Property transactions forged in Syrian judicial institutions
Enab Baladi – Saleh Malas
In 2018, the number of complaints against judges in Syria rose to 460. The head of the Judicial Inspection Department, Abdul Nasser Ghalioun, said at that time that this number was significant compared to previous years. He said most of these complaints could serve as grounds of appeal with respect to all that is related to the sentence. Ghalioun promised that these complaints would serve as a basis for monitoring the judges’ work level.
Two years ago, the number of complaints did not fill the corruption gaps in the Syrian judicial system so that it could be balanced in the service of law and society. Instead, some judicial personnel have deviated from the provisions of law and profession’s ethics to the degree of expropriating Syrian citizens’ property without their knowledge and transfer it to other people’s names through forged power of attorney (POA) and judicial rulings. Eventually, the citizens have lost their properties as they could not restore them amid the complexity and difficulty of this issue.
In the current November, the local Al-Watan newspaper reported on the Syrian regime’s Justice Minister, Ahmed al-Sayyed, saying that there will be trials involving judges who have made judicial decisions to transfer property ownership based on false POA.
Al-Sayyed said that “a number of judges are currently on trial in the Syrian Supreme Judicial Council because they have issued some judicial rulings transferring property ownership to other people based on forged POA.”
Property ownership transferred by forgery… Will its legal status be affected?
The legal principle of “every derivative of mendacity is equally mendacious” is the basis of any discussion about any forgery of property dispossession between people, for forgery is the opposite of truth and does not affect any legal status of a particular thing.
If property ownership is transferred to a person who is ill-intentioned by fraud, the original owner can still prove his/her ownership by certifying the property’s registration in the cadastre. Thus, the property is restored to its owner without being affected by any illegal transactions.
Legal problems in cases of requesting the restitution of rights in rem transferred to someone else by forgery occur when the property is transferred to a well-intentioned person who does not know about the forgery, according to what a well-informed jurist in Damascus told Enab Baladi.
In such a case, the claiming request of properties transferred through forgery to their original owners conflicts with the good intention principle in conducting legal transactions if civil legal principles opposed any act contrary to good intention.
Just as the legal principle “pacta sunt servanda (agreements /contracts must be respected)” is considered the basis of any contract, the principle of good intention is also an essential element of this basis. Good intention is an expression of the preservation of trust and honesty in transactions between the contract parties, including property sale contracts. The good intention principle requires honesty, sincerity, and integrity in implementing each party’s obligations to the contract.
Accordingly, a restitution request of property transferred to a person of good intention, even though by forgery, is difficult to achieve amid the complexity of legal principles. Some of these principles have referred to the argument of registration in the cadastre as an absolute argument uncontested by any other legal principle.
On the other hand, some other legal principles recommended protecting property transactions based on the principle of good intention, according to the jurist.
The property may also be returned to its original owner after requesting compensation to the well-intentioned person by referring him/her to the entity that sold the property on a forged power of attorney; however, this compensation, if found, does not meet the real value of the property and remains deficient, according to the jurist.
The judge and cadastre personnel are responsible
In principle, any judge ruling in a lawsuit confirming the sale of a real estate if a court judgment made the sale or the director of the property division who witnessed a property transfer transaction if the sale is made directly in the land registry between the owner seller and the buyer, should make sure of the authenticity of all papers listed in the property sale file, the Syrian lawyer and head of the “Free Syrian Lawyers” organization, Ghazwan Koronfol, said to Enab Baladi.
The power of attorney that authorizes the sale of a property to another person must be verified, whether as to the powers contained in it, its source, its continuation (not revoked), or the recent date of its last certification, then property transfer procedures are completed, Koronfol said.
He added if the property sold under that agency remains in the name of the buyer, and the real owner found out that his/her property was sold without their knowledge, the owner should immediately initiate a lawsuit for title deed cancellation and re-registration of his/her property.
The real owner of a property sold without his/her knowledge cannot recover the real estate if it were transferred to a well-intentioned person, “unless the right holder proved that the last buyer was ill-intentioned, which is hard to achieve”, according to Koronfol.
Hence, the property owner loses his/her ownership right, or it becomes limited to its price against the seller or the sellers with a forged power of attorney.
When forgery is committed, the judge acts mostly with good intentions and is not involved in the fraud operation. The judge allocates the necessary effort and attention in his work to verify the validity of all papers and procedures, including a power of attorney, according to Koronfol.
He added, a well-intentioned judge has no penal responsibility in the matter of forgery and merely receives a disciplinary action, such as relocation or promotion delay.
Meanwhile, the maximum penalty would be removing the judge from office if the judge’s involvement in the forgery was proved, whether as an effective partner or meddler, but mostly the role of a judge in a fraud operation is often secondary, according to Koronfol.
Nevertheless, sometimes a judge’s knowledge and criminal involvement in forgery are proven, and in this case, the judge is removed from his/her job and prosecuted for that crime.
Syrian judges are prosecuted under the Judicial Authority Law No. 98 of 1961, and their trials are close, even though the law gives them absolute immunity, which is lifted in two cases only.
The case of flagrante delicto (being caught in the act of committing an offense) is the first case where a judge’s immunity is waived, and the judge is treated like any other citizen. Here penal procedures may be applied against the judge, provided that a relevant judge is informed of the matter to inform the attorney-general, according to Article No. 116 of the Judicial Authority Law.
However, in case the offense was not classified as flagrante delicto, a tripartite committee is required, composed of the president of the Court of Cassation and two of its oldest advisers, or on request of the Supreme Judicial Council.
The judges are prosecuted by the Syrian General Assembly of the Court of Cassation, composed of seven judges, under Article No. 54 of the Judicial Authority Law.
Article-No. 54 of Law No. 98 refutes the court’s jurisprudence, which takes over the law’s status, clarifies the confusion, and sets limits on the law’s concept.
“I want to gain the judge’s favor”
In its January 2019 report, the Berlin-based Transparency International ranked Syria second to last at 178 with 13 points in the organization’s annual Corruption Perception Index, which monitors transparency and corruption in 180 countries.
According to the report, Syria retreated from 144th place with 26 points in 2012 to reach the current position after it retreated 13 points.
In 2014, Syria ranked 159 with 20 points. In 2015 it ranked 154 with 18 points, while in 2016, Syria ranked 173 with 18 points. In 2017 Syria ranked 178 with 14 points, and in 2018 it ranked 178 with 13 points.
In 2016, the head of the Criminal Chamber of the Syrian Court of Cassation, Ahmed al-Bakri, told the local “Al-Iqtisadi” website that “the percentage of bribes increased tenfold during the crisis compared to before,” considering that the reason for that is the lack of censorship in some areas.
Syrian society views the judiciary and any Syrian judicial institution negatively, which is not new, according to a 2018 report by the Syrian Legal Forum, with bribery and cronyism spreading in most sectors, mostly in the judicial sector.
The swift or slow appointment and selection procedures of judges and cadastre personnel in addition to the idea of desiring to hire a lawyer that knows a judge more than he/she knows the law, and other factors mentioned by the report have contributed to weakening justice in Syria.
A phrase like “I need means to gain the judge’s favor” and other similar ideas have broken down the relationship between the community and the judiciary. This concept led to the loss of rights of those who “do not have access to judges”, and to mistrust between lawyers and clients as everything became bought by money.
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