The systematic campaign of persecution facing the Baha’is is in complete violation of the Constitution of the Republic of Yemen and the country’s laws which guarantee basic rights consistent with upholding the dignity of the individual. In the cases related to the Baha’is (particularly Hamed Bin Haydara and other imprisoned Baha’is) there has been flagrant violations of the Constitution of Yemen and its laws.

 

Articles of the Constitution and laws which the Yemeni government’s security apparatus and judiciary breached and violated in relation to the Baha’is are presented below. The articles concern two general areas:

1. Seizure and Detention Procedures

2. Freedom of Thought and Expression

 

Note:

The Constitution of the Republic of Yemen and the Laws Relating to criminal procedure are in Arabic and there are no official translations to English readily available. The translated texts below are from different sources and the references for the translations are provided at the bottom of this page.

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First: Procedures for restricting freedom of citizens under Yemeni Law

 

1- Constitution of the Republic of Yemen

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Article (48):

a. The state shall guarantee to its citizens their personal freedom, preserve their dignity and their security. The law shall define the cases in which citizens freedom may be restricted. Personal freedom cannot be restricted without the decision of a competent court of law.

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b. No individual can be arrested, searched or detained unless caught in the act (in flagrante delicto) or served with a summon from a judge or the Public Prosecutor, which is necessary for the progress of an investigation or the maintenance of security. No person can be put under surveillance unless in accordance with the law. Any person whose freedom is restricted in any way must have his dignity protected. Physical and psychological torture is prohibited. Forcing confessions during investigations is forbidden. The person whose freedom is restricted has the right not to answer any questions in the absence of his lawyer. No person may be imprisoned or detained in places other than those designated as such and governed by the law of prisons. Physical punishment and inhumane treatment during arrest, detention or imprisonment are prohibited.

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c. Any person temporarily apprehended on suspicion of committing a crime shall be presented before a court within a maximum of 24 hours from the time of his detention. The judge or Public Prosecutor shall inform the detained individual of the reason for his detention and questioning and shall enable the accused to state his defense and rebuttals. The court then gives a justified order for the release of the accused or for the extension of his detention. In any cases, the Prosecutor is not entitled to continue detention of the accused individual more than several days except with a judicial order. The law shall define the maximum period of custody.

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d. Upon arrest, for whatever reason, a person may immediately contact someone of his choice. The same notification shall be repeated whenever a court orders the continuation of the detention. If the nominated person cannot be notified, the detainee’s relative or concerned persons shall be notified.

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e. The law shall determine the punishment for whosoever violates any of the stipulations of this Article and it shall also determine the appropriate compensation for any harm the person suffers as a result of such a violation. Physical or psychological torture at the time of arrest, detention or jail is a crime that is not subject to statue of limitations. All those who practice, order, or participate in executing, physical or psychological torture shall be punished.

 

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2- The Law

 

 

Criminal Procedure Law

 

Article (5)

All the citizens are equal before the law; no person may be pursued, or subjected to any damages due to nationality, race, origin, language, religious belief, occupation, educational level or social standing.

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Article (7)

1. Arrests may not be made except in connection with acts punishable by law; must be based on due process of law.
2. The General Prosecution shall immediately release any person whose freedom has been restricted in violation of this law or who has been placed under provisional arrest beyond the period authorized by the law, or by sentence or by a judge’s order.

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Article (9)

1. The right of defense is guaranteed and the accused is entitled to carry on his own defense, as well as he is entitled to be assisted by a representative to defend him, in any of the stages of the procedures of handling criminal cases, including the investigation period.

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Article (11)

Personal freedom is guaranteed; no citizen may be accused of having committed a crime, nor may his freedom be restricted unless by orders from the concerned authorities in accordance with what is provided by this law.

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Article (12)

1. Homes, houses of worship and scholastic seminaries have their sanctity, therefore they may not be monitored, observed, inspected except by an order with cause issued by the General Prosecution in accordance with what is stipulated by this Law; this must be based on a charge precedent to such action directed against a person who resides in the place intended for inspection, such charge being for a crime that is punishable by imprisonment, at least, or for his Participation or if strong indications are found that he is withholding evidence that is related to the crime. In all cases the inspection order must be for cause.

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Article (15)

No restrictions may be placed on the freedom of the people for assembling or movement, or residence, or passage, except as stipulated by this Law.

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Article (17)

1. The Law of Criminal Proceedings [the Penal Code] is applicable for all criminal acts occurring throughout the territories of the Republic.

2. The laws of Criminal Proceedings are applicable on all Yemeni citizens, as well as the citizens of other countries and those without any citizenship whatsoever.

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General provisions on arrest:

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Article (70)

Arrest is seizing a person and bringing him in to Court or the General Prosecution or to the Judicial Enforcement Officers in the situations set out by the Law; this shall be based on an order issued by the arresting official who is duly authorized, whether legally or orally, if the ordering person is present in front of him. The order would entail that the person being so arrested is deprived of his freedom until his case is dealt with.

 

Article (71)

The arrested person is detained in a separate place other than the place designated for those to whom sentences have been passed; is dealt with as an innocent person; no bodily or mental harm shall be brought on him in order to extract a confession or for any other purpose.

 

Article (72)

The order for the arrest shall be written and signed by its issuer; the order may be verbal, but it shall be executed in the presence of the ordering official. The arrests in the other cases are the responsibilities of the arresting official.

 

Article (73)

The person being arrested shall immediately be informed of the reasons for the arrest; he is entitled to look at the order for his arrest and he has the right to contact anyone he feels he shall notify of the case; he is also entitled to seek the assistance of an attorney.

