Reform Policies of the Syrian Penal System by Strescom centre

Reform Policies of the Syrian Penal System

Prepared by

Muhanad Alhasani Nael Georges Reviewed by

Ammar Kahf Edited by

Ausama Monajed

Transitional Period Policy Research

Strategic Research & Communication Centre The Strategic Research and Communications Center (SRCC) was founded in 2010 to provide high-quality research and media services to media outlets, government departments, academic institutions and research centers through research, information, analysis and commentary on Syria. SRCC produced a series of original studies examining the main political and socio-economic challenges in Syria â&#x20AC;&#x201C; poverty, unemployment, social and political repression. While this work is of great value and significance as an aid to understanding the region, Syria itself suffers from a shortage of political and social research. Local researchers must therefore participate in bridging this information gap. A deeper understanding of the issues affecting the country can be attained through pairing the philosophy and methodology of Western research with a firsthand knowledge of the situation, and information gathered in the field. The Strategic Research and Communication Centre has therefore joined forces with Syrian and Western researchers and academics in order to achieve this result. The political, economic and social data and the strategic studies will be made available to policy makers, correspondents, journalists, academics with an interest in Syrian affairs, and to all stakeholders. About Transitional Period Policy Research In light of the current changes and challenges in Syria, SRCC launched a research and policy-oriented program to revisit these inter-related issues within transitional research field in order to be a primary resource for any new government, civic groups, and activists. The SRCC will convene the most important indigenous stakeholders to formulate policy recommendations and implementation strategies, serve as a platform for dialogue about competing approaches, and publish papers that lay plans for the impending transition of power in Syria. The new series will focus on several areas including economic development, legal reform, national reconciliation and transitional justice, energy policy, educational system reform, health system reform and foreign policy among others.

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Reform Policies of

the Syrian Penal System

Prepared by

Muhanad Alhasani Nael Georges Reviewed by

Ammar Kahf Edited by

Ausama Monajed

Contents Executive Summary................................................................................................................. 1 Introduction............................................................................................................................ 3 First: Arbitrary Deprivation of Freedom................................................................................... 6 1. Freedom of Expression and Forming and Joining Associations.................................... 6 2. Fair Trial and the Independence of the Judiciary.......................................................... 8 Second: Torture and Impunity............................................................................................... 14 1. Torture in Syria........................................................................................................... 14 2. Establishing Impunity................................................................................................ 16 A. Positive Legislation............................................................................................ 16 B. Absence of the Required Legislation.................................................................. 17 Third: Circumstances in Prisons............................................................................................. 18 Conclusions and Recommendations...................................................................................... 22 References............................................................................................................................ 26 Official Documents........................................................................................................ 26 Books and Reports........................................................................................................ 27 Online Articles .............................................................................................................. 27

Reform Policies of the Syrian Penal System

Executive Summary

The penal system is of paramount importance as a result of its direct impact not only on the rights, freedom, dignity, and physical and mental welfare of citizens, but also on the security, progression and development of society. Any penal policy must take equal account of both the rights of the citizen and the higher interest of society. The current penal policy in Syria neglects the primary purpose of punishment, which is two-fold: rehabilitation and deterrence.(1)

The current penal policy in Syria neglects the primary purpose of punishment, which is two-fold: rehabilitation and deterrence

The weakening of the independence of the judiciary, the reinforcing of the immunity of security agencies and the misguided penal policy – together with the concomitant violation of citizens’ dignity and the increasing sense of injustice – have played the largest part in the outbreak of the Syrian revolution. Drastic measures must be taken at the political, legislative and practical levels, with a particular focus on the eradication of legal provisions which violate freedoms and human rights. Moreover, pertinent legislation must be enacted which recognises the importance of reinforcing oversight of the observance and application of such laws. One of the priorities of the transitional period will be to uphold international law and to formulate penal policies and legislation that complies with the international conventions on human rights. This derives from the fact that the supremacy of international law over domestic law is considered to be one of the most fundamental international principles, and has long been explicitly acknowledged before the United Nations committees by governments party to such conventions, including the Syrian government.(2) Article 27 of the Vienna Convention on the Law of Treaties stipulates that ”A party may not invoke the provisions of its domestic law as justification for its failure to perform a treaty.”

(1)

The deterrence aspect aims to combat impunity: punishment exists to deter individuals who are considering committing a crime, which provides preventative measures leading to a reduction in the commission of crime. Yet despite the importance of this first aspect, it is not sufficient to prevent crime or reduce crimes rates. Therefore the second aspect of reform should not be overlooked under any circumstances, as it relates directly to the higher interest of society. The punishment must contribute to the reform of the perpetrator of the crime so that, upon release, he may in turn contribute towards building society, rather than constituting a burden or threat to it through reoffending.

(2)

This was confirmed by Syria’s Justice Minister on 4 May, 2010, during the forty-fourth session of the Committee Against Torture.

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Reform Policies of the Syrian Penal System

This study addresses the most significant weaknesses of the penal policy followed in Syria since the Baath Party came to power after the 1963 coup. It also points the way towards the radical penal and political reform in light of the international conventions on human rights which Syria has ratified and undertaken to implement. This study would undoubtedly contribute towards steering Syrian penal policy back in the right direction. This policy paper recommends that the transitional government implement the following policies: 1. Adoption of the 1950 Constitution as a starting point until another one is drafted by an elected body. 2. Abolition of all repressive and freedom-restricting laws and legislation, as well as the abolition of extraordinary and exceptional courts of all forms. 3. Abolition of the decrees that grant absolute power to intelligence personnel. 4. Placing all detention and arrest sites under judicial supervision. 5. Reinforcing respect for the terms of the international conventions on human rights 6. Ratification of all international human rights conventions and associated protocols 7. Modernising laws, regulations and procedures of criminal trials to ensure prompt, impartial and diligent justice. 8. Reinforcing the principle of transparency through the creation of a database containing the names of detainees, dates of their arrest, charges of which they are accused, their places of detention and their visiting dates. 9. Raising awareness and disseminate a culture of human rights. 10. Emphasising the principle of separation of powers and the reinforced independence of the judicial authority. 11. Establishment of an office of national accountability, as part of the Public Prosecutor office, to take on the task of supporting victims who have lost a provider or relative in the Syrian Revolution and to prosecute their cases in order to attain their rights. 12. Limiting, as far as possible, the use of detention and custodial penalties.

