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CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES
UNDER ARTICLE 19 OF THE CONVENTION
Initial reports of States parties due
in 1992
Addendum
YEMEN*
I. INTRODUCTION
1. Since the blessed revolutions of 26 September 1962 and 14 October
1963, Yemen has made every endeavour, together with peace-loving
peoples and States throughout the world, to combat all forms of
torture both directly and indirectly, through the steadfast support
it has given at all levels to peoples who cherish this goal.
2. One of the most important components of the six main aims of
the glorious September revolution calls for compliance with the
charters of the United Nations and other international organizations,
adherence to the principles of positive neutrality and non-alignment,
and endeavours to promote the principle of peaceful coexistence
between nations. Accordingly, and in conformity with the provisions
of Article 55 of the Charter of the United Nations, article 6 of
the Constitution of the Republic of Yemen that was promulgated after
the blessed reunification of the country on 22 May 1990 affirms
the State’s adherence to the Charter of the United Nations, the
Universal Declaration of Human Rights, the Pact of the League of
Arab States and the generally recognized rules of international
law.
3. This has been given practical expression in Yemen’s signing and
ratification of, and accession to, the International Bill of Human
Rights, together with the majority, if not all, of the relevant
international conventions, including, inter alia, as many as 30
International Labour Organization conventions as well as the International
Convention on the Elimination of All Forms of Racial Discrimination,
the Convention on the Elimination of All Forms of Discrimination
against Women, the Convention on the Rights of the Child, and the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
4. However, the endeavours of the Republic of Yemen have not stopped
at the signing and ratification of legal instruments; the terms
and provisions of the international treaties and conventions Yemen
has signed have also been incorporated into various domestic laws
and provision has been made therefor in the Constitution and in
other laws and legislation. Yemen has furthermore taken administrative,
legislative and judicial steps to protect and provide full and adequate
safeguards for human rights by vesting responsibility for their
preservation and protection in the organs of the judicial system
(the Department of Public Prosecutions) and the courts (at their
various levels). According to article 149 of the Constitution: “The
judiciary is a legally, financially and administratively independent
authority the organs of which include the Department of Public Prosecutions.
All disputes and offences are adjudicated by the courts, the judges
of which are independent and, in their administration of justice,
subject to no authority other than the law. No one is permitted
to interfere in any way in lawsuits or other judicial affairs, such
interference being deemed a punishable offence in respect of which
legal proceedings are not subject to any statute of limitations.”
The Constitution also provides that no citizen may be imprisoned
unless in accordance with the terms of a final judgement issued
by a competent court. Thus, through its various constitutional provisions
and laws, Yemen offers the best possible safeguards for the protection
of human rights.
5. Yemen is virtually a pioneer among the countries of the region
in this domain. It continues to pursue its tireless and earnest
efforts to improve, commensurate with the resources available to
it. Yemen complies with the new guidelines followed by the Office
of the United Nations High Commissioner for Human Rights and international
and regional organizations, by incorporating them into the provisions
of agreements and legislation that prohibit human rights violations
and pursuing, investigating and prosecuting human rights violators.
One of the most important measures which Yemen has taken was the
establishment of the mechanism known as the Higher National Committee
for Human Rights and its reorganization pursuant to Presidential
Decree No. 89 of 2001, under the terms of which the chairmanship
of the Committee was entrusted to the Prime Minister, with the Director
of the Office of the President of the Republic acting as his deputy
and a number of Ministers concerned with various areas of human
rights being appointed as members. The reorganization coincided
with the formation of a new Government. One of the most important
programmes which the new Government submitted to the House of Representatives
provided for the incorporation of human rights into development
and the inclusion in the new Government of a new human rights portfolio,
the holder of which would also assume the positions of General Secretary
of the Higher National Committee for Human Rights and Chairman of
the Standing Subcommittee. This meant changing the working methods
of the Committee, the first task of which was to formulate a long-term
strategy and a short-term plan setting forth its key tasks and priorities
for keeping pace with international and regional changes in the
field of human rights promotion and protection. These functions
include, in particular, the prompt preparation and submission of
the reports requested by international organizations, of which the
present report on the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment is a case in point.
The most important of the mechanisms and measures that have been
put in place with respect to the Convention against Torture are
shaped around the following:
- Standard Minimum Rules for the Treatment of Prisoners;
- Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment;
- Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
- Code of Conduct for Law Enforcement Officials;
- Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment.
II. IMPLEMENTATION OF THE CONVENTION AGAINST
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
A. Article 1
1. For the purposes of this Convention, the term “torture” means
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing
him for an act he or a third person has committed or is suspected
of having committed, or intimidating or coercing him or a third
person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity.
It does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument
or national legislation which does or may contain provisions of
wider application.
6. Under the Yemeni Constitution, the practice of physical and psychological
torture is prohibited, as is the extraction of confessions by force
during investigations. Article 48, paragraph (b), of the Constitution
stipulates: “Except in cases of flagrante delicto, no one may be
arrested, searched or detained without a warrant issued by a magistrate
or the Department of Public Prosecutions, in accordance with the
law, where such arrest, search or detention is necessitated by the
requirements of an investigation or the maintenance of public order
and security. No one shall be placed under surveillance or investigated
except in the manner prescribed by law and the dignity of any person
whose liberty is in any way restricted must be preserved. The practice
of physical or mental torture is prohibited, as is the extraction
of a confession by force during investigations. Any person whose
liberty is restricted shall have the right to refrain from making
statements except in the presence of his lawyer, and no one may
be imprisoned or detained in a place other than those subject to
the provisions of the Organization of Prisons Act. Torture and inhuman
treatment at the time of arrest or during the period of detention
or imprisonment shall likewise be prohibited.”
7. This is underlined in article 6 of the Code of Criminal Procedure
No. 3 of 1994, which provides: “No accused person shall be subjected
to torture, inhuman treatment or physical or psychological harm
with a view to extracting a confession from him. Any statement which
an accused person or witness is proved to have made under pressure
created by any of the practices mentioned shall be null and void.”
8. According to article 9, paragraph (b), of the Police Corps Act
No. 15 of 2000: “They [i.e. the police] shall not use physical torture
or psychological pressure against any person during the taking of
evidence or statements or the period of detention or imprisonment.”
B. Article 2
1. Each State Party shall take effective legislative, administrative,
judicial or other measures to prevent acts of torture in any territory
under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war
or a threat or war, internal political instability or any other
public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not
be invoked as a justification of torture.
9. The Constitution, the Code of Criminal Procedure and the Police
Corps Act each contain numerous provisions that guarantee the freedoms
of citizens, safeguard their dignity and security and prevent acts
of torture, by prohibiting all forms of torture and regulating the
circumstances in which citizens may have their freedoms curtailed.
These provisions prescribe severe penalties for anyone who commits,
orders or participates in an act of torture and they designate physical
or mental torture at the time of arrest or during the period of
detention as a criminal offence in respect of which legal proceedings
are not subject to any statute of limitations. The provisions are
described in detail hereunder.
1. The Constitution
10. Article 48 of the Constitution provides as follows:
“(a) The State shall guarantee the personal freedom of citizens
and shall safeguard their dignity and security. The law shall determine
the circumstances under which a citizen may be deprived of his liberty,
and no one may be deprived of his liberty except by a judgement
from a competent court;
“(b) Except in cases of flagrante delicto, no one may be arrested,
searched or detained without a warrant issued by a magistrate or
the Department of Public Prosecutions, in accordance with the law,
where such arrest, search or detention is necessitated by the requirements
of an investigation or the maintenance of public order and security.
No one shall be placed under surveillance or investigated except
in the manner prescribed by law. The dignity of any person whose
liberty is restricted in any way must be preserved. Physical, mental
or moral torture are prohibited. It is prohibited to use coercion
for the purpose of extracting a confession during an investigation.
Any person whose liberty is restricted has the right to refrain
from making statements except in the presence of his lawyer. It
is forbidden to imprison or detain a person in places other than
those governed by the terms of the Organization of Prisons Act.
Torture and inhuman treatment at the time of arrest or during the
period of detention or imprisonment are prohibited;
“(c) The magistrate or the Department of Public Prosecutions must
inform him of the reasons for arrest, as well as question him and
permit him to make statements in his defence and lodge any protests.
He must then immediately issue a substantiated order for his remand
in custody or release him. Under no circumstances may the Department
of Public Prosecutions remand a person in custody for longer than
seven days unless a further judicial order is issued. The maximum
period of remand in custody shall be determined by law;
“(d) When any person is arrested for any reason, an individual designated
by him must be notified immediately. The same shall also apply on
the issuance of any judicial order for his further remand in custody.
If the person arrested is unable to designate anyone, notification
must be given to his relatives or to whomsoever it may concern;
“(e) The law shall determine the punishment for anyone who contravenes
the provisions of any paragraph of the present article, together
with the appropriate compensation for any damage which the person
may suffer as a result of such contravention. Physical or psychological
torture at the time of arrest, or during the period of detention
or imprisonment shall be deemed a criminal offence that is not subject
to any statute of limitations. Anyone who commits, orders or participates
in such crime shall be liable to prosecution.”
2. The Code of Criminal Procedure
11. According to article 6 of the Code of Criminal Procedure: “No
accused person shall be subjected to torture, inhuman treatment
or physical or psychological harm with a view to extracting a confession
from him. Any statement which an accused person or witness is
proved to have made under pressure created by any of the practices
mentioned shall be null and void.”
3. The Police Corps Act
12. Article 9, paragraph (b), of the Police Corps Act provides:
“They [i.e. the police] shall not use physical torture or psychological
pressure against any person during the taking of evidence or statements
or the period of detention or imprisonment.”
13. According to section II (Acts forbidden to officers), article
90 (d), of the Act:
“No officer may:
“Use his rank or military status to accrue personal gain for himself
or others or to inflict harm on others.”
14. By way of a practical example, we should like to mention a case
in the Mahwit governorate in which a suspect died after being tortured
by a security officer and two police officers. The three men were
convicted by a court of law, which ordered that they be discharged
from service and sentenced the security director to 10 years’ imprisonment
and payment of 3 million rials (about US$ 19,000) in blood money
(diya). The two other officers were each sentenced to five years
in prison.
