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Before the Honourable Supreme Administrative Court in [Court/province]
Appellant: Mr./Ms. [Appellant’s name], represented by Attorney [Attorney’s name] under the attached power of attorney.
Respondent: Mr./Ms. [Name of governor or respondent authority], in his/her capacity as [capacity], represented by the State Cases Department.
Challenged decision: Decision No. [decision number] dated [day/month/year], issued in Case File No. [case file number] by the Administrative Judiciary Court in [province/place], providing as follows: “[operative part of the decision, including rejection of the application to suspend execution and the remainder of the decision].”
Grounds of Appeal
On [day/month/year], the Appellant became aware of the challenged decision. Having found it prejudicial to the Appellant’s rights and contrary to procedural rules and the law, the Appellant promptly appealed it, seeking its reversal and annulment on the following grounds:
First: Admissibility and Formal Requirements
As the appeal was submitted within the period prescribed by the State Council Law, by a petition satisfying the formal requirements, and the legally required fees and deposits have been paid, the Appellant respectfully requests that the appeal be admitted in form.
Second: On the Law
The appeal is based on a number of fundamental legal points, including the following:
1. The distinction between the liability of the holder of the leasehold business interest and that of the owner of the bare ownership of the property
It is established in the case file that the Appellant has owned the leasehold business interest in Unit No. [unit number] of Property No. [property number] in the [name of cadastral area] cadastral area since [year]. The Appellant’s ownership of the leasehold business interest is therefore independent from ownership of the bare title to the property, which belongs to Ms. [name of bare-owner], who was addressed by the warning and attachment at issue in this case.
The leasehold business interest exists independently from the rights enjoyed by the property owner. The second paragraph of Article 43 of the Commercial Law provides: “A commercial establishment initially comprises the trade name, the commercial title, the sign, the right of contact with customers, and the right of lease provided for in the special rent laws and their amendments....” This provision treats the leasehold right as a part separate from ownership of the bare title to the property; it belongs to the owner of the commercial establishment and not to the property owner.
Furthermore, all successive rent laws in Syria have distinguished, in their substance, between the position of the property owner and that of the tenant subject to statutory extension. They did so by setting out provisions governing the relationship between the owner and the tenant subject to statutory extension and by protecting the latter. Paragraph (b) of Article 1 of Rent Law No. 20 of 2015 provides: “... leasing of properties for the practice of commercial, industrial, craft, free-profession, or legally regulated scientific activities shall also remain subject to the will of the contracting parties as of the date of entry into force of Law No. 10 of 2006....” This is the provision governing the relationship between the Appellant, holder of the leasehold right, and [name of bare-owner], owner of the bare title to the attached property. It therefore confirms the independence and distinct nature of each party’s legal position.
As the Appellant’s independent legal position prevents the Respondent Administration from forcibly collecting its rights and monies from the Appellant, enforcement against the Appellant tenant by closing the premises is contrary to justice. This is particularly so because the law grants the Administration the privilege of enforcing against the bare owner’s ownership, without involving the Appellant in the matter and without diminishing the Administration’s rights and privileges.
2. The challenged decision’s violation of the law and justice
The challenged decision’s equating of the legal position of the property owner with that of the holder of the leasehold business interest violates the laws in force. In particular, it disregards a legally established and settled position, namely that of a tenant whose lease is subject to mandatory extension. The holder of the leasehold business interest is an independent owner whose rights may not be infringed; otherwise, this would amount to nullifying rights.
The independence of the holder of the leasehold business interest’s ownership and legal liability may be demonstrated by asking the following question: May the Respondent Authority attach the assets of the Appellant, holder of the leasehold business interest, in order to secure collection of the amount of the violation recorded in the report, or not?
If it is established that the assets of the Appellant, holder of the leasehold business interest, may not be attached, that constitutes the basis on which the Appellant relies in justification of this appeal. Enforcement against a person other than the person liable departs from the rules of law and constitutes an interference with rights and freedoms without legal justification. This, in itself, deprives the Administration of the authority to close the premises, since closure would cause serious harm to the Appellant.
The privileges enjoyed by the Administration for collecting amounts due from individuals compulsorily through enforcement against those assets do not grant it unlimited authority to take whatever measures it wishes. Rather, it must comply with the controls and procedures on which the law is based, as well as with the principles of justice settled in the collective conscience. The Administration’s departure from these duties renders its measures unlawful. Its measures also fall within the concept of interference with rights when they affect persons who are not liable to the Administration.
This is confirmed by the Public Funds Collection Law, whose first paragraph of Article 7 provides: “The financial departments shall serve each taxpayer who has defaulted in payment with a personal warning concerning the tax due from him.” This provision confirms the personal criterion governing the exercise of the Administration’s privilege. The first paragraph of Article 9 of the same Law further provides: “An attachment shall be imposed on the taxpayer’s movable and immovable assets or on their proceeds, within the limits prescribed by the laws in force, whether those assets are in the taxpayer’s possession or in the possession of a third party.” This also confirms that the Administration may not exercise its privileges against a person who is not the taxpayer. Read together, these two paragraphs establish that the exercise of the Administration’s privileges must be confined to the taxpayer and the taxpayer’s assets and may not extend to other persons whose legal positions are independent under the applicable and settled legal provisions of Syria.
3. Grounds for suspending execution of the decision against the principal
Execution of the decisions challenged in this case against the Appellant by closing the premises would cause serious harm to the Appellant. It would also open the door to extensive disputes between the Appellant, holder of the leasehold business interest, and the bare owner. In particular, closing the premises would subordinate the tenant’s interests to those of the lessor and place the tenant at the mercy of the lessor’s wishes, unless the lessor, as owner of the bare title, used closure of the premises as a means of persecuting the Appellant, holder of the leasehold business interest. This matter falls within the jurisdiction of the judiciary. The Court of Cassation has affirmed in this regard that: “The function of the judge is to resolve disputes, not to open the door to dispute”; Cassation Case File No. 1559, Decision No. 1893 dated 27/11/2006, Lawyers Journal 2008, Issues 11/12, Principle 822, page 1667.
The foregoing confirms that both requirements for suspension of execution are satisfied, whether as to the seriousness of the application or as to the occurrence of consequences that cannot be remedied if execution takes place. The Respondent Administration’s closing of the premises in execution of the attachment decision also violates the applicable laws and disregards the entitlement of the Appellant, holder of the leasehold business interest. In particular, execution in this manner violates Decision No. 3607 dated 6/11/1968, as amended by Decision No. 1609 dated 27/12/1969, which expressly referred to the duty to apply the provisions of the Code of Civil Procedure to claims of entitlement brought in the course of applying the Public Funds Collection Law.
The challenged decision overlooked this matter, as well as the consequences that could result from refusing to suspend execution against the Appellant, and justified its conclusion by stating that the difference between the legal position of the Appellant, holder of the leasehold business interest, and that of the bare owner does not alter the result reached by the decision.
Relief Sought
For these reasons, and for any other reasons that the Honourable Court may deem appropriate, the Appellant respectfully requests that the Court issue the following decision:
Admit the appeal in form.
Admit the appeal on the merits, reverse the challenged decision, suspend execution of the Respondent Authority’s Decision No. [decision number] dated [day/month/year] against the principal Appellant, prohibit the Respondent Authority from opposing that suspension, and confine its right of enforcement to ownership of the bare title to the attached property.
Order the Respondent Authority to pay the expenses and attorney’s fees.
Executed on [day/month/year]
With full reservation of rights and respect,
Attorney-in-fact: [Attorney’s name]