11/03/2020
Hassan Salem has been waiting for 10 years to hear his name called through the loudspeakers installed in the corridors of Al-Hudaydah’s central prison. Salem got used to waiting anxiously by a small window in case he hear his name among those called to be referred to court.
This investigation demonstrates how hundreds of Yemenis accused of various misdemeanours and crimes, share Salem’s fate because of the slow legal procedures and the absence of legislation that can cap litigation periods and procedures. The judiciary and the prison authorities have been trading accusations of responsibility for the suffering of those who are waiting. According to the investigator who has interviewed prisoners, some of whom have been incarcerated for 10 years in inhumane conditions pending decisions on their cases, the Ministry of Justice and its investigative and judicial bodies are unable to solve this chronic nationwide problem.
In 2009, 32 years old Salem was imprisoned for "breach of trust" charge after claims that he appropriated items consisting of a Yemeni dagger and cash, valued by the court at 3 million Yemeni rials ($5,000). A year later, the South Hudaydah court (226 km west of the capital) sentenced him to one year in prison, and asked him to return the items to his brother.
Salem submitted an appeal on June 20, 2010, through the prison’s prosecution body (which is part of the wider Public Prosecution office), who forwarded his case to the chief prosecutor. In the absence of any action the prison’s prosecution body had to submit a second request on May 4, 2013, followed by a third memo five years later on March 25, 2018.
Salem, who was unable to return or pay back for the value of the items stolen, has been in prison for 10 years pending the appeal for a one-year ruling, despite submitting three memos to overturn the court’s initial ruling.
The last published statistic dates back to 2016, one year after the outbreak of the Yemeni war, which changed the systems of administration and control in most of the country provinces. No data could be obtained from the remaining eight governorates - which are under the control of the internationally-recognised government.
says Yahya Ibrahim, who is 65 years old explaining his condition in the central prison in Al-Hudaydah. Ibrahim was arrested on May 23, 2015 with his two sons, Hazem, 19, and Hussein, 21, on charges of premeditated murder, according to official documents issued by the prison.
Initially, the father and his two sons spent a year in the Bayt Al-Faqih Directorate prison, located in Al- Hudaydah, before his transfer to the central prison where they remained four years, leaving behind his wife and five daughters (the oldest of which is 14 years old and the youngest 7 years old). In April 2019, the three defendants were transferred back to Bayt Al-Faqih detention centre to resume their court proceedings.
Four years have passed without the court holding one session due to the absence of judges, according to the prison administration.
Next to Hassan Salem, inmate Abdo Al-Dabibi had to wait six years before four judges evaluated his file and sentenced him in 2019. The 37-year-old was summoned to court once every three months, before being informed that the session could not be held either because of the absence of the judge or the absence of a Public Prosecution representative.
The Criminal Procedure Law of 1994 stipulates that "the representative of the Public Prosecution must attend court hearings in all criminal cases (...) and the court must hear their statements and decide based on their requests."
Any judicial action in the absence of a representative of the Public Prosecution shall be null and void, according to the second paragraph of the same law. Musleh Al-Badji, Al-Dabibi’s lawyer, holds the prison administration primarily responsible for obstructing his client’s case by failing to transfer inmates to court.
During his third visit to Al- Hudaydah Central Prison on May 13, ARIJ investigator noticed that there were eight inmates in the building awaiting their transfer to courts. Three hours later, the investigator noticed that the inmates were still waiting for the escort and transport vehicles when he left.
Deputy Director of Al-Hudaydah’s central prison Majed al-Sharafi holds prosecutors and courts responsible for the slow processing of cases. Al-Sharafi complains of a lack of equipment, mainly, transport vehicles, handcuffs and security escorts.
He explains that "only two of the four prison vehicles (with a capacity to transport 20 inmates) are fit to operate, even though court orders require the transfers of 50 to 60 inmates per day.”
The detainees and prisoners whom the investigator has visited suffer from similar impediments that have prevented them from attending court due to the same constraints.
According to Majed al-Sharafi, Hudaydah’s central and reserve prisons house approximately 300 to 350 inmates who have been awaiting trial proceedings for periods of up to four years.
The investigator tried to interview the prosecutor of Al-Hudaydah prison, Judge Fuad Al-Maqtari, during the four days the reporter had spent in the prison yard, but the judge was not available. His efforts to contact him by phone were unsuccessful.
The former deputy director of the Central Prison, Judge Sarim El-Din Abdul-Wali, refuses to accuse the judiciary for delaying the court proceedings. Instead he believes that the security authorities in prison departments are responsible for 90% of the delays while the prosecution is responsible for 10%.