15. The Republic of Yemen, which has affirmed its commitment to
the provisions of the Charter of the United Nations, the Pact of
the League of Arab States, the Universal Declaration of Human Rights
and the generally recognized rules of international law, has no
laws making it permissible to derogate from fundamental human rights
on any ground whatever, whether in time of war or the threat of
war or in the event of internal political instability or any emergency
situation. Extraordinary courts cannot be established under any
circumstances, as is clearly stated in the Constitution, article
150 of which provides: “The judiciary is an integral entity. The
law shall regulate judicial bodies and their levels and shall define
the responsibilities
thereof. It shall also stipulate the criteria of eligibility for
judicial office, together with the conditions and procedures for
the appointment, transfer and promotion of judges and other guarantees
relating to them. Under no circumstances shall extraordinary courts
be established.”
16. This is underlined in article 7, paragraph 1, of the Code of
Criminal Procedure, which states: “Arrests shall not be permitted
other than in respect of acts that are punishable by law. They must
be carried out in the manner prescribed by law.”
17. As already mentioned, nowhere in the legislation of the Republic
of Yemen are there any provisions which make it permissible to derogate
from fundamental human rights on any ground whatever. Hence, law
enforcement officers cannot invoke an order from a superior officer
as justification of an act of torture or other cruel, inhuman or
degrading treatment. The Constitution and a number of related laws
contain provisions that explicitly prohibit all forms of torture
and deny law enforcement officers the right to invoke orders from
a superior officer as justification for ordering, instigating or
tolerating any act of torture. This is clearly explained hereunder.
The Constitution
18. As mentioned above, the provisions of article 48 of the Constitution
prohibit all forms of torture, the practice of which is regarded
as a criminal offence that is not subject to any statute of limitations.
Article 50 of the Constitution likewise provides: “Punishments may
not be enforced by illegitimate means. Enforcement shall be regulated
by law.”
The Police Corps Act
19. According to section I (The duties of officers), article 89,
paragraphs (f) and (l), of the Police Corps Act: “Every officer
shall comply with and implement the provisions of the present Act
and shall likewise be bound by the following:
“(e) He shall not commit any disciplinary infraction or breach the
laws and regulations in force;
“(l) He shall respect citizens and their rights and do his utmost
to facilitate and process their official business as efficiently
as possible by offering them every possible assistance.”
The Penal Code
20. According to article 35 of the Code: “A person shall not be
deemed to have committed a crime, if he committed a criminal act
under pressure of physical coercion that he could not resist or
in circumstances of force majeure. The person responsible for the
coercion shall answer for the crime that occurred, unless it involved
the murder or torture of a human being, in which case neither he
nor the person subjected to the coercion shall be exonerated of
responsibility.”
21. According to article 225 of the section of the Code entitled
“The illegal orders”:
“No member of the armed forces shall be made to answer for:
“1. Carrying out an illegal order issued by his superior officer,
the responsibility for the implementation of which lies with the
superior officer alone, unless the order was in clear breach of
the provisions of the Penal Code or general international law, in
which case both the superior officer and his subordinate shall be
answerable for what happened;
“2. Refusing to carry out an order from a superior officer that
was in clear breach of the Penal Code or general international law.”
The Code of Military Crimes and Penalties
22. According to article 42 of the Code: “No person subject to the
provisions of the present Code shall be made to answer for:
“(a) Carrying out an illegal order issued by his superior officer,
the responsibility for the implementation of which lies with the
superior officer alone, unless the order was in clear breach of
the provisions of the Penal Code or general international law, in
which case both the superior officer and his subordinate shall be
answerable for what happened;
“(b) Refusing to carry out an order from a superior officer that
was in clear breach of the Penal Code or general international law.”
23. According to article 47 of the Code: “Without prejudice to the
Penal Code, a penalty of up to two years’ imprisonment and payment
of compensation shall be imposed on any commanding officer who subjects
a subordinate to beating, causes him bodily harm, carries out an
act likely to damage his health or, for no legal reason, makes him
perform additional duties, for the purpose of torturing him, or
allowing others to do him harm. If the offence results in the person’s
death the penalty shall be capital punishment.”
C. Article 3
1. No State Party shall expel, return (“refouler”) or extradite
a person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds,
the competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned
of a consistent pattern of gross, flagrant or mass violations of
human rights.
24. The Republic of Yemen offers all residents in its territory
full protection and its laws and regulations extend to them the
full guarantees enjoyed by the rest of the citizens without any
discrimination among them. The laws in question include the following:
(a) According to article 45 of the Constitution: “No Yemeni citizen
may be extradited to a foreign power.” Article 46 likewise provides:
“The extradition of political refugees is prohibited.”
(b) According to article 319 of Act No. 48 of 1999, concerning the
entry and exit of aliens: “No alien in possession of a special residence
permit may be deported, unless his presence poses a threat to the
internal or external security and integrity of the State or its
national economy or health or such alien constitutes a burden on
the State. The process of deportation must be conducted in accordance
with a decision issued by the Minister of the Interior after the
deportation order has been examined by the competent committee.”
(c) According to article 5 of the Code of Criminal Procedure: “All
Citizens are equal before the law. No person shall suffer punishment
or damage on account of his nationality, race, origin, language,
creed, profession, level of education or social status.”
D. Article 4
1. Each State Party shall ensure that all acts of torture are offences
under its criminal law. The same shall apply to an attempt to commit
torture and to an act by any person which constitutes complicity
or participation in torture.
2. Each State Party shall make these offences punishable by appropriate
penalties which take into account their grave nature.
25. The laws of the Republic of Yemen, including, in particular,
the Constitution and the Penal Code, absolutely prohibit all forms
of torture, as illustrated hereunder.
The Constitution
26. According to article 48 (e) of the Constitution: “The law determines
the punishment for anyone who contravenes the provisions of any
paragraph of the present article, together with appropriate compensation
for any damage which the person may suffer as a result of such contravention
or detention. Physical or psychological torture at the time of arrest,
or during the period of detention or imprisonment shall be deemed
a criminal offence that is not subject to any statute of limitations.
Anyone who commits, orders or participates in such crime shall be
liable to prosecution.”
27. Article 50 of the Constitution furthermore provides: “Punishments
may not be enforced by illegitimate means. Enforcement shall be
regulated by law.”
The Penal Code No. 12 of 1994
28. According to article 35 of this Code: “A person shall not be
deemed to have committed a crime, if he committed an act constituting
a criminal offence under pressure of physical coercion that he was
unable to resist or in circumstances of force majeure. The person
responsible for the coercion shall answer for the crime that occurred
unless it entailed the murder or torture of a human being, in which
case neither he nor the person subjected to the coercion shall be
exonerated of responsibility.”
29. According to article 166 of the Code: “Any public official who,
in the course of his duties, uses torture, force or threats, directly
or indirectly, against an accused person, witness or expert in order
to extract a confession to an offence or statements or information
pertaining thereto shall face a penalty of up to 10 years in prison.
This shall be without prejudice to the right of the victim to claim
retribution (qasas), blood money (diya) and indemnity for bodily
injury (arsh).”
30. According to article 167 of the Penal Code: “Any public official
who, directly or indirectly, imposes a penalty on a person, that
is different from or more severe than that to which he was sentenced
or refuses to execute an order for that person’s release, for which
he is responsible, or deliberately keeps him in a penal institution
beyond the term specified in the incarceration order shall be liable
to a term of imprisonment. He shall in every case be removed from
his post.”
31. According to article 168 of the Penal Code: “A penalty of up
to one year’s imprisonment or a fine shall be imposed upon any public
official who abuses his official powers by subjecting others to
cruel treatment that derogates from their honour or causes them
physical pain. This shall be without prejudice to the right of victims
to claim retribution (qasas), blood money (diya) and indemnity for
bodily injury (arsh). He shall in every case be removed from his
post.”
32. Article 246 of the Code stipulates a maximum penalty of three
years’ imprisonment for anyone who unlawfully arrests, detains or
deprives a person of his liberty. The penalty is increased to a
term of up to five years’ imprisonment, if the perpetrator(s) of
the offence is a public official, a person who was impersonating
a public official or carrying a weapon, or were two or more persons,
or intended to damage the victim’s honour, or if the victim was
a minor or was without, or with diminished, mental capacity or if
his life or health would have been placed in jeopardy by his being
deprived of his liberty.
33. According to article 249 of the Code: “A penalty of up to five
years’ imprisonment shall be imposed on anyone who abducts another
person. If the victim of the abduction is a female, a juvenile,
insane or feeble-minded, or if the abduction is effected through
the use of force, threats or deception, the penalty is a term of
up to seven years’ imprisonment. If the abduction is accompanied
or followed by bodily harm, assault or torture, the penalty is a
term of up to 10 years’ imprisonment without prejudice to the right
to claim retribution (qasas) blood money (diya) or indemnity for
bodily injury (arsh), as appropriate, if such is warranted by the
harm caused. If the abduction is accompanied or followed by murder,
adultery, prohibited sexual assault or sodomy, the offender is liable
to the death penalty.”
34. With regard to punishment of accessories to the crime, article
250 of the Code stipulates: “The above penalties shall be imposed,
as appropriate, on any person who participates in the abduction
of a person or in the concealment of the abductee following the
abduction, if he was aware of the circumstances in which the abduction
took place and of the acts which accompanied or followed it. If
the accessory to the abduction was aware of the abduction, but unaware
of the other circumstances that accompanied or followed it, the
penalty shall be reduced to a term of up to five years’ imprisonment.”
35. Article 241 of the Code likewise provides: “Anyone who commits
an assault of any kind against the physical integrity of another
person, which, without such being his intention, results in that
person’s death, shall be liable to pay blood money (diya) and to
a penalty of up to five year’s imprisonment.”
36. According to article 243 of the Code: “A punishment identical
to the crime itself shall be inflicted on anyone who commits an
assault of any kind against another person, causing him to suffer
a permanent physical disability, by breaking one of his joints,
plucking out an eye, amputating an ear or inflicting a measurable
bodily wound. If the criminal act is confined to impairment of the
functioning of a limb or sense, but the form thereof remains intact,
or if retribution is prohibited or abated, without the assailant
having been freely pardoned, the penalty shall be payment of blood
money (diya) or an indemnity for bodily injury (arsh) and a term
of up to seven years’ imprisonment. If the assault results in a
permanent disability which the perpetrator had no intention of causing,
the penalty shall be up to three years’ imprisonment in addition
to the payment of blood money (diya) and an indemnity for bodily
injury (arsh), as the case may be.”
