A/HRC/WGAD/2011/39

GE.12-11527

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-first session, 29 August–2 September

2011

Opinion No. 39/2011 (Syrian Arab Republic)

Communication addressed to the Government on 3 February 2011

Concerning: Tuhama Mahmoud Ma’ruf

The State is a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights. The mandate of the Working Group was

clarified and extended in Commission resolution 1997/50. The Human Rights Council

assumed the mandate in its decision 2006/102. The mandate was extended for a further

three-year period in Council resolution 15/18 of 30 September 2010.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his

sentence or despite an amnesty law applicable to him) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum-seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

United Nations

A/HRC/WGAD/2011/39

General Assembly

Distr. General

29 February 2012

Original: English

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(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation;

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

Tuhama Mahmoud Ma’ruf, born in 1964, is married with two children. She is a

dentist who usually works and resides in Aleppo. Ms. Ma’ruf is married to Bakr Sidqi, who

is a writer and a former political prisoner.

4.

It is reported that on 6 February 2010, Ms. Ma’ruf was arrested by the criminal

security forces, Aleppo branch, due to her alleged association with the Communist Labour

Party in the Syrian Arab Republic.

5.

In 1992, Ms. Ma’ruf had been arrested on the charges of membership in the Syrian

Communist Labour Party, a party banned since the early 1980s. Ms. Ma’ruf was then a 26-

year-old medical student. She was imprisoned for a year, but then released in March 1993,

pending her trial. On 5 January 1995, Ms. Ma’ruf was sentenced by the Supreme State

Security Court to six years in prison with hard labour for “membership in a secret

organization which aims to change the economic and social status of the state” (article 306

of the Syrian Penal Code). However, this sentence was not implemented and Ms. Ma’ruf

remained free.

6.

On 9 February 2010, Ms. Ma’ruf’s lawyer requested her release, and when the

sentence not served was brought up, the lawyer explained that this had expired under the

prescription provisions of article 162 of the Syrian Penal Code. The Attorney General of the

Supreme State Security Court rejected the request made by Ms. Ma’ruf’s lawyer to release

her.

7.

Ms. Ma’ruf was subsequently taken to a branch of the political security services in

Damascus to serve her 1995 sentence. She was transferred to Adra prison, where she was

detained in the political security wing in a special section for women.

8.

The source maintains that Ms. Ma’ruf’s arrest and detention are a direct

consequence of her membership in a political party, the Syrian Communist Labour Party.

Response from the Government

9.

The Working Group forwarded a communication to the Government on 3 February

2011 and a reminder on 10 June 2011. The Working Group stated that it would appreciate if

the Government could, in its reply, provide it with detailed information about the current

situation of Ms. Ma’ruf and clarify the legal provisions justifying her continued detention.

10.

A response was received from the Government on 14 July 2011. The Working

Group welcomes the cooperation of the Government. The Government informs the

Working Group that Ms. Ma’ruf has been released under the general amnesty of 30 May

2011. Pursuant to paragraph 17 (a) of its revised methods of work, the Working Group

considers that the present matter is of such gravity as to justify the adoption of an opinion.

According to its revised methods of work, the Working Group is in a position to do so on

the basis of the submissions that have been made.

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Discussion

11.

In the present case the first question is whether the deprivation of liberty was the

result of the exercise of the rights and freedoms in article 19 of the Universal Declaration of

Human Rights and article 19 of the International Covenant on Civil and Political Rights.

12.

The Working Group has considered the relationship between the detention of Ms.

Ma’ruf and her exercise of the fundamental right to freedom of expression. The source

alleges that the detention is in direct consequence of her membership in the Syrian

Communist Labour Party and has no other grounds. The Working Group has not received

any information from the Government that can rebut the claims that human rights

guarantees regarding the freedom of opinion and expression have been violated. Since the

Government has not contested the prima facie case, the Working Group has no alternative

but to reach the conclusion that the detention of Ms. Ma’ruf was a restriction on her

exercise of fundamental right to freedom of opinion and expression, and that there were no

grounds to justify the restriction. The arbitrary detention falls within category II of the

categories applicable to the cases submitted to the Working Group.