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Reform Policies of the Syrian Penal System

Introduction

The era that began in the wake of the coup of the 8th of March, 1963, laid the foundations of tyranny, despotism and autocracy. It witnessed the enacting of emergency legislation(3) and other freedom-restricting laws and decrees. The Syrian Constitution of 1973 was the major factor in Syria’s movement towards a phase of dictatorship, as it placed legislative, executive and judicial powers into the hands of the President of the Republic. The concept of security deviated from its proper course, neglecting its role in the areas of psychology, society, economy, life and livelihood, environment and health, among other such aspects of security which were once enjoyed by citizens under modern constitutions. The intelligence forces imposed a model of the ‘security arm’, which intervenes ruthlessly at every opportunity and in all aspects of the private life of the people, thereby suppressing the margin of freedoms and extinguishing the flame of hope which nourishes the populace. This resulted in societal eruptions and tremors for which Syrians have paid in blood. This painful reality, which has been Syria’s lot for decades, has cast its

The intelligence forces imposed a model of the ‘security arm’, which intervenes ruthlessly at every opportunity and in all aspects of the private life of the people, thereby suppressing the margin of freedoms

shadow over all aspects of life. Penal policy has deviated from its objectives: instead of focusing on rehabilitation and reintegration into society, one of its primary aims has been to preserve the authority of the ruler. Accordingly, retribution and revenge have become rampant, particularly against political prisoners. This punitive view has its roots in the shadowy Middle Ages when the concepts of nation and authority were interchangeable, and so an enemy of the authority was necessarily an enemy of the nation. The importance of police authority – in terms of the task entrusted to it by society of watching over the security and comfort of citizens – cannot be denied. Thus, an effective, qualified apparatus must exist, capable of intervening when necessary to prevent various forms of criminality, and of engendering peace of mind within society. The effectiveness of police authority increases, whereby it becomes more organised and intrudes less into the lives of the people. On the other hand, as the (3)

A state of emergency was declared on the morning of the 8th of March, 1963, by means of Military Order No. 2 issued by the then Revolutionary Command Council. (This was inconsistent with the requirement of Emergency Law No. 51 of 1962, which prescribes that states of emergency must be declared by the head of government with the approval of parliament.)

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values of isolation, brutality, barbarity, monopolisation and usurpation are aggravated, the security services become increasingly disorganised and multifarious, and their interference in the lives of the people and society becomes greater. Furthermore, the interdependence, correlation and indeed inter-proportionality between the concepts of security and justice throughout history is also well known. Security and safety can only be provided on a solid foundation which guarantees justice and morality within society. Meanwhile, given its requirement of submission to duty and selfcontrol of unbridled passions, justice cannot exist unless the appropriate environment is provided by means of security. Both aspects are gained progressively through the intellectual, religious and ethical legacy of civil societies. A civilised society must also have a legitimate legal system enacted by elected legislative bodies; the citizen must feel that such bodies actually represent him, and that their actions are an expression of his interests rather than of the narrow, factional interests of the beneficiary ruling class. It is councils such as these to whom the formulation of laws of penal and non-penal rehabilitation, improving conditions for the engendering of life within society, must be entrusted. Such legitimate laws are upheld by citizens obediently and voluntarily, as they represent the public interest and the general mentality and outlook of the majority of countrymen; it is right, logical and easy to obey them. Opponents of such laws may express their objection by established democratic means. The correlation between justice and security and the principle of separation of powers is an inescapable truth. This is the necessary and viable approach to penal and non-penal legal reform. Justice is the safety valve within society which prevents one authority from encroaching on the other, while also preventing an obsessive focus exclusively on security concerns. Judges alone are authorised and competent to prevent the recalcitrance of tyranny within the security service, and return it to reason. The exercise of judicial oversight of the principle of separation of powers on the part of the Supreme Constitutional Court on the one hand, and the exercise

The importance of the existence of a capable, just and independent judiciary, exercising genuine oversight of the stateâ&#x20AC;&#x2122;s security agencies and of places of arrest, is a key means of promoting a sense of psychological and social security

of judicial oversight of security concerns on the other, is a matter of great importance, as it enhances a security that can be enjoyed by citizens, rather than one from which they suffer. As a result, an atmosphere of wisdom, virtue, rationality, tolerance and even love permeates the fabric of society, leaving the door wide open for each authority to fulfil its role in society. The importance of the existence of a capable, just and independent judiciary, exercising genuine oversight of the stateâ&#x20AC;&#x2122;s security agencies and of places of arrest (prisons and other detention centres), is a key means of promoting a sense of psychological and social security. The judiciary endeavours to determine the appropriate punishment for the criminal offender, and to ensure that it is reformative and aims to rehabilitate him rather than

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Reform Policies of the Syrian Penal System

inflicting pain or extracting revenge. At the same time, the judiciary acts as a social welfare clinic with regards to cases of a political nature. An aspirational judiciary is an institution with insight and awareness, which perceives the common interest of society in applying the law, recognises penal policyâ&#x20AC;&#x2122;s objectives of reform and rehabilitation, is cognisant of its preventative and reformative role in society, and displays a willingness to understand motives and drives and forms targeted penal policies. This is a matter of utmost importance if there is hope to derive benefit from any future penal reform; ensuring a comprehensive justice will inspire a sense of security among the people â&#x20AC;&#x201C; which is the ultimate goal of any forthcoming penal reform â&#x20AC;&#x201C; and will build the necessary foundation for the rule of law and institutions. This study comprises an analytical and critical review of the current penal system, defined in the context of this paper as criminal legislation (such as the Law of Criminal Procedure and the Criminal Courts and Penal Law), criminal prosecution, the accused and his/her rights, the penal institution (prison and treatment therein) and finally the criminal sanction. The study will focus closely on violations of the provisions of the international conventions on human rights, in particular the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The most notable of these violations are the arbitrary deprivation of freedom, torture and judicial impunity, in addition to the situation in prisons. Finally, the study will propose specific recommendations as a sound basis for genuine penal reform, based on respect for the principles of human rights and the achievement of stability and security, in order to bring about revival in society and improve its conditions.

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Reform Policies of the Syrian Penal System

First: Arbitrary Deprivation of Freedom

The reduction of the use of deprivation of freedom or custody is one of the most important pillars of penal reform, and is expressly identified by Penal Reform International (PRI) as one of its priorities.(4) Generally speaking, during the period of the initial investigation developed countries only resort to this measure â&#x20AC;&#x201C; the deprivation of freedom â&#x20AC;&#x201C; when dealing with dangerous individuals who are believed to pose a risk to society. In fact, substituting the deprivation of freedom with other precautionary measures is advantageous for both the accused and the state: the rights of the accused, who may subsequently be proven innocent, are preserved; the State can save on the huge expenses incurred on prisons or penal institutions. Developed countries adopt numerous measures in this regard, including release on bail, or the application of an electronic GPS bracelet to monitor the accused and enforce house arrest. In spite of the aforementioned benefit, it can be observed that Syria has taken precisely the opposite path over the past decades. In many cases, the security services and police resort to the practice of arbitrary detention without judicial intervention, in a clear breach of the presumption of innocence, thereby causing serious harm to the detainee and his family and causing the state to incur huge financial losses. It is also noteworthy that numerous articles of the current penal legislation violate certain international principles related to fair trial, freedom of expression and the like, which gives rise to a perpetuation of the arbitrary deprivation of freedom and an increase in the number of detainees. It can be surmised from the foregoing that such arbitrary deprivation of freedom is derived from two major factors: firstly, the spread of laws which repress the freedom of expression and the right to form and join associations; secondly, violation of the right to fair trial and the independence of the judiciary.

