observation mission concerning the situation of human...

M:\TEXTES\DROITS HOMME et DEFENSE\DEFENSE DE LA PROFESSION\Défense des Avocats\Syrie\2011\Rapport Mission Syrie\BAT - externe\Rapport_Altit_110222.version 20110329 EN.doc

Association Internationale Sans But Lucratif (AISBL) – N° AISBL : 0408.288.242 Correspondance à : UIA – 25, rue du Jour – 75001 Paris (France)

Tél. : +33 1 44 88 55 66 / Fax : +33 1 44 88 55 77 / E-mail : [email protected] / Web : www.uianet.org Siège Social : Palais de Justice - Place Poelaert - 1000 Bruxelles (Belgique)

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UNION INTERNATIONALE DES AVOCATS

INTERNATIONAL ASSOCIATION OF LAWYERS UNION INTERNACIONAL DE ABOGADOS INTERNATIONALE ANWALTSUNION UNIONE INTERNAZIONALE DEGLI AVVOCATI UNIÃO INTERNACIONAL DE ADVOGADOS

Rassembler les avocats du monde ♦ Bringing Together the World's Lawyers ♦ Reunir a los abogados del mundo

Observation mission concerning the situation of Human Rights defence lawyers in Syria

Mission Report January 28 – February 3, 2011




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Observation mission concerning the situation of Human Rights defence lawyers in Syria

Mission led by Emmanuel Altit1 From January 28 to February 3, 2011

A. INTRODUCTION The purpose of the mission, carried out from January 28 to February 3, 2011 was to:

Examine the situation of the arrested Syrian lawyers, the reasons for their arrest, their detention conditions, the role played by the bar associations and their presidents regarding these arrests, how much room for maneuver lawyers in Syrian society have, the political and legal environment they work in;

Depending on the information collected, examine all cooperation possibilities.

The Syrian Bar Association being a member – as are most of the Arab bars – of the UIA, it was important to assess its actions and in particular to determine if it undertakes its role to represent lawyers and endeavors to implement basic internationally-recognized standards that allow a bar to function in an independent and free manner and protect lawyers from political authorities in order to enable them to defend human and citizens’ rights.

During this mission we met with about thirty human rights activists, most of whom are lawyers, “historical” political opponents, as well as members of civil society. For obvious reasons, their names will not be mentioned in this report. Our meetings took place in Damascus but also in Aleppo where we were attending a disciplinary hearing to which a Kurdish lawyer of international renown (Radeef Mustafa, Cf. infra) had been summoned, it being understood that these disciplinary proceedings aimed at disbarring lawyers are frequently a prelude to criminal proceedings and imprisonment. We also met the representatives of the French, Dutch, British and European Union diplomatic missions. The UIA mission was organized in cooperation with a delegation of British and Dutch lawyers sent by the Euro-Mediterranean Human Rights Network. The purpose of the Euro-Med mission was to collect information on the situation of human rights lawyers, the bar associations’ efforts to protect lawyers and promote human rights, the state of the judiciary, and more generally, to assess if, with respect to these issues, the rule of law exists in Syria. It also aimed to determine what support the human rights defenders required.

The UIA representative was lawyer Emmanuel Altit, a member of the Paris bar.

1 Emmanuel Altit is an International lawyer, registered with the Paris Bar. He specializes in International Criminal Law and is an expert for the European Union and the United Nations. He is the only foreign lawyer to have been authorized to plead before the State Security Court of Syria.




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The lawyers sent by the Dutch and Amsterdam Bar Associations were Judith Lichtenberg and Gerrit Nieuwenhuis, board members of Dutch NGO Lawyers for Lawyers, along with Lionel Blackman, President of Solicitors’ International Human Rights Group, UK.

The mission context was sensitive due not only to the paranoia inherent to this type of ethnic-military regime but also to the considerable number of security services competing against each other resulting in excessive zeal with regards to any real or imagined threat, especially as opponents to the Regime, following the Tunisian and Egyptian examples, had planned a major anti-Regime demonstration on February 5. Consequently, our telephones were tapped, we were under surveillance and our contacts, once identified, were intimidated by the various security services.

It should be pointed out that that all Syrians, in particular those in official positions or in the public eye, must ask the security services for authorization before meeting and talking with a foreigner.

The meetings were held in remote places, discretion being vital to our contacts’ safety.

The information collected during these encounters paints an alarming picture of the situation that not only the human rights defenders (including lawyers) find themselves in but also the members of various categories of the Syrian population.

In effect, it is not only a question of political repression. It is also one, even more fundamental, of discrimination, a practice in Syria that goes back to time immemorial, and which the Regime uses to stay in power.

B. CONTEXT

1. THE ORGANIZATION OF SYRIAN SOCIETY

1-1 Professional activities Unions are subject to the Baath party’s directives and must apply them. For example, the lawyers’ code recalls that the Bar Association shares the nation’s objectives (Unity, Freedom, Socialism) in compliance with the Baath party’s directives and that it must work in collaboration with the relevant Baath bureau. Any gathering of lawyers held without a party representative is considered invalid (article 37). Therefore, all decisions with a party representative’s authorization is prescribed. Lastly, the President of the Council of Ministers may dissolve the Bar Association if it deviates from the imposed policy.

1-2 The elections Elections in Syria are not free. Governors and top-ranking police and army officers can stand (article 18, law 26 – 1973) to consolidate the fief given to them by the government. The election commission is headed by the government. Those who control the elections at field level are civil servants. Independent candidates do not benefit from any publicity unlike party candidates. The ballot boxes are transported from one polling station to another by civil servants and party members.




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1-3 Security services According to experts, thousands of opponents have been tortured to death since the Baath party took power. There were hundreds in 2003, 2004, 2005. But it is forbidden to take legal action against any security service civil servant without his superior’s authorization (article 16, law on the Mukhabarat). It should be noted that Syria was a signatory of the 1984 United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment.

