Wednesday, March 31, 2010

The System of Justice in Syria: Current Organization and Future Challenges


March 31, 2010

INTRODUCTION One of the most important and delicate reforms to be implemented in Syria is the one concerning the system of justice. In fact, Syria’s system of justice is quite often defined through four adjectives: corrupt, bureaucratic, slow and arbitrary. In year 2008, Transparency International’s Corruption Perceptions Index ranked Syria 147th out of 179 countries Syria had receded for the second year in a row. According to the World Bank's “Ease of Doing Business 2009” report and the International Chamber of Commerce, Syria ranks 174th out of 181 countries with reference to the enforcement of contracts  it takes 872 days to conclude a legal dispute. Already people close to President Bashar al-Assad are alarmed by this level of corruption in the legislative, judicial and executive branches of the government. From the legal point of view, random and non-transparent changes in investment law, coupled with the lack of a real independent judiciary undermine investments, especially now that Syria is trying to attract foreign direct investments (F.D.I.s) in order to diversify its economy.  In the last years, some actions aiming toward an at-least-partial reform of the judicial system have been taken, like the well-publicized establishment of an institute for the training of judges, and the implementation of a commercial arbitration law. Modernization of the judicial administration was understood as a fundamental tool in order to achieve long-term economic and social development as was pointed out some years ago through Syria’s Five Year Plan 2006-10.

ROOTS OF THE SYRIAN LEGAL SYSTEM  The Syrian legal system was established for the first time during the Ottoman domination, but since then it has undergone several modifications, which  followed the important government changes of the twentieth century (Syrian Arab Kingdom of 1919-20, French Mandate, post-independence republican regime, United Arab Republic of 1958-61, post-secession republic and the current Syrian Arab Republic). Every one of the mentioned political systems thorough which Syria has undergone in the last century has profoundly affected the justice system of the country. The Syrian legal system is mainly based on civil law traditions, Islamic and Egyptian legal traditions.

Today's most important Syrian codifications are:

A) Civil Code of 1949
B) Penal Code of 1949
C) Criminal Procedure Code of 1950
D) Civil Procedure Code of 1953
E) Personal Status Code that is integral part of the Legislative Decree No. 59 of 1983, currently under review
F) Commercial Code 2008

ORGANIZATION OF THE SYRIAN JUSTICE SYSTEM  Both the Judicial Authority Law of 1961 and the Civil Code of 1949 are the basic documents governing the organization and functioning of the justice system. The Ministry of Justice has the role to oversee Syria’s civil and criminal courts. Defendants are entitled to nominate a lawyer who provides legal representation. In case defendants do not have the means to pay for a legal representative the courts will provide a lawyer. Except cases involving juveniles or sex offenders, trials are public. The Supreme Judicial Council is the highest judicial authority in Syria. It oversees the judiciary and has the power to appoint, dismiss and transfer Syrian judges. The Syrian president, Bashar al-Assad is the chairman of this authority, while the vice-chairman is the minister of justice. The other six members are five senior civil judges and the deputy to the minister of justice. Historically, Syria has had a dual judicial system with separated secular courts and religious courts. In fact, when in 1949 the Civil Code, the first Commercial Code (the new one dates back to 2008) and the Penal Code were promulgated, the basic idea was to modernize the legal system with the limitation of the applicability of customary law among Bedouin and religious minorities. In other words, Islamic religious courts continued to work in some parts of the country, but their jurisdiction was reduced and confined to issues of personal status (like for instance marriages, divorce, paternity, custody of children and inheritance).  Still on the same path, one additional step was done some years later, in 1955, when a personal code related to many aspects of personal status was accepted. This law is very relevant because it modernized sharia through the improvement of the condition of women in Syria and a better definition of inheritance law.

