Mwatana releases a study on the use of Specialized Criminal Courts by the parties to the conflict as a tool to persecute adversaries and penalize political opponents.
Sana’a – In conjunction with the execution of nine people on Saturday, September 18 by the Ansar Allah (Houthi) armed group following a trial that lacked minimum fair trial requirements, Mwatana for Human Rights noted that the grossly unfair trials against defendants by Specialized Criminal Courts have violated the requirements and guarantees of the right to a fair trial under the international and national legal norms and standards. Mwatana stated that the execution of nine people last Saturday by the authorities of Ansar Allah (Houthi) group represents a serious escalation in the way the specialized criminal court is used to the extent of committing a murder.
In August 2020, the Houthi-controlled Specialized Criminal Court sentenced to death 16 people for their alleged involvement in the assassination of Saleh al-Samad, former head of the Ansar Allah Supreme Political Council, who was killed in Hodeidah Governorate in April 2018 by a Saudi/UAE-led coalition airstrike. In April 2021, the Specialized Criminal Appeals Court in Hodeidah upheld a trial judgment to execute 16 people.
The detainees were arrested in 2018 and, according to the lawyer Abdel Majid Sabrah, were subjected to a series of violations, including lengthy periods of enforced disappearance and torture, as the lawyer asserted some of the convicts informed the judge that they were tortured. In addition, the trial was unfair and did not meet the minimum standards of a fair trial under the national and international laws, including the abuse of the defense's right.
On Friday, 17 September, the Houthi-controlled Yemen News Agency (SABA) announced that the execution would be the next day. Mwatana had issued an urgent communiqué calling on Ansar Allah (Houthi) group to immediately suspend the executions.
On Saturday, 18 September 2012, Ansar Allah (Houthi) group executed nine of the convicted: Ali Ali Ibrahim Al-Qawzi (43 years), Abdul Malik Ahmed Mohammed Hamid (55 years), Muhammad Khalid Ali Haig Al-Omar (34 years), Muhammad Ibrahim Ali Al-Qawzi (46 years), Muhammad Yahya Muhammad Noah (46 years), Ibrahim Muhammad Abdullah Aqil (44 years), Muhammad Ali Al-Mashkhari (47 years), Abd Al-Aziz Ali Muhammad Al-Aswad (believed to be a minor when detained), Moath Abdul-Rahman Abdullah (23 years). The executions were carried out in the presence of a number of journalists and hundreds of attendees at Tahrir Square in Sana'a. The Tazir [Islamic law punishment] took place through chanting and dancing, in a horrific attempt to normalize the killing and turn it into a celebration-like event.
"This shameful mass execution would not have been possible without Ansar Allah (Houthi) group relying on a policy of impunity,” Radhya Almutawakel, the chairperson of Mwatana for Human Rights, said. “This shocking incident serves as an additional reminder to the international community of the necessity of supporting the accountability efforts and creating an international criminal investigation mechanism for Yemen."
While condemning this horrific abuse, Mwatana warns that the execution of the nine victims in the case of assassinating Al-Samad may pave the way for further executions by Ansar Allah (Houthi) group, especially that the Specialized Criminal Court in Sana'a issued, in late August 2021, a death sentence against 11 people, including two women, in the so-called "Ammar Affash cell". The four journalists Akram Al-Walidi, Abdul Khaleq Amran, Harith Hamid, Tawfiq Al-Mansouri and others, whom were sentenced to death by the Houthi-held Specialized Criminal Court, are still at risk of executing that unfair verdict, in addition to other death sentences by courts that marred by serious violations.
Mwatana's legal study, released today, shows that parties to the armed conflict in Yemen have committed various violations against detainees were brought to specialized criminal courts. Mwatana calls for the conflicting parties to end the arbitrariness that the defendants are subjected to prior and during the course of the trial proceedings, and to obligate to ensure that the judiciary is independent and not used as an instrument of conflict.
Throughout the years of armed conflict in Yemen, warring parties have used the judiciary represented by specialized criminal courts as a tool of abusing adversaries and penalizing political opponents. The study concluded that the indictments submitted by the criminal Procuratorate to the criminal court, specialized in the cases under question, were based on evidence-gathering records, and that all judgements were handed down based on those records. Such records were often confined to the defendants' confessions before the security authorities and the criminal Procuratorate controlled by the authority of the parties to the conflict, without conducting serious investigations into the truth of the case or into the truth of the evidence of facts denied by defendants before the judicial council of the court. Some defendants reported that the confessions were extracted under duress and physical and psychological torture during the long period of detention, which calls into question their legal value as clues in accordance with the law.
The 129-page study, which Mwatana titled as “Courts for Abuse: Case Study on Specialized Criminal Courts in Yemen” examines how the conduct of trials before these courts and the sentences handed down by them are consistent with fair trial principles.
The study examined a sample of cases considered by the specialized criminal courts during the period from 2014 to 2020 in Sana'a (controlled by Ansar Allah group) and Hadhrmout (controlled by the Internationally Recognized Government). The study relied systematically on taking notes of those cases in question and examining the judgements handed down, and on the notes taken by the victims' defenses and their pleadings from the judgements of those cases. On October 22, 2020, Mwatana held a focused discussion session entitled "Specialized Criminal Courts - Legal Framework and Actual Practice", with the aim of discussing the status of these courts and taking the views of specialists. A number of academics, legal experts and leading lawyers, who have previously acted as defence counsel for victims before specialized criminal courts, participated in the session.
