Review of the fifth periodic report of Yemen

1.10.2The Existence of a ‘Special Criminal Court’ and the Principle of Fair Trial

In 1999, President Saleh, through Decree No. 391, established a Special Criminal Court (المحكمة الجزائية المتخصصة Al Mahkamat Al Jinaiat Al Mutakhassissa – also refered to as the SCC or State Security Court) to try terrorism-related cases. When it was first established, the court was vested with the jurisdiction to try the crime of Hiraba (حرابة), which in Yemeni Penal Code covers the kidnapping of foreigners and aeronautical or marine piracy; sabotage of oil interests or any other economic interests; theft, murder or harassment by armed bandits; forced confiscation of private or public means of transportation by armed groups or by armed individuals; association with gangs that confiscate public or private lands; and any crime against a member of the judicial system or their families. In 2004, Presidential Decree no. 8 expanded the jurisdiction of the SCC to include “offences harmful to state security and offenses with serious repercussion for society and economy”.

Many Yemeni lawyers believe that this court is unconstitutional, since the Yemeni Constitution prohibits the establishment of such specialized courts¹³⁰, and also because its existence was not discussed or approved by the Parliament. In addition they criticize the fact that the Attorney General has the power to refer all cases to this Court.

Many security suspects, journalist, critics of the Yemeni regime and opposition members have been tried before this court rather than the ordinary criminal system, and serious problems have been raised concerning the fairness of their trials. Alkarama believes that the international standards for fair trial, and in particular those stipulated in Article 14 of the Covenant, are not met by this special court, which places it outside the legal system.

In that regard many lawyers and human rights defenders highlight several issues concerning the administration of justice in the SCC: judgments are hurried and the procedures are expeditious, which mean that lawyers are unable to defend their clients effectively. Therefore, the right to defence is not always respected. Lawyers complain of not having access to their clients’ files, and of not being allowed to visit clients in provisional detention. The right to legal assistance for defendants is not respected, and "confessions" obtained under torture and recorded as statements are routinely used by the court as evidence, in contradiction, for example, with Article 14(3)(g) of the Covenant, which provide that accused people have the right not to be compelled to testify against themselves or to confess guilt.¹³¹ Furthermore, the court never investigates allegations of torture, ill-treatment or prolonged incommunicado detention. Defendants’ families have been prevented from attending hearings, even though they are public.

Alkarama would like to recall that the Human Rights Committee, in its General Comment 32¹³², while noting that the Covenant does not prohibit the trial of civilians in military or special courts, it nevertheless requires that such trials “are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned”¹³³.