1. Freedom of Expression and Forming and Joining Associations Article 19 of the ICCPR states that everyone has the right "to hold opinions without interference". The second paragraph of the same article states that, "Everyone shall have the right to freedom of expression. This right includes freedom to seek various forms of information and ideas, receive and impart to others, regardless of frontiers, either in writing or in print, in the form of art or through any other media of his choice.â&#x20AC;? According to the third paragraph of the same article this right may (4)

Confer the following link: http://www.penalreform.org

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not be restricted, except for reasons set out in law regarding the need to respect the rights or reputations of others and to protect national security, or public order, health or decency. It should be noted that the freedom of expression plays a significant part in building a pluralistic, democratic society, by allowing for criticism of the various authorities so that their performance is improved, they are held accountable for their various shortcomings and are submitted to ongoing popular monitoring. Several successive constitutions in Syria have confirmed this right. Article 14 of the 1950 Constitution stipulates that, "The State shall guarantee freedom of opinion and expression. All Syrians may express their opinions freely in speech, writing, photography and by other means of expression. Individuals shall not be censured for their views, unless they exceed the limits prescribed in law." Meanwhile, Article 38 of the constitution currently in force stipulates that, "Every citizen has the right to express his opinion freely and openly, in speech, writing and through all other means of expression, and to participate in supervision in a manner that safeguards the soundness of the domestic and nationalist structure and strengthens the socialist system. The state guarantees the freedom of the press, of printing and publishing in accordance with the law." However, in reading the articles of the Penal Law it is obvious that there are many broad and vague stipulations, which have long been used to detain and prosecute human rights activists or other intellectuals in Syria in flagrant violation of the right to freedom of expression. For example, Article 287 provides for the imprisonment of those who publish "false or exaggerated reports which by their nature harm the Stateâ&#x20AC;&#x2122;s reputation or financial position." Article 286 also provides for similar sanctions against those who convey reports they know to be false or exaggerated, which by their nature weaken the morale of the nation. Article 307 provides for the imprisonment of all who perform "actions and all forms of writing and

In reading the articles of the Penal Law it is obvious that there are many broad and vague stipulations, which have long been used to detain and prosecute human rights activists or other intellectuals in Syria

speech intended to, or resulting in, the provocation of sectarian or racial prejudices or the incitement of sectarian strife." The Syrian authorities have long justified this legal provision by referring to Article 20 of the ICCPR, which states in its second paragraph that, â&#x20AC;&#x153;Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.â&#x20AC;? In reality, however, this article has been used to criminalise numerous Syrian authors. With regard to the right of peaceful assembly, this is guaranteed by Articles 21 and 22 of the ICCPR. The 1950 Constitution mentions the right of peaceful assembly and unarmed protest, while Article 39 of the Constitution currently in force ensures the right of peaceful assembly and protest. It is true to say that the issuance of Legislative Decree No. 54 of 2011, regulating the right of peaceful protest, has ended a constitutional violation; nonetheless, the majority of its provisions

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are in conflict with both the Syrian Constitution and international law, particularly as regards the principle of equality before the law. In fact, the purpose of this decree was to legalise the punishment of peaceful demonstrators: thousands of them have been thrown in prison.(5) As regards forming and joining associations, unions and political parties, this is also an international and constitutional right. Article 48 of the current Constitution states that, â&#x20AC;&#x153;Sectors of the public have the right to establish unions, social or professional organisations, and cooperative associations for production or services, and the framework, relationships and scope of work of such organisations shall be defined in law.â&#x20AC;? Needless to say, the mechanism for public participation is by means of the union organisations subsidiary to the Unions Office at the regional leadership of the Baath Party. As regards the law governing the creation of associations and parties, the 1973 Constitution was pragmatic when it refrained entirely from futile references to political parties. In past decades, the Syrian authorities have persisted in pursuing and trying many people who have exercised this right, on the basis of certain provisions of the Penal Law, in particular Article 306 which criminalises anyone who creates an association for the purpose of altering the economic or social structure of the state or the fundamental conditions of society. Furthermore, the Law on Private Associations and Organisations No. 93 of 1958 does not properly address the need for the licensing of such associations and the regulation of their work. Finally, after a fifty year wait and the spilling of the blood of thousands of Syrians, Legislative Decree No. 100 of 2011 regarding Parties has now been promulgated; it requires political parties to comply with the previously outlined provisions of the Constitution and the associated repressive laws which remain in force pursuant to Article 153 of the Decree, as previously noted. It also deems the parties of the National Democratic Front to be parties licensed in law. From the foregoing it can be concluded that the existence of the aforementioned legislative provisions cannot possibly play a part in laying the cornerstone of penal reform. This will involve a reduction in the use of the deprivation of freedom, which constitutes a major obstacle primarily affecting its victims, but also society as a whole. Herein lies the importance of amending or abolishing this legislation in the manner outlined below.

2. Fair Trial and the Independence of the Judiciary In order to achieve penal reform (involving a reduction in use of the deprivation of freedom as stated above) and realise criminal justice, the provisions of Articles 9 and 14 of the ICCPR must be

(5)

Nael Georges and Bassam Al-Kadi, Study, Draft of an Alternative Decree on the Right to Peaceful Protest in Syria, Syrian Women Observatory, May 2011.

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upheld and implemented, both of which address the need to respect the conditions of fair trial and the independence of the judiciary. This is stated in Article 9 as follows: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Article 14 of the ICCPR reinforces the legal safeguards set out in Article 9 and emphasises the independence of the judiciary, as stated hereunder: 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

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3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: 1. To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; 2. To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; 3. To be tried without undue delay; 4. To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; 5. To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; 6. To have the free assistance of an interpreter if he cannot understand or speak the language used in court; 7. Not to be compelled to testify against himself or to confess guilt. 8. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 9. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 10. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 11. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. In reviewing the performance of the authorities in Syria over the past decades it is evident that there has been a clear violation of the conditions of fair trial. In fact, the lack of judicial independence, reflected in the absence of legislation ensuring such independence and in the executive authorityâ&#x20AC;&#x2122;s

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interference in judicial work, is one of the governmental policies that has led to a consolidation of despotism and the deterioration and subsequent eruption of circumstances. On the 14th of February, 1966, the Judicial Authority Law was amended by Legislative Decree No. 24, issued by the Presidency Council; Article 3 of the Decree states that the “President of the Republic, represented by the Minister of Justice” is the head of the Supreme Judicial Council. Article 132 of the 1973 Constitution, which remains in force, endorses this violation of the principle of the separation of powers

In reviewing the performance of the authorities in Syria over the past decades it is evident that there has been a clear violation of the conditions of fair trial

and the interference of the executive authority in judicial work, stipulating that, “The President of the Republic shall chair the Supreme Judicial Council.” Article 67 of this law also grants extensive powers to the Supreme Judicial Council, which impinges on the principle of judges’ immunity and their protection against dismissal. Over this period the entire judiciary has become a follower and executor, complying in all of its actions with the orders and instructions of the security services. The committees established under the international conventions on human rights have repeatedly expressed their concern regarding the lack of judicial independence and the arbitrary measures which give rise to a lack of respect for the right to fair trial. The Committee Against Torture pointed out in its concluding observations that judges do not enjoy immunity, as the provisions of Legislative Decree No. 40, issued on 21 May, 1966, permit their transfer by means of orders which are not subject to any form of review.(6) The previous phase also witnessed the constant interference of the so-called exceptional and military courts in trying citizens. These courts are characterised by their failure to provide the minimum requirements for fair trial, from the absence of judicial independence to the limiting of the rights of defence. At present, following the abolition of the State Security Court (the trials of which were notable for their speed and the failure to respect either the rights of defence and appeal, or independence, impartiality or transparency), the concerns remain extant in view of the continued trial of civilians before military courts. This is a matter which the Commission on Human Rights considers a flagrant violation of the terms of the ICCPR. The subjection of civilian citizens to trial before military courts constitutes a breach of the principle of equality before the law, as stipulated in the first paragraph of the aforementioned Article 14. It should be noted here that the 1950 Constitution highlights the inadmissibility of trial before a military court unless the person in question is a member of the military.