2. THE LEGAL CONTEXT 2-1 The constitution

Adopted in 1973, it recognizes the principle of separation of powers but it stipulates:

Article 3: the religion of the President of the Republic is Islam (religious discrimination). Article 9: the party governing the State and society is the Arab Socialist Baath party. Article 84: the candidate to the office of President of the Republic is presented by the

people’s assembly on a Baath party proposal and then subjected to a referendum. Therefore, not only are there no elections, there can be no candidate outside the Baath party. There is therefore discrimination based on belonging to the Baath party. It should be remembered that this domination is in no way the result of the expression of the people’s will, but that of a military coup.

Article 91: The President of the Republic is not judicially liable except in the event of high treason, in which case he can only be tried by the Supreme Constitution Court (whose members he appointed).

Article 111: The President of the Republic can prepare and impose laws and decrees.

Article 132: The President of the Republic presides over the Higher Council of the Judiciary and guarantees “the independence of the judiciary system”. It should be noted that the judiciary cannot be independent if it depends on the head of the executive who is not judicially liable.

Article 139: The constitution provides for the setting up of a Constitutional Court that is to pronounce judgment, in a consultative manner and under control of the Assembly, on the validity of laws and elections. However, its members are appointed by the President.

Article 145: No one can question the constitutionality of the adopted laws except the President of the Republic or a representative of the members of the People’s Assembly.

Article 153: All former legislation, be it unconstitutional, illegal or in contradiction with the new constitution, shall remain in effect.

2-2 Emergency Law

Proclaimed in 1962, it allows the government to take measures that are illegal or in violation of the citizens’ rights such as banning meetings, restricting the freedom of the press, carrying out searches, etc. It provided however for recourse in the event of abuse or non-compliance with the application conditions of this law (in the event of war, earthquake, disaster, for a limited duration in a given place, proclaimed by the Council of the Revolutionary Command after the military coup of March 8, 1963).




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2-3 Nullity of the emergency law and therefore of the State Security Court decisions This argument has been raised several times before the State Security Court: The state of emergency was declared in Syria on March 8, 1963 by the Council of the Revolutionary Command (military order no. 2). The conditions stipulated for the proclamation of the state of emergency by legislative decree no. 51 in 1962 (in the absence of a Constitution) were not respected. These conditions are:

The decree must be adopted by a majority of 2/3 of the members of the Council of Ministers

It must be submitted to the Chamber of Deputies It must state the reasons (these are exhaustively listed: disasters, internal disturbances),

the duration and the place of application of that state.

Consequently, the proclamation of the state of emergency, without justification, without limitation of time or place, taken by a de facto invalid authority In 1973, the new Constitution gave the President of the Republic the power to proclaim the state of emergency but there was no such proclamation. The Supreme State Security Court was created by the Council of the Revolutionary Command (decree no. 47 of 1958) to look after matters linked to the state of emergency. This Court of exception, the judges of which are not held to comply with normal procedural rules and international standards – defense rights are not respected – was to take prompt action against opposition. The Court being founded on the existence of a legally invalid state of emergency, its decisions are therefore invalid. Moreover, the existence of this Court does not comply with the provisions of the 1973 Constitution which stipulates that the judicial authorities are subject to the judiciary.

2-4 The relationship between the executive and the judiciary

By law 26 of 1956, the President of the Republic heads the Judiciary Supreme Council made up of the Minister of Justice, his Deputy Minister, the Chief of Judicial Inspection, the President of the Court of Cassation, the Prosecutor at the Court of Cassation, and two judges thereof. The Council appoints, promotes, transfers, sanctions and dismisses the magistrates, including therefore those from the Court of Cassation. Moreover, as the magistrates are under the authority of the Minister of Justice, this leaves them little room for expression. The judicial system is therefore in the hands of the state authority, whoever that person may be. Judges – like all high-ranking civil servants – must be a member of the Baath party and be committed to the Regime whereas article 81 of the law on the judiciary forbids party affiliation. It should be noted that the judges’ conditions of life and work are poor, which is another means of putting pressure on them, either directly by threatening to deprive them of the income, or by using corruption. As lawyer Anwar Al Bunni pointed out, “this situation will cause the functioning of the judicial system to worsen, turning it into a repression tool on the one hand, and a place for buying and selling the other’s rights”. In addition, to be absolutely sure to have nothing to fear, the authorities created a commission whose role it is to assess the pertinence of the sentences and judgments condemning the State and administrative




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institutions; this commission can suspend the execution of these sentences or judgments or go back on their content. In this manner, the security services have given themselves the power to ignore or challenge court decisions, to go back on final decisions, to arbitrarily and illegally summon or arrest. As regards administrative jurisdiction, it is structurally composed of civil servants and is under the authority of the President of the Council of Ministers. Consequently, the administrative body is both judge and jury. Moreover, all civil service employees must obtain prior authorization from the security services, but may be dismissed at anytime, without reason (article 138 – Employment law of 1985, without prejudice).

3. THE COURTS OF EXCEPTION 3-1 The Supreme State Security Court

The Supreme State Security Court was created by decree in 1968. Its function is to prosecute those who oppose the Revolution’s objectives and to handle the sensitive cases referred to it by the authorities. It is placed under the authority of the Baath Party’s National Security Bureau. This Court was created to fight against the Regime’s enemies (opponents). It is not mentioned by the State Constitution. The United Nations Human Rights Committee declared that the procedure of the Syrian Supreme State Security Court does not comply with the provisions of the Civil and Political Rights Covenant to which Syria is a party2.

Ordinary criminal procedure is not applicable. The accused is not granted free access to his/her lawyer. The rights of the defense are not respected. Confessions extorted through torture are considered receivable evidence. Judges and investigating judges belong to the same body. The accused does not attend the hearing at which the charges are examined. There is no appeal. The judges are appointed by the President.

In the case of Aktham Naisse for which I was counsel, two of the three judges were generals. The President of the Court was a former Baath Party official and former General. One of the associate Judges was a professional Judge, the other, a general.

