Syria

From Criminal Defense Wiki
Jump to: navigation, search
Globe3.png English  • العربية

Introduction

Background

Syria is located in the Middle East, and was established after World War I as a French Mandate, emerging from the former Ottoman Empire. Today, Syria is a “democratic, popular, socialist, and sovereign state.”[1] Syria borders Lebanon and the Mediterranean Sea on the West, Turkey to the North, Israel to the southwest, Jordan to the south, and Iraq to the east. Syria is home to several different ethnic and religious groups, including Alawite, Sunni, Armenians, Christian Arabs, Kurds, Druze, Assyrians, and Turks. Today’s dominant ruling party in Syria is the Arab Socialist Ba’aath Party, which has been in power since the 1963 Syrian coup d’état.

Type of system

Until the 1980s, the Syrian Judicial System was a combination of French, Ottoman, and Islamic laws, with the criminal codes being based specifically on French law. Following Syria’s independence from France, Islamic law was applied, and is a major source of legislation.[2]

The current Syrian judicial system is composed of secular and religious courts. A judge is selected by the Minister of Justice to be head of the public prosecution, in which the law organizes the Secular courts hear both civil and criminal matters. The lower levels of secular courts are the Courts of Conciliation (Mahkim Al-Sulh), Courts of First Instance (Mahkim Al-Bidaya), Juvenile Courts (Mahkim Al-Ahdath), and Customs Courts (Al Mahkama Al-Jumrukiea). The Court of Assize is a criminal court, which deals with cases with the potential punishment exceeding 3 years of imprisonment.[3] The Court of Appeal is also divided into a civil and criminal branch. Decisions made by the Courts of Conciliation and Courts of First Instance may be appealed by the Court of Appeal. Any decision made by the Court of Appeal cannot be appealed, but nullified by the Court of Cassation- the highest court in the Syrian judicial structure.

Decisions of the Court of Assize may be appealed before the Court of Cassation, which is subdivided into 4 specialized branches: a civil branch, a criminal branch, a religious branch, and military branches. This court has the jurisdiction to resolve judicial matters.

The Supreme Constitutional Court (Al Mahkama al-Dusturiyah al-Ulya) is located in Damascus, and consists of 3 chambers: criminal, civil, religious, and military matters. It is the highest independent jurisdictional authority. This court does not hear appeals, and is not permitted to question “the constitutionality of the laws put by the President of the Republic to popular referendums.” (Article 148) Many human rights organizations have called for the abolishment of this court, as it prosecutes defendants “on the basis of vague charges that criminalize freedom of expression.”[4] However, it President Bashar al – Assad issued legislative decree No. 53 on April 22, 2011, abolishing the Supreme State Security Court. All cases pending before this Court have been referred to the competent judicial authority as provided for by the Criminal Procedure Rules.

Religious courts (Mahkama Sharia) have jurisdiction for personal matters. There are different courts for different sects and religions: Shari’a courts for Sunni and Shi’a Muslims, Madhhabi courts for Druze, and Ruhi courts for Christians and Jews. Shari’a courts have a general jurisdiction on all Syrians, regardless of their religion, and any non-Syrian who comes from a country that adheres to Islamic personal status laws. Personal status law is a set of rules or regulations applicable to marriage, custody, inheritance, and marriage. Today, only a few countries apply sharia law in full covering both personal status law and criminal proceedings, such as Saudi Arabia, Iraq, and Yemen. In Syria, Sharia law is only applicable to personal status law issues.

The field military courts, headquartered in Damascus, try political cases. In these courts, to which lawyers have no access, the accused have no rights.

Access to Counsel

Although Article 51(3) of the Constitution guarantees legal aid to those who are incapable of securing legal representation, in reality a judge will often simply register the name of any lawyer present in the courtroom on the day of the trial on the file of the accused. This is not taken as binding the lawyer to represent the accused, but leaves the accused without any legal representation.

Pre-trial detention

Pre-trial detention is a commonly used practice in Syria. Although the constitution specifies the right of presumed innocence, there is no ability for detainees to question or challenge the lawfulness of their detention in front of a court. The prosecutor is the only power that can decide pre-trial release. This is against principles of international standards for pre-trial detention, as it violates the right to liberty and threatens the right to presumed innocence.