13.

Ms. Ma’ruf was detained in order to serve a criminal sentence for political offences,

which had already expired. Article 162 of the Syrian Penal Code provides that the statute of

limitation for criminal punishments is double of that of the sentence ordered by the Court.

However, it cannot exceed either 20 years or be under 10 years. The statute of limitation in

other cases is 10 years. In the present case, Ms. Ma’ruf was sentenced originally to 6 years

in 1995 and hence she is subject to a 12-year statute of limitation. Nevertheless, she was

arrested in February 2010, i.e. 15 years after her original sentence and 3 years beyond the

12 years of her statute of limitation. This is a violation of due process guarantees. The

Working Group also reiterates that the military and exceptional jurisdiction of the Supreme

State Security Court, from which there is no appeal, does not satisfy due process

guarantees.

14.

In its constant jurisprudence, the Working Group has held that the use of military

tribunals in such cases is in breach of international human rights obligations (see, for

instance, opinion No. 27/2008). In its concluding observations on the Syrian Arab

Republic, the Human Rights Committee stated that it “remains concerned about numerous

allegations that the procedures of military courts do not respect the guarantees laid down in

article 14 of the Covenant” (CCPR/CO/71/SYR, para. 17). In its concluding observations

on the initial report of Syria, the Committee against Torture stated that it: “is deeply

concerned at the numerous, consistent and serious allegations that this court fails to

function in accordance with the international standards for courts of law”

(CAT/C/SYR/CO/1, para. 11). The Committee added that the Supreme State Security Court

“has the competence to adopt sentences and impose penal sanctions for crimes that are very

widely defined …” (ibid.). Finally, in its general comment No. 32 (2007) on the right to

equality before courts and tribunals and to a fair trial, the Human Rights Committee

reaffirmed that the guarantees in article 14 are applicable to common and exceptional

jurisdictions of civil and military character (CCPR/C/GC/32, para. 22).

15.

The detention of Ms. Ma’ruf was in violation of articles 9, 10 and 11 of the

Universal Declaration of Human Rights and articles 9 and 14 of the International Covenant

on Civil and Political Rights. The detention thus also falls within category III of the

categories applicable to the cases submitted to the Working Group.

16.

As Ms. Ma’ruf has been released from the detention that constituted a breach of

international human rights obligations, the principal remedy is an enforceable right of

compensation under article 9, paragraph 5, of the International Covenant on Civil and

Political Rights, which is an expression of general principles. The reasons that may be

given for the detention of Ms. Ma’ruf cannot be used against a claim for compensation.

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17.

The Working Group further points out that this is only one of several opinions from

the Working Group finding the Syrian Arab Republic in violation of its international human

rights obligations (see, for instance, opinions No. 1/2011; No. 26/2011; No. 37/2011 and

No. 38/2011). The Working Group reminds the Syrian Arab Republic of its duties to

comply with international human rights obligations not to detain arbitrarily, to release

persons who are arbitrarily detained, and to provide them with compensation. The duty to

comply with international human rights rests not only on the Government but on all

officials, including judges, police and security officers, and prison officers with relevant

responsibilities. No person can contribute to human rights violations. The Working Group

also underlines the liability that can follow from arbitrary detention when it constitutes a

crime against humanity under customary international law.

Disposition

18.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Ms. Ma’ruf is arbitrary, and constitutes a breach of

articles 9, 10, 11 and 19 of the Universal Declaration of Human Rights and articles

9, 14 and 19 of the International Covenant on Civil and Political Rights, falling

within categories II and III of the categories applicable to the cases submitted to the

Working Group.

19.

The Working Group notes that Ms. Ma’ruf has been released and that the further

steps to remedy the situation include adequate reparation to her.

[Adopted on 1 September 2011]