(6)

Confer: Committee Against Torture, Concluding Observations, forty-fourth session, 26 April – 14 May, 2010, p. 6.

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Such military courts also apply the provisions of the Law of Military Trials, which lacks many of the safeguards contained in Article 14 of the ICCPR, or those set out in the provisions of the Law of Criminal Procedure. Article 71 of the Law of Military Trials deprives the absent accused of his right to appoint an attorney to defend him, and Article 72 states that the right of defence of such accused persons shall be provided by an officer, who often lacks the legal background necessary to ensure an effective defence. Generally, the security services or military prosecutor handle referrals to these military courts, and confessions extracted under torture or other forms of threat are frequently used during these trials. This constitutes a clear violation of the provisions of Article 15 of the Convention Against Torture, which prohibits “citing any statement established to have been made as a result of torture.” The military prosecution also has broad powers, and cannot be described as a just and impartial adversary in the lawsuit as should be the case. Furthermore, the decisions of military courts are highly influenced by the demands of the security and intelligence services. In many cases, interventions in the operation of the military courts also affect other non-military criminal courts, which continue to throw thousands of political prisoners into prisons. Moreover, decree No. 55 added a paragraph of law to Article 17 of the Law of Criminal Procedure, authorising “the law enforcement body or those authorised to carry out its duties to investigate the crimes stipulated in Articles 260 to 339, and Articles 221, 388, 392 and 393 of the Penal Law, and to collect evidence and interview suspects thereunder, provided that the period of custody does not exceed a seven day period renewable by the Public Prosecutor in accordance with the facts of each individual case, and provided that this period shall not exceed sixty days.” This decree is responsible for the granting of extensive powers to law enforcement and those it authorises (generally the various security services), and for the failure to create a distinction between the accusing authority and the investigative authority in order to guarantee human rights and freedoms. The danger posed by this decree lies in the fact that it gives security services the right to detain the accused for up to sixty days, during which the detainee is in the grip of the security services and isolated from the outside world. Thus, the accused is vulnerable to both the transgression of his rights and the delay of his trial, in a clear violation of the terms of the third paragraph of the aforementioned Article 14, and the fourth paragraph of Article 9, of the ICCPR. The case of the lawyer Muhannad Al-Hassani – the co-author of this study – during his trial before the Criminal Court in Damascus, is a perfect example of the violation of the provisions of the aforementioned Articles 9 and 14 of the ICCPR.(7) The submission presented by Muhannad AlHassani against the public right party represented by the Public Prosecutor provides a direct and

(7)

Case No. 115 of 2010, session of 10/06/2010.

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vital demonstration of the manner in which the right to fair trial was degraded, and contains an indication of the absence of judicial independence.(8) Finally, the deprivation of freedom is also exercised under the provisions of other domestic laws, in blatant violation of certain provisions of the ICCPR. For instance, under the provisions of Article 460 of the Law of Civil Procedure, promulgated by Legislative Decree No. 84 of the 28th of September, 1953, a convict may be imprisoned to secure the payment of certain rights, such as alimony or a dowry. This constitutes a breach of the provisions of Article 11 of the ICCPR, which stipulates that, â&#x20AC;&#x153;No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.â&#x20AC;?

(8)

Confer the following link: http://www.shro-syria.net/data/0906201002.html

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Second: Torture and Impunity

1. Torture in Syria The implementation of a reformist penal policy which recognises the need to rehabilitate the perpetrator of the criminal offence necessitates the preservation of the offender’s physical and psychological wellbeing throughout all stages and proceedings of the case and trial. Victims of torture suffer from significant physical or psychological problems, the treatment of which involves great expense, and which limit the ability of such victims to reintegrate into society and contribute to its development and progression. In fact, experience has shown that many of them become involved in crime again after their release. Furthermore, the Syrian government has made a commitment under the international conventions on human rights to avoid the use of torture: Article 7 of the ICCPR stipulates that, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The Syrian government has also ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment, thus pledging to respect the content of this convention and apply its provisions; this has not occurred thus far. Article 2 of the aforementioned Convention requires signatory governments, in implementing the terms of the agreement, to take all necessary legislative, administrative or judicial measures to prevent torture. The second and third paragraphs of the same article stipulate that, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. An order from a superior officer or a public authority may not be invoked as a justification of torture.” The Committee Against Torture, at its forty-fourth session and during its review of the first periodical report submitted by the Syrian government in 2010, confirmed the Syrian government's continued, regular violation of its obligations. This is evident in terms of both legislation and practice. From the legislative perspective: The legal provisions remain inadequate and do not reflect the Syrian government’s obligations under this Convention. While it is true that Article 28 of the Syrian Constitution stipulates that, "No one may be tortured physically or mentally or treated in a degrading manner, and the law shall set penalties for such acts" (this also features in Article 391 of the Syrian Penal Law which prohibits torture and punishes the perpetrators of this crime(9)), these provisions nonetheless fail to include a definition of the crime of torture as set out in Article (9)

This article provides for the following: “1.Whoever inflicts unlawful violence on a person with the desire of obtaining a confession or information about a crime shall be punishable by imprisonment for a period of three months to three years. 2. If the acts of violence result in illness or injury, the minimum penalty shall be imprisonment for one year.”

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1 of the Convention. In this regard, in its recommendations issued in 2010 the Committee Against Torture advised that the “the State party should amend its legislation to adopt a definition of torture in full conformity with Article 1 of the Convention that would encompass all elements of this definition. By naming and defining the offence of torture in accordance with Articles 1 and 4 of the Convention and making it distinct from other crimes, the Committee considers that States parties will directly advance the Convention’s overarching aim of preventing torture by means of alerting everyone, including perpetrators, victims and the public, to the special gravity of the crime of torture and by improving the deterrent effect of the prohibition itself.”(10) The Committee added that the punishment prescribed for the crime of torture in Syria’s Penal Law is inadequate and disproportionate to the grave nature of such acts.(11) From the practical perspective: Acts of torture and other forms of cruel, inhuman or degrading treatment are rampant within the various security branches. In fact, since the beginning of the protests in Syria, this has escalated to an extent that can be described as a crime against humanity according to Article 7 of the Rome Statute of the International Criminal Court. The sixth paragraph of this article refers to torture as a component of this crime "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"; this is applicable to the current situation in Syria. In many cases, acts of torture have left victims with permanent disabilities or resulted in death under torture. It is worth mentioning that such incidents of death as a result of torture are by no means

Acts of torture and other forms of cruel, inhuman or degrading treatment are rampant within the various security branches. In fact, since the beginning of the protests in Syria, this has escalated to an extent that can be described as a crime against humanity

restricted to the post-revolution period; rather they were widespread prior to the revolution – a fact which has been documented by many human rights organisations.(12) The increase in the phenomenon of enforced disappearances(13) in Syria is a leading cause of the spread of acts of torture, given that the victim of this crime is at the mercy of the executioner throughout such a period, in the absence of all legal safeguards and witnesses. The Commission on Human Rights mentioned this issue in its concluding recommendations to the Syrian government in 2006.(14) (10)

The Committee against Torture, Concluding Observations, forty-fourth session, 26 April – 14 May, 2010, p. 2.