He shall also be quickly notified of the charge he is confronted with, accordingly.

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Article (76)

Anyone who is temporarily arrested, due to being suspected of committing a crime shall be presented to the Judiciary within 24 hours from the time of the arrest at most. The Judge or the member of the Prosecution shall advise him of the reason for the arrest and to interrogate him and allow him to make his defenses and protests; they shall also issue an order with cause for his provisional arrest, or else release him. In all cases, preventive detention may not exceed seven days without a court order. 

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Article (79)

The detaining officer can use all the force necessary to make the arrest and to overcome any resistance from the person to be arrested or any other person; such force shall not exceed the force that is reasonably required to prevent resistance to or escape from arrest; the court shall appraise the situation.

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Article (80)

The detaining officer may enter the house of the person being arrested in order to search for him; he may enter the residence of another person if there is strong evidence that the suspect is hiding there; the owner of the house must provide all the reasonable facilities to the detaining officer to make the search for the suspect; if the homeowner refuses or resists, the detaining officer may enter the house by force within the limitations set out in the previous article. If women are found in the house all due consideration shall be made to the traditions followed when dealing with them.This is without prejudice to the provisions of Chapters 3 and 5, Part THREE, Volume TWO of this Law.

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Article (81)

The person carrying out the arrest warrant shall search the arrested person to strip him of weapons and all that is likely to be used in resistance, escape, or harm to himself or others, and to hand over the seized items to the one who orders the arrest.  If the arrested person is a female, then she may not be searched except by another female, according to Article 143.

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Article (122)

The suspect, or the victim of the crime and his heirs or anyone who suffered damages from the crime, or anyone claiming for civil rights, or anyone liable for them, or their assignees-in accordance with the Law shall attend all the investigation procedures; they may not state anything without permission from the investigator; if the suspect is under arrest or detained, the Investigator must fetch him.

In addition, the Investigator may, in speeding up the case, carry out some of the proceedings of the investigation in the absence of the litigants, in which case the latter shall have the right to look at the papers which record such proceedings; the Investigator may carry out the investigation in the absence of all of them or some of them if necessary; the litigants may not request halting the progress of the investigations in the manner the Investigator decided that it be conducted in; he must show all those mentioned what has transpired as soon as he finishes [doing so].

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Article (129)

1. The investigation shall be completed within two months at the most, since the opening of the case file; those cases where a provisional arrest of a suspect is involved shall be quickly completed in terms of the investigations procedures required.

2. The General Prosecutor shall set the periods needed for the investigation of the different kinds of criminal cases; in the event that longer time is required to overcome the difficulties involved in investigating a case, or in view of the size of the case, more than the period already set, the concerned Chief Prosecutor’s permission is required; if the period required is in excess of the maximum two months then the Chief of the General Prosecution at the governorate level must approve the extension to up to three months maximum.

3. The period of investigation of a crime shall not exceed six months unless approved by the General Prosecutor, whereby the additional time allowed shall not exceed six months in all cases.

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Article (139)

1. The warrant issued for the search and arrest must be shown to the suspect prior to carrying out the search or arrest.

2. The search and arrest warrant may be shown after conducting the search or the arrest in the event of the arrest of someone seen while carrying out a crime or is chased after committing it.

3. If the search is carried out in another place not belonging to the suspect, the goal of the search shall be revealed to the concerned person.

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Article (173)

The person implementing the arrest warrant may not enter the houses or forcefully break into them for searching those for whom there is a warrant for their arrest except in any of the following cases:
1. If that is done under permission of the General Prosecution or the Court.

2. If the person to be arrested has committed a witnessed crime.

3. If the person to be arrested is accused of a serious crime for which he has not been arrested yet; it is feared that he will escape or that he is a convicted criminal fleeing from justice.
4. If the person sought for arrest refuses to surrender himself to the authority assigned to implement the arrest warrant, or if he resists that authority.

5. If the law or the warrant for his arrest clearly states that he is to be arrested anywhere he may be found.

 

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Second: Freedom of Thought and Expression Laws

 

1. Constitution of the Republic of Yemen

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Article (6)

The Republic of Yemen confirms its adherence to the UN Charter, the International Declaration of Human Rights, the Charter of the Arab League, and Principles of international Law which are generally recognized.

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Article (41)

Citizens are all equal in rights and duties.

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Article (42)

Every citizen has the right to participate in the political, economic, social and cultural life of the country. The state shall guarantee freedom of thought and expression of opinion in speech, writing and photography within the limits of the law.

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Article (52)

Residences, places of worship, and educational institutions have a sanctity which may not be violated through surveillance or search except in the cases stipulated by the law.

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2. Criminal Procedure Law:

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Article (5)

All the citizens are equal before the law; no person may be pursued, or subjected to any damages due to nationality, race, origin, language, religious belief, occupation, educational level or social standing.

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Article (7)

1. Arrests may not be made except in connection with acts punishable by law; must be based on due process of law.
2. The General Prosecution shall immediately release any person whose freedom has been restricted in violation of this law or who has been placed under provisional arrest beyond the period authorized by the law, or by sentence or by a judge’s order.

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Article (12)

1. Homes, houses of worship and scholastic seminaries have their sanctity, therefore they may not be monitored, observed, inspected except by an order with cause issued by the General Prosecution in accordance with what is stipulated by this Law; this must be based on a charge precedent to such action directed against a person who resides in the place intended for inspection, such charge being for a crime that is punishable by imprisonment, at least, or for his Participation or if strong indications are found that he is withholding evidence that is related to the crime. In all cases the inspection order must be for cause.

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