37. According to article 244 of the Code: “A penalty of indemnity
for bodily injury (arsh) and up to one year’s imprisonment, or the
indemnity plus a fine, shall be imposed on anyone who commits an
assault of any kind against the physical integrity of another person,
inflicting an injury that cannot be measured or damaging to his
health. If assault gives rise to an illness or incapacity to carry
out personal functions which does not last for more than 20 days,
the penalty shall be a maximum of three years’ imprisonment or a
fine, to which shall be added payment of an indemnity for bodily
harm (arsh) if the assault gives rise to an illness or functional
incapacity which lasts more than 20 days.”
The Code of Criminal Procedure No. 13 of 1994
38. According to article 6 of the Code of Criminal Procedure: “No
accused person shall be subjected to torture, inhuman treatment
or physical or psychological harm with a view to extracting a confession
from him. Any statement which an accused person or witness is proved
to have made under pressure created by any of the practices mentioned
shall be null and void.”
39. According to article 7, paragraph 1, of the Code: “Arrests shall
not be permitted other than in respect of acts that are punishable
by law. They must be carried out in the manner prescribed by law.”
40. Article 16 stipulates: “By way of derogation from the provisions
of article 37, there shall be no abatement of the right for a criminal
action to be heard concerning offences which undermine the freedom
or dignity of citizens or which constitute an assault on the freedom
of private life.”
41. According to article 71 of the Code: “A person under arrest
shall be detained in a place separate from that provided for convicts.
He shall be presumed innocent and shall not be harmed physically
or mentally with a view to extracting a confession from him or for
any other purpose.”
42. Article 178 stipulates that the accused must not be compelled
to take an oath or to answer questions. Similarly, his act of declining
to do so is not regarded as proof of the charge brought against
him. It is also prohibited to use deception or violence against
the accused or in any way bring pressure to bear on him with a view
to inducing or forcing him to confess.
43. Article 469 states: “The penalties and measures prescribed by
law in respect of any criminal offence shall not be applied other
than under the terms of a binding final court judgement handed down
by a competent court.”
The Code of Military Crimes and Penalties No. 21 of 1998
44. According to section III (War crimes), article 20, of the Code
of Military Crimes and Penalties: “A penalty of up to five years’
imprisonment or sanctions commensurate with the results of the crime
shall be inflicted on any person in an area of military operations
who deserts his post and sets about stealing from a prisoner or
from a dead, ill or injured person. He must return the stolen items
or their equivalent value.”
45. According to article 21 of the Code: “A penalty of up to 10
years’ imprisonment or sanctions commensurate with the results of
the crime shall be inflicted on any person subject to the provisions
of this Code who, in time of war, commits an act that causes damage
to persons or property entitled to protection under the terms of
international agreements to which the Republic of Yemen is a party.
The following acts in particular, shall be deemed war crimes punishable
under the terms of this Code:
“2. The torture, ill-treatment or deliberate infliction of severe
pain on prisoners or their subjection to scientific experiments.
“3. The deliberate infliction of serious damage to the physical
and mental integrity and health of military and civilian prisoners,
or their conscription into the armed forces.”
46. According to article 22 of the Code: “The right to bring legal
proceedings in respect of the crimes referred to in this section
shall not be subject to any statute of limitations.”
47. According to article 23: “In the event of the commission of
any of the crimes referred to in this section, the most senior officer
and his immediate subordinate shall be held responsible therefor
and shall not be exempted from the prescribed penalties, unless
the offences were committed without their consent or knowledge or
it was impossible for them to prevent them.”
48. Under the terms of section IX (Offences involving abuse of authority),
article 43, of the Code: “A penalty of up to five years’ imprisonment
or sanctions commensurate with the results of the crime shall be
inflicted on anyone who abuses his authority by giving orders or
asking for deeds to be performed that have nothing to do with his
official duties, or by soliciting gifts or other financial benefits.”
49. Article 44 of the Code stipulates: “A penalty of up to five
years’ imprisonment shall be inflicted on anyone who abuses his
authority or rank by ordering a subordinate to commit a criminal
offence. Without prejudice to the provisions of the Penal Code,
the person who gave the order shall be regarded as the actual author
of the crime, if it was committed or attempted.”
50. Article 47 likewise provides: “Without prejudice to the Penal
Code, a penalty of up to two years’ imprisonment and payment of
compensation shall be imposed on any commanding officer who subjects
a subordinate to beating, causes him bodily harm, carries out an
act likely to damage his health, or, for no legal reason, makes
him perform additional duties, for the purpose of torturing him
or allowing others to do him harm. If the offence results in the
person’s death, the penalty shall be capital punishment.”
51. According to article 52 of the Code: “Without prejudice to the
provisions of the Penal Code, a penalty of up to five years’ imprisonment
shall be inflicted on any person who beats a subordinate.”
52. Article 53 of the Code stipulates a penalty of up to 10 years’
imprisonment for anyone who, in the course of his duties, uses torture,
force or threats, directly or indirectly, against an accused person
or witness in order to extract a confession to a crime or statements
or information pertaining thereto. This shall be without prejudice
to the right of the victim to claim retribution (qasas), blood money
(diya) or indemnity for bodily injury (arsh).
The Police Corps Act No. 15 of 2000
53. According to section II, article 7, of the Police Corps Act,
the duties of the police include the following:
“2. Protection of lives, honour and property;
“4. Guaranteeing the security and safety of citizens and residents;
“6. Managing prisons and guarding prisoners;
“7. Guarding public utilities and helping the public authorities
to carry out their tasks in accordance with the provisions of this
Act;
“10. Performing the duties required of them in accordance with laws,
regulations and decrees.”
54. Article 9, paragraph (b), of the Act stipulates: “They [i.e.
the police] shall not use physical torture or psychological pressure
against any person during the taking of evidence or statements or
the period of detention or imprisonment.”
55. According to section I (The duties of officers), article 89,
paragraphs (f) and (l), of the Police Corps Act: “Every officer
shall comply with and implement the provisions of the present Act
and shall likewise be bound by the following:
“(e) He shall not commit any disciplinary infraction or breach the
laws and regulations in force.”
E. Article 5
1. Each State Party shall take such measures as may be necessary
to
establish its jurisdiction over the offences referred to in article
4 in the following
cases:
(a) When the offences are committed in any territory under its jurisdiction
or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers
it appropriate.
2. Each State Party shall likewise take such measures as may be
necessary to establish its jurisdiction over such offences in cases
where the alleged offender is present in any territory under its
jurisdiction and it does not extradite him pursuant to article 8
to any of the States mentioned in paragraph 1 of this article.
3. This Convention does not exclude any criminal jurisdiction exercised
in accordance with internal law.
56. As illustrated hereunder, Yemen’s domestic laws contain a number
of provisions pertaining to this article that aim at establishing
the State’s jurisdiction over all offences committed in its territory,
regardless of the nationality of the perpetrator.
The Penal Code
57. According to section I (Limits of application of the Penal Code),
article 1, of the Penal Code: “Unless otherwise suggested by the
context, the following terms and expressions shall have the meanings
that appear beside each of them hereunder:
‘Territory of the State’: the land and territorial waters of the
State and anything that is on or under them, including aircraft
and naval vessels, wherever they may be, which carry the nationality
of the State and fly its flag.”
58. According to article 3: “This Code shall apply to all criminal
offences committed in the territory of the State, regardless of
the nationality of the perpetrator. A crime shall be deemed to have
been perpetrated in the territory of the State, if an act constituting
a criminal offence was committed therein and, when all or part of
the crime was committed in the territory of the State, the present
Code applied to anyone who participated therein, even if his participation
took
place outside the country. The present Code also applies to crimes
committed outside the territory of the State for which the Yemeni
courts have competence under the Code of Criminal Procedure.”
The Code of Criminal Procedure
59. According to article 17 of the Code:
“1. The Code of Criminal Procedure shall apply to any criminal offence
committed in the territory of the Republic.
“2. The codes of criminal procedures shall likewise apply to citizens,
the nationals of foreign States, and stateless persons.”
60. According to article 75 of the Code: “Valid arrest warrants
issued within the limits laid down by law shall have legal force
in all parts and dependencies of the Republic, including on board
naval vessels and aircraft flying its flag.”
61. According to article 231: “Courts of first instance shall have
competence for adjudicating all crimes committed in their area of
local jurisdiction.”
62. According to article 232: “The appeal courts shall have competence
for adjudicating appeals against verdicts and decisions handed down
by courts of first instance within their area of jurisdiction.”
63. According to article 234 of the Code:
“1. Local competence must be established in the place in which the
crime was committed or where the accused person resides or was arrested.
The competence of the court before which the action is brought must
first be established.
“2. In the event of an attempt to commit a crime, the crime shall
be deemed to have been committed wherever the offence was initiated.”
64. According to article 236:
“1. If a crime governed by the provisions of Yemeni law was committed
abroad by a person with no known place of residence in the Republic
and who has not been apprehended therein, criminal proceedings shall
be brought against him before the courts in the capital.
“2. If the crime was committed partly outside, and partly inside,
the Republic, the court in the area of jurisdiction of which the
crime inside the Republic was committed shall have local jurisdiction
in the matter.”
65. According to article 244: “The Yemeni courts shall likewise
have competence for adjudicating crimes committed at sea on board
vessels flying the Yemeni flag, regardless of the nationality of
the perpetrator of the crime, and for crimes committed on board
foreign commercial vessels present in a Yemeni naval port or Yemen’s
territorial waters. The court closest to the first port at which
the vessel lays anchor shall have competence in the matter.”
66. According to article 245: “The Yemeni courts shall have competence
for adjudicating crimes committed on board Yemeni aircraft, regardless
of the nationality of the perpetrator of the crime, and for crimes
committed on board foreign aircraft, where the author or victim
of the crime is a Yemeni national. If, following the commission
of the crime, the aircraft sets down in Yemen, the court in the
area of jurisdiction of which the aircraft sets down shall have
competence in the matter, provided that the perpetrator is arrested
upon landing. If the arrest is made in Yemen, the court in the area
of jurisdiction of which the accused person is arrested, shall have
competence in the matter. If the accused person is arrested outside
the territory of the State, the Yemeni courts may hear the case.”
67. According to article 246: “The Yemeni courts shall have competence
for trying any Yemeni who commits a legally designated criminal
offence outside the territory of the State, where such person returns
to the Republic and the offence in question is punishable under
the law of the State in which it was committed.”
The Code of Military Crimes and Penalties No.
21 of 1994
68. According to article 4 of the Code: “The provisions of the present
Code shall apply to anyone who commits any of the following acts:
“(a) Offences perpetrated in bases, camps, barracks, institutions,
factories, vessels, aircraft, sites or quarters occupied by the
military on behalf of the armed forces;
“(c) Offences committed in the course of their duties by persons
subject to the provisions of this Code.”