(11)

Ibid., p. 3.

(12)

Confer: Dignity Report: The State of Emergency in Syria: A Climate Conducive to Torture, a report submitted to the Committee Against Torture within the framework of a study of the initial Syrian report of Syria, April 2010, p 23.

(13)

This term is defined in accordance with Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance as follows: “Arrest or detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or approval from the State, followed by a refusal to acknowledge the deprivation of liberty or concealment of the fate of the disappeared person or his whereabouts, thus depriving them of protection of the law.” To date, the Syrian government has not signed this Convention.

(14)

Commission on Human Rights, Concluding Observations for the Syrian Government, August 2005, p 3.

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Moreover, the aforementioned Decree No. 55 contributed to the aggravation and legalisation of the crime of enforced disappearance within a stipulated two-month period; moreover, the period of such enforced disappearance may in many cases exceed two months. It should be noted that torture is not only inflicted on the accused under enforced disappearance, but also on his family, who suffer a form of psychological torture resulting from their ignorance of the fate of their loved one. Furthermore, long periods of detention in solitary confinement can in themselves constitute acts of torture.

2. Establishing Impunity The culture of impunity, which is prevalent in authoritarian states in particular, is a major factor in the deterioration of the human rights situation and the spread of systematic and gross violations, often amounting to crimes against humanity. As regards the establishment of a culture of impunity in Syria, this can be attributed primarily to the existence of legislation which grants members of the security service and the authority immunity from judicial prosecution. Alternatively, it can also be ascribed to the absence of the legislation necessary to pursue and try perpetrators.

A. Positive Legislation Article 12 of the Convention Against Torture provides that, "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction." Articles 2, 4 and 16 emphasise the necessity of criminalising and prosecuting perpetrators or accomplices in acts of torture. In spite of this, the Syrian authorities have issued many pieces of legislation and decrees which endorse impunity. Legislative Decree No. 14 of 15 January, 1969, guarantees immunity to intelligence personnel for crimes committed in the course of duty. Article 16 of this decree, which includes the creation of the General Intelligence Department, stipulates the following: “A board shall be established at the General Intelligence Department to discipline its employees or individuals assigned or seconded to it. No employee of the Department may be prosecuted for crimes committed in the course of performing or carrying out the specific tasks entrusted to them except by means of a prosecution warrant issued by the Director of the Department.” Article 4 of Decree No. 5409 of 1969, which appears to have been issued to regulate the operations of the Intelligence Department, states the following: “No employee of the General Intelligence Department, nor any individual assigned, seconded or directly contracted to it, may be prosecuted before the courts for crimes arising from his position or from the undertaking thereof, prior to his referral to the Department’s Disciplinary Board and the issuance of a prosecution warrant by the Director. Such issuance of a prosecution warrant shall remain obligatory even after the termination of his service with the Department.”

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It is no secret that such provisions protect the staff of the General Intelligence Department from judicial accountability for crimes they may commit. This leaves the door wide open for serious violations of human rights, and provides loopholes for impunity under a legal provision that confers immunity for crimes of which they are accused. Decree No. 64 of 2008 reinforces this immunity, as it prohibits the prosecution of security personnel who perpetrate crimes without the consent of their superiors.(15)

B. Absence of the Required Legislation The right of petition and of bringing a case before an independent body, whether as regards incidents of torture or arbitrary arrest(16), is a matter of the utmost importance in reducing the commission of such crimes and prosecuting the perpetrators, and thereby limiting impunity. However, there is a noticeable absence of independent and impartial judicial bodies, and of effective mechanisms capable of carrying out such prosecutions. Furthermore, victims fear the retaliatory measures to which they and their families may be exposed in the event that they file such a complaint. It should be noted here that the Syrian government has not accepted the Committee Against Torture’s competence to receive individual complaints under Article 20 of the Convention Against Torture. In addition, there is an absence of Syrian legislation empowering national courts to prosecute perpetrators of crimes of torture and other international crimes under the principle known as universal jurisdiction. This is a clear violation of the obligations imposed by international law, in particular Article 5 of the Convention Against Torture which obliges states parties to uphold their jurisdiction over crimes of torture by prosecuting the perpetrators of such crimes on entering their territory. Similarly, the Geneva Conventions require states parties to prosecute individuals suspected of violating these agreements. This principle permits the national courts of a state to prosecute perpetrators of gross human rights violations merely as a result of their presence within its territory, regardless of their nationality, the nationality of the victims, or the location of the commission of the crimes.(17) In fact, the legal development of penal legislation in Syria has not yet matured sufficiently to issue such laws. Nonetheless, the current regional conditions in the Arab region, reflected in the noticeable increase in barbaric acts, crimes against humanity and cases of torture, require that the future political regime in Syria pursues this issue in order to combat the culture of impunity and arrest criminals fleeing from neighbouring countries, thereby upholding the provisions of the international conventions. (15)

Confer the introduction.

(16)

It is important to note Article 555 of the Syrian Penal Law, which stipulates the following: “1 – Any person who deprives another of his personal liberty by any means shall be punishable by imprisonment for between six months to two years. 2 - The offender’s punishment shall be reduced, as stipulated in the third paragraph of Article 241, if the person was released by pardon within forty-eight hours without being subjected to another crime or misdemeanour by the offender.” Similarly, Article 556 of the same law stipulates the following: “The criminal shall be sentenced to temporary hard labour: a) If the duration of the deprivation of personal freedom exceeds a month; b) If the person who was denied his freedom was subjected to physical or mental torture.”

(17)

For more details, confer: Nael Georges, Trial of the Perpetrators of Gross Violations of Human Rights Before National Courts of European Countries, Mossawa, 29 April, 2011.

