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Tal Al-Mallouhi, a 20-year-old blogger who was arrested on 27 December in Damascus by the security services of the state, has been accused of espionage and sentenced to five years in prison by the High Security Court of the state as a result of an unfair trial. Tuhama Ma'ruf was sentenced to six years in prison on 5 January 1995 by the Supreme Court of the Security of the State for belonging to the Communist Labor Party, which has been banned since the 1980s. This punishment was never applied and after more than fifteen years, she was re-arrested in February 2010 and placed in detention to carry out the sentence for her previous offense. Tuhama Ma'ruf was freed under the general amnesty granted by the president on 1 June 2011.
In Opinions 38/2011 and 39/2011 adopted on 1 September, UN experts concluded that the "unjustified denial of the exercise of the fundamental right to freedom of expression and opinion" of the two Syrians rendered their detention arbitrary, in accordance with Category II of the Working Group.
The experts also recalled the jurisprudence established by the Working Group, Human Rights Committees, and Committee against Torture that the use of military courts and other special jurisdictions constitutes "an attack on international obligations regarding human rights" and that they "do not function according to international norms regulating tribunals," in particular "the guarantees elaborated in article 14 of the Pact." In this case, the two Syrian activists were judged by a court of the security of the state, an exceptional jurisdiction that is controlled by the Ministry of the Interior. As noted by the Working Group, it does not rely upon any of the international guarantees for a fair trial as set out in Articles 10 and 11 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and also violates Articles 9 of the two conventions. These violations are of such gravity that the Working Group has declared the two activists' deprivation of freedom arbitrary according to Category III of the Working Group.
The experts called upon the Syrian authorities to immediately release Tal Al-Mallouhi and all other victims of arbitrary detention and compensate them.
It is important to note that in this opinion, the experts emphasized the obligation to respect international norms of human rights. This obligation falls not just on the state but also upon all agents of the states individually, whether they are judges, police officers, or penitentiary officials. The experts also insisted that the practice of arbitrary detention constitutes a crime against humanity under customary international law and entails individual criminal responsibility for those who commit these crimes.