69. According to article 5 of the Code: “Any person subject to the
provisions of this Code who perpetrates an act outside the Republic
by virtue of which he becomes the author of, or an accessory to,
one of the crimes referred to herein shall be prosecuted under this
Code, even if such crime has not been prosecuted under the law of
the country in which it was committed.”
F. Articles 6 and 7
1. Article 6
1. Upon being satisfied, after an examination of information available
to it, that the circumstances so warrant, any State Party in whose
territory a person alleged to have committed any offence referred
to in article 4 is present shall take him into custody or take other
legal measures to ensure his presence. The custody and other legal
measures shall be as provided in the law of that State but may be
continued only for such time as is necessary to enable any criminal
or extradition proceedings to be instituted.
2. Such State shall immediately make a preliminary inquiry into
the facts.
3. Any person in custody pursuant to paragraph 1 of this article
shall be assisted in communicating immediately with the nearest
appropriate representative of the State of which he is a national,
or, if he is a stateless person, with the representative of the
State where he usually resides.
4. When a State, pursuant to this article, has taken a person into
custody, it shall immediately notify the States referred to in article
5, paragraph 1, of the fact that such person is in custody and of
the circumstances which warrant his detention. The State which makes
the preliminary inquiry contemplated in paragraph 2 of this article
shall promptly report its findings to the said State and shall indicate
whether it intends to exercise jurisdiction.
2. Article 7
1. The State Party in territory under whose jurisdiction a person
alleged to have committed any offence referred to in article 4 is
found shall in the cases contemplated in article 5, if it does not
extradite him, submit the case to its competent authorities for
the purpose of prosecution.
2. These authorities shall take their decision in the same manner
as in the case of any ordinary offence of a serious nature under
the law of that State. In the cases referred to in article 5, paragraph
2, the standards of evidence required for prosecution and conviction
shall in no way be less stringent than those which apply in the
cases referred to in article 5, paragraph 1.
3. Any person regarding whom proceedings are brought in connection
with any of the offences referred to in article 4 shall be guaranteed
fair treatment at all stages of the proceedings.
70. With reference to articles 6 and 7 above, we describe below
the provisions of the
relevant national laws and the other legal procedures pertaining
to detention, the legal duration thereof, guarantees of prompt investigation
and the right of a person in custody, inter alia,
to a defence, to fair treatment at all stages of legal proceedings
and to contact anyone of his choosing.
The Constitution
71. Article 48, paragraph (c), of the Constitution stipulates: “Any
person who is provisionally arrested on suspicion of the commission
of a crime must be brought before a magistrate within a maximum
of 24 hours from the time of his arrest. The magistrate or the Department
of Public Prosecutions must inform him of the reasons for the arrest,
question him and permit him to make statements in his defence and
lodge any protests. He must immediately issue a substantiated order
for his remand in custody or release him. Under no circumstances
may the Department of Public Prosecutions remand a person in custody
for a period longer than seven days unless a further judicial order
is issued. The maximum period of remand in custody shall be determined
by law.”
72. According to article 48, paragraph (d), of the Constitution:
“When any person is arrested for any reason, an individual designated
by him must be notified immediately. The same shall also apply on
the issuance of any judicial order for his further remand in custody.
If the person arrested is unable to designate anyone, notification
must be given to his relatives or to whomsoever it may concern.”
The Code of Criminal Procedure
73. According to article 7 of the Code of Criminal Procedure:
“1. Arrests shall not be permitted other than in respect of acts
that are punishable by law. They must be carried out in the manner
prescribed by law.
“2. The Department of Public Prosecutions shall immediately release
any person who is unlawfully deprived of his liberty or remanded
in custody for a period longer than is permitted by law or under
the terms of a court judgement or order.”
74. According to article 8 of the Code:
“1. Investigation officers, the Department of Public Prosecutions
and the court shall establish whether a crime has been committed,
the reasons and circumstances leading to its commission and the
identity of the accused person.
“2. The accused person shall have the right to take part in the
reconstruction of the facts and to submit claims to prove his innocence
at any stage of the investigation and trial. Such claims must be
verified and investigated in every case.”
75. According to article 9 of the Code:
“1. The right to a defence is guaranteed. The accused person has
the right to defend himself and to engage the services of defence
counsel at any stage of a case, including the investigation stage.
The State shall provide defendants without means with an accredited
defence lawyer.”
76. According to article 71 of the Code:
“A person under arrest shall be detained in a place separate from
that provided for convicts. He shall be presumed innocent and shall
not be harmed physically or mentally with a view to extracting a
confession from him or for any other purpose.”
77. Article 73 of the Code provides: “Any person who is arrested
shall be immediately notified of the reasons for the arrest. He
shall have the right to examine the arrest warrant, to contact whomsoever
he believes should be informed of what has occurred and to seek
the assistance of a lawyer.”
78. According to article 76: “Any person who is provisionally arrested
on suspicion of the commission of a crime must be brought before
a magistrate within a maximum of 24 hours from the time of his arrest.
The magistrate or the Department of Public Prosecutions must inform
him of the reasons for the arrest, question him and permit him to
make statements in his defence and lodge any protests. He must immediately
issue a substantiated order for his remand in custody or release
him. Under no circumstances may the Department of Public Prosecutions
remand a person in custody for a period longer than seven days unless
a further judicial order is issued.”
79. According to article 77 of the Code: “When any person is arrested
for any reason, an individual designated by him must be notified
immediately. The same shall also apply on the issuance of any judicial
order for his further remand in custody. If the person arrested
is unable to designate anyone, notification must be given to his
relatives or to whomsoever it may concern.”
80. According to article 105: “In the aforementioned circumstances,
the investigation officer must immediately take statements from
the accused person and refer him, together with his written report
thereon, to the Department of Public Prosecutions within 24 hours
or release him immediately.”
81. According to article 121 of the Code: “Without prejudice to
the rights of the defence, investigation proceedings shall be conducted
in secret, unless the law otherwise requires. Anyone who initiates
or takes part in such proceedings shall refrain from divulging information
pertaining thereto. Anyone who breaches this undertaking shall be
liable to the penalty prescribed in the Penal Code.”
82. According to article 129 of the Code:
“1. The investigation must be completed within a maximum of two
months from the date on which the file was opened. Investigations
in which the accused person has been remanded in custody must likewise
be expedited.
“2. The Attorney-General shall determine the time limits for investigations
in respect of particular kinds of crimes. Where additional time
is needed, because of the complexity of the investigation or dimension
of the case, approval must be sought from the director of the competent
Department of Public Prosecutions. If the additional time required
exceeds the maximum period allowed, i.e. two months, the approval
of the director of the Department of Public Prosecutions in the
governorate must be sought in order to extend the deadline to up
to three months.
“3. Except as authorized by the Attorney-General, the investigation
shall not last more than six months. In any case, any additional
investigation period shall not last more than six months.”
83. According to article 172 of the Code: “Without prejudice to
the provisions of chapter II, section II, of the present Code, no
person may be arrested or detained unless under the terms of a legally
substantiated order issued by the Department of Public Prosecutions
or a court.”
84. According to article 174 of the Code: “The court and the investigating
officer may arrest or summon any person to appear, if there is strong
enough evidence to charge him with the commission of a crime.”
85. According to article 175: “If the accused person fails to appear
for no good reason after having been summoned to do so, or if it
is feared that he may flee, or if he has no known address, or there
are witnesses to the crime, the investigator may issue a warrant
for that person’s arrest, even if the offence is not one for which
a person may be remanded in custody.”
86. According to article 176 of the Code: “The Department of Public
Prosecutions may not remand a person in custody pending an investigation
for longer than a period of seven days and the remand order shall
not be extended unless pursuant to an order issued by a judge of
the competent court.”
87. Article 189 of the Code stipulates: “A remand order issued by
the Department of Public Prosecutions shall be valid for a period
of only seven days following the date of the arrest of the accused
person or, if he was already in custody, of his surrender to the
Department. Arrest warrants, summonses and incarceration orders
issued by the Department of Public Prosecutions may not be executed
more than six months after the date on which they were issued, unless
a different time limit is specified therein.”
88. According to article 190 of the Code: “If the Department of
Public Prosecutions wishes to extend the period of remand in custody,
it must submit the documents to the competent judge before the seven-day
limit has elapsed, so that the judge, having listened to the statements
of the Department of Public Prosecutions and the accused person,
may issue whatever order he deems appropriate. The judge may extend
the period of detention for one or more consecutive periods, provided
that they do not together amount to more than 45 days.”
89. According to article 191 of the Code: “If the investigation
has not been completed, even though the period of remand in custody
referred to in the preceding article has elapsed, the Department
of Public Prosecutions shall submit the documents to the competent
appellate court in the governorate, convened in the deliberation
chamber, so that, after listening to the statements of the Department
of Public Prosecutions and the accused person, it may issue an order
extending the period of remand in custody for successive periods
totalling not more than 45 days, if such be in the interests of
the investigation, or release the accused person on or without bail.
However, if the accused person has been in custody for more than
three months, the matter must be referred to the Attorney-General
to take whatever steps he views as necessary to expedite the completion
of the investigation. The Attorney-General has the right, in the
interests of completing the investigation, to authorize the director
of the appeals prosecution office to apply for several extensions
of the period of remand in custody amounting to not more than three
months. The total period of remand in custody shall not exceed six
months, unless, before the elapse of such period, it is announced
that the accused person will be referred to the competent court.
Otherwise, he must be released.”
90. According to article 196 of the Code: “Remand and release orders
issued during an investigation and trial shall be executed by the
Department of Public Prosecutions.”
91. According to article 221 of the Code: “If, after conducting
an investigation, it appears to the Department of Public Prosecutions
that a crime has been committed and that the evidence against the
accused person is likely to lead to a conviction, criminal proceedings
shall be brought before the court competent to hear them.”
92. According to article 296 of the Code: “Expedited trial proceedings
shall be mounted in the following circumstances:
“In respect of crimes for which the accused person awaiting trial
is already in custody, unless the court decides to release him.”
General instructions for the Department of Public Prosecutions on
the implementation of the Code of Criminal Procedure promulgated
by Presidential Decree No. 13 of 1994
93. According to article 400 of the instructions: “Under no circumstances
shall members of the Department of Public Prosecutions establish
contacts with foreign diplomatic missions or embassies or consulates
in Yemen. They must notify the Attorney-General about any information
they require from such entities so that these entities may in turn
be contacted through the Ministry of Foreign Affairs.”