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Third: Circumstances in Prisons

The 1950 constitution accorded penal policy a leading role by stating the latter’s purpose of reforming and educating the criminal, rather than inflicting pain and retribution upon him. Article 11 of this Constitution considers prison to be a penal institution, and a means of reforming the criminal and providing him with a sound education; the law guarantees the achievement of this purpose. Human rights organisations – including Sawasiyah – have a genuine interest in prisons, detention centres and penal systems. The Syrian Human Rights Organisation’s rules and procedures require that work is conducted to ensure that prison systems conform to international standards. To this end, the Organisation has categorised the rights of the inmates of penal institutions – prisons, detention centres and correctional facilities – into groups (such as the inmates’ right to health care, visits, correspondence, education, food, medicine, communication with the outside world, work and exercise, and to protection from collective punishment, torture and cruel treatment), and determined the nature of non-governmental and human rights organisations’ role in providing care, in addition to the role of the judiciary in monitoring prisons, detention centres and the like. Sawasiyah has monitored the extent of progress or decline as regards each of the aforementioned rights over the course of several years, and emphasised the importance of a modern penal policy aimed at vocational, moral and social rehabilitation, which also takes into account the element of therapeutic civic education to prevent the offender from recidivism, remove him from the path of crime and delinquency and help him gain access to a decent and dignified life. Sawasiyah discovered that civic education regarding rehabilitation programmes and reintegration into society should not be offered merely to the offender; rather, a society that refuses to accept the integration of a reformed offender is actually harming itself, as its rejection of the person seeking reintegration and rehabilitation will provoke an adverse reaction from him, driving him to return to a life of even more vicious crime. Therefore, civic education is necessary, based on programmes of forgiveness, pardoning and disregard of past mistakes. This will promote the engendering of a culture based on these values. Due to the fact that resentment breeds hatred and rancour, resulting in misconduct and eventually aggression and criminality, the Syrian Organisation for Human Rights has placed an emphasis on programmes which promote the beautiful and spiritual values of tolerance and forgiveness in order to establish a culture rooted in these ideals. The Organisation’s first publicised objective was to work towards the upholding and reinforcement of human rights,

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and the primary means it employed was the dissemination, circulation and entrenchment of a culture of human rights, stressing the importance of an interest in penal policy. At the forefront of this lies the adoption of the treaties and conventions aimed at improving prison conditions and providing a minimum level of humane treatment within prisons. Such resolutions include: – The London Conference of 1872, which led to the creation of an international organisation in Geneva concerned with prisons and prisoners. This was followed by several conferences in the capitals of the twenty countries which attended the London conference. – The Geneva Conference of 1959, at which the standard minimum rules for the treatment of prisoners were ratified. – The International Covenant on Civil and Political Rights (ICCPR), and its Optional Protocol I concerned with the submission of complaints by individuals. Article 10 of the Covenant states the following: 1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 2. a. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; b. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. – The Convention Against Torture and Other Cruel or Inhuman Treatment or Punishment. – The United Nations General Assembly’s Resolution No. 45/111 of the 14th of December, 1990, regarding the Basic Principles for the Treatment of Prisoners. The most significant terms of the Resolution are as follows: 1. All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. 2. There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 3. It is, however, desirable to respect the religious beliefs and cultural precepts of the group to which prisoners belong, whenever local conditions so require. 4. The responsibility of prisons for the custody of prisoners and for the protection of society against crime shall be discharged in keeping with a State's other social objectives and its

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fundamental responsibilities for promoting the well-being and development of all members of society. 5. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants. 6. All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality. 7. Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged. 8. Conditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country's labour market and permit them to contribute to their own financial support and to that of their families. 9. Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. 10. With the participation and help of the community and social institution, and with due regard to the interests of victims, favourable conditions shall be created for the reintegration of the ex-prisoner into society under the best possible conditions. â&#x20AC;&#x201C; The United Nations General Assemblyâ&#x20AC;&#x2122;s resolutions of the 14th of December, 1990, the 4th of December, 1979 and the 8th of December, 1992, among others. Sawasiyah has been striving to develop the Syrian Prison Regulation issued under Resolution No. 1222 of the 20th of June, 1929, and has repeatedly requested that the Department of Prisons is made subsidiary to the Ministry of Justice rather than the Ministry of Interior. Valid arguments have also been put forward to support this demand by means of numerous independent studies. The Organisationâ&#x20AC;&#x2122;s efforts have centred on defending the rights of the victim. It has exercised and defended the right of grievance in all its forms, out of a belief that a sense of shared affiliation to a single society and nation, and the reinforcement of societal cohesion (the basis of programmes for forgiveness, rehabilitation and reintegration), cannot be furthered by the traditional, partisan view of the security services. This view sees the security apparatus as a body charged with the protection of the ruling regime, which is conducted at the expense of the nation, and of the sense of national affiliation, the desire for co-existence among compatriots, and the promotion of a nationalistic sentiment among citizens that the homeland is theirs and under their control, and is responsible for their safety, dignity, security and even wellbeing. This spiritual connection is the only possible approach if there is a desire to achieve a type of reform which brings citizen and society together,

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rather than one which drives a wedge between the citizen and his homeland, making him feel that he is a lowly slave among the chattels and feudal subjects of an absolute ruler, and that his life, livelihood and security are worthless unless he submits entirely to this ruler. The interest of the Organisation’s members, as civil rights activists, has been roused by a shared sense of affiliation, and the notion that each Syrian citizen is part of a whole and has a role and an importance within society. Sawasiyah’s perspective is that the citizen’s role in society will not be fulfilled by means of the hackneyed, casual or circumstantial emotions so often trotted out by the ruling regime in Syria, but rather through the upholding and endorsement of fundamental rights and public liberties in both word and deed. This will accentuate the citizen’s sense of his importance and functional role within society, and his realisation that he has genuine, protected rights, in addition to duties and obligations towards society. Powerful bonds of interconnection with others are formed on the basis of these rights and obligations, not by creating divisions between people, nor through the belief that “whoever is not with me is against me,” as President

the citizen’s role in society will not be fulfilled by means of the hackneyed, casual or circumstantial emotions so often trotted out by the ruling regime in Syria, but rather through the upholding and endorsement of fundamental rights and public liberties in both word and deed

Assad stated in a recent speech. This represented an attempt to claim that the protests in Syria are directed against the homeland rather than against Assad personally, which ignores the fact that he is an individual ruler with absolute powers, at the head of a regime which – for reasons stated in the introduction to this study – has often squandered the blood and dignity of Syrians. This narrow view, which the President has adopted to fit his one-sided perspective, is based on a hypothetical environment which exists only in his mind, and is based on the ‘universal conspiracy’ which, according to the speech, is targeting the nation by means of attacking him personally. This view reflects an inflated sense of ego, triggered by a deep sense of inferiority; he holds it at the expense of any sense of responsibility for the nation as an entity belonging to all Syrians. This is the launching point for a genuine journey of reform. This can only be accomplished through a distinction between the perpetual nation and a changing regime, avoiding any blurring of the boundaries between the two, and on the basis of a universal sense of camaraderie within the crucible of the nation grounded in the irrepressible, powerful notion of ‘citizenship’. This concept is non-discriminatory and brings people together under high, societal values and noble principles of human rights, rather than on the basis of the person of an individual ruler with absolute power. This comprehensive sense of togetherness has been denied to Syrians for half a century.

