By: Dr. Haytham Manna
Spokesperson of the Arab Commission for Human RightsDamascus-August, 16th, 2008-August, 30th, 2008
Introduction
On August, 26th, I was assigned to attend the Damascus Criminal Court in the Syrian capital by the Arab Commission for Human Rights, the Arabic Network for Human Rights Information and the French Human Rights Observatory, and in coordination with the HCHR and its concerned rapporteurs, and help from Damascus center for Theoretical Studies and Civil Rights and Syrian human rights organizations. The session was dedicated to hearing the public prosecution and the defense in the case of Damascus Declaration for Democratic National Change’s (DDDNC) leaders who held a regular meeting on Dec, 1st, 2007 in house of Mr. Riad Saif.
First of all, this is an initial report. It is a prelude for a report under preparation to be offered to the HCHR and the Human Rights Council in Geneva and subcommittee on human rights in the European parliament, the Arab League Secretary-General and concerned NGOs and IGOs with a copy to be sent to Syrian presidency.
Beginning of the case
On Dec., 1st, 2007, 163 members of DDDNC convened to elect a national council for the DDDNC and five members to lead the council from among this group. The meeting included a wide spectrum across political opposition an addition leading human rights defenders and supporters of the DDDNC. The DDDNC declaration called for giving key rights to all Syrians and for fully adhering international human rights standard and democratization covenants and the rule of law.
In the wake of this meeting, more than 40 participants in the national council were arrested or subpoenaed including 12 who were sent to civil prisons and are currently under trial. There are also manhunts and arrests for other DDDNC members other than this case (see annex 1).
Before the session
Before the court session, I contacted a number of the defense lawyers, families of the detainees, Syrian human rights defenders and legal figures. I also met a number of those who took in the meeting itself to be sure of some information and complaints mentioned in messages sent to the Arab Commission for Human Rights. They are related to key issues which flagrantly violate the Syrian constitution and Syria commitments in the International Covenant on Civil and Political Rights, especially in the relation between the detainee and the lawyer, investigating conditions, arrest conditions, the situation surrounding political prisoners, the health conditions and security authorities’ treatment with them. I wanted also to update the information mentioned in the report issued by Damascus Center for Theoretical and Civil Rights Studies. I asked about some legal issues from two professors at the Faculty of Law- Damascus University, and a number of former judges and lawyers. Also, I met a top political official to know the government’s viewpoint towards this file and the information of the correspondent and editor of Annida website.
Results of the hearings ahead of this session included concentration of government parties on the legal side and submitting documents that have not relation with the conference session in question and repeatedly saying that: (Given that Syria is targeted by several regional and international parties, that the state of emergency is not lifted yet and that ordinary justice in Syria is independent from the executive authority).
I gathered information about conditions of the detainees, including a testimony of an ordinary prisoner who was released and was in the same cell of two of the DDDNC prisoners. Also, Hassan Abdel Azim and Haytham Al-Maleh furnished me with legal information related to this file and information related to similar files. As for the official view, I reminded them that Syrian authorities give 10 replies to the Human Rights Commission and the Human Rights Council, four of them in written intervention, in response to my written or oral comments in front of the stated organizations. The Syrian authorities said in these replies that emergency laws are not practically applied in the country, that they are applied in least possible limits in issues violating foreign security. I also mentioned the reply of the Syrian delegation to the United Nations on my comment seven years ago, in which I acknowledged that justice in Syria needs deep overhaul and that the problem of the independence of judicial establishments is general in the region, not only in Syria.
The Session
According to a tradition applied all over the world- in which the international observor visits the Presiding Judge before the session to tell him of his human rights mission and ask him about some issues related to the case- I asked to see President Judge Mohiddine Al-Hallaq, who agreed to meet me along with Haytham Al-Maleh, the first chairman of a Human Rights Society in Syria, and Naser al Ghazali President of Damascus center for Theoretical Studies and Civil Rights. I asked the Presiding Judge a question about the issue of release in the Syrian criminal law, to be stunned by his reply in which he said he is as a judge not authorized to reply or speak in any issue without a letter from the Minister of Justice. I told the President that I was in more than a hundred international missions in more than thirty countries, and never a tribunal President has demanded such a letter to reply to a general legal question. After several minutes of discussion, Presiding Judge Al-Hallaq agreed to answer this question. He also answered another question about the legal term for release according to Syrian criminal law, he pointed out that law gives the court this right at any moment, and that it is up to chief justice.
After that, I went to the courtroom which was overcrowded and included western diplomats, Arab human rights defenders, a group of Syrian lawyers, relatives of the detainees and writers and journalists across the political spectrum. I came closer the 12 detainees and asked them three traditional questions generally asked in any judicial observation:
The First Question: have any of you me his defense lawyer alone?
The Second Question: Are the least rules of dealing with prisoners respected, including the conditions?
The Third Question: How have they dealt with the detainee in arrest and investigation?
