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.