power_of_attorney – Syria Report

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Travel Documents Denied for Regime Defectors

11-06-2024/in HLP, News /by Rand Shamaa

The National Security Office, Syria’s highest security authority, has issued new instructions denying certain categories of Syrians the right to obtain passports through embassies and consulates abroad or through immigration and passport offices within Syria, according to a report published on May 15 by opposition website Sawt Al-Asima

The categories primarily affected include defectors from the army and security agencies, as well as public sector and ministry employees who left their positions without formally resigning. Many government bodies do not accept resignations from their employees, forcing them to leave and be considered as having abandoned their job.

The report states that the implementation of these instructions began in early June, following the dissemination of lists containing the names of defectors and those who abandoned their jobs. It is not clear from the report whether settling one’s security status has become a prerequisite for granting passports to these individuals. A security settlement involves an investigative process where the subject must confess to any anti-regime activities they have engaged in. This process does not guarantee that those who undergo it will not be arrested or forcibly disappeared.

Syrian Penal Code No. 148 of 1949 stipulates that a government or public sector employee who leaves their job without legal approval, or who fails to return to work within 15 days after their leave ends, is committing the crime of job abandonment. This offence is punishable by imprisonment for three to five years and a fine. Since 2011, the Syrian authorities have added political dimensions to job abandonment, considering anyone who leaves their job to be a security fugitive. Abandoning a military position is subject to the Military Penal Code No. 61 of 1950 and prosecuted for desertion.

To obtain a passport, whether within Syria or at embassies, several documents must be presented. These include the old passport or travel document, a residency card, personal identification, a copy of the family ledger, personal photographs, and for males aged 17-42, a military service document (such as a deferral certificate, discharge certificate, or proof of exemption fee payment). The application must be submitted by the individual themselves or by a relative up to the third degree, such as an uncle or aunt, with proof of relationship.

The negative impact of these instructions goes beyond denying these individuals the freedom to travel and reside abroad legally. It also prevents them from completing transactions in Syria through powers of attorney granted to their relatives or lawyers inside Syria. In matters of housing, land, and property rights, many Syrians living abroad must authorise a relative inside Syria to manage their properties. Since embassies require a passport to notarise powers of attorney, this decision effectively prevents them from notarising these documents at Syrian embassies abroad. Therefore, the inability of these groups to obtain passports abroad means they cannot secure other necessary documents to protect their property rights.

Syrian Civil Code No. 84 of 1949 does not set conditions for issuing powers of attorney, whether inside or outside Syria, beyond specifying the “subject of the commitment,” which is the action or task the representative is required to perform. Personal identification cards of the principal and representative are necessary for completing the powers of attorney but are not a condition according to the civil code. Similarly, Notary Law No. 15 of 2014 does not impose conditions on notarising powers of attorney; it only defines the notary’s duties, which include notarising contracts, declarations, and documents, recording them, and providing certified copies upon request.

Since 2011, numerous decisions and security directives have been issued to impose restrictions on issuing powers of attorney, both domestically and internationally. One such restriction is the requirement for security approval for general powers of attorney. Generally, to issue an international specific power of attorney regarding a property, the following documents are required: the principal’s personal identification card, a property registration statement proving ownership, an inheritance certificate if the property is jointly owned by heirs, a clearance certificate from the finance department, and a valid Syrian passport for the principal.

For issuing any power of attorney or any document by a notary public (a power of attorney issued in Syria), Law No. 15 of 2014 does not require a passport, only a personal identification card. If the ID card is unavailable, the individual may present a valid passport as an alternative form of identification.

Therefore, the requirement for a passport when issuing an international power of attorney contradicts the provisions of the law. Moreover, denying certain groups of people the right to obtain a passport lacks any legal basis.

How Non-Recognition of Official Documents Impacts HLP Rights

17-10-2023/in HLP, News /by Rand Shamaa

Many complexities surround the Syrian government’s refusal to recognise civil events, such as marriages, births, and deaths, in areas currently outside its control or those occurring during the opposition’s control of areas later recaptured by the regime forces.