94. According to article 409 of the instructions: “Prosecutor’s
offices shall draw the attention of the Attorney-General to criminal,
civil and commercial matters involving clerical staff employed in
diplomatic missions in order to solicit his views on the procedure
to be followed in each case, since States do not extend the enjoyment
of diplomatic immunity to such staff.”
Equitable treatment at all stages of legal proceedings
95. The basic principles underlying the rights of the accused person
under Yemeni law are as follows:
(a) The State guarantees the freedom of citizens and safeguards
their dignity and security;
(b) A person is presumed innocent until proven guilty; penalties
are personal; the law cannot be imposed retroactively;
(c) No citizen may be arrested, searched, detained, placed under
surveillance or deprived of his liberty in circumstances other than
those defined by law;
(d) Torture and inhuman treatment is prohibited;
(e) The private life of citizens is inviolable;
(f) Everyone has the right to a defence, the right to have recourse
to the law, and the right to a fair trial.
Principle of the prohibition of torture and inhuman treatment
96. This principle is embodied in the following legal instruments:
- The Constitution (art. 48 (m));
- The Penal Code (arts. 166-169 and 246-247);
- The Criminal Code (arts. 6; 7; 13; 71-73; 76-77; 172; and 184-193).
Principle of the right to a defence, the right to have recourse
to the law and the right to a fair trial
The Constitution
97. According to article 47 of the Constitution: “Criminal liability
is personal. There is no crime or punishment except as defined by
a provision of the Shariah or the law. Every accused person is innocent
until proved guilty by a final court judgement. It shall be prohibited
to enact any law which punishes acts with retroactive effect from
the date of its promulgation.”
98. According to article 49: “The right to defend oneself or be
represented by defence counsel is guaranteed at all stages of a
case and before all courts in accordance with the provisions of
the law. The State shall guarantee legal aid to persons without
means in accordance with the law.”
99. According to article 50: “Punishments may not be enforced by
illegitimate means. Enforcement shall be regulated by law.”
100. According to article 51: “Every citizen shall have the right
of recourse to the courts in order to protect his legitimate rights
and interests. He shall have the right to submit complaints, criticisms
and proposals, directly or indirectly, to the organs and institutions
of the State.”
101. According to article 149: “The judiciary is a legally, financially
and administratively independent authority the organs of which include
the Department of Public Prosecutions. All disputes and offences
are adjudicated by the courts, the judges of which are independent
and, in their administration of justice, subject to no authority
other than the law. No one is permitted to interfere in any way
in lawsuits or other judicial affairs, such interference being deemed
a punishable offence in respect of which legal proceedings are not
subject to any statute of limitations.”
The Code of Criminal Procedure
102. According to article 8 of the Code:
“1. Investigation officers, the Department of Public Prosecutions
and the courts shall establish whether a crime has been committed,
the reasons and circumstances leading to its commission, and the
identity of the accused person.
“2. The accused person shall have the right to take part in the
reconstruction of the facts and to submit claims to prove his innocence
at any stage of the investigation and trial. Such claims shall be
verified and investigated in every case.”
103. According to article 9 of the Code:
“1. The right to a defence is guaranteed. The accused person has
the right to defend himself and to engage the services of defence
counsel at any stage of a case, including the investigation stage.
The State shall provide defendants without means with an accredited
defence lawyer.
“2. The investigation officers, the Department of Public Prosecution
and the court must inform the accused person of his rights with
respect to the charge against him and of the means of proof available
to him. They must safeguard his personal and property rights.”
Code of Conduct for Lawyers
104. Article 3 of the Code provides as follows: “The lawyer is an
independent, liberal professional who practises his profession in
accordance with the law.”
105. According to article 4: “Lawyers shall act in accordance with
the following main aims:
“1. They shall apply the law by working in conjunction with the
organs of the judiciary and the Department of Public Prosecutions
to promote and consolidate the sovereignty of the law, the integrity
of the judicial process and the defence of public freedoms and human
rights.
“2. They shall work in conjunction with the organs of the judiciary
and the Department of Public Prosecutions to facilitate access to
justice, simplify
judicial proceedings and remove the obstacles and resolve the difficulties
faced by litigants.”
106. Article 51 of the Code reads as follows: “The courts, the Department
of Public Prosecutions, the police and other organs before which
a lawyer practises his profession must offer him every facility
he needs to perform his duties. They shall not reject his petitions
without legal justification and shall enable him or his representative
to view or copy documents and attend investigations with his client
in accordance with the provisions of this Code.”
107. According to article 54: “Anyone who incriminates a lawyer
during the practice of his profession or on account thereof shall
be liable to the penalty prescribed in the Penal Code.”
G. Article 8
1. The offences referred to in article 4 shall be deemed to be included
as extraditable offences in any extradition treaty existing between
States Parties. States Parties undertake to include such offences
as extraditable offences in every extradition treaty to be concluded
between them.
2. If a State Party which makes extradition conditional on the existence
of a treaty receives a request for extradition from another State
Party with which it has no extradition treaty, it may consider this
Convention as the legal basis for extradition in respect of such
offences. Extradition shall be subject to the other conditions provided
by the law of the requested State.
3. States Parties which do not make extradition conditional on the
existence of a treaty shall recognize such offences as extraditable
offences between themselves subject to the conditions provided by
the law of the requested State.
4. Such offences shall be treated, for the purpose of extradition
between States Parties, as if they had been committed not only in
the place in which they occurred but also in the territories of
the States required to establish their jurisdiction in accordance
with article 5, paragraph 1.
108. According to article 48, paragraph (e), of the Constitution:
“The law shall determine the punishment for anyone who contravenes
the provisions of any paragraph of the present article, together
with the appropriate compensation for any damage which the person
may suffer as a result of such contravention. Physical or psychological
torture at the time of arrest or during the period of detention
or imprisonment shall be deemed a criminal offence that is not subject
to any statute of limitations. Anyone who commits, orders or participates
in such crime shall be liable to prosecution.”
109. Article 166 of the Penal Code stipulates: “Any public official
who, in the course of his duties, uses torture, force or threats,
directly or indirectly, against an accused person, witness or expert
in order to extract a confession to an offence or statements or
information pertaining thereto shall face a penalty of up to 10
years in prison. This shall be without prejudice to the right of
the victim to claim retribution (qasas), blood money (diya) and
indemnity for bodily injury (arsh).”
110. According to article 167 of the Penal Code: “Any public official
who, directly or indirectly, imposes a penalty on a person that
is different from or more severe than that to which he was sentenced
or who refuses to execute an order for that person’s release, for
which he is responsible, or deliberately keeps him in a penal institution
beyond the term specified in the incarceration order shall be liable
to a term of imprisonment. He shall in any case be removed from
his post.”
111. According to article 168: “A penalty of up to one year’s imprisonment
or a fine shall be imposed on any public official who abuses his
official powers by subjecting others to cruel treatment that derogates
from their honour or causes them physical pain. This shall be without
prejudice to the right of victims to claim retribution (qasas),
blood money (diya) and indemnity for bodily injury (arsh). He shall
in every case be removed from his post.”
112. Article 246 of the Code stipulates a maximum penalty of three
years’ imprisonment for any person who unlawfully arrests, detains
or deprives a person of his liberty. The penalty is increased to
a maximum of five years’ imprisonment, if the perpetrator(s) of
the offence is a public official, a person who was impersonating
a public official or carrying a weapon, or were two or more persons
or intended to damage the victim’s honour, or if the victim was
a minor or was without, or with diminished, mental capacity, or
if his life or health would have been placed in jeopardy by his
being deprived of his liberty.
113. According to article 243 of the Code: “A punishment identical
to the crime itself shall be imposed on anyone who commits an assault
of any kind against another person, causing a permanent physical
disability, by breaking one of his joints, plucking out an eye,
amputating an ear or inflicting a measurable bodily wound. If the
criminal act is confined to impairment of the functioning of a limb
or sense, but the form thereof remains intact, or if retribution
is prohibited or abated, without the assailant having been given
a free pardon, the penalty shall be payment of bloody money (diya)
or indemnity for bodily injury (arsh) and a term of up to seven
years’ imprisonment. If the assault results in a permanent disability
which the perpetrator had no intention of causing, the penalty shall
be up to three years’ imprisonment in addition to payment of blood
money (diya) and an indemnity for bodily injury (arsh), as the case
may be.”
114. According to article 6 of the Code of Criminal Procedure No.
3 of 1994: “No accused person shall be subjected to torture, inhuman
treatment or physical or psychological harm with a view to extracting
a confession from him. Any statement which an accused person or
witness is proved to have made under pressure created by any of
the practices mentioned shall be null and void.”
115. Article 16 stipulates: “By way of derogation from the provisions
of article 37, there shall be no abatement of the right for a criminal
action to be heard concerning offences which undermine the freedom
or dignity of citizens or which constitute an assault on the freedom
of private life.”
116. According to article 71 of the Code: “A person under arrest
shall be detained in a place separate from that provided for convicts.
He shall be presumed innocent and shall not be harmed physically
or mentally with a view to extracting a confession from him or for
any other purpose.”
117. Article 178 of the Code stipulates that the accused must not
be compelled to take an oath or to answer questions. Similarly,
his act of declining to do so is not regarded as proof of the charge
brought against him. It is also prohibited to use deception or violence
against the accused or in any way bring pressure to bear on him
with a view to inducing or forcing him to confess.
118. According to article 469: “The penalties and measures prescribed
by law in respect of any criminal offence shall not be applied other
than under the terms of a binding final court judgement handed down
by a competent court.”
119. According to article 21 of the Code of Military Crimes and
Penalties: “A penalty of up
to 10 years’ imprisonment or sanctions commensurate with the results
of the crime shall be inflicted on any person subject to the provisions
of the present Code who, in time of war, commits any act that causes
damage to persons or property entitled to protection under the terms
of international agreements to which the Republic of Yemen is a
party. The following acts in particular shall be deemed war crimes
punishable under the terms of the present Code:
“2. The torture, ill-treatment or deliberate infliction of severe
pain on prisoners or their subjection to scientific experiments.
“3. The deliberate infliction of serious damage to the physical
and mental integrity and health of military and civilian prisoners,
or their conscription into the armed forces.”
