smuggling the assets and ensure the rights of the victims and the AANES. Under the new amendments to Law No. 7 of 2021, grants, in addition to the prosecutor, the governing body of the People’s Defence Court the right to freeze the assets of those accused of terrorism. This aims to address cases where the public prosecutor refrains from freezing the assets.

The Governing Body of the People’s Defence Court is the judicial body that tries defendants appearing before it. The People’s Defence Court is specialised in handling terrorism-related crimes and those threatening the security and interests of the AANES, according to the Social Justice Charter issued in 2019. This Charter acts as a judiciary law, outlining the types, levels, and jurisdictions of courts, as well as the appointment, rights, dismissal, and removal of judges.

The People’s Defence Court is an exceptional court, which contradicts the AANES’ Social Contract that prohibits the establishment of exceptional courts. This court does not allow defendants to have legal representation by a lawyer, nor does it allow defendants to know the charges against them, thus it does not adhere to the criminal procedure law of ordinary courts in the AANES, Law No. 8 of 2020. Therefore, the court can freeze and seize the assets of defendants during their trials in absentia, without retrial upon their capture. This exceptional status enables the People’s Defence Courts to potentially violate defendants’ rights, including property rights, through asset freezing and seizure based on trials lacking fair trial guarantees.

This bears a significant resemblance to the Anti-Terrorism Court Law No. 22 of 2012, effective in regime-controlled areas, which states that the Anti-Terrorism Court is primarily responsible for hearing terrorism cases. This court has extensive exceptional powers to disregard legal procedures and fair trial guarantees; it can try defendants in absentia, impose the harshest penalties, and confiscate all their movable and immovable properties. The law does not require retrial upon the defendants’ capture unless they voluntarily surrender.

A notable difference between the terrorism courts of the regime and the AANES is that, Law No. 7 of 2021 grants the People’s Defense Court the discretionary power to decide whether to confiscate the property of a defendant convicted of terrorism or not. This is in contrast to Law No. 19 of 2012, applied in regime-controlled areas, which mandates the Terrorism Court to confiscate the property of a convicted defendant.

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: The General Commission for the Management and Protection of State Properties

03-01-2024/in Analysis & Features, HLP /by Alicia Medina

On December 28, 2023, Syrian President Bashar Al-Assad issued Law No. 43, establishing the General Commission for the Management and Protection of State Properties (GCMPST). The aim is to secure steady and permanent resources for the public treasury through the management, maintenance and investment in the state’s privately owned properties.

This new General Commission is financially and administratively independent although it is funded from the government’s budget.

Before the establishment of this General Commission, the state’s private properties were managed by two entities; the Directorate of State Properties and Agrarian Reform under the Ministry of Agriculture and Agrarian Reform, and the Directorate of Property Affairs under the governorate councils. Law No. 43 stipulates that all employees of the aforementioned directorates are automatically transferred to the new GCMPST, retaining their legal status in terms of wages and seniority.

The Government had approved, at the beginning of October 2023, a draft law to establish a public authority with legal and financial independence to protect and manage state properties and optimise their investment in a manner that generates higher financial returns. This coincided with another draft law ratified by the Parliament on November 30, 2023, granting the Prime Minister the authority to manage and invest confiscated movable and immovable funds and properties under executed judicial rulings. The Parliament referred the law to the President for approval and publication. Law No. 43 related to the General Commission for the Management and Protection of State Properties is not specific on the subject of properties confiscated under executed judicial rulings, which is expected to be addressed in a subsequent specialised law.

Law No. 43 emphasised that the new Commission’s role is only to follow the implementation of the State Properties Law No. 252 of 1959, and the Agricultural Reform Law No. 161 of 1958 and their amendments. Law No. 43 did not grant the Commission the power to apply other previous laws regulating state properties, such as the Maritime Public Properties Law No. 65 of 2001. The reason for excluding these laws is unclear, despite anything indicating that they ceased to apply.

Law No. 43 defines the structure, powers and operational mechanism of the General Commission. It stipulates that the Commission will have a General Director and a board of 11 representatives from various ministries and bodies, chaired by the Minister of Agriculture and Agrarian Reform. The board includes the General Director of the Commission, the Deputy Director of the Commission, the Director of the Planning and International Cooperation Commission, representatives from the General Directorate of Cadastral Affairs, the Higher Regional Planning Council, the General Union of Farmers and the Ministries of Finance and Water Resources. The board’s chair can invite specialists to attend the board meetings as non-voting participants.