"The absence of judges or members of the public prosecutors' office is due to the repeated failure to transport the accused," he added, describing the absence of the judges as "a rare event". Additionally, he refuted the security services’ accusations that the prosecution does not follow up on the detainees' cases.
Judge Moufdal stresses that "the Prison Prosecution services (who are part of the Public Prosecution office) are authorised and responsible for following up on cases of prisoners awaiting their trial." This office is also entrusted with "everything related to holding the sessions, such as scheduling and transfer arrangements". He confirms that this problem "is not recent, but has been present for years", reiterating the causes for the delays which are due to "the limited number of courts and prosecutors available compared to the number of cases."
Judge Moufdal also shares Major Al-Sharafi's complaint about "the lack of vehicles and security guards required to transport the prisoners and detainees."
However, a senior source at the Judicial Inspection Board (who wishes to remain anonymous) accuses the prosecution office for delaying the processing of prisoners' cases. This source estimates that the prosecution is responsible for 70-80% of the delays. This is based on "citizen and prisoner complaints received by the commission, while the rest of the complaints target the courts and security agencies."
The source did not specify the number of complaints or action taken by the investigative body to resolve them, but clarified that it "directed the judges to quickly resolve prisoners’ cases.” He explains that the law dictates "a certain period for the settlement of cases, because each case has its implications and procedures".
The source acknowledges that the impact of Judges reassignment on the progress of processing cases to be “minor”. The same source also justifies such transfers that are made due to "the need of the Supreme Judicial Council for the judge in a more important place, or the incompatibility of his expertise in the assigned district."
According to statistics from Sana’a’s Prison Prosecution office, it receives between eight and 16 requests to transport inmates every day from the prosecution office and the courts, where attorneys sometimes have to delay the transfer of inmates until the adequate transport is available.
Statistics from the Ministry of Justice in Sana'a indicate that there are 48 judges in Al-Hudaydah, allocated to work in 22 courts, with 2 Judges per court.
The central prison administration in the capital's secretariat refused to make any statements except through a note from the Presidency of the Prison Authority in Sana’a, which referred the investigator’s request to the General Manager of the department.
The investigator managed to obtain a permission to interview four inmates at the central prison. The prison administration refrained though from disclosing the number of inmates who are awaiting trial, and the periods they have already spent in prison or the charges they faced. Such refusal had as a pretext that this information can be used as "dangerous intelligence” in light of the situation in Yemen.
Three of the four inmates that the investigator was allowed to interview were prisoners with cases (initially) pending at the Bilad al-Rus and Bani Bahloul Court, located in Sana'a. This court was closed for five months in 2017 due to the absence of Judges.
Since Muhammad al-Humaida was held at Sana'a Central Prison February 17, 2009, five judges of the Bilad al-Rus Court and Bani Bahlul Court were assigned to his case. After nine years, this man was sentenced to death after being convicted of murder. This triggered his endless journey in his efforts to appeal his conviction, and the prisoner no longer remembers how many times he appeared before court.
In August 2019, Ismail al-Haddi, 36, had completed 11 years in prison for murder. During that period, his case was examined by four judges in the same court. In February 2019 he was issued a preliminary death sentence. Since then, he has been struggling to get his death sentence appealed.
According to official data issued by the Ministry of Justice, 32 judges work in Sana'a, operating in nine courts, each receiving between 20 and 30 cases per day (an average of 225 cases). This means that a single judge must examine 10 to 15 cases daily.
President of the Bilad al-Rus Court in Bani Bahloul describes the institution as “two courtrooms in a building that is not prepared for the amount of judicial activities required of a modern legal court”.
Bargashi adds, “there are courts that were established many years ago to serve as a one judge court, but now more than 20 usually work there”.
Judge Al-Barghashi, appointed in November 2017, agrees with Judge Sarim El-Din on the reasons for the delay in processing current inmates cases. The two judges indicate that there is an insufficient amount of administrative staff at the courts; facilities available are not sufficient to handle the volume of cases; and that members of the prosecution team are often absent. Al-Barghashi adds that "the failure of the security agencies, represented by the investigators, to collect evidence at the time of the crime, and to monitor the evidence, affects the course of the case and prolongs the duration of the research and litigation”.
Judge Al-Barghashi blames the high number cases compared to available staff for the delay in processing them: “our pending homicide cases amount to 86 cases as of October 2019, with only five judges and two courtrooms, which is not sufficient”.
Al-Barghashi also denies the absence of judges: “a judge cannot be absent from holding the sessions, but the public prosecutor is the usually absent party.”
Al-Barghashi stresses that the transfer of judges from one court to another before their five years tenure "affects the progress of the proceedings and their deliberation, as the new judge needs time to review the case files."
The law issued in 1991 and amended in 2013 regarding the judiciary, stipulates that "no judge may remain in one court without