For instance, per the official Syrian civil records, Manal is still listed as single despite having been married for three years and giving birth to a child, who is now one and a half years old and undocumented. Manal resides in the city of Maarat Al-Numan in the Idlib countryside, under the Syrian Salvation Government’s (SSG) control. She cannot register these events with any Civil Status Departments affiliated with the Syrian government’s Ministry of Interior. Consequently, due to her marriage and childbirth, her newly acquired rights to housing, land, and property are now at risk.

The Civil Status Law No. 13 of 2021, an amendment to the old Law No. 26 of 2007, does not recognise documents not registered in the Syrian state’s official records. It states that in a civil event involving a citizen in Syria, the relevant documents should be submitted directly to any civil registry centre responsible for its documentation. Thus, personal status events not registered in the Civil Status Centres of the Damascus government’s Ministry of Interior are not acknowledged. Owners of such undocumented incidents must, instead, go through the process of re-establishing them.

Residents of opposition areas must return to regime-controlled zones to confirm their marriages and register births or appoint relatives or lawyers to do so on their behalf. Many residents fear detainment by security agencies if they return to the regime’s areas of control.

Najwa was forcibly displaced from Darayya with her husband during the forced evacuation of residents and the opposition forces in the summer of 2016. They eventually settled in Idlib. However, her husband passed away in 2018. None of Najwa’s relatives have returned to Daraya, and the possibility of her returning is not under consideration.

Najwa could not sell her share of a licensed building once owned by her deceased husband in Darayya, Rural Damascus, because she isn’t recorded as a married woman in the official registries. She would first need to return to regime-controlled areas or assign one of her relatives to register her marriage at the Civil Status Department, followed by her husband’s death. Only after that can she initiate the legal inheritance procedure for her late husband’s properties.

Sara was displaced from Wadi Barada in Rural Damascus to Idlib with her husband and child at the end of 2016. She faced a significant issue after her divorce. Sara married in 2013 and could not register her marriage at the time because the area was out of regime control. Similarly, she couldn’t register the birth of her child. Consequently, Sara cannot legally document her divorce either. Currently, Sara lives with her son in the Aleppo countryside and holds a family card issued by the SSG in 2017. Her ex-husband now lives in Idlib and has remarried. Documents issued by the SSG or the opposition-run Syrian Interim Government (SIG) are not officially recognised in areas under regime control.

Sara’s father still resides in Wadi Barada and has tried to document her marriage, childbirth, and divorce on her behalf. However, he returned fearing arrest because the regime had issued a warrant for his daughter’s ex-husband for security reasons. Thus, Sara is still officially single, and her son doesn’t exist in official records, which might later hinder him from inheriting from his father.

Umm Omar was displaced from Douma in the Damascus countryside to the Aleppo countryside. Security reasons also prevented her from registering many family-related events. Her husband, Abu Omar, was killed in regime prisons. However, his family managed to get his death certificate before their displacement from Douma in mid-2018. The late husband owned a house in a zoned area in Douma and had businesses. Omar, Umm Omar’s son, was killed by a rocket shell on the Afrin front in the western Aleppo countryside in 2020. Omar had recently married, and his son was born two months after his death. Umm Omar can occasionally return to Douma, but her lawyer advised her against registering her son’s marriage, death, and the birth of her grandson, as her son is also wanted for security reasons.

Umm Omar tried to process the inheritance of her deceased husband in 2019. He used powers of attorney for her children residing in opposition areas. However, government employees were apprehensive about accepting these powers of attorney. Even if Umm Omar manages to process her deceased husband’s inheritance, documenting her son’s marriage and death remains highly challenging. Therefore, it seems that her late grandson and his widow might be unable to claim their inheritance rights in the foreseeable future.

In all the mentioned cases, it is essential to highlight a significant obstacle in Law No. 13 of 2021. Article 44 of this law prohibits any modification or correction of civil status records unless based on a final judicial ruling. This means that to adjust or correct civil status records, one must go through the judicial process, which effectively excludes the poorest and most marginalised due to its costs and the need for a lawyer.

