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The Crime of Writing

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Zouhair Ghazzal

Relevant penal code articles

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Article Junicode-Italic Case Text
183 C3–1 Articles 182–186 fall within a section on “the causes of vindication (tabrīr),” which are the causes that would justify the validity of an action as non-criminal. One such cause is the right to stop an intrusion or trespassing to protect one’s self or property or another self and property. What could be subject to protection is either a real natural person or what stands as a legal person (shakhṣ iʿtibārī, juristic person, body corporate).
187 C9–2 Intention (niyya) implies the will (irādah) to commit a crime as defined by the law.
188 C9–2 A crime is considered intended (maqṣūd), even it goes beyond the original criminal intent set by the act or non-act of the actor, and if he had expected its happening he then accepted the risk.
192 C6–1 C6–2 Article 192 severely limits the scope of article 533 by establishing “honor” as a special category to be dealt with separately and with much reduced punishments (one year only in the majority of cases).If the judge realizes that the motive (dāfiʿʿ) was honorable (sharīf), he should rule according to the following directives:
- permanent internment instead of capital punishment (iʿdām);
- permanent or fifteen-year internment instead of permanent hard labor;
- temporary internment instead of temporary hard labor;
- simple imprisonment (ḥabs basīṭ) instead of imprisonment with labor;
The judge could also protect the accused by refraining from the publication and dissemination of the ruling, procedures normally required as part of the punishment.
199 C6–4 Each attempt to commit a crime, which begins with acts that would directly indicate its doing, would be considered like a crime, unless it has been obstructed by circumstances outside the will of the doer.
209 C9–2 “No one shall be punished unless he performed his act consciously and willfully.”
216 C3–2 An instigator (muḥarriḍ) is someone who pushes or attempts to push someone else to commit a crime.
230 Chapter 3 “A person is exonerated from punishment if he was in a state of madness (yuʿfa mina al-ʿiqāb man kāna fi ḥālat al-junūn).” This follows the concept of démence in French Napoleonic law.
232 C3–2 A person who upon committing an act had a mental problem which could have been inherited or acquired, which affects his mental capabilities of consciousness or choice in his acts must benefit from art. 241 which reduces or replaces punishment.
241 C3–2 The law approves extenuating circumstances whenever the punishment for the criminal act is the death penalty or a life sentence with hard labor; the punishment could then be mitigated to at least one year. For other crimes the punishment is from six months to two years. For misdemeanors the punishment should not exceed the six months.
247–248 C5–4 Punishments could be elevated whenever the convict has committed an additional crime in the aftermath of the verdict: for example a convict serving for life could become eligible for the death penalty if he committed another crime that would necessitate the same life sentence; or a convict serving a jail sentence and who commits another offense less than 15 years from the end of the sentencing, would see his punishment raised to the maximum.
271–273 C6–4 A section of the penal code devoted to “spying” and the theft of public documents that were kept safe for the sake of public safety; the punishment for theft is one year minimum, with a possible conviction to a life sentence if spying is involved.
274 C6–4 Articles 273 and 274 of the penal code require that defendants be interrogated prior to the hearings in order to check whether they abide by their previous declarations to the police.
279 C10–1 Punish all those who use the Syrian territory in order to throw by force the constitution of the state of another sovereign nation-state.
280 C10–1 In conjunction with 279 no one is allowed to use the Syrian territory as a ground to military fight another sovereign nation-state.
366 C10–1 It is against the law that civil servants use their office to promote their own affairs, a felony punishable from one month to three years.
367 C10–1 Pursuant to 366 civil servants who behave abnormally, either as instigators or participants in a crime, must be punished based on 247.
473 C6–1 In article 473, the first one in the series devoted to “illicit sex” (as zinā or sifāḥ), an adulteress should be punished from three months to two years of internment (§1). Her partner (sharīk), in case he was married, is subject to the same prison sentence, but if he was not, the period is mitigated from one month to a year (§2). As to evidence (bayyina) which establishes that a person was engaged in “illicit sex,” §3 of the same article surprisingly limits “legal evidence” on the “partner”: “Besides the legal acknowledgment (iqrār qaḍāʾī) and the misdemeanor which has been witnessed (al-junḥa al-mashhūda), only the letters and written documents drafted by the partner are adduced as evidence (adillat al-thubūt).” But article 473 says nothing on how to determine that a woman was an adulteress: besides her confessing to the court, or direct witnessing of her in a jamāʿ with her “partner,” what would be enough evidence in this (or any) case?
474 C6–2 When we come to men, “The husband is punished from one month to a year of internment whenever he commits the zinā in his marital home or when he overtly manages a place (khilya: “cell”) [for fornication] wherever that may be” (§1). The same punishment applies for the “partner” (§2). Thus, besides the fact that punishments differ between men and women, article 474, unlike its predecessor (473), leaves a blank page as how to determine that a woman was the “sexual partner” of a man she was not married to. And article 475 makes things worse by limiting the right to file a lawsuit to the husband only (§1).
