Decree 36: A sham amnesty ignores 135,000 detainees and forcibly disappeared persons
Enab Baladi – Hussam al-Mahmoud
As legal experts and human rights organizations consider a sham amnesty, the head of the Syrian regime Bashar al-Assad issued an amnesty on November 16 for Syrians convicted of crimes committed but listed a number of exclusions including for offenders who had caused deaths or been involved in weapons smuggling.
The decree No.36, published by state news agency SANA, said that sentences would be lifted in full for some convicts, including those who had committed misdemeanors, those with incurable diseases, and those over the age of 70.
It said that those who were sentenced to death will have their sentences commuted to life in prison and those who were sentenced to life in prison will end up serving 20 years.
The decree included six articles of exceptions that prevent its application to some categories. It ranged from pardoning the entire sentence, partial pardon, and conditional pardon based on the case.
The decree also included a conditional “amnesty” for “internal desertion” from military service, provided that the person surrenders himself within three months, and for “external desertion,” provided that the person surrenders himself within six months, in accordance with the Military Penal Code issued under Decree No.61 of 1950.
The decree, which coincided with the International Court of Justice (ICJ) issuing its first decisions, known as provisional measures, in the framework of the case brought against the Syrian regime by the Netherlands and Canada to halt torture immediately to protect potential victims. This move was met with human rights criticism, as it excluded detainees in cases with political dimensions.
On November 16, the ICJ issued a decision in which it called on the Syrian regime to take steps to stop torture in its prisons.
Public law expert and researcher at the Syrian Dialogue Center, Dr. Ahmed Qorby, told Enab Baladi that the Syrians’ problem with the regime is not primarily a problem of legal texts.
“Syria is not a state of law, since the law is not applied to the ruler before the ruled, and the state is based on transgressing the law,” he added.
Qorby considered that delving into analyzing the text, its comprehensiveness, or its exceptions would not bring any benefit, as the regime is not committed to implementing it at all.
The legal expert pointed out that the regime has issued many amnesty decrees, some of which include general crimes and some of which include military crimes.
In view of this number of decrees, it is assumed that the bulk of those detained during the revolution were released, he added.
However, looking at the statistics of the Syrian Network for Human Rights (SNHR), the number of those released in the previous decree amounted to less than 7,400 people, compared to the presence of more than 135,000 detainees, and some of those released were arrested days before the amnesty decree, and therefore are not counted among the detainees.
Likewise, those stripped of their property no longer have their property, and those stripped of civil rights no longer have these rights. When the “amnesty” decree is issued, it is supposed to lift the “criminal character,” meaning that the person who committed a certain violation is no longer a criminal, and his slate is clean. This makes these decrees useless, and Syrians do not benefit from them, said the legal expert.
The interest is political
The only beneficiary of the amnesty decrees is the Syrian regime, and the benefit is evident in increasing the human resources in the ranks of its forces or by pushing those who do not wish to serve in the military to pay the service allowance ($8000), which is a support for the local currency in the US dollar.
There is a political benefit to influencing public opinion, on an Arab and regional level, and before governments, and this is what is actually happening on the ground. There is also an amnesty for criminals affiliated with the regime, and they can be removed through such decrees, while opponents of the regime have almost no benefit from these decrees.
The Arab-driven Jordanian Initiative for a political solution in Syria dealt with the mechanism for dealing with the detainees’ file in the near term through the regime providing detailed information to the UN offices about the beneficiaries of the presidential amnesty issued by the regime in April 2022, in addition to the arbitrary release of detainees, and the agreement to gradually release detainees.
The initiative also included cooperation with the Red Cross to determine the locations and fate of missing and kidnapped persons while urging all Syrian parties and Turkey (close to the opposition and negotiating with the regime to normalize political relations) to cooperate in releasing detainees, including military and security personnel working in the “Syrian army” and the government.
Qorby believes that the amnesty decrees are linked to external pressures, not internal ones, and are a means of obscuration to suggest and deceive countries that the regime is offering something to the Syrians, knowing that they are not worth the value of the ink they were written with, according to his expression, as all the decrees that were unable to release 10% of detainees, and are nothing more than “formal decrees that neither advance nor delay.”
Included in the “amnesty”
The First Public Attorney in Damascus, Mohammad Eid Balouza, confirmed to the local Al-Watan newspaper on November 21 that about 500 detainees had been released in Damascus as of the 20th of the same month who were included in the “amnesty.”
Balouza considered that the effects of the decree would continue daily, as it included a third or half of the punishment for some crimes, and when the sentence period expires, the detainee would be released.
Ali al-Daoud, First Public Attorney in Homs, also confirmed that since the issuance of the decree, the Public Prosecution and investigating judges in Homs have begun studying the files of detainees and releasing those who benefit from the provisions of the decree, whether they are in detention centers or police stations.
Al-Daoud explained, on November 22, that the number of beneficiaries had reached 220 detainees since the decree was issued until the 20th of the same month, provided that detainees would be released daily in compliance with the provisions of the decree.
On November 23, Saif Faraj, First Public Attorney in Hama governorate, said that the number of those released until the 21st of the same month reached 159 detainees in Hama, while the number of people who partially benefited from the amnesty and whose release date had not yet arrived was about 12 people, pointing out that the number is not final.
The Syrian Network for Human Rights said in its legal report that 86 detainees and forcibly disappeared persons held by the regime who were 70 years old when they were arrested, and at least 58 people who exceeded this age after the date of their arrest during the past years, the regime did not release them despite including this article in many previous amnesty decrees, such as Article 4 of Decree No.13 of 2021, and Article 3 of Decree No.6 of 2022.
SNHR also pointed out the absence of any effect of the decree on detainees and forcibly disappeared persons, as it grants amnesty for the entire punishment for the crimes stipulated in Articles 285 and 286 of the Penal Code (issued pursuant to Decree 148 of 1949), if the crime was committed by a Syrian, and these crimes are not usually charged without being linked to other crimes not included in the decree, and detainees were included in previous decrees that did not lead to their release for these reasons.
Empty of its content
The report of the monitoring group, SNHR, indicated that the regime is continuing its policy of issuing amnesty decrees, which do not contain provisions that enhance the hopes of detainees and their families and are full of exceptions, loopholes, and conditions that empty it of its content, as it excludes political detainees and those detained on the grounds of opinion and armed conflict.
The amnesty decree remains useless or has no real impact on the release of detainees and forcibly disappeared people in detention centers run by regime forces, and the intensity of the decrees targeting perpetrators of crimes and excluding political detainees reflects a defect in the functioning of court procedures.
The regime also did not release more than 3,696 children and 144 people over the age of 70 from its detention centers, who were included in many previous amnesty decrees.
Since 2011, the regime has issued 23 amnesty decrees, which constituted a high legislative intensity in issuing these decrees, but they failed to release detainees and forcibly disappeared persons.
In an analysis of the amnesty decrees issued between March 2011 and October 2022, SNHR counted, on November 16, 2022, the release of 7,351 arbitrary detainees, compared to more than 135,000 detainees and forcibly disappeared persons held by the regime.
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