In sum, the Judges, the Prosecutor and the Investigating Judge at the Court are appointed by the authorities, the same that accuses and prosecutes.

Since its creation, the Court has tried thousands of accused and pronounced hundreds of death and life prison sentences.

2 Annex 1 : CCPR/CO/71/SYR




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Other Courts of exception

3-2 Military Field Court

Created by law 104 in 1968, it was initially meant to try disobedient soldiers or deserters on the spot. Composed of military commanders, lawyers are not allowed to attend. It tries sensitive cases, in particular ones of an economic nature, at the discretion of the Prescient. In the eighties, they pronounced thousands of death sentences, immediately carried out at the Palmyra prison against members of the Muslim Brotherhood.

3-3 Military Court Initially a simple military court, it now has de facto jurisdiction for all crimes involving a soldier and in addition, to try opponents.

3-4 Security Service Courts

The security services can watch, arrest, detain, threaten, torture and even try any opponent (in absence of the accused, of a lawyer, without respecting the rights of the defense, etc.) and pronounce sentences of up to one year in prison.

4. POLITICAL REPRESSION The fundamental freedoms are not respected: freedom of opinion, of affiliation, to come and go (the authorities confiscate passports). Those who are repeatedly arrested and threatened include political opponents, human rights activist and Kurds (300,000 Syrian Kurds have no identity documents and therefore do not exist in the eyes of the authorities). They are deprived of their individual and collective rights. Journalists are prosecuted for “spreading information liable to undermine the nation’s morale”, “false information”, “improper use of information”. Journalists and certain intellectuals become political prisoners: there were hundreds of them in 2004 and 2005 (more than a thousand including a large number of Muslim Brotherhood activists were in prison without trial or at the outcome of an unfair trial. A wave of arrests took place in 2005. The prisoners are often kept in secret. Torture and ill-treatment are widespread in the prisons as well as in arrest and detention centers (police stations, secret service premises). Many die in detention, even more come out of the Syrian jails physically and psychologically broken. Detention conditions are often appalling and political prisoners are victims of physical abuse by common law prisoners (some are paid to do so by the authorities). Those who have disappeared in the Syrian prisons include a great number of Lebanese who were transferred to Syria by the Syrian secret services and the Syrian army that occupied Lebanon for 23 years. Of those arrested, the percentage of people tortured to death is very high. The attitude of the Regime regarding its declared and potential opponents is characterized by intimidation (summons by the police force’s security services, visits to the person to be intimidated or his family, threats sometimes acted upon), legal, disciplinary, administrative proceedings, and lastly sanctions. The police nature of the Regime and the existence of a single party (the Baath) enable the Regime to control the society and to have considerable room for maneuver against the opponents (including the use of professional or social measures). Punishments affecting the families are common.




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Absence of fundamental freedoms

4-1 Freedom of the press

Unique Military Court No. 4 of the Council of the Revolutionary Command ordered the closure of Syrian press and publishing firms, printing shops, and the confiscation of their assets. All Arab or foreign newspapers and books published outside Syria were banned. In 2001, new law no. 50 on print media reinforced the authorities’ control and approved sanctions (three years’ imprisonment) for several charges such as undermining national sentiment, national unity or army morale, spreading false information, etc. Moreover, the government can arbitrarily ban any publication. Authorizations are granted (or withdrawn) at the discretion of the Minister of Information. Heavy material obligations (number of pages, number of employees, etc.) weigh on the printers, threatening their economic future. In 1975, an establishment was created to manage the distribution of print media (decree no. 24); it is the only body authorized to do so. Its board of directors is composed of Baath party members, military officers and Ministry of Information employees. It can, at its discretion, ban imports, censure, refuse distribution, reduce the number of copies, etc. The state, in addition to various fees and taxes on income, salaries and capital, also deducts 35% of publishing revenues (all foreign publications are forbidden). The entrepreneurs’ only solution to avoid bankruptcy is to ask for government funding, resulting is loss of freedom. Lastly, journalists must join the Union of Journalists, which shares the Baath party’s objectives of Unity, Freedom, Socialism (law no. 1 of 1990). The Union is committed to respecting and applying these objectives under the guidance of the Baath Party. Article 54 stipulates that the Union can sanction any member which does not adhere to these objectives.

4-2 Freedom of association The law of 1958 stipulates that permission to found an association depends on the Ministry of Social Affairs and Labor. In addition, the authorities receive the association councils’ minutes and can disband the council, appoint a temporary new council, dissolve the association (for example, if the association constitutes a danger for national security, etc.). In Syria, the authorities refuse to register human rights defender organizations, thereby making them illegal, at least formally. Moreover, law of exception no. 6 of 1965 stipulates that any action carried out thanks to foreign support is punishable by death. The state of emergency forbids the gathering of more than 3 persons.




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5. RECENT CRACKDOWN

5-1 The January 2011 meetings According to our contacts, Bachar Al Assad held a special meeting with the director and regional heads of the secret services on January 16 at 10 o’clock in the morning in the Damascus Presidential Palace. The purpose of the meeting was to see how to prevent the wave of opposition come from Tunisia and Egypt from spreading to Syria. It is reported that several proposals were adopted of which: - Crackdown on corrupt civil servants. - Repression against the Kurd population. - Tighter control of Syrian soldiers known to be “Shiite Muslims”. - Increased security in all public places (markets, main shopping areas). - All demonstrations are to be forbidden from now on. - The army must step up the rate of satellite dish elimination. - Increase phone tapping and the number of civil servants dealing with phone tapping. - Implement an emergency plan, in the event of a problem, to isolate a village, a town or even a region (by

cutting telecommunication networks). The next day (January 17, 2011), President Assad held another meeting with his Minister of the Interior Samour Saed, regional police officials and criminal security bureau directors. This type of meeting is rare for El Assad normally only takes the time to see his Minister of the Interior.

5-2 Consequences of the crackdown, a recent example Syrian blogger, Tal al Mallouhi, 19 years old, was sentenced to 5 years’ imprisonment on February

14 on charges of spying for a foreign country, after a trial held behind closed doors.

