Syrian President Bashar Al Assad has issued law Nr. 42 of 2018 on Sunday 11/11/2018, amending some articles of law Nr.10 of 2018 and some articles of legislative decree Nr.66 of 2012. These two laws have caused wide international controversy which was showcased by some countries filing complaints to the Security Council against law Nr. 10 considering it to be hindering the return of Syrian refugees. These amendments were issued even before law Nr. 10 was implemented, which confirms that they were made as a result of international pressure on the Syrian government.
It must be noted that the issuance of this law invalidates the claims of the Russian authorities, who have informed the United Nations about the Syrian government’s intention to step back from law Nr.10. As laws cannot be amended or invalided through political statements, reality also provides continuous prove that the acts of the Syrian government are nothing more than media propaganda aiming at changing the international boycott policy against it, and to drag donor states to contribute towards the reconstruction of what the government’s war machines have destroyed.
Despite the fact that the new decree has amended the deadline by which property owners have to provide their property claims to be now one year, it does not include any amendments of the provisions that allows the administrative unit to perform free deductions of land (Article 2(11)) or the forced mechanism laid down by the law in regards to the disposal of stock ownership by owners through previously specified choices and timelines (Article 2(17)). In addition, the amendments did not deal with the existing inadequacy in provisions related to alternative housing stipulated in law Nr. 10 (Article 2(24)), which, without doubt, constitute a blatant violation of property rights guaranteed by the constitution (Article 15) and international conventions. Therefore, fears and doubts remain existent regarding the extent to which these laws will impact the rights of refugees and internally displaced persons to return to their homes and claim their properties.
For this reason, this paper will include an in-depth reading of decree Nr. 42 of 2018, explaining the amendments made in addition to our observations regarding the new property laws that were issued by the Syrian government.
Firstly: Regarding law Nr. 10 of 2018
1. The law amended the deadline by which owners need to come forward with their property claims to be a whole year starting from the date of declaring an area a developmental zone. Previously, this deadline had been one month only under law Nr. 10 (Article1 A).
2. The law considered the rights registered in the real estate registry (Land registry) to be accurate, valid and accredited in front of the “specialized committees in conflict resolution, distribution and estimation” until the opposite is proven through legal means, regardless if property was claimed by their owners or not or was claimed after the passing of the one year deadline. In other words, the law required the specialized committees to take cadastral registrations into consideration whether or not the owners or the right holders appeared before them or whether or not they filed their claims. This goes without saying given the evidentiary power rea; estate registry has on all people (Article1 Paragraph A.)
3. The invitation by the administrative unit needs to include: owners and in- kind right holders such as claims of placed charges, mortgages, foreclosures, concessions, insurance and restraining orders, whether these rights are proven through formal ways, such as court orders and documented contracts, or not. In addition, these properties and rights include those mentioned in real estate registry records and all other records of the same category such as temporary registration records, municipality records, military housing institution and housing associations (Article1 Paragraph A).
4. The required evidence that needs to be presented could be official documents or even just copies of these documents, and in case of unavailability stakeholders could mention in detail in writing the specifications of their properties, borders, size and legal kinds or the nature of their in-kind rights or all their rights and responsibilities and in- kind claims. This means that the law has given them the opportunity to prove their ownership in legally acceptable ways in front of the specialized administrative and juridical committees or in front of courts in the future.
5. The ones who have the right to come forward with property permits, claims and rights are the persons concerned themselves or through guardianship of minors they represent or through power of attorney of clients they represent (Article1 Paragraph A). The law also allowed the relatives of owners and right holders up to the 4th degree and without power of attorney to represent them in claiming their rights and proving and defending them. This includes the ascendants (fathers, grandfather and their fathers…etc.) and the descendants (children, grandchildren, children of grandchildren), and brothers and sisters and their children and grandchildren, uncles and aunts from both paternal and maternal sides and their children. The law also set out to allow power of attorney to others regarding this aspect (Article1 Paragraph B).
Secondly: Regarding legislative decree Nr. 66 of 2012
1. The law stipulated that it is compulsory to establish specialized legal committees to look into objections, disputes, property claims, and all in-kind disputes related to the real estates of the developmental area (Article2 Paragraph A).
2. The committees have jurisdiction whether or not property ownership and rights had been declared in front of the estimation courts. (Article 2 Paragraph A).
3. Courts must abandon litigation related to property and in-kind rights claims in regard to this specific developmental area and refer these cases to these committees with competent jurisdiction if no final judgment has previously been issued (Article 2 Paragraph A).
4. Personal rights such as rental and investment rights are not included in this law.
5. The law left the door open for those who had no knowledge of a decree being issued in order to create a developmental area that affects their rights, as well as for those who were not able to declare their properties or in-kind rights in front of the estimation and conflict resolution committees, so that they can resort to the specialized court in accordance to the general rules governing this issue (Article 2 Paragraph B).
General Observations
1. The practical implementation of these laws is the judge that determines the extend of protection of the right of property of owners and in-kind right holders. This cannot be determined unless the said laws have been used as the legal basis for reconstructing the affected areas in practice. The reason for that is the rightful lack of trust in the Syrian agencies and institutions, whether administrative or juridical.
2. Many of the procedures set out in the law could be totally disregarded based on outside instructions, such as those requiring security clearances for some kinds of power of attorneys.
3. These laws do not present sufficient guarantees to protect the rights of people belonging to the political opposition or even normal citizens, as long as the Syrian government could refer them to the Counter-Terrorism Court” and try them in absentia or issue sentences against them seizing or expropriating their property. The government could also perform these acts through the ministry of finance and other state agencies that have been used by the government as a mean to punish opposition or those whose loyalty to the government is questioned.
4. These laws cannot under any circumstances be considered a guarantee that would encourage Syrian refugees and internally displaced people to return to Syria. On the contrary they establish a hinderance and a violation of the right of return.