The study examined the historical background of the establishment of the Specialized Criminal Court and Procuratorate in Yemen in 1999, and the radical transformation of their function and framework following the amendment included in the Republican Decree No (8) 2004, which was issued five years after the establishment of the court and added the state security crimes and public security crimes to the jurisdiction of the court, and the consequent transformation of specialized criminal courts into State Security courts. Even prior to the latest armed conflict in 2014, the successive authorities intentionally tried political opponents, journalists, opinion-makers and members of religious minorities before the Specialized Criminal Court rather than the ordinary criminal courts, with the aim of abusing and intimidating them.
The study concluded that the cases, in which pleas were submitted that the Specialized Criminal Court lacked jurisdiction to hear the proceedings before it, were rejected by the court and decided to proceed with the case. Then, it confirmed its rejection of the pleas for lack of jurisdiction through its final judgment. One of the cases in which the Specialized Criminal Court in Sana’a rejected the plea for lack of jurisdiction was, for example, the case concerning the trial of journalists, where the court continued to hear the case and sentenced four journalists to death for what the court called "crimes of publication" and classified them as State Security Crimes. The normal or ordinary judiciary is an international and constitutional guarantee of fair trials, under which the basic guarantees of protection of the rights of the defendants are provided during their appearance before the courts in both ordinary and exceptional circumstances.
In its conclusions, the study revealed that the Specialized Criminal Courts and Procuratorates – under the authorities of the parties to the conflict - condoned claims and pleas of defendants by violating the requirements and guarantees of their right to a fair trial recognized under international and national laws. Such violations include, unlawful arresting procedures, arbitrary detentions, prolonged enforced disappearance in prisons, use of torture and other forms of inhumane treatment, depriving defendants of medical care, and preventing them from contacting their families or lawyers.
The study also revealed that many of the court cases were unreasonably prolonged. They could be identified as unfair trials, according to the international standards, in terms of the time they took. For example, the Specialized Criminal Court in Sana’a held (33) hearings on one of the significant cases, and the judgement was not handed down until three years after the trial began. The trial hearings of the same case before the Specialized Criminal Appeals Court in Sana’a also lasted (20) hearings, and judgement was not rendered until one year and three months. Prior to that, the trail hearings by the Specialized Criminal Appeals Court did not begin until one year after filing the petition to challenge the judgement of the Specialized Criminal Court.
Besides, the study showed that respecting fair trial guarantees practically requires that each of the trail steps and proceedings to be bounded by precise controls and requirements, whether with regard to the validity of the proceedings against defendants (before and during the trial), powers of the authorities and persons conducting those proceedings, or proceedings timing and time scheduling. The law-prescribed penalty for failure to respect the defendants' rights and guarantees is nullity of the trial or nullity of the proceedings, and therefore the right to compensation and reparation of any person affected.
The study concluded that specialized criminal courts and procuratorates condoned the claims and pleas of defendants with violating their rights and guarantees established under the Constitution and the law by the seizure and investigation entities (especially with regard to the illegality of the procedures of arresting them, detaining them for prolonged periods in prisons of security entities, torturing them sometimes, depriving them of medical care, and preventing them from contacting their families or lawyers) and by The failure of the courts to seriously investigate those pleas that deciding on them depends on the validity or invalidity of the procedures and evidence, and therefore the validity or invalidity of the judgments, which constitutes a fundamental breach of the guarantees and rights of the defendants to a fair trial according to the international and national standards.
The study also showed an aspect of the practices in which Specialized Criminal Courts abuse the right of defending the defendants. Such practices include the failure to allow defendants of State Security cases to freely choose their own lawyers, whom they trust and are competent to defend them, while assigning (appointing) defense lawyers by the court is merely to fulfill the legal form of the trial, except in rare cases. In addition, the lawyers assigned by the courts were deliberately not allowed, often in the first hearing of the trial, to review and obtain a copy of the whole case file. Where the lawyers were allowed to do so, they were not given sufficient time to prepare their defense, nor to freely communicate with their clients outside the trial hearings, but rather they were prevented from pleading before the court sometimes.
The study concluded that the Specialized Criminal Courts - as an institution and as individuals - have fallen under the influence and leverage of the parties to the conflict, especially when it comes to hearing cases that are altered as threatening to the state security. The parties to the conflict have shown a flagrant disregard for the principle of judicial independence, which includes a clear disregard for the rule of law.
In order to guarantee the right to a fair trial in practice according to the procedures regulated by law, and in accordance with a fair trial principles that exceed the adherence to formal and non-substantial requirements that do not guarantee the achievement of justice, Mwatana made, through this study, a set of recommendations, in which it stressed the reconsideration of all judgments by the specialized criminal courts during the conflict period in accordance with the requirements and principles of a fair trial, scrutiny of all that violations that marred those judgements, and suspending death penalties and other judgments handed down during the conflict period. Mwatana also recommended that all security services, with all their facilities, premises, prisons, officers, officials, and records, should be subjected to authority of judiciary, prosecution office and inspection bodies, which make them under permanent legal oversight following effective and enforceable mechanisms in line with the requirements of law, in addition to other recommendations that the study emphasized.