The blogger was only 17 when she was arrested in 2009. She has been in prison ever since. The human rights defender organizations explain this decision as a warning by the Regime to all opponents in an attempt to thwart contagion from Tunisia and Egypt.

C. THE SITUATION OF LAWYERS AND BAR ASSOCIATIONS 1. REPRESSION OF LAWYERS

Lawyers have always been considered as a particularly dangerous body whose members need to be kept under close surveillance. Consequently, they have always paid a heavy tribute to the human rights cause. The recent crackdown has once again placed them in the firing line. The Regime is particularly distrustful of lawyers and, in addition to threats, arrests, arbitrary detentions, torture, prison sentences, etc., uses other means to discourage all forms of resistance: - Organized impoverishment: Human rights activists are first socially excluded. Thus, State Security begins a smear campaign concerning the lawyers to discourage potential clients, thereby strangling lawyers financially and socially. According to human rights defenders, that is what is happening to all the lawyers mentioned in this report.




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- Travel ban: 1,800 Syrian “opponents” are forbidden to travel. They are either high-profile opponents or human rights activists, or simply Syrians in contact with foreign countries. The travel ban serves as an additional undeclared form of punishment when the person in question has already been sanctioned or as a preventive sentence or as a last warning. Thus, lawyers having served years of prison are unable to leave the country. The same applies to other younger legal professionals who have been sanctioned their activities (the names will be sent in a separate confidential document). The travel ban also applies to the children or parents of the Regime’s “enemies”. The surveillance enabling the repression of lawyers is, according to the human rights defenders, organized by the bar associations that constitute perfect observation posts. 1.1. Recently arrested lawyers

• Anwar Al Bunni

Lawyer at the Damascus Bar Association, aged 55. Arrested in May 2006, tortured and imprisoned. Accused of having spread false information, he was tried in April 2007 and sentenced to 5 years in prison by the State Security Court. He was suspended from the Bar Association in 2007 for one year. His family has been subjected to threats and his journalist brother Akhram Al Bunni, was imprisoned before being released in June 2010. He was detained in Damascus central prison in a cell shared with 60 to 70 common law prisoners, under constant threat of attack on their part (he was attacked by co-detainees in 2008 and 2010). The real reasons for his arrest: human rights activist Anwar Al Bunni was Kamal Labwani’s lawyer (Cf. infra, the Labwani case) and had been that of Aktham Naisse. He also defended members of the “Damascus Declaration” movement. He took over from Aytham Al Maleh (Cf. Infra) as President of the Arab Human Rights Association. He had obtained the EU delegation’s approval for the funding of the Human Rights Center. His lawyers are Khalil Mahatouk and Hassan Abdul Hazion. They have been threatened by members of the State Security and Political Security. Attitude of the chairman of the Damascus Bar Association Anwar Al Bunni’s legal counsels were only able to see their client four times 10 minutes during the entire trial period, in the presence of a State Security officer. They were not able to work with him on the charges, or give him any documents. As for the family, they cannot visit him. President Al Laham, seized by the counsels, refused, according to them, to support and assist them.




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Attitude of the chairman of the Syrian Bar Association They then seized President Skeif, who, according to the counsels, also refused to support and assist them.

• Mohammed Al Hassani

Lawyer at the Damascus Bar Association, aged 50. Arrested on July 28, 2009, he was, according to the human rights defenders, tortured the same day in the presence of the Head of State Security, Ali Mamlouk, and his deputy, Zuheir Hamad, then imprisoned. Charged with spreading false information and setting up an illegal association, he was tried on June 10, 2010 and sentenced by an ordinary Court to 3 years in prison. His appeal was denied in October 2010. He was suspended from the Bar in October 2009, before being tried. The disbarment appeal is before the Damascus Bar Association (hearing in February 2010). The disbarment is based on article 79 of the law regulating the legal profession. His family has been subjected to threats and his brother Molham, a real estate agent, has lost his license. He was detained in Damascus central prison in a cell shared with 60 to 70 common law prisoners, under constant threat of attack on their part. He was already attacked once by co-detainees in October 2010 at which time his face was slashed. One of the aggressors and he were tried, the aggressor was released. The cell leader has threatened him several times. The real reasons for his arrest: a human rights activist, he is the founder of the Syrian Human Rights Organization. Al Hassani was also Kamal Labwani’s lawyer – this would seem to be the real reason of his arrest. General Zuheir Ahmad and Ali Mamluk had warned him that he would be in great danger if he did not give up the Labwani case. The EU and diplomatic representatives rallied in his favor. His lawyers were threatened by State Security officers in October 2009, ordering them to give up the case. Al Hassani’s counsels sought in vain to see him during the first months. During the trial, they were only able to see him for 10 minutes every two months, with State Security officers physically present between them. They were not able to work with him on the charges and hadn’t been able to visit him for five weeks at the time of this report. As for the family, they cannot visit him. Attitude of the President of the Damascus Bar Association President Al Laham, seized by the counsels, refused, according to them, to support and assist them. He refused to deliver them authorizations to visit their client, for which he is responsible. Attitude of the President of the Syrian Bar Association They then seized President Skeif, who, according to the counsels, also refused to support and assist them.




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• The Labwani3 case

Kamal Labwani is a physician. A member of the Damascus Spring, he was arrested and convicted to 3 years in prison in 2001, founded the “liberal gathering movement” and was arrested again in 2005, then sentenced to 12 years’ imprisonment for having met European deputies, American officials and above all, officials of the Bush administration and communicating with the foreign media. The judges who were to hear the case were transferred the day before pronouncing the verdict and were replaced by three others who sentenced him the following day. By chance, a sympathizer discovered in the file a handwritten note from the National Security Office demanding his conviction. The United Nations Working Group on Arbitrary Detention denounced his arrest and detention conditions in 20094. He is detained in a cell shared with some 60 common law prisoners (in violation of the code provisions). His then lawyer Al Hassani was attacked by the guards who sought to seize his notes one day when he was visiting him.