The Syrian court system is structured through five different types of courts:

  • Civil and Criminal Courts (three-level jurisdiction: first-level court, court of appeal and Court of Cassation)
  • Military Courts
  • Security Courts
  • Religious Courts (two-level jurisdiction: first-level court, and canonical and spiritual divisions of the Court of Cassation)
  • Administrative Courts (two-level jurisdiction: administrative courts and Council of State)

With reference to the civil and criminal courts there are three levels of jurisdiction. These courts are organized under the Ministry of Justice and they can hear both civil and criminal matters. At the lowest level there are five different kinds of courts: the courts of conciliation (Mahakim Al-Sulh), the courts of first instance (Mahakim Al-Bidaya), the juvenile courts (Mahakim Al-Ahdath), the Customs Court (Al-Mahkama Al-Jumrukiyya) and the Court of Assize.

All the cases brought in front of the first four types of courts are heard by a single judge, who is assigned jurisdiction according to the nature of the case. The fifth first-level court is the Court of Assize, which hears cases where the punishment may exceed a three-year imprisonment time. Decision taken by the conciliation courts, courts of first instance and court of assize may be appealed to the second level, which means a court of appeal or sometimes the Court of Cassation. There are thirty courts of appeal in Syria and seven of them (three criminal and four civil) are located in Damascus, while one civil court and one criminal court are located in every Syrian district. It is true that appeals are difficult to win because the courts do not provide verbatim transcripts of the treated cases, but only summaries prepared by the involved judges. The Court of Cassation in Damascus is the unique third-level court of appeals and has the power to revolve judicial issues. In general, judgments made at a court of appeal are very difficult to be overturned. However, sometimes verdicts could be nullified by the Court of Cassation.  This court is subdivided in three-judge specialized panels according to four different areas of action: civil, criminal, canonical and military.   
    
In addition to the secular courts there are other specialized courts that possess a specific jurisdiction to deal with particular subjects. Military courts have the authority to treat both civilian and military personnel. The problem with these courts is that the military prosecutor decides the venue for a civilian defendant and consequently there are continuously complains that the government utilizes military field courts in location outside established courtrooms. These military field courts do not observe all the normal procedures envisaged for the regular non-military courts.

There are two security courts: the Supreme State Security Court (S.S.S.C.) and the Economic Security Courts. The former tries political and national security cases and its judgments are not subject to appeal. This court does not use the same procedures as the courts of regular jurisdiction. In relations to the S.S.S.C., it is very important the role played by the Syrian president, who has to approve a verdict or who can also nullify it and ask for a second trial.  The economic security courts were abolished in 2004, but before they were the main judicial bodies in order to treat cases involving financial and economic crimes.

A specialized administrative system for disputes involving the state and its agencies exists in Syrian like in many other civil-law systems. During the existence of the United Arab Republic (1958-61, union between Egypt and Syria) the Syrian Council of State (the most important administrative judicial body) was remodeled following the Egyptian template and still today there are a lot of communalities with reference to the administrative council of state in both countries. In Syria there are two levels of administrative courts. The second level, which is the Council of State, has both advisory as well as judicial functions and it is totally independent from the other courts of general jurisdiction.

The High Constitutional Court is the highest judicial body in the Syrian Republic. Established under the 1973 Syrian Constitution, this court has three specific tasks: adjudicating electoral disputes, ruling on the constitutionality of a law or a decree challenged by the president or the People’s Council, and rendering opinions on the constitutionality of bills, decrees and regulations when asked by the president. The High Constitutional Court is not allowed to discuss about the validity of laws proposed by the president and then approved with popular referendums. The court is composed of the president of the court plus four ordinary judges, who serve for a renewable four-year term. The judges are appointed by the Syrian president.  
       
Special jurisdictional bodies are the Islamic courts, the doctrinal courts and the spiritual courts. The first ones are related to cases regarding personal status, family and inheritance disputes between Syrian Muslims and non-Syrian Muslims who accept Islamic personal status in their own countries. The second ones are formed by a judge belonging to the Druze sect. This judge has to decide whether the decisions taken by people belonging to the Druze community are clashing with the teaching of the religion. The spiritual courts are the judicial bodies in charge of subjects linked to personal status for Jewish, Christian and other non-Muslim groups. Decisions given by all the religious courts may be appealed to the canonical and spiritual divisions of the Court of Cassation. 