Torture

Torture is not specifically defined in the Syrian Constitution, or within the Code of Criminal Procedure. Torture is permitted when aimed at extracting a confession. Moreover, there is no clause or prevision regarding the punishment of those in a position of superior authority who were aware of the likelihood, or actual occurrence, of torture and failed to take measures to prevent it from taking place.

State of Emergency Act

The State of Emergency Act came into force on 9 March 1963, and was lifted on 19 April 2011, after tens of thousands of demonstrators protested against it. This Act was based on the concept of an imminent threat to the integrity of the country, in which authorities are authorized to take any and all measures which are provided by the law to protect the “territorial waters and air space of the State, whole or in part, from the dangers arising from external armed aggression by transferring some of the powers of the civil authorities to the military authorities.”[5]

Terrorism Act

Since the lifting of the State of Emergency Act, a new Terrorism Act was brought in on 7 February 2014, which is more severe than the State of Emergency Act and is still in force.

Sources of defendants' rights

Articles 51 to 53 of the Constitution of Syria state that all defendants shall be presumed innocent until convicted by a final court ruling in a fair trial, and guarantees legal aid to those who are incapable to do so. Additionally, the new Constitution stipulates the principle of nullem crimen sine lege – the presumption of innocence. Additionally, Articles 51-53 emphasizes access to justice, the right of defense, non-retroactivity of laws, prohibition of torture and arbitrary detention.

Pre-trial procedure

Police procedures

Arrest

Article 53 of the Constitution stipulates that no one may be investigated or arrested, except under an order or decision issued by the competent judicial authority. However, an exception can be made if the person was arrested in the case of being caught in the act, or with intent to bring the person to the judicial authorities on charges of committing a felony or misdemeanor.

Additionally, the Constitution stipulates that a person who is arrested must be informed of the reasons for his arrest and his rights, and may not be incarcerated in front of the administrative authority except by an order of the competent judicial authority.

Searches

Article 31 of the Constitution emphasizes the inviolability of homes, and that they may not be entered or searched except under conditions specified by law.

Rights of the accused at all times

Presumption of innocence

The new Syrian Constitution calls for the principle of nullum crimen sine lege (Latin, “No crime, no punishment”), which is a moral principle of law, stipulating that a person cannot face criminal prosecution without a violation of penal law, as it existed at the time. Article 51(1) states that “Punishment shall be personal; no crime and no punishment except by a law”

Right to counsel

Article 51(3) specifies that the State shall guarantee legal aid to those who are incapable to do so, in accordance with the law.

Fair trial rights

Right to a fair trial

Article 51(2) specifies that every defendant shall be presumed innocent until convicted by a final court ruling in a “fair trial.”

Right to a speedy trial

Suspects are able to be held for a period of 48 hours pending the verification of their arrest, and this time period may be extended with the consent of the public prosecutor.

Suspects are then to be held for 7 days pending investigation and the interrogation in the case of certain crimes, with the possibility of renewing this period for a maximum of 60 days.[6]

Right to counsel

Article 51(3) of the Constitution specifies that the State shall guarantee legal aid to those who are incapable to do so, in accordance with the law.

Freedom from torture

Article 53(2) provides that “no one may be tortured or treated in a humiliating manner, and the law shall define the punishment for those who do so.”

Freedom from punishment

Article 391 of the Syrian Criminal Code stipulates that “Anyone who batters a person with a degree of force that is not permitted by law in order to extract a confession to, or information about, an offence shall be subject to a penalty of from three months to three years in prison.”[7]

Court procedure

Appeal

The Syrian Constitution does not specifically provide for the right to appeal, however, the Religious Courts and Court of Cassation allow for appeals to be submitted and heard.



References

  1. Article 1, Constitution of the Syrian Arab Republic.
  2. Article 3, Constitution of the Syrian Arab Republic.
  3. Globalex, Constitution Law and Courts’ System in the Syrian Arab Republic.
  4. Human Rights Watch, Syria: Dissolve the State Security Court.
  5. International Committee of the Red Cross, Practice Relating to Rule 101: The Principle of Legality.
  6. Legislative Decree No. 55/2011, amending Article 17 of the Code of Criminal Procedure
  7. Law No. 148/1949 of the Syrian Criminal Code.



See Criminal Justice Systems Around the World