• Haytham Al Maleh5

Lawyer at the Damascus Bar Association, aged 80. Arrested on October 14, 2009 by General Ali Mamluk, he has remained in detention, charged with spreading false information. He was tried on July 4, 2010 and sentenced by a military Court to 3 years’ imprisonment. His appeal was rejected in October 2010. He has not been disbarred. His children are abroad and one of his sons runs his support committee. He is held at Damascus Central Prison in a cell shared with 60 to 70 common law prisoners, under constant threat of attack on their part. He is in ill health - diabetic with thyroid problems – but the authorities do not allow him to use the medication he was prescribed prior to his arrest. Until August 2010, he had no mattress and slept directly on the floor. The real reasons for his arrest: a human rights activist, he co-founded the Syrian Human Rights Association. Close to the authors of the Damascus Declaration, he did not sign it. He wrote articles published abroad. His lawyers are Razan Zeitouni and Daad Moussa. They are harassed by State Security and Political Security officers. Attitude of the President of the Damascus Bar Association Al Maleh’s counsels were only allowed access to their client a few times during the trial, in the presence of a State Security Officer. They were not able to work with him on the charges or give him any documents.

3 The author of this report believes it is important to mention the Labwani case even though he is not a lawyer for it is probably in part at the origin of the arrest of the two lawyers, Al-Hassani and Al-Bunni. 4 Annex 2: Opinion of the United Nations Working Group on Arbitrary Detention on March 2, 2010, A/HRC/13/30/Add.1, page 46; see also the Report of the United Nations Working Group on Arbitrary Detention, February 16, 2009, A/HRC/10/21. 5 When the report was written, Mr. Haytham Al Maleh was still in detention in Damascus Central Prison. On March 8, one day after President Bachar el Assad declared an amnesty for several categories of prisoner, in particular prisoners over the age of 70, prisoners suffering from incurable diseases or prisoners accused of minor offences, Mr. Al Maleh was free.




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As for the family, they cannot visit him. President Al Laham, seized by the counsels, refused, according to them, to support and assist them, and above all, to authorize access to the prisoner. At the time of writing this report, his lawyer had been denied access to Al Maleh for 9 months. Attitude of the President of the Syrian Bar Association President Skeif, seized by the counsels, refused, according to them, to support and assist them. On November 22, 2010, the United Nations Working Group on Arbitrary Detention denounced Haytham Al Maleh’s arrest and detention conditions6.

• Account of Aytham Al Maleh’s arrest « About two o’clock at noon on Wednesday, 14/10/2009 I came out of my office to return home, and as soon as I opened the door of my car I was jumped by three young men who had stopped their car along the side of my car, they used their full force to push me inside their car. I could not resist because of the difference in the ages between us, and their numbers. I asked them to allow me to put two large water containers I was carrying as well as some clients’ files and my agenda (Calendar), but they refused and denied me by force and after they forced me in the car in which they were riding which was brown color I think. They drove me to the Victoria Bridge and then boarded the direction of the Hijaz Railway Station and then to the General Intelligence building (State Security) in Kafar Sousseh, and they pulled the car into the building. During the kidnapping I received a phone call on my mobile, but they denied me access to it and then took it from me by force. They parked the car and one of them escorted me upstairs to an office when I entered there was a person, I learned later that he is the director of the prison and he is called (Abu Raed) who is a Staff Warrant Officer, and then learned that he is from the city of Edlib. While I was waiting for almost an hour, I noticed the surprise apparent on everyone’s face who saw me there, and then was taken to an officer whom I could not get his name, and there was a veiled woman begging him to allow her to see her colleague, she was allowed to do so after a lot of begging and pleading. Then I was taken to the Office of Major General Zuhair Hamad, deputy director to Major General Ali Mamlouk, who is the director of the General Intelligence, whom I knew from previously when he was a Brigadier General and the director of Information Intelligence Branch, and back then he was pressuring me at a meeting he held with me to protect Al-Watan newspaper, this story I will tell later. The MG requested me to sit on a chair was in front of him to interview me. There were two people beside him, one man he was referring to him as (Doctor) and another with white hair, and who had lost one eye. The MG started to ask me questions about the Barada TV interview then about some of my articles and he focused on the one called (Regression), in which I wrote about Mohannad Al-Hassani. He began to bother me and attacked me violently while saying that I was behind all these problems... As for the one who they call (Dr.), he started asking me questions which reflected his ignorance on the law no. 49 and Decree /14/ of 1989, and then he threatened me with the use of Decree / 6 / which is used against those who are anti the revolution. The interview then moved to another room with the white-haired person who had drafted my statements and took my signature on it, the time was almost nine o’clock at night and I am without food or drink. Then, - Abu Raed - took me down to the prison, located in the northern part of the building and put me in a room seems to be used for torture and contain a table and three couches, television and air conditioning, and left the door open, and then put me inside, and I went to sleep without eating or drinking anything.

6 Annex 3: Opinion of the United Nations Working Group on Arbitrary Detention on November 22, 2010; see also the Report of the United Nations Working Group on Arbitrary Detention, January 19, 2011, A/HRC/16/47