475 Chapter 6 Limits the right to file a lawsuit for marital infidelity to the husband only (§1).
476 C6–2 This article broadens incestuous sex (sifāḥ) to the “origin” (aṣl) and branch (firʿʿ), that is, the mother, father, daughters and sons, the brother/sister-in-law and the son/daughter-in-law, whether legally acknowledged as such (sharʿiyyīn) or not (out-of-wedlock offspring); the punishment goes from one to three years.
477 C6–2 C6–4 Articles 473–477 of the Syrian Penal Code severely punish adultery, fornication, and incest, with prison sentences of three months to two years; and article 476 in particular considers the status of aṣhira that is, the brother/sister-in-law and the son/daughter-in-law categories, as in parallel, from a legal point of view, to the categories of mother-father and brother-sister: that is, sex between these categories is considered “legally” incestuous and hence illegal (subject from one- to three-year incarceration).
489 C6–4 Rape (ightiṣāb) is whenever the offender threatens or forces someone other than the legal spouse into a forced copulation (jamāʿʿ), must be punished for a minimum of 15 years with hard labor, or to 21 if the victim is a minor younger than 15. Notice that the threat of force is all by itself illegal, even if no copulation took place. Moreover, the article does not seem to take into consideration a forced sexual intercourse—“rape”—among married couples. Finally, all the articles that fall under the rubric of rape (489–492) are not gender specific, which means that offenders or victims could simultaneously be male or female.
492 C6–4 Still within the topoi of rape (ightiṣāb), when a 15- to 18-old minor is forced into a sexual intercourse by a legal or illegal “parent” or brother/sister-in-law, father/mother-in-law, or anyone who legally acted as “parent” (sulṭa sharʿiyya), the offender must be punished for 9 years with hard labor.
493 C6–4 C8–2 Article 493 inaugurates the section on “adultery” (faḥshāʾʾ), which is framed in similar terms to “rape,” except that in this instance the illegitimate sexual act which is described as “beyond decency” or simply indecent (fiʿl munāfī li-l-ḥishma), is subject to a minimum of 12 years with hard labor.
497 C6–4 Offenders who committed adultery or rape will see their punishments raised if the offender is a “parent” as indicated in art. 492.
498 C8–2 Offenders who committed adultery or rape will see their punishments raised if more than one person was involved in the indecent sexual act, or if the victim had been inflicted with a sexually transmitted disease, or lost her virginity.
506 C6–4 Those who indulge at encouraging a minor below 15, or a girl or woman above 15, for indecent acts, or addressed them in an indecent way, is subject to 3 days of detention or a penalty of 75 liras or both.
520 C6–4 Each coitus against nature (mujāmaʿa ʿala khilāf al-ṭabīʿa) is punishable up to three years in prison.
533 C3–1 C4–1 The conviction for manslaughter (qaṣd) is 15 to 20 years with hard labor. Notice that qaṣd as an act is not defined. Most killings either fall under 533 or 535.
534 C3–1 C5–4 This article comes close at defining manslaughter (qaṣd), which is a lesser crime than premeditated killing (535), even though it does so only by providing examples of manslaughter. For example, is considered qaṣd an act which is villain (sāfil); or which prepares, encourages or instigates for a misdemeanor (junḥa); or to benefit from a misdemeanor; or when the assailant harasses a public servant; or when the act is committed against a juvenile below 15; or when the assailant commits acts of torture or duress against others.
535 C3–2 C5–1 C5–2 C5–5 This article tackles Syria’s supreme punishment: the death penalty or life sentence with hard labor. Whenever a criminal qaṣd act was committed in the spirit of premeditation, ʿʿamd, it would then be eligible for the supreme punishment, which includes instigation or prior knowledge of the crime in terms of preparation, encouragement, and so on.
536 C5–4 “A person who is responsible for the death of another without an intent to kill, either through hitting, or the use of violence or force, or any other act that is intended, should be punished with forced labor for a minimum of five years.”
540 C3–1 Qaṣd is expanded for acts of harming, for instance, hitting someone on purpose with an intent to harm, leading to a disability that would force the victim to stop working for at least 10 days, which is punishable for a maximum of 6 months in prison.
541 When the harm as defined in 540 exceeds the 10 days, then the punishment should not exceed the year.
555 C4–2 When someone limits the freedom of someone else, whatever the means, then the punishment is from 6 months to 2 years.
556 C4–2 Articles 555 and 556 inaugurate the second chapter on “crimes that affect freedom and honor,” and are bundled under the same heading, “forbidding freedom (ḥurmān al-ḥurriya).” Article 555–1 states that “a person who forbids another of his personal freedom in whatever way would be punished in prison for six months to two years.” The second section of the same article states that “the punishment on the criminal would be reduced, as stated in article 241 section 3, in case there is a voluntary release of the kidnapped person within 48 hours, without having any other crime being perpetrated, be it a crime or a felony.” On the other hand, the criminal would be punished for incarceration with hard labor in case: “(a) the period of forbidding [freedom] went for more than a month; (b) the person who has been forbidden freedom has been subjected to physical or mental torture; (c) the crime has been committed on an employee when performing his duty.”

© Presses de l’Ifpo, 2015

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