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Conclusions and Recommendations

From a human rights perspective, the motivation that drives the work of justice agencies – in particular criminal justice – is the interest of the citizen; this is undoubtedly consistent with the national interest. In terms of aims, this interest should clearly unite this Organisation with – rather than separate it from – any future government, elected under natural circumstances, which assumes responsibility for the advancement of the country and the improvement of conditions for engendering life. In order to achieve the desired reform of the penal system, and in particular to steer it in the right direction and overcome its current obstacles and problems, the following measures must be taken as a matter of urgency: One: It must be recognised that the existing legal and constitutional system cannot be repaired, nor its shortcomings rectified nor its weaknesses papered over, as it is rooted in despotism. It can only lead to an increased sense of oppression and inferiority among Syrians in the future. The spilling of Syrian blood requires a demand for comprehensive change in this system if the desire is for genuine reform. As Nelson Mandela said, “Freedom cannot be given in doses; one is either free or not free.” He also holds faith in Shakespeare’s sonnet which states: “Cowards die many times before their deaths; the valiant never taste of death but once.” It is therefore necessary to temporarily revert to any of the Syrian constitutions which were enacted by bodies legitimately elected by the Syrian people, such as the 1950 constitution, which includes basic safeguards for the rights of the Syrian citizen and stable democratic values. The current Constitution meanwhile was enacted at the hands of a parliament appointed by the regional leadership of Syria’s ruling Baath Party of the years 1971 to 1972. Two: All repressive and freedom-restricting laws and legislation must be abolished, starting with Decree No. 6 of 1964 (punishes those who oppose the goals of the Baath revolution), and including the laws of economic sanctions, the Law on the Security of the Baath Party and the recent law which stipulates the death penalty for trading in weapons (issued in 2011 under the so-called Syrian presidential reforms). All forms of extraordinary and exceptional courts must also be abolished, in particular field courts-martial and the secret security courts held within the various intelligence branches. Three: The decrees establishing various intelligence departments, which grant their employees absolute impunity and full powers to exercise the most heinous and shocking forms of torture, must be abolished.

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Four: All places of detention and arrest, in particular temporary ones which by virtue of the current system have turned into places of torture and subjugation, must be restored and placed under judicial supervision. The Public Prosecutor must be asked to shoulder its responsibilities in this regard, after ensuring that the judiciary is once more able to exercise its powers as a genuine authority under the rule of law, which recognises the meaning and value of rights and human dignity. Five: Respect for the terms of the international conventions on human rights must be reinforced, and the supremacy of international law over domestic law in the event of a conflict must be recognised. Similarly, the legal protection of human rights throughout all stages of criminal and penal proceedings must be strengthened. As a member of the United Nations Syria has actively participated in the formulation of the international charters on human rights and the legislating of international humanitarian law. Six: All international conventions and related protocols on human rights must be ratified, rather than merely signed, in particular the Protection of All Persons from Enforced Disappearance. All reservations regarding articles to which reservations have been raised, such as Articles 20 onwards of the Convention Against Torture, must be revoked, and the jurisdiction of both of the Commission on Human Rights and the Committee Against Torture as regards the receipt of individual complaints must be accepted. Furthermore, all reservations must be repealed and an independent national human rights institution, conforming to the criteria stated in the Paris Principles, must be created.(18) Seven: There must be a return to the original constitutional and legal principles, constituting a barrier in defence of public liberties and preventing the violation of human rights by means of the invocation of legal provisions. Such principles include the following: the accused is innocent until proven guilty, and the presumption of innocence shall remain extant until a final judgment is passed against him, issued in accordance with the rules and principles of fair trial; it is inadmissible to broaden the interpretation of penal provisions to apply them to cases not originally intended by the legislator when such provisions and legislation were enacted; matters are presumed to be permitted rather than prohibited; no crime or punishment is valid without a legal provision. Eight: The laws, regulations and procedures of criminal trials must be modernised to ensure prompt, impartial and diligent delivery of justice. Stable controls must be put in place to ensure that the mechanisms of reasoning and deduction used by judges do not deviate from their correct path. This can be achieved by reducing the scope for the judgeâ&#x20AC;&#x2122;s reliance on emotional conviction

(18)

Confer: National Human Rights Institutions: History, Principles, Roles and Responsibilities, United Nations Publications, New York and Geneva, 2010, p. 231.

Available at: http://www.ohchr.org/Documents/Publications/PTS-4Rev1-NHRI_ar. pdf

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in preparing criminal rulings. Such conviction must not be absolute, and must be based on a solid foundation of sound deduction and reasoning relating to the facts and evidence presented. This will guarantee that in the future these criminal rulings can be worthy of bearing the label of absolute truth, and are not merely ceremonial platitudes, devoid of truth or justice, bearing the name of the Arab People of Syria. Nine: An integrated package of constitutional and legal reforms must be formulated in order to restore confidence in the judiciary. This can be achieved by ensuring that the executive authority does not interfere in judicial work, by fighting corruption and by ensuring equality before law, in addition to fulfilling the requirements of fair trial as stipulated in international agreements. The trial of civilians before military, exceptional or extraordinary courts, or other arbitrary tribunals, will thereby be prevented. This will lead to the application of the death penalty being restricted to the greatest extent possible, and to a review of the current legal provisions which provide for its use. Ten: All centres of detention or custody, in particular institutions for juvenile delinquents, must be placed under full judicial supervision. Expert committees in the areas of human rights, law and society must be formed to monitor measures of reform and prevention. Eleven: The principle of transparency must be reinforced through the creation of a database containing the names of detainees, the dates of their arrest, the charges of which they are accused, their places of detention and their visiting dates. Their families must have the right to submit an application for the aforementioned details to the Public Prosecution office which oversees prisons and penal institutions, and this service must disclose this information in full within twenty-four hours of the date of arrest. Twelve: Appropriate means, including training, educational courses, and the various audio-visual and written media (including the internet), must be employed to raise awareness, prevent crime and disseminate a culture of human rights. Thirteen: Public confidence in the judiciary must be restored. This can be achieved through enforcement of the principle of the separation of powers and the consolidation of the independence of the legislative authority, which should include genuinely elected representatives of the people rather than merely puppets of the regime. It is also necessary to reinforce citizensâ&#x20AC;&#x2122; understanding and awareness of the content of the law, in addition to their comprehension of law as a means of preventing and dealing with delinquency and crime, and their cognisance that law is not in essence created in order to oppress and humiliate people (which is a perception deeply rooted in the minds of many of the oppressed in Syria). Fourteen: Given the common purpose shared by human rights organisations and the Public Prosecution office, the transitional government must establish an office of national accountability,

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under the auspices of the Public Prosecutor, to take on the task of supporting victims who have lost a provider or relative in the Syrian Revolution and to prosecute their cases in order to achieve their rights. This can be done by providing counselling to victims, appointing pro-bono lawyers for them, providing care and protection against possible attack, and facilitating prosecutions in order to attain their rights. There must be an open channel of communication between the voluntary humanitarian organisations and the aforementioned office subsidiary to the Public Prosecutor. The office must have independence, integrity, courage and flexibility to ensure it is capable of protecting the rights of victims and of cooperating effectively with them to achieve justice and equality. This will allow for the fulfilment of the humanitarian duty common to both the Public Prosecution service and the proponents of human rights. Fifteen: The use of detention and custodial penalties must be limited as far as possible through recourse to other preventative and therapeutic measures, which have proven far more effective than corporal punishment. These include social services, suspended sentences which depend on the interest of society, conditional release, house arrest, so called â&#x20AC;&#x2DC;electronic taggingâ&#x20AC;&#x2122; or the application of penalties associated with social welfare. The period of pre-trial detention must only be extended in cases of extreme necessity, and the accused must be brought to trial as quickly as possible. Sixteen: The role and independence of civil society institutions must be reinforced, and they must be involved in educational and supervisory programmes in the area of the application of reformist penal policy, in particular as regards the dissemination of civic education through programmes focussing on forgiving ex-offenders and reintegrating them into society. Finally: It must be recognised that the aforementioned recommendations cannot be enforced, nor the ensuing penal law reform enacted, under the current structure and form of the political regime. This system sponsors tyranny and entrenches dictatorship; it cannot be repaired, nor its weaknesses papered over. Consequently, the first step must be to replace this political system with a modern, civil, constitutional structure which refrains from establishing a perpetual ruler, and which delineates the contours of a modern state based on the rule of law rather than the cult of the individual. By this means it is possible to prepare for the building of a modern, pluralistic, civil society based on liberties and human rights, paving the way for the desired penal reform under the supervision of an independent and impartial judicial and legislative authority, which demonstrates insight into and awareness of the goals of penal policy.