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In the room there was - the German anguish - cable and a cut-out piece from a car tire 4 cm wide and 40 cm long they are used to beat prisoners with, as I heard their screams with my own ears, also there was an electric cable on the table, behind the door there was a metal container, which is filled with fire, I do not know how it is used though. Before leaving Abu Raed apologized to me and told me that he thinks I will go home on the next day Thursday, and he ordered his staff to bring me what I want from outside the prison, food and beverages. Thursday passed together with few more days until Monday, a patrol took me and delivered me to the military public prosecutor office, the time was around two in the afternoon. There I met a Major from the prosecutor office and took a minute to look at my file then he told me “why do you curse at us?” Then, because the prosecutor did not have the time for interrogation he ordered me to be taken to the military police prison in Kaboun. I was sent there in the truck cab behind the driver. The truck took off until we reached the headquarters of the military police in Kaboun. After screaming over me I was placed in a room called the (special) room and from the name you can tell that it was a catch, after I was stripped off everything I have such as cell phone and other personal items. In this room, I found eleven people, in a 14 square meter room. It is four meters long and three and a half meter wide, with a toilet and a sink that occupying about two squared-meters. The toilet has no roof and its unpleasant odours spoiled the room, while the heat was unbearable. The important thing in that room were two prisoners, one semi-blind and mute, his offence was failure to join the compulsory military service, and the other one was a crazy man. My eyes did see sleep, nor did I have food since the night I was in intelligence. I got up in the morning to take a shower before I was taken to the military court. The judge did not interrogate me because he was busy. So, they took me to Kaboun. It was a bleak night without food, like its predecessor, while rotating the guards yelling and slamming the doors open and screaming to the inmates using nasty language, etc. All this makes the stay in this place a piece of doom. It is worth mentioning that the water in this place is often cut-off and one to use the toilet without water. I entered the bathroom with others, but what caught my attention is that the places designated for bathing does not have privacy, the prisoners have to bathe in the open while they can see each other. So, I circumvented a little to be able to shower while half covered and then got dressed. Finally, and without going into too much details, after listening to the orders of the police, sit on the ground or rise up, etc., they took me to room no. 4 in wing no. 9, I entered the room and found it filled with two-level Beds on both sides, there are prisoners occupying the corridor leading to the bathroom, the number of prisoners occupying this room was about 60 and I found out that this number is about the same in each room, imagine how you can sleep in this atmosphere, especially in the passage among the legs and people stepping over each other as they are going and returning. A person, I never met before, introduced himself to me as Abu Issam, a Kurdish citizens, he offered me his bed where he sleeps to sleep instead of him. But, I refused and after some give and take and some efforts I rented from the chief of the room for a thousand Syrian pounds a space nicknamed (westernized) which is a floor space located between two beds, even though I suffer from two medical problems one is an over-active thyroid gland and the other is diabetes. On the second day, and as usual someone knocked on the door of the room and brought bread with some sweet and I cannot eat this kind of food since I did not have my medicine with me, and at eight in the morning we went to take our personal things from the place where they put them for us, I found out my glasses were missing, they could not find them either, they have lost my expensive pairs of glasses. We went to the Military Court and at eleven o’clock a representative from the Bar Association arrived and took my thumb fingerprint on the power of attorney to a group of colleagues, and then the lawyer Mr. Hassan Abdel-Azim arrived and a representative from the prosecutor office then interrogated. It is worth mentioning that my wife also came but was not allowed to see me, so she gave the Bar Association representative my medications but he did not bring them to me and my medicines were lost and I remained without medications. The military prosecution ordered me in prison and I handed me a warrant and sent me to the Adra central prison of Damascus on Wednesday after eight days of my kidnapping me and I was processed in prison in a row of prisoners who had been charged with ordinary crimes, and after we were inspected and photographed then we were ordered to enter the bathroom.”




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1.2. Crackdown on Kurdish Lawyers

• Mustafa Ismail

Kurdish lawyer at the Aleppo Bar Association, aged 36. Arrested in December 2009, he was tortured in detention, according to human rights activists, by State Security officers. Held incommunicado for months, his family didn’t know whether he was dead or alive. Accused of seeking to divide Syria, of anti-Arab behavior, he was tried in October 2010 and sentenced by the Aleppo Military Court to two and half years in prison. His family has been harassed. He is detained at the Aleppo Central Prison in a cell shared with 60 to 70 common law prisoners, under constant threat of attack on their part. The real reasons for his arrest: human rights activist and Kurdish. His lawyer Radeef Mustafa has been subjected to threats by State Security officers. Mustafa Ismail’s counsel was only allowed to visit his client a few brief times during the trial, in the presence of a State Security officer. He was not able to work with him on the charges, or give him any documents. As for the family, they cannot visit him. Attitude of the President of the Aleppo Bar Association President Ahmad Haj Suleiman, seized by lawyer Mustafa Ismail, refused, according to observers, to support and assist him. Attitude of the President of the Syrian Bar Association He then seized President Skeif, who, according to observers, refused to support and assist him.

• Mohamed Mustafa

Kurdish lawyer at Qamishli (Al Hasakah Bar Association). Arrested on December 2009, imprisoned and tortured, according to human rights activists, by State Security officers. Accused of seeking to divide Syria, of anti-Arab behavior, he was not tried and nobody knows his whereabouts and whether or not he is still alive. His family has been subjected to threats. The real reasons for his arrest: human rights activist, Kurdish, political activist. He has no lawyer.




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Attitude of the President of the Al Hasakah Bar Association The President, seized by human rights lawyers, refused, according to observers, to support and assist them, and shows no interest in the case. Attitude of the President of the Syrian Bar Association The same lawyers seized President Skeif, who, according to observers, refused to support and assist him.

• Anwar Faeg Musim

Kurdish lawyer at the Aleppo Bar Association. Arrested in January 2011, imprisoned and tortured, according to human rights activists, by Aleppo State Security officers. Accused of seeking to divide Syria, anti-Arab behavior. His family has been subjected to threats. Nobody knows his whereabouts and whether or not he is still alive. The real reasons for his arrest: human rights activist and Kurdish. He has no lawyer. Attitude of the President of the Aleppo Bar Association President Ahmad Haj Suleiman, seized by human rights defenders-lawyers refused, according to observers, to support and assist them, at least to get information. Attitude of the President of the Syrian Bar Association The same lawyers then seized President Skeif, who, according to observers, refused to support and assist them at least to get information. 1.3. Threatened lawyers

• Radeef Mustafa

Kurdish lawyer at the Aleppo Bar Association, aged 45. Summoned several times by Aleppo State Security officers, denounced by the President of the Syrian Bar Association, Skeif, as an enemy of the State with anti-Arab behavior, he faces disciplinary proceedings before the Aleppo Bar Association. These proceedings are, according to human rights activists, the prelude to criminal proceedings and imprisonment. A first hearing had been set for January 30. It was postponed due to the presence of the UIA and EuroMed delegation and has been adjourned until April 3, 2011. His family has been subjected to threats. The real reasons for his arrest: human rights activist and Kurdish (Head of the Kurdish Human Rights Committee), he was also the lawyer for Al Hassani and other prosecuted Kurdish lawyers.