WHAT ARE THE REAL PROBLEMS OF THE JUSTICE SYSTEM IN SYRIA?  — The three major problems that the Syrian government has to overcome in the next year are:

1) The amount of time necessary to solve a dispute via the courts
2) The corruption of Syria’s legal system
3) The independence of judges  

1) The amount of time necessary to resolve a dispute via the courts  When talking with Syrian lawyers the first complain they have in relation to the justice system of their country is the amount of time that it takes to have a dispute solved by a court. Sometimes it happens that cases last more than ten years. Probably, one reason for the delays is that in Syria there is a shortage of judges. Today according to the Syrian Bar Association (S.B.A.) there are around 1,300 judges. Recent analyses by the S.B.A. calculate that there should be at least 3,000 judges and more court rooms in order to reduce disputes duration. Other reasons for the high number of cases per single judge is that many Syrians go to court for very silly reasons without any real consideration of collected evidence and the possibilities of getting a favorable sentence.

Probably, the existence of a proper supervision with reference to the judges’ activity this point is emphasized by lawyers could permit to save a lot of time. It is true that in Syria there are judicial inspectors, but the problem is still the same: They are few and with too many judges to be followed. The lawyers would like to have the number of these full-time inspectors now no more than five increased because, according to them, corruption is the main problem of the judicial system in Syria. After the corruption issue, it clearly emerges that too many judges work too slowly. It is a well-known fact that in Syria in some courts it is the notary that administers justice because the appointed judge is absent.  

2) The Corruption of Syria’s legal system  Corruption is evident and the same government acknowledges it. In October 2005, 81 judges, i.e., more than 6 percent of the total number of judges were sacked for alleged corruption. The government has improved wages and insurance for the judges, while at the same time has reduced taxes with the aim of increasing their living standards. The idea is to attract capable people to the profession of judge. It is a huge task because the level of corruption is very high both on the judges’ side as well as on the lawyers’ side. In fact, Mohammed Walid al-Tesh, who is the president of the S.B.A., recalls that every year the S.B.A. investigates at least 400 claims of corruption among lawyers. In Syria there are today around 23,000 lawyers and 10 to 50 of them are expelled every year by the S.B.A. for professional misconduct. Syria should have better training for judges and lawyers. For this reason everyone who is able to pass the judge selection process is mandatorily send to teach for two years at the Judicial Institute before he may enter the real profession of judge.

3) The Independence of the Judges  Article 131 of the Syrian Constitution (Article 131 [Independence of the Judiciary] The judicial authority is independent.  The President of the Republic guarantees this independence with the assistance of the Higher Council of the Judiciary), dating back to 1973, does guarantee the independence of the judiciary. Instead, Article 133 (Article 133 [Independence of Judges] (1) Judges are independent.  They are subject to no authority except that of the law. (2) The honor, conscience, and impartiality of judges are guarantees of public rights and freedoms.) stipulates that judges shall be autonomous and subject only to the authority of law.

The Higher Council of the Judiciary is responsible for the administration of the judiciary. It has the authority of appointing, promoting and transferring judges. The president of this council is the Syrian president, while the deputy president is the minister of justice. A lot of criticism is related to the preponderant role played by the minister of justice. This role  although the minister has only one vote could really limit judicial independence. For some analysts, the presence of the minister of justice can either intimidate or strongly influence the role of the other board members. The S.B.A. strongly denounces the lack of the judicial independence. Already five years ago at the Ba’ath Party Conference some ideas about a modification of the composition of the council had been proposed. Also the former prosecutor general, Ghada Murad (appointed as the Syrian prosecutor general in 1998, the first woman in the whole Arab word to held such a position) thinks that probably Article 65 of the Judicial Authority Law should be amended bringing inside the council the president of the Court of Cassation and sending out of the council the minister of justice.