The board’s general responsibilities include approving strategies and annual plans related to the protection of the state’s private properties, approving the annual budget, the annual report on the Commission’s activities, proposing legislation and internal regulations related to the Commission’s work, and accepting donations and contracting with experts. These responsibilities are broadly similar to those granted by specific laws to other public authorities.

Law No. 43 states that the Prime Minister is responsible for appointing the General Director of the Commission, whereas other laws about public authorities specify that the General Director is appointed by presidential decree. The General Director exercises the powers of representing the Commission in legal matters, implementing the board’s decisions, plans, and programmes, and preparing the budget draft and annual report.

The law also makes the General Commission accountable solely to the Minister of Agriculture, who already chairs the Commission’s board. This is unusual because it is typically expected that such a public authority should be accountable to a different entity not involved in its management, such as the Ministry of Justice, especially given that the matter involves public properties, a large portion of which were private properties that have been confiscated or appropriated by the Syrian state. Additionally, the law does not require a representative from the Ministry of Justice to serve on the Commission’s board, whose key duties include proposing legislation and regulations related to the Commission’s operations.

Equally surprising is the exclusion of the Ministry of Interior from representation on the board of the General Commission. Instead of the Ministry of Interior being responsible for protecting public properties from encroachments and violations, Law 43 stipulates the establishment of a judicial police force specific to the Commission, appointed by the Minister of Agriculture upon the recommendation of the General Director. The law assigns this judicial police force the task of drawing up reports against violators, removing violations and referring these reports to the judiciary.

Explained: Amendments to Syria’s General Mobilisation Law

03-01-2024/in Analysis & Features, HLP /by Alicia Medina

Syrian President Bashar Al-Assad issued Law No. 25 on November 28, 2023, which amends the General Mobilisation Law, originally issued by Legislative Decree No. 104 in 2011. Law No. 25 clarifies that the concept of general mobilisation involves utilising the country’s human and material resources, especially military resources, to serve the defence efforts of the nation’s sovereignty in times of war and in cases of internal and external threats and disasters.

The essence of a mobilisation law is to empower the executive authority with the capabilities to conscript individual properties and restrict freedoms for the purpose of general mobilisation. Law No. 25 does not specify any form of oversight for potential violations and infringements upon individual properties.

Under the new law, properties can be forcibly seized for mobilisation purposes. For instance, owners of large vehicles can be compelled to transport weapons and ammunition to military bases, or private buildings can be seized and converted into military headquarters. In this sense, the mobilisation law aligns with the principles of the 1962 Emergency Law, repealed in 2011, which granted martial law authorities the power to seize movable and immovable properties, impose temporary guardianship on companies and institutions, and defer debts and obligations due upon seizure.

Law No. 25 grants executive and local administrative bodies the authority to requisition buildings, facilities and lands, placing them at disposal according to mobilisation plans. The new law also increases the obligations of institutions and companies during mobilisation, requiring them to allocate buildings, facilities and lands as per mobilisation plans.

The new law retains the provisions of the old General Mobilisation Law No. 104 of 2011, which obligates individuals to offer their real and personal properties as needed for mobilisation activities. The law preserves the right of these individuals to receive fair compensation in accordance with laws and regulations. As per Law No. 25 of 2023, the rental fees for real estate and commercial premises are set not to exceed the current market price, plus the costs of maintaining buildings and facilities if they are damaged due to use in mobilisation.

There has been no change in the mechanism for determining the fees for real estate and buildings, which is led by appraisal committees formed by the Prime Minister and includes experts from relevant ministries (the law does not specify which ministries). Owners of properties requisitioned for mobilisation can object to the committee’s decisions regarding the determined fees. Objections must be registered with a special reconsideration committee for reviewing fee values within seven days of being notified of the appraisal committee’s decision. However, lodging an objection does not halt the implementation of the general mobilisation decision.

The reconsideration committee is formed by a decision of the Minister of Defence and includes a judge nominated by the Ministry of Justice, a representative from the General Administration in the Ministry of Defence, and a delegate from the ministry concerned with the materials subject to mobilisation. Decisions of this committee on appeals are final.

Notably, the formation of the reconsideration committee by the Minister of Defence affects its credibility, as this ministry has an interest in the mobilisation activities and is not a neutral party.

Under Decree No. 104, the General Mobilisation Law imposed a prison sentence ranging from three months to two years for anyone who violates the provisions of mobilisation preparation or refuses to comply with requests made. Military courts have jurisdiction over all crimes included in the General Mobilisation Law according to Article 40 of the law.