120. According to article 53 of the Code: “A penalty of up to 10
years’ imprisonment shall be inflicted on any person who, in the
course of his duties, uses torture, force or threats, directly or
indirectly, against an accused person, witness or expert in order
to extract a confession to an offence or statements or information
pertaining thereto. This shall be without prejudice to the right
of the victim to claim retribution (qasas), blood money (diya) and
indemnity for bodily injury (arsh).”
121. Article 9, paragraph (b), of the Police Corps Act No. 15 of
2000 likewise provides: “They [i.e. the police] shall not use physical
torture or psychological pressure against any person during the
taking of evidence or statements or the period of detention or imprisonment.”
122. Reference may also be made to the Arab Convention on Judicial
Cooperation signed
by 21 Arab States at Riyadh on 4 April 1983. Yemen ratified the
Convention by Act No. 36 of 1983, with the Convention entering into
force on the date on which the Act was promulgated.
123. Unlike the 1953 Convention concluded between the members of
the League of Arab States, the Arab Convention on Judicial Cooperation
is not confined to the matter of extradition of criminals, but also
covers such issues as disclosure of judicial files and documents,
letters rogatory, the testimony of witnesses and experts in criminal
cases, and enforcement of penalties against convicted persons.
124. With regard to international letters rogatory, the provisions
of articles 253 et seq. of the Code of Criminal Procedure are applied
with respect to foreign or Arab States to which the terms of the
Convention do not apply. Other Arab States that are bound by the
provisions of the Convention are governed only by the provisions
of the Convention.
125. Yemen’s willingness to cooperate in criminal proceedings and
with respect to judicial assistance is confirmed in the provisions
of Yemeni law.
H. Article 9
1. States Parties shall afford one another the greatest measure
of assistance in connection with civil proceedings brought in respect
of any of the offences referred to in article 4, including the supply
of all evidence at their disposal necessary for the proceedings.
2. States Parties shall carry out their obligations under paragraph
1 of this article in conformity with any treaties on mutual judicial
assistance that may exist between them.
126. The rules that apply to letters rogatory in cases where Yemen
has no agreement with a foreign State or where such agreements are
silent in respect thereof have been laid down by the legislature
in Section IV of the Code of Criminal Procedure (International Letters
Rogatory). According to article 252 of the Code: “During the hearing
of a case, the Department of Public Prosecutions or the court may
deputize a foreign authority to institute a procedure or procedures
in connection with a preliminary or final investigation and may
address a letter rogatory to the Ministry of Foreign Affairs for
transmission via the diplomatic channel. In urgent cases, the letter
rogatory may be sent directly to the foreign judicial authority
being requested to institute the procedure. In such case, a copy
of the letter rogatory, accompanied by all the documents, must be
sent to the Ministry of Foreign Affairs, for transmission via the
diplomatic channel.”
127. Conversely, article 253 of the Code stipulates: “The Department
of Public Prosecutions or the court shall accept a letter rogatory
addressed to it by a foreign authority through the diplomatic channel
and shall comply therewith in accordance with the rules laid down
in Yemeni law. If the letter rogatory is sent directly, the results
of the procedure shall not be communicated to the foreign authorities
until the diplomatic request has been received.”
128. According to the manual of instructions of the Department of
Public Prosecutions on the application of the Code of Criminal Procedure:
“In accordance with the principle of friendly relations between
States, States shall respond to requests for judicial assistance
even in the absence of any international agreements between them
in this regard. Letters rogatory may cover all elements of an investigation,
such as the hearing of witnesses, confrontation of witnesses, appointment
of experts, confiscation of objects and the search and questioning
of accused persons. However, they must not include a request for
the incarceration of the person to be questioned, since this procedure
may only be executed at the time of extradition” (art. 563).
129. According to article 564 of the manual:
- Due regard shall be had for the provisions of the Convention concluded
between the members of the League of Arab States on 9 June 1953,
which consist in the following:
“1. Every State bound by the present Convention shall be entitled
to request any State Party thereto to execute on its behalf, in
that State Party’s territory, any judicial procedure in connection
with a case awaiting trial.
“2. The letter rogatory shall be submitted through the diplomatic
channel and executed in the following manner:
“(a) The competent judicial authority shall execute a letter rogatory
in accordance with its own procedural rules. If the requesting State
wishes the letter rogatory to be executed by a different method,
the authority shall comply with its wish, provided that such would
not contravene the laws of the requested State;
“(b) The judicial authority shall give notice of the place, date
and time of execution of the letter rogatory in order to allow the
interested party to appear in person, should he wish to do so, or
deputize someone to appear on his behalf;
“(c) If the letter rogatory cannot be executed or if it pertains
to a subject or procedure precluded by the law of the requested
State, the requested State shall duly notify the requesting authority
to that effect;
“(d) The requested State shall meet the costs of execution, except
for the fees of experts, which shall be paid by the requesting State.
“3. Any judicial procedure instituted pursuant to a letter rogatory
in accordance with the preceding provisions shall have the same
legal effect as it would have had, if it had been instituted before
the competent authority in the requesting State.
“4. The nationals of the State requesting the execution of a judicial
procedure in a country that is a member of the League of Arab States
shall not be asked to pay costs, a deposit or a surety which the
nationals of the requested country would not themselves be required
to pay; likewise it is not permissible to deny them the right to
legal assistance or exemption from legal fees enjoyed by those other
nationals.”
130. We should like to draw attention to the procedures followed
by the Yemeni police in cases where an international criminal has
been apprehended and is awaiting extradition. The Yemeni branch
of the International Criminal Police Organization (Interpol) deputizes
the Yemeni police authorities to arrest the foreign criminal whose
extradition is sought, to remand him in custody for a period of
seven days, to confiscate any items on his person and to question
him in the following circumstances:
(a) Upon receipt of a telex or letter from the Interpol General
Secretariat;
(b) Upon receipt of an Interpol Red Notice;
(c) Upon receipt of a telex or communication from any national office.
131. These documents must clearly indicate the nature of the charge,
the body that issued the arrest warrant, and the fact that extradition
of the criminal will be sought. Within one week from the date of
arrest of the person whose extradition is sought, the judicial authority
in the country requesting extradition must send a telex to support
the extradition request. If the telex is not received by the aforementioned
deadline, the person shall be released. The Yemeni police may place
the foreigner whose extradition is sought under surveillance for
a period of one month pending the arrival of the extradition documents
through the diplomatic channel. If the requisite documents have
not been received by the end of such period, the person in question
shall be released.
132. These procedures are without prejudice to the right of the
Yemeni police to intervene in any situation that may arise in this
regard.
I. Article 10
1. Each State Party shall ensure that education and information
regarding the prohibition against torture are fully included in
the training of law enforcement personnel, civil or military, medical
personnel, public officials and other persons who may be involved
in the custody, interrogation or treatment of any individual subjected
to any form of arrest, detention or imprisonment.
2. Each State Party shall include this prohibition in the rules
or instructions issued in regard to the duties and functions of
any such person.
133. The Constitution, the Code of Criminal Procedure and a number
of related laws contain a variety of different provisions prohibiting
all forms of torture and upholding the principle of the preservation
of human dignity and protection of human rights. These include,
in particular, articles 48 and 50 of the Constitution, articles
35, 166-167, 242-246 and 249 of the Penal Code, articles 6, 7, 16,
71, 178 and 469 of the Code of Criminal Procedure, articles 20-23,
43-44, 47 and 52-53 of the Code of Military Crimes and Penalties
and articles 7, 9, 90 and 98 of the Police Corps Act, together with
the guidelines issued by the Attorney-General on the application
of various articles of the Code of Criminal Procedure.
134. Both the Code and the guidelines have been incorporated into
the academic curricula for various stages of education, particularly
the university stage, where they form part of the core
curriculum for students at State and private universities reading
Shariah and non-Shariah law (jurisprudence) and for students at
police faculties and academies who will be entrusted with the protection
and realization of these rights once they graduate.
135. At the practical level, the Higher Committee for Human Rights
has, inter alia, organized periodic human rights awareness seminars
for law enforcement officers and members of the Department of Public
Prosecutions on the rights of accused persons vis à vis the judicial
authorities. Of particular note was the seminar held in the capital,
Sana`a, between 17 and 20 October 1999, as part of a campaign that
was extended in 2000 to cover every governorate in the Republic.
The seminar aimed at providing human rights education and training
on the subject of the rights of accused persons to police station
chiefs, deputy chiefs, political security officers, criminal investigators,
members of the Department of Public Prosecutions, military intelligence
officers and military police officers in every governorate so as
to prevent them from committing violations due to ignorance of the
proper procedures to be followed when arresting, investigating and
questioning accused persons. The seminar likewise focused on the
principles of the sovereignty of the law and respect for human rights
in Yemen, looking at two core issues in particular: the human rights
of accused persons under national and international law and potential
violations of human rights and the penalties prescribed therefor
under Yemeni and international law. A special workshop was also
run for members of the House of Representatives and the Consultative
Council, in addition to a human rights workshop for judicial police
officers which was held between 13 and 15 April 2003 and attended
by a total of 30 participants from the judiciary, the Department
of Public Prosecutions and the Ministry of the Interior. The workshop
took up a number of themes, including the legal and ethical rules
of conduct for police officers; the provisions of the law prohibiting
torture; abuse and individual rights; and a number of the principles
underpinning humanitarian and legal work. Moreover, the Ministry
of Justice, the Ministry of the Interior and several non-governmental
organizations have organized symposiums and workshops too numerous
to mention here.
J. Article 11
Each State Party shall keep under systematic review interrogation
rules, instructions, methods and practices as well as arrangements
for the custody and treatment of persons subjected to any form of
arrest, detention or imprisonment in any territory under its jurisdiction,
with a view to preventing any cases of torture.
136. According to article 563 of the Code of Criminal Procedure:
“The Attorney-General shall issue the administrative publications,
periodicals, instructions, decisions and official forms required
for the proper functioning of the Department of Public Prosecutions.
“He may issue instructions to law enforcement officers and members
of the police force working in penal institutions on the exercise
of the powers and functions provided for under the present Code.
These persons shall be bound to comply with such instructions.”
137. Prison and police station regulations also contain directives
on the rules and basic rights of accused persons and the obligations
of police officers vis à vis prisoners. They also refer to the provisions
of the Code of Criminal Procedure and the penalties for violations
thereof.
K. Article 12
Each State Party shall ensure that its competent authorities proceed
to a prompt and impartial investigation, wherever there is reasonable
ground to believe that an act of torture has been committed in any
territory under its jurisdiction.