Still in relations to the independence of judges, another interesting point is linked to the fact that when the investigation process is carried out there could be some heavy measures of offence against the judges. In fact, during the process judges are notified and questioned about all the complaints filed against them and a report is always written. In some cases, they have been referred to the High Judicial Council, a procedure that could last for some years. All these mechanisms are activated with the deliberated intention of delaying the arrival to sentence.     

ACTIONS TO REFORM THE JUDICIAL SYSTEM  Some steps have already been implemented, while others have been planned. Summing up, it could be important for Syria to:

A) Increase the standard of living of judges.  In this way capable people could be interested in the profession of judge. In this regard, positive steps such as the increase of wages, a better insurance and a reduction of taxes have already been implemented by the Syrian government. 

B) Improve the quality of legal training in relations to both judges and lawyers Currently, there are 11,500 students at the Faculty of Law of the Damascus University, thousands of other law students enrolled in one of the other six law schools across the country and few others students (given the high fees) who follow some law courses at the new Syrian private universities for instance the Kalamoon University, which is well focused on international law. After the law degree, students have to start a two-year practical training under the guidance of a lawyer. On completion of these two years they are entitled to undertake a written and oral exam set by the S.B.A. in order to be admitted to the bar. Apart from the issues linked to overcrowding at the law faculties, becoming lawyer is indeed a tough and long process, but it is also true that especially at the faculty of law the curriculum is too much oriented towards abstract learning (theoretical and analytical matters with not a lot of attention given to practical cases). It is now time to offer courses in areas such as international private law, commercial law and arbitration law (especially in light of the partial opening of Syria’s economy to foreign companies) and to draw more attention toward practical cases since the university years.   
    
C) Fight with all the available means the problem of corruption.  It could be wise to establish in every governorate a committee (comprising the attorney general, the head of appeals and the oldest judicial inspector) in order to monitor court decisions no matter whether there is a complaint or not. The U.N.D.P. is now organizing a pilot project targeted at increasing both efficiency and transparency of judicial processes through the computerization of administrative procedures. Computerization could reduce significantly corruption. Estimates speak of an 80 percent reduction of unethical conduct. The difficulty here could be in finding the economic resources to bring in all this information and communication technology (I.C.T.). This pilot project, which is implemented in Dera’a, is part of a bigger project whose name is Modernization of the Justice Sector in Syria. This project is worth $815,000 and is co-funded by the Syrian Ministry of Justice, the U.N.D.P., the Swiss Development Agency and the Hollandaise embassy in Syria. The idea is to design a software program capable of simplifying and of permitting much faster administrative court procedures. In addition to this, around 200 judges and employees belonging to the courts of Dera’a Governorate have attended computer literacy courses. The goal is to extend this pilot project also to other governorates. Also the European Union is preparing a judicial modernization project.   
     
D) Judges Interrogation According to Specific Circumstances.  Interrogate judges only when an inspector “finds that a judge has deliberately wronged the complainer, or made a substantial professional mistake in implementing or interpreting the law. Only then should the judge be notified, interrogated and referred to the council for punishment” as the former general prosecutor, Ghada Murad pointed out last year in an interview to the magazine Syria Today.

E) Implement modern and state-of–the art laws.  As a good example, it could be considered the Commercial Arbitration Law (Law No. 4 of 2008), which well meets the requirement of the international business community. Probably, the issues behind the adoption of this law have been the necessity of boosting foreign and domestic investor confidence in the dispute resolution methods given the faltering capacity of the regular Syrian justice system, the adoption of this law is not a surprise. This law was a long-awaited one in Syria. All this said, the process of drafting and then voting specific laws is only a partial solution to the real problems of the Syrian justice system. Undoubtedly, arbitration has positive features, like the reduced amount of time needed to get a decision. But it has also important drawbacks like the fact that it is final (unless cases of nullity) and that sometimes especially when local companies are involved the concerned parties do not want to implement what previously has been decided with the arbitration. If such a situation occurs, the concerned parties have no other solution than recurring to the regular justice system.  In other words, the introduction of arbitration law is very welcomed, but it could not be considered as a pure and simple substitute of a proper and streamlined justice system.    



 

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