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He has no lawyer. Attitude of the President of the Aleppo Bar Association President Ahmad Haj Suleiman is prosecuting Radeef Mustafa instead of supporting him even though he is aware of the threats made against the lawyer by the State Security. Attitude of the President of the Syrian Bar Association It is the President of the Syrian Bar Association, Skeif, who, in a letter dated May 16, 2010, denounced Radeef Mustafa (in compliance, according to observers, with instructions from State Security officials, Ali Mamluk and Zuheir Hamad) and asked for proceedings to be initiated against him (confidential Annex). On January 30, 2011, Radeef Mustafa, denounced by the President of the Syrian Bar Association for having committed crimes against the state and demonstrating anti-Arab behavior, was to explain himself before the president of the Aleppo Bar Association, who, at the request of the President of the Syrian Bar, initiated disciplinary measures against him. The international delegation was present, along with the French Consul to Syria and human rights defenders, some of whom are members of the Aleppo Bar Association, and others came from Damascus. According to our Syrian contacts, the President of the Bar Association, upon being informed of the presence of the international delegation, asked the security services for instructions and decided not to come to the court office. The hearing was adjourned to April 3, 2011. It should be noted that the Deputy President suddenly decided, after receiving a telephone call, to take a photograph of all those present, that is, international and Syrian lawyers come to support Radeef Mustafa, without asking for permission. These photos, according to the Syrians, were immediately sent to the State Security. It should also be noted that two days later, Radeef Mustafa was summoned to the State Security offices, and held there for almost four hours to be interrogated about the international delegation.

• Abd Al Rahman Najar

Kurdish lawyer at the Aleppo Bar Association. Summoned several times by State Security officers. He faces disciplinary proceedings before the Aleppo Bar Association for criminal anti-Arab acts. The hearing has been set for March 20, 2011. These proceedings are, according to human rights activists, the prelude to criminal proceedings and imprisonment. . His family has been subjected to threats. The real reasons for his arrest: human rights activist and Kurdish. He allegedly attended a Kurd festival in March 2010 and is said to have asked that the Kurdish language be taught in the schools. He is also reported to have tried to defend festival participants who were later arrested by the authorities. He has no lawyer.




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Attitude of the President of the Aleppo Bar Association President Ahmad Haj Suleiman is prosecuting Abd Al Rahman Najar instead of supporting him even though he is aware of the threats made against the lawyer by the State Security. Moreover, it seems that the Bar Association undertook the proceedings at the direct request of the State Security It should also be noted that the Bar discouraged him from taking a lawyer who could represent and defend him throughout disciplinary proceedings. Attitude of the President of the Syrian Bar Association According to human rights defenders, President Skeif did nothing to support the lawyer. 2. BAR ASSOCIATIONS AND THEIR PRESIDENTS: ROLE AND POWER

2.1. The bar associations are an obstacle to the practice of the legal profession When lawyers handle sensitive cases, in particular before the State Security Court, they do not have access to the files, can only visit their clients after an exhausting obstacle course and having pleaded with the President of the Bar association. The visits last no more than a few minutes, in the presence of one or more officers. The lawyers themselves are threatened by the State Security forces (and by warnings from the Bar President), etc. The Bar President never comes to help them. On the contrary, he rejects their request to visit their clients, denies their complaints, etc.

2.2. Lawyers are left without protection - The Presidents refuse to intercede when more “discreet” means of persecution are used against lawyers: For example, travel ban: Approximately 1,800 Syrians, convicted or not, are forbidden to leave the country. This includes a large number of lawyers, in particular the counsels to Al Hassani, Al Maleh, Al Bunni, etc. -Threats to and persecution of the opponents’ families are another means of action: The spouses of arrested human rights activists are “reasoned”, threatened or lose their jobs. Their children are expelled from university or forbidden to leave the country. The presidents of the Bar Associations refuse to intercede on behalf of those who are threatened. - Family visits to detainees are forbidden

2.3. The bar associations act as outposts for the Regime For all interrogated lawyers (and not only human rights defenders), the Syrian and local Bar Associations are all “outposts” for the Regime or government “detachments”, because they serve as observation and surveillance posts and also as places of repression. According to them, this has been the case since 1981. At that time, the Presidents and members of the Bar Council were relieved of their functions, chased away and, and for many of them, reduced to poverty, while some were imprisoned and tortured. The reason for such brutality was that they constituted sources of resistance to the Regime.




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They were replaced with those that have been described to us as “vassals” or “beholden” to the Regime. Since then, the Presidents and prominent members of the bar associations have played an active role in the repression process. The above examples, namely that of Radeef Mustafa, speak for themselves. A further instance is that of the President of the Damascus Bar Council, Al Laham: in October 2010, when ordered to interrogate a lawyer regarding her activities in favor of human rights defenders, not only did he obey but he also had her taken to the State Security Office where she was interrogated and threatened for several hours. The representative of the President, after making sure the lawyer went to see the officers, left her to her fate. Today, the Bar Association authorities’ main role appears, from what the lawyers say, to be to denounce Kurd lawyers as enemies of the State.