I was shocked that the simplest rights of allowing the observer to listen to prisoners were violated. After a first attempt to take me away and prevent me from listening to the detainees, one of the police elements ordered me to stop asking those questions but I refused and informed him that my duty is to continue. After that, a police officer asked me to keep away from them, but I refused and continued my work. I explained to another one that this is integral part of my mission and continued directing questions to detainees. After about ten minutes, in which I wrote down the most important notes, a police lieutenant colonel asked me to meet the Presiding Judge in his office. I went to the Presiding Judge who told me that I cause chaos, that the court is not a press conference hall and that I exceeded my right as an observer. I quietly explained to him that this is my main job, that I did not answer family questions because most detainees know me, that neutrality is a loose word in political trials, and that the core of objectivity is not fabricating facts or telling lies. Then, I gave him the notebook in which I wrote down my notes. It included only the Presiding Judge’s name. Here, the chief justice got confused, and asked:” Why only my name, where are names of the other judges?. I gave the notebook to another judge to write his name but he refused and the other judge refused too. Then I said to the chief justice:” In all conditions, I have now accurate answers to my main questions.
Very briefly, as I will explain this in a detailed report to be handed to the High Commissioner for Human Rights, Navanethem Pillay, I ‘d like to say that the answers to the three questions confirm worries of the international, Arab and Syrian NGOs and IGOs that the most important rules of a fair trial that the United Nations approved, and in which the Syrian Arab Republic ratified, are violated. Also violated are the UN Minimum Rules for the Treatment of Prisoners adopted in the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in which Syria took part and which was approved by the ECOSOC in 1977. The right to individually meet a lawyer was absent. Visiting prisoners requires a 1978 visit permit that requires approval of the director of the bar association branch and signature of the Attorney General, in a flagrant intervention in lawyers rights and in security restrictions which are only found in countries which aren’t signatories to the International Covenant on Civil and Political Rights like Saudi Arabia or geographically outside the judicial sphere like North Korea. As for psychological and physical integrity of the detainees, I was really worried, specially that some of them are jailed in mass cells with serious prisoners. Also, four may face potential health risks because of lacking the necessary medical care for them.
When the Presiding Judge arrived in the courtroom, another incident outside the judicial tradition took place: The chief justice read the pleading of the prosecution. I was even more shocked when a number of lawyers told me that this is not restricted to this trial in particular, it also happens in ordinary cases. The main rules of the court performance include that the pleading of the public prosecution is oral and direct, not through a proxy. However, the Presiding Judge completed the session very quickly. It was as if we were in front of a convicting session which has no form or content, only restricted to looking at the accused and reading the bill of indictment (defaming the reputation of the country, stirring doctrinal and sectarian ideas, establishing an illegal organization to hold a coup and spreading false news), and making sure that they approve to entrust a defense team to defend them. Also, the detainees were allowed to talk. Only five detainees were allowed to speak a total of less than a hundred words. A hundred words for five persons.
The first one to demand a speech was detainee Riad Saif who said:” With all my respect to the court, we confirm that our case is a case of a freedom of opinion, not a case of this bill of indictment. Any defense should be based on only this content. We denied the charges directed against us and we confirm our attitude of demanding a national reform program in Syria that starts first with the freedom of speech”.
He was followed by detainee Akram Al-Bunni who said:” Such a kind of trials is useless because submitting a legal defense is a mere décor and the case is politically motivated”.
As for detainee Fayez Sara, after he showed his respect to the court, he pointed to the issue of visits topic and that the cases of freedom of speech should have an appropriate legal environment, especially when this freedom of speech is exercised publicly and peacefully.
When the judge interrupted him to tell him that such views should be said through the defense lawyers, Fayez Sara informed him that the accused are denied the right to meet or consult their lawyers privately. The judge disavowed responsibility for prison conditions restricting his authority to the courtroom.
Detainee Walid Al Bunni wondered where are the papers upon which such hideous charges have been directed.
As for detainee Ali Al-Abdallah, he said:” We see that this case is politically motivated, and the defense is a mere decor. As for the charges against us, they are unacceptable, unreasonable in this age and we demand them dropped”.
Then, the Presiding Judge asked the accused whether they approve the defense team and that questions are referred to it, to declare the session adjourned till Sep., 24th, 2008.
Initial deduction
From the confirmed information, I noticed that: Syrian authorities don’t respect normal detention conditions or the acceptable investigation conditions approved by international human rights standards (Particularly:the right to a fair trial before an independent and impartial court in conformity with Syria’s own commitments, in particular Article 10 of the 1948 UNUDHR and Article 14.1 to 14.5 of the 1966 United Nations International Covenant on Civil and Political Rights and ensure that the procedure is in conformity with the standards and principles adopted by the United Nations bodies, including the 1985 Basic Principles for the Independence of the Judiciary and the 1990 Guidelines on the Role of Prosecutors).. Also, they lack the UN Minimum Rules for the Treatment of prisoners.
They main conditions for the defense work are absent. The treatment with some detainees show there is a malicious attitude that makes prison conditions an additional punishment added to the depriving them of their freedom.
Also, the interviews I held and reading into the ordinary criminal laws, confirmed what was done by : Fida Al Horani 2- Ahmed Tohmeh 3- Akram Al-Bunni 4- Ali Saleh Abdullah 5 – Yasser Tayser Aleiti 6- Walid Eid Al-Bunni 7- Jabr Al Shoufi 8 – Fayez Mohamed Dib Sara 9- Mohamed Asaad Haj Darwish 10- Marwan Mohamad Anwar Al-Esh 11- Riad Saif Bin Mosallam 12 – Talal Abu Dan, does not constitute a crime, even in the court assessment. Consequently, all detainees should be immediately and unconditionally released or at least, bring on bail.
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Translated by: Khaled Hamzeh