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References

First: Official Documents

I. At the international level:

1. United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules), United Nations General Assembly Resolution, 6 October, 2010, sixty-fifth session. 2. International Convention for the Protection of All Persons from Enforced Disappearance, United Nations General Assembly Resolution No. 61/177, 20 December, 2006. 3. Principles of Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations General Assembly Resolution No. 55/89, 4 December, 2000. 4. Basic Principles for the Treatment of Prisoners, United Nations General Assembly Resolution No. 45/111, 14 December, 1990. 5. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, United Nations General Assembly Resolution No. 43/173, 9 December, 1988. 6. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United Nations General Assembly Resolution No. 40/34, 1985.

Assembly Resolution No. 34/169, 17 December, 1979. 9. The International Covenant on Civil and Political Rights, United Nations General Assembly Resolution No. 2200A (D-21), 16 December, 1966.

II. At the domestic level:

1. Constitution of the Syrian Arab Republic of the year 1973, 13 March, 1971. 2. Constitution of the Republic of Syria of the year 1950, 5 September, 1950. 3. Law of Civil Procedure, promulgated by Legislative Decree No. 84, 28 September, 1953. 4. Syrian Penal Law, promulgated by Legislative Decree No. 148, 22 June, 1949. 5. Law of Criminal Procedure, promulgated by Decree No. 112, 13 March, 1950. 6. Decree No. 54 regulating citizensâ&#x20AC;&#x2122; right to peaceful protest as a fundamental human right guaranteed by the Constitution of the Syrian Arab Republic, 21 April, 2011. 7. Syrian Prison Regulation, issued under Resolution No. 1222, 20 July, 1929. 8. Decree No. 55, 21 April, 2011. 9. Legislative Decree No. 108 regarding the Media Law, 28 August, 2011. 10. Legislative Decree No. 100 of 2011 regarding the Parties Law, 6 August, 2011. 11. Decree No. 64, 2008.

7. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations General Assembly Resolution No. 39/46, 10 December, 1984.

12. Law No. 52 regarding the Security of the Arab Socialist Baath Party, 1979.

8. Code of Conduct for Law Enforcement Officials, United Nations General

14. Decree No. 47 on the Creation of the Supreme State Security Court, 1968.

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13. Legislative Decree No. 46 on the Creation of Economic Security Courts, 8 August, 1977.

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15. Legislative Decree No. 24 amending the Law of the Judiciary, 14 February, 1966. 16. Decree No. 37 on the Law of Economic Sanctions, 6 May, 1966. 17. Legislative Decree No. 40, 21 May, 1966. 18. Decree No. 6 on the Protection of the Revolution, 1964. 19. Military Order No. 2, 8 March, 1963. 20. The Emergency Law, No. 51 of 1962. 21. Legislative Decree No. 61 of 1950.

Second: Books and Reports 1. Syrian Organisation for Human Rights (Sawasiyah), Report on Conditions in Prisons and Detention Centres, 2006 Report. 2. Syrian Organisation for Human Rights (Sawasiyah), Report on Conditions in Syrian Prisons and Detention Centres, 2005 Report. 3. Syrian Organisation for Human Rights (Sawasiyah), Report on Conditions in Syrian Prisons and Detention Centres, 2004 Report. 4. Yves Jeanclos, Droit Pénal Européen (European Penal Law), Economica: 2009. 5. Robert Cario, Introduction aux Sciences Criminelles: Pour une Approche Globale et Intégrée du Phénomène Criminel (Introduction to Criminal Science: A Comprehensive and Integrated Approach to the Criminal Phenomenon), Paris: L'Harmattan, 2008. 6. Mohammed Al-Tarawneh, Strategic Frameworks for the Effective Implementation of Reform in the Field of Juvenile Justice in line with International Standards and Commensurate with the National and Regional Needs in Arab Countries. A Penal Reform International Study, 2006.

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7. The Committee Against Torture, Concluding Observations, the Syrian Arab Republic, forty-fourth session, 26 April - 14 May, 2010. 8. National Human Rights Institutions: History, Principles, Roles and Responsibilities. United Nations Publications, New York and Geneva, 2010. 9. The Commission on Human Rights, Concluding Observations, the Syrian Arab Republic, eighty-fourth session, 9 August, 2005. 10. Initial Report for the Syrian Arab Republic, the Committee Against Torture, 20 July, 2009. 11. Dignity report, The State of Emergency in Syria: A Climate Conducive to Torture, a report submitted to the Committee Against Torture within the framework of a study of the initial Syrian report, April 2010.

Third: Online Articles

1. Nael Georges, Trial of the Perpetrators of Gross Violations of Human Rights Before the National Courts of European Countries, Mossawa, 29 April, 2011. 2. Nael Georges and Bassam Al-Kadi, Study, Draft of an Alternative Decree on the Right to Peaceful Protest in Syria, Syrian Women Observatory, May 2011. 3. Arabia Net, Alternative Punishments: A New Project to Half the Number of Prisoners in Saudi Arabia, 17 October, 2011. 4. Ahmed al-Barak, Custodial Punishments in Light of Contemporary Penal Policy, Al-Quds, July 2011, http://www.alquds. com 5. Nadiah al-Fawaz, Alternative Punishments Are Solutions that Contribute to Prisoner Reform, AlWatan Online, 19 December, 2010, http://www.alwatan.com.sa

Muhanad Alhasani is a civil rights attorney who was born in the city of Damascus. He has many studies on law and human rights to his name, and is well-known for his rights activism. His defence of human rights in Syria led to his arrest and subsequent life-long prohibition from practising the legal profession by resolution of the Damascus branch of the Lawyers’ Union. He was one of the founders of Syria’s National Committee for the Defence of Prisoners of Opinion and Conscience in 2001, and is both a founding member and current Chairman of the Board of Directors of the Syrian Organisation for Human Rights (Sawasiyah), which was established in the year 2004. He is also a founder of the Coalition of Defenders of Justice for Syria (Adala), established in 2011, and a member of the International Law Commission in Geneva. Dr. Nael Georges is from the village of Marmarita in Syria. He was awarded a Certificate of Appreciation for Excellence in the general secondary certificate, thereafter continuing his studies at the Faculty of Law at Damascus University. He completed his higher education at the University of Grenoble II in France, where he obtained a Master’s degree in international and European law and a doctorate in international law and human rights. He has many publications to his name in Arabic and other languages, foremost among them his book ‘The Rights of Christian Minorities in the Levant’. He currently works as a researcher in the field of human rights and interreligious dialogue at the University of Geneva.

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