138. We refer to articles 7, 8, 9, 73, 105, 121 and 221 of the Code
of Criminal Procedure, as described in detail here in the part of
this report dealing with articles 6 and 7 of the Convention.
L. Article 13
Each State Party shall ensure that any individual who alleges he
has been subjected to torture in any territory under its jurisdiction
has the right to complain to, and to have his case promptly and
impartially examined by, its competent authorities. Steps shall
be taken to ensure that the complainant and witnesses are protected
against all ill treatment or intimidation as a consequence of his
complaint or any evidence given.
139. Article 51 of the Constitution provides: “Every citizen shall
have the right of recourse to the courts in order to protect his
legitimate rights and interests. He shall have the right to submit
complaints, criticisms and proposals, directly or indirectly, to
the organs and institutions of the State.”
The Code of Criminal Procedure
140. According to article 24 of the Code: “The victim, the complainant
in a personal status matter, or the civil plaintiff, shall be regarded
as a co-litigant with the Department of Public Prosecutions in a
criminal proceeding and as a plaintiff in a civil proceeding connected
thereto, if such person has any claims ...”
141. Article 91 of the Code provides: “Investigation officers shall
investigate crimes, pursue criminals, investigate reports and complaints,
gather evidence and information pertaining thereto and record it
in their reports for transmission to the Department of Public Prosecutions.”
142. According to article 92: “Where an investigation officer is
informed or learns of the commission of a serious crime or of one
of the offences referred to in a decision of the Attorney General,
he shall notify the Department of Public Prosecutions thereof and
go immediately to the scene of the crime to secure it, seize any
items connected with the crime, and carry out the requisite general
checks. He shall take all necessary steps to protect the physical
evidence and anything that could help with the investigation of
the crime. He shall take statements from anyone with information
about the dynamics or perpetrators of the crime and shall question
the accused person about it. He shall record all of this in a written
report and assemble and sign the items of evidence … He shall surrender
these reports to a member of the Department of Public Prosecutions
upon his arrival ...”
143. According to article 93: “When a member of the Department of
Public Prosecutions receives or views the written reports and the
assembled evidence, he shall ensure that they are complete before
taking any action thereon. He can return them for completion to
the source from which they came or assign the task to someone else
or undertake it himself.”
144. According to article 94: “Anyone with information about a crime
that the Department of Public Prosecutions could prosecute without
the need for a complaint or warrant must report it to the Department
of Public Prosecutions or an investigation officer.”
145. According to article 95: “Any public official or public servant
who, in the course of his duties or on account thereof, learns of
the commission of a crime that could be prosecuted by the Department
of Public Prosecutions without the need for a complaint or warrant
must report it immediately to the Department of Public Prosecutions
or the nearest investigation officer.”
146. According to article 97: “A complaint in which the complainant
does not claim his civil rights shall be regarded as a communication
and shall not of itself give rise to civil proceedings. The complainant
shall not be regarded as a civil plaintiff, unless he declares himself
to be such in the complaint or a document he may subsequently submit
or where either document contains a claim for compensation.”
147. According to article 99: “If there are witnesses to a crime,
investigation officers shall go immediately to the scene in order
to examine or secure the physical evidence and take note of the
situation at the scene, the persons present and anything that may
prove useful in establishing the facts. They shall take statements
from anyone present or anyone who can provide information about
the crime or the perpetrators thereof. They shall immediately inform
the Department of Public Prosecutions that they are going to the
scene. As soon as it has been notified about a serious crime to
which there are witnesses, the Department of Public Prosecutions
shall send someone directly to the scene of the crime.”
148. According to article 110: “If the Department of Public Prosecutions
believes that the report on the evidence gathered indicates that
a serious crime has taken place, it shall take no criminal proceedings
until after an investigation has been conducted.”
149. Article 121 stipulates: “Without prejudice to the rights of
the defence, investigation procedures shall be conducted in secret,
unless otherwise required by law. Every person who institutes such
procedures or participates therein shall refrain from disclosing
information about them. Anyone who breaches this undertaking shall
be liable to the penalty prescribed in the Penal Code.”
150. Article 167 of the Code stipulates: “The investigator shall
hear every witness separately and shall have witnesses confront
one another as well as the accused person.”
151. According to article 193 of the Code: “Every person who is
deprived of his liberty has the right to submit a written or verbal
complaint at any time to the governor of the penal institution and
to ask him to transmit it to the Department of Public Prosecutions.
Anyone to whom a complaint is submitted must accept it and pass
it on to the Department of Public Prosecutions as soon as he has
made a note thereof in the relevant logbook.”
152. Article 562 of the Code stipulates: “The police shall transmit
to the Department of Public Prosecutions all communications and
complaints submitted to them, in the state in which they were received,
so that action may be taken thereon.”
The Penal Code
153. Situations in which someone attempts to influence witnesses
are dealt with in article 181 of the Code in the following manner:
“Anyone who uses force or threats or offers or promises gifts or
rewards of any kind in order to induce another person not to give
testimony or to give false testimony and who fails to achieve his
object shall be liable to a penalty of up to one year’s imprisonment
or a fine. The same shall apply with respect to experts and interpreters.”
154. According to article 189: “A penalty of up to one year’s imprisonment
or a fine shall be imposed on anyone who discloses information about
an investigation being conducted before a court or the Department
of Public Prosecutions that it has been decided must be held in
secret.”
Instructions of the Department of Public Prosecutions on the application
of the Code of Criminal Procedure
155. According to article 2 of the instructions:
“(a) Investigation officers shall accept communications and complaints
referred to them in respect of crimes. They and their subordinates
shall clarify all matters and conduct the necessary inquiries to
help with the investigation of the facts reported to them or of
which they learn in any way. They shall take every precaution to
protect criminal evidence. Every procedure undertaken by the investigation
officers must be recorded in written reports, which they must sign
and indicate therein the time and date when the procedure was undertaken.”
156. According to article 3:
“(a) In the case of a crime of any kind to which there are witnesses
and of a serious crime or a non serious crime such as is mentioned
in the Attorney General’s Decision No. 6 of 1979, the investigation
officer must go to the scene of the crime immediately to examine
the physical evidence of the crime …”.
“(b) He must immediately notify the Department of Public Prosecutions
that he is going to the scene. As soon as a member of the Department
of Public Prosecutions learns of the commission of a serious crime,
he must go to the scene of
the crime.”
157. According to article 8: “If a member of the Department of Public
Prosecutions receives a complaint alleging that an investigation
officer has committed a breach of or failed to discharge his official
duties and if he believes the complaint to be a serious one, he
must write to the
director of the Department to solicit his opinion thereon. If the
complaint is particularly important, the heads of the Department
shall refer it to the public attorneys. The public attorneys shall
in turn refer the complaint to the Attorney General.”
158. Article 9 stipulates: “Members of the Department of Public
Prosecutions shall themselves investigate complaints against investigation
officers and may not entrust the investigation thereof to a third
party.”
159. Article 30 provides:
“(a) As soon as a crime has been reported, a member of the Department
of Public Prosecutions shall go to the scene, even if there is some
doubt about or a dispute over jurisdiction. After completing his
inquiries, he shall send his finding in a memorandum addressed to
the director of the Department of Public Prosecutions in order to
solicit his views on the question of jurisdiction ...”
160. According to article 44: “The investigator shall not give the
witnesses the impression he doubts their testimony by making comments
or gestures that intimidate them or stop them from speaking about
what they have witnessed.”
161. According to article 62: “If a report is received in respect
of a crime that has already been investigated, the members of the
Department of Public Prosecutions shall undertake an investigation
of the new report, where ...”
162. According to article 63: “The members of the Department of
Public Prosecutions shall themselves investigate any allegation
made against army or police officers concerning a serious or a non
serious crime, whether or not it was committed in the course of
their duties. Members of the Department of Military Prosecutions
shall have competence for adjudicating military offences in accordance
with the provisions of the Military Penal Code ...”
163. According to article 64: “If the Department of Public Prosecutions
receives a complaint against a court official or court clerk concerning
an offence committed in the course of or on account of their official
duties, it shall take statements from the complainant and his witnesses
and, depending on the seriousness of the complaint, shall solicit
the opinion of the director of the Department as to the advisability
of questioning the person against whom the complaint has been made
and of pursuing the investigation.”
164. According to article 69:
“(a) The accused person, the victim, any person who has been harmed
by a crime, the person responsible therefor and his representatives
may be present at all investigation proceedings. The member of the
Department of Public Prosecutions shall conduct the investigation
in their absence in an emergency, if he deems such to be necessary
because of the nature of the case, or where it is feared that the
witnesses may be put under pressure, intimidated or swayed. The
opposing parties shall review the investigation whenever they appear
or when it is no longer necessary to conduct the investigation in
their absence.”
M. Article 14
1. Each State Party shall ensure in its legal system that the victim
of an act of torture obtains redress and has an enforceable right
to fair and adequate compensation including the means for as full
rehabilitation as possible. In the event of the death of the victim
as a result of an act of torture, his dependants shall be entitled
to compensation.
2. Nothing in this article shall affect any right of the victim
or other person to compensation which may exist under national law.
165. Under the legal system of the Republic of Yemen, anyone who
is subjected to any act of torture has the right to apply to the
courts in order to seek legal redress. The law determines the appropriate
compensation for the dependants of any person who dies as a result
of being tortured. This is described in further detail hereunder.
The Constitution
166. According to article 48, paragraph (e), of the Constitution:
“The law determines the punishment for anyone who contravenes the
provisions of any paragraph of the present article, together with
appropriate compensation for any damage that the person may suffer
as a result of such contravention.”
The Penal Code
167. According to article 5 of the Penal Code: “The infliction of
the penalties prescribed in the present Code shall not affect the
obligation of the opposing parties to make restitution and pay compensation.”
The Code of Criminal Procedure
168. According to article 43 of the Code: “Anyone who has suffered
harm as a result of a crime is entitled to bring a civil action,
regardless of the amount involved, before a criminal court and to
claim compensation for damage arising from the crime. The action
shall be heard in conjunction with the criminal case.”
169. According to article 44: “Civil proceedings may also be brought
independently of the criminal case, if the case has already begun
or during the course thereof. The court shall decide the appropriate
precautions to be taken as a matter of urgency in order to protect
the party that has suffered harm. If the criminal case is discontinued
because the accused person is suffering from a mental disability,
the civil case shall nevertheless be adjudicated.”