2.4. Syrian Bar Association authorities seriously fail to adhere to the duties and obligations of their office, in particular the President of the Syrian Bar Association

Clearly (Cf. Supra), the presidents, in particular that of the Syrian Bar Association, the members of the Bar Councils and more generally, the lawyers with responsibilities who are in a position to undertake positive action in favor of their colleagues, have failed in their fundamental duties. On May 16, 2010, the President of the Syrian Bar Association wrote to that of Aleppo to denounce Radeef Mustafa who, in his words, “encouraged racist and sectarian attitudes not to mention the fact that he is also a member of a non-authorized committee in violation of the provisions of law 39/1981”. For him, Mustafa “violated the Bar’s most important principle: Arabism. As President of the Kurdish human rights committee, he contravened the provisions of article 79; (…) he incited to disobedience against the authorities, committed crimes against State security, (…) spread rumors and false information, undermined national unity (…) consequently, he decided to initiate disciplinary proceedings against him.” (Cf. Confidential Annex). The President’s circular no. 1805 of July 29, 2009 stipulates: a Syrian lawyer can only participate in activities involving foreigners if duly authorized in writing by the Syrian Bar Association. Otherwise, he risks sanctions. The law regulating the legal profession stipulates in article 79 that lawyers cannot be made members of an international professional organization without prior authorization in writing from the Syrian Bar Council. On June 7, 2010, the President of the Aleppo Bar Association, Ahmed Haj Suleiman, “following the letter from the President of the Syrian Bar Association and the results of an investigation conducted by a member of the Bar Council (…), decided to initiate disciplinary proceedings against Radeef Mustafa”. (Cf. Confidential Annex).

D. THE MISSION

1. ATTITUDE OF THE BAR ASSOCIATION AUTHORITIES TO THE INTERNATIONAL MISSION

2. IMPACT OF THE MISSION According to general opinion, the mission had a real and positive impact in that it demonstrated that lawyers the world over are concerned over the protection of human rights and the fate of their threatened Syrian colleagues. The fact that the President of the Syrian Bar Association refused to meet the international mission would tend to illustrate, according to the experts, the authorities’ (the Bar President but also the State Security)




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embarrassment and their inability to handle the now extremely sensitive issue (that of the imprisoned or threatened lawyers). According to observers, this constitutes a new, and in a certain way, positive development for those concerned: given that the stakes are higher and that international lawyers’ organizations have become part of the problem, the lawyers’ plight now plays out at a very high level, depending on political considerations (which restricts the arbitrary nature of the intermediaries and makes it possible to challenge political authorities). General opinion was that the visit of the international delegation, by showing the authorities that mobilization in favor of human rights defenders was growing, would mean that the policy of empty promises pursued by the Syrian bar associations and authorities had failed. This visit was interpreted, according to our contacts, as a serious warning to the bar associations and authorities. It was a major event for the lawyers and will have reassured human rights defenders, who are under considerable pressure, concerning the reality of foreign support. It was because the authorities and the bar associations were aware of what was at stake that their only response was silence, again according to our contacts. It is important, they believe, for the delegation visit to be followed up by concrete actions illustrating the international lawyers’ determination to act effectively. Moreover, according to human rights defenders/lawyers, the mission had an immediate impact on the fate of those lawyers for whom the delegation expressed their concern. The interest that the delegation – and beyond that, that of the delegators – showed concerning the lawyers is a guarantee of safety for them. To illustrate the impact of this action: on February 1, 2011, Radeef Mustafa was summoned by the State Security of Aleppo. He was interrogated for almost four hours and threatened. The officers wanted to know who made up the international delegation, who was at the origin of the trip, what its impact would be abroad, etc. In other words, according to our contacts, the purpose of the summons was to assess the extent of the international and national support in favor of Radeef Mustafa in order to appreciate the risks (in terms of image) of attacking him from now on. The authorities now have less room for maneuver regarding Radeef Mustafa, and therefore, his safety is better assured.

3. LINES OF ACTION The carrot policy, according to our contacts, has shown its limits: the authorities use it to show the opposition how vain their human rights defenders actions are and that they can expect nothing from the outside world. According to them, such a policy is tantamount to encouraging repression. That is why the human rights defenders believe that organizing a UIA seminar in Damascus in 2010 to coincide with Al Hassani’s trail was an error. Inversely, the attitude of the Paris Bar was unanimously applauded: in light of the increased repression against the lawyers and the gross violations of human rights committed by the Regime and justified by the Syrian Bar Association presidents, the Paris Bar Association President sent back a present from the Syrian Bar Association and broke of all contact with it in March 2010. This affront had a real impact, causing the Bar Association authorities to lose face while showing the prosecuted lawyers that they could count on outside support.

4. RECOMMENDATIONS Given the fact that the Bar Association of Syria and its representatives, namely the Bar Association President, seem to have overstepped the limits of the acceptable, even in such a context, we consider the necessity to open a procedure for exclusion of the Bar Association of Syria from the UIA. It would send a strong signal to the Syrian authorities. Any other decision risks being interpreted by both the authorities and the human rights defenders as a sign of weakness, of refusal to uphold the values on which free and




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independent Bar Associations are built, as proof of their lack of interest in the imprisoned or threatened lawyers. Therefore, showing our concern for the fate of lawyers the world over would be a way of protecting them. Moreover, in order to better protect the imprisoned and threatened lawyers, we believe observers should be sent on a regular basis to: - Attend, as often as possible, both disciplinary and judicial hearings, when procedures are instigated against lawyers; -Visit the imprisoned lawyers. The physical presence of foreigners is a major guarantee of safety for imprisoned or threatened lawyers. Radeef Mustafa was particularly grateful to the delegation from having come: for him, it means he can now be certain he will not disappear or be excessively ill-treated. Of course, the authorities “test” international support: Al Hassani, for instance, was attacked in prison shortly after the diplomats expressed concern for his fate; but confronted with international reaction, the authorities backed down immediately and his detention conditions improved rapidly. Paris, 14 February 2011 Contact Union Internationale des Avocats 25 rue du Jour, 75001 Paris, France Tel : +33 1 44 88 55 66 / e-mail : [email protected] www.uianet.org Emmanuel Altit, Lawyer 95, rue de Courcelles, 75017 Paris, France Tel: +33 1 47 63 15 03 / e-mail: [email protected]

observation mission concerning the situation of human...

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