Explained: How Different Types of Power of Attorney Impacts HLP Rights

20-06-2023/in Analysis & Features, HLP /by Rand Shamaa

Updated on December 13, 2023: We made clearer the difference between a power of attorney and a judicial power of attorney.

Syria’s Civil Code, issued under Legislative Decree No. 84 of 1949, regulates the provisions of power of attorney, arranged by a person, known as the principal, before the notary for another person, known as the agent.

The agent, under this power of attorney, can visit all departments, such as the Land Registry and the financial department in their governorate, to perform activities and behaviours that have legal effects on the rights and obligations of the principal, such as buying, selling or renting property, receiving a salary, and more.

A power of attorney is different from a judicial power of attorney, which is a document that a person arranges exclusively for a lawyer before a representative of the Lawyers’ Union to conduct a lawsuit on their behalf before the courts.

The power of attorney is divided into two types:

First is the general power of attorney. The principle is that it does not empower the agent to perform transactions with the principal’s assets, such as selling or relinquishing rights or acknowledgment. Article 667 of the Civil Code stated that the power of attorney mentioned in general terms with no specification for the type of legal work does not empower the agent to do anything but usual management tasks only. These tasks include renting property owned by the principal for fewer than three years, collecting receivables, repaying debts and other transactions required by administrative tasks, such as selling crops or goods prone to damage. Thus, the legal concept of the general power of attorney mentioned in general terms is confined to management tasks rather than transactions.

However, a printed form under the title “general power of attorney” issued by the Ministry of Justice has become widespread and encompasses all kinds of transactions and management. This includes the authority to sell and buy assets in all their types, such as movable and immovable properties. This power of attorney is authenticated before the notary as a general power of attorney that gives the agent the right to handle all the principal’s assets. This has made the matter somewhat ambiguous. But, the jurisprudence of the Court of Cassation has settled that consideration here takes into account not the form of the power of attorney, but rather what it includes in terms of the type of transaction, such as selling, or in terms of its location such as specifying the property’s number. So, if the power of attorney does not include the type of transaction, it is a general power of attorney for administrative tasks only.

However, if it does specify the type of transaction without specifying its location, then the power of attorney is specific in the type of transaction and general in its location. In this regard, the Court of Cassation stated in its Decision No. 2049 of 1998 that as long as the power of attorney with this quality has both a general and specific nature, the agent is not accused of exceeding the boundaries and breadth of the power of attorney.

The General Authority of the Syrian Court of Cassation, the highest Syrian judicial reference, confirmed in its Decision No. 71 of 2002 the rule of possibility of determining the type of transaction in the power of attorney without specifying its location. Therefore, the power of attorney is considered specific in the type of transaction and general in its location, regardless of the form of the power of attorney. Thus, the general power of attorney that included a clause on the sale without specifying the type of property is valid from a legal point of view and enables the agent to make transactions with the principal’s assets.

Second is specific power of attorney, which is the power of attorney that specifies the legal acts required, which could include, for example, managing assets on behalf of the principal, conducting paperwork required by law, and collecting pensions and salaries on behalf of the principal, and others. This means this power of attorney is more specific to the type of work intended to be carried out. The principle is that transactional tasks like selling, donating, and mortgaging require a specific power of attorney, and it is sufficient to determine the legal transactions without specifying their location. Meaning, the specific power of attorney is considered correct if it included selling without specifying the location of the sale, according to Article 668 of the Civil Code.

In principle, all powers of attorney, no matter their classifications, are revocable. That is, the principal can dismiss the agent and terminate or restrict the power of attorney at any time. Unless the specific power of attorney included a clause in its body indicating that it was issued for the benefit of the agent, or for the benefit of another, then in this case only it becomes an irrevocable specific power of attorney. Here, the principal cannot terminate the power of attorney or dismiss the agent without the consent of the person for whose benefit it was issued, according to Article 681/2 of the Civil Code. Therefore, we find that all powers of attorney for property sales issued by the notary rely on the text of Article 681/2, as they render the power of attorney irrevocable, and as a definitive sale certified with an official document.