170. According to article 47: “If a person who has suffered harm
as a result of a crime is incapacitated and does not have a legal
representative to act on his behalf, the Department of Public Prosecutions
or the court hearing the criminal case may nominate a representative
to claim his civil rights. Under no circumstances may he be obliged
to pay legal costs for such assistance.”
171. According to article 48: “A civil action for compensation for
damage suffered shall be brought against the person accused of the
crime, if that person has reached his majority, and, if he does
not have legal capacity, against whoever represents him. If he has
no one to represent him, the court may appoint someone to do so
or may be satisfied by having the Department of Public Prosecutions
represent him. A civil action may likewise be brought against persons
bearing civil responsibility for the act committed by the accused
person. The Department of Public Prosecutions may cite the persons
bearing civil responsibility, even if there is no civil plaintiff
in the case, so that they may be sentenced to pay costs owed to
the Government ...”.
172. According to article 54: “Civil proceedings may be brought
before a court hearing a criminal case against an insured person
in order to claim compensation for damage arising from the crime.
The insured person shall be governed by all the special provisions
set forth in the present Code.”
173. According to article 55: “Civil proceedings shall be extinguished
by the lapse of the time limit established in the Civil Code for
the hearing of proceedings. However, a civil case arising from a
breach of the provisions of section II of the present Code, concerning
protection of the freedoms of citizens, shall not be extinguished
by lapse of time. If, for any special reason, a criminal action
is extinguished after it has been brought, this shall not affect
the conduct of a civil action brought in conjunction therewith.”
174. According to article 61: “Where a person who has suffered damage
as a result of a crime brings an action for compensation before
the court and a criminal action is brought thereafter, if he abandons
his initial case, he may bring a civil action before the court hearing
the criminal case. In such case, he may not resume his action before
a civil court, unless the criminal court decides otherwise.”
N. Article 15
Each State Party shall ensure that any statement which is established
to have
been made as a result of torture shall not be invoked as evidence
in any proceedings, except against a person accused of torture as
evidence that the statement
was made.
175. According to article 6 of the Code of Criminal Procedure: “No
accused person
shall be subjected to torture, inhuman treatment or physical or
psychological harm with a view to extracting a confession from him.
Any statement which an accused person or witness is
proved to have made under pressure created by any of the practices
mentioned shall be null and void.”
O. Article 16
1. Each State Party shall undertake to prevent in any territory
under its jurisdiction other acts of cruel, inhuman or degrading
treatment or punishment which do not amount to torture as defined
in article 1, when such acts are committed by or at the instigation
of
or with the consent or acquiescence of a public official or other
person acting in an official capacity. In particular, the obligations
contained in articles 10, 11, 12 and 13 shall apply with the substitution
for references to torture of references to other forms of cruel,
inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the
provisions
of any other international instrument or national law which prohibits
cruel,
inhuman or degrading treatment or punishment or which relates to
extradition or expulsion.
176. The provisions of this article are addressed in various sections
of the present report, as well as in article 48, paragraphs (a),
(b), (c) and (d), of the Constitution.
177. Furthermore, article 166 of the Penal Code provides as follows:
“Any public official who, in the course of his duties, uses torture,
force or threats, directly or indirectly, against an accused person,
witness or expert in order to extract a confession to an offence
or statements or information pertaining thereto shall face a penalty
of up to 10 years in prison. This shall be without prejudice to
the right of the victim to claim retribution (qasas), blood money
(diya) and indemnity for bodily injury (arsh).”
178. According to article 167 of the Code: “Any public official
who, directly or indirectly, imposes a penalty on a person that
is different from or more severe than that to which he was sentenced
or who refuses to execute an order for that person’s release, for
which he is responsible, or deliberately keeps him in a penal institution
beyond the term specified in the incarceration order shall be liable
to a penalty of a term of imprisonment. He shall in every case be
removed from his post.”
179. Article 168 of the Code stipulates: “A penalty of up to one
year’s imprisonment or a fine shall be imposed on any public official
who abuses his official powers by subjecting others to cruel treatment
that derogates from their honour or causes them physical pain. This
shall be without prejudice to the right of victims to claim retribution
(qasas), blood money (diya) and indemnity for bodily injury (arsh).
In all cases, the court shall order the removal of the official
from his post.”
180. Article 246 of the Code stipulates a maximum penalty of three
years’ imprisonment for any person who unlawfully arrests, detains
or deprives a person of his liberty. The penalty is increased to
a maximum of five years’ imprisonment, if the offence was committed
by a public official, a person who was impersonating a public official
or carrying a weapon, or by two or more persons, or if it was committed
with intent to damage the victim’s honour, or if the victim was
a minor, a person without, or with diminished, mental capacity or
if his life or health would have been placed in jeopardy by being
deprived of his liberty.
181. According to article 249 of the Code: “A penalty of up to five
years’ imprisonment shall be inflicted on anyone who abducts another
person. If the victim of the abduction is a female, a juvenile,
insane or feeble-minded, or if the abduction is effected through
the use of force, threats or deception, the penalty is a term of
up to seven years’ imprisonment. If the abduction is accompanied
or followed by bodily harm, assault or torture, the penalty is a
term of up
to 10 years’ imprisonment without prejudice to the right to retribution
(qasas), blood money (diya) or indemnity for bodily injury (arsh),
as appropriate, if such is warranted by the harm caused. If the
abduction is accompanied or followed by murder, adultery, prohibited
sexual assault or sodomy, the offender is liable to the death penalty.”
The Code of Criminal Procedure No. 13 of 1994
182. According to article 6 of the Code of Criminal Procedure: “No
accused person shall be subjected to torture, inhuman treatment
or physical or psychological harm with a view to extracting a confession
from him. Any statement which an accused person or witness is proved
to have made under pressure created by any of the practices mentioned
shall be null and void.”
183. According to article 7, paragraph 1, of the Code: “Arrests
shall not be permitted other than in respect of acts that are punishable
by law. They must be carried out in the manner prescribed by law.”
184. Article 16 stipulates: “By way of derogation from the provisions
of article 37, there shall be no abatement of the right for a criminal
action to be heard concerning offences which undermine the freedom
or dignity of citizens or which constitute an assault on the freedom
of private life.”
185. Article 71 of the Code stipulates: “A person under arrest shall
be detained in a place separate from that provided for convicts.
He shall be presumed innocent and shall not be
harmed physically or mentally with a view to extracting a confession
from him or for any other purpose.”
186. Article 178 of the Code of Criminal Procedure states that the
accused must not be compelled to take an oath or to answer questions.
Similarly, his act of declining to do so is not regarded as proof
of the charge brought against him. It is also prohibited to use
deception or violence against the accused or in any way bring pressure
to bear on him with a view to inducing or forcing him to confess.
187. According to article 469: “The penalties and measures prescribed
by law in respect of any criminal offence shall not be applied other
than under the terms of a binding final court judgement handed down
by a competent court.”
The Code of Military Crimes and Penalties No.
21 of 1998
188. According to section III (War crimes), article 20, of the Code
of Military Crimes and Penalties: “A penalty of up to five years’
imprisonment or sanctions commensurate with the results of the crime
shall be inflicted on any person in an area of military operations
who deserts his post and sets about stealing from a prisoner or
from a dead, ill or injured person. He must return the stolen items
or their equivalent value.”
189. According to article 21 of the Code: “A penalty of up to 10
years’ imprisonment or sanctions commensurate with the results of
the crime shall be inflicted on any person subject to the provisions
of this Code who in time of war commits any act that harms persons
and property
entitled to protection under the terms of international conventions
to which the Republic of Yemen is a party. The following acts in
particular, shall be deemed war crimes punishable under the terms
of this Code:
“2. The torture, ill-treatment or deliberate infliction of severe
pain on prisoners or their subjection to scientific experiments;
“3. The deliberate infliction of serious damage to the physical
and mental integrity and health of military and civilian prisoners
or their conscription into the armed forces.”
190. According to article 22 of the Code: “The right to bring legal
proceedings in respect of the crimes referred to in this section
shall not be subject to any statute of limitations.”
191. According to article 23: “In the event of the commission of
any of the crimes referred to in this section, the most senior officer
and his immediate subordinate shall be held responsible therefor
and shall not be exempted from the prescribed penalties, unless
the acts were perpetrated without their consent or knowledge or
it was impossible for them to prevent them.”
192. According to section IX (The offence of abuse of authority),
article 43, of the Code: “A penalty of up to five years’ imprisonment
or sanctions commensurate with the results of the crime shall be
inflicted on anyone who abuses his authority by giving orders or
asking for deeds to be performed that have nothing to do with his
official duties or by soliciting gifts or other financial benefits.”
193. According to article 44: “A penalty of up to five years’ imprisonment
shall be inflicted on anyone who abuses his authority or rank by
ordering a subordinate to commit a crime. Without prejudice to the
provisions of the Penal Code, the person giving the order shall
be regarded as the actual author of the crime, if it was committed
or attempted.”
194. Article 47 likewise provides: “Without prejudice to the Penal
Code, a penalty of up to two years’ imprisonment and payment of
compensation shall be inflicted on any commanding officer who subjects
a subordinate to beating, causes him bodily harm, carries out an
act likely to damage his health, or, for no legal reason, makes
him perform additional duties, for the purpose of torturing him
or allowing others to do him harm. If the offence results in the
person’s death, the penalty shall be capital punishment.”
195. According to article 52: “Without prejudice to the provisions
of the Penal Code, a penalty of up to five years’ imprisonment shall
be inflicted on any person who beats a subordinate.”
196. Article 53 stipulates a penalty of up to 10 years’ imprisonment
for anyone who, in the course of his duties, uses torture, force
or threats, directly or indirectly, against an accused person or
witness in order to extract a confession to a crime or statements
or information pertaining thereto. This shall be without prejudice
to the right of the victim to claim retribution (qasas), blood money
(diya) or an indemnity for bodily injury (arsh).
The Police Corps Act No. 15 of 2000
197. According to section II, article 7, of the Police Corps Act,
the duties of the police include the following:
“2. Protection of lives, honour and property;
“4. Guaranteeing the security and safety of citizens and residents;
“6. Managing prisons and guarding prisoners;
“7. Guarding public utilities and helping the public authorities
carry out their tasks in accordance with the provisions of this
Act;
“10. Performing the duties required of them in accordance with the
laws, regulations and decrees.”
198. Article 9, paragraph (b), of the Act provides: “They [i.e.
the police] shall not use physical torture or psychological pressure
against any person during the gathering of evidence or statements
or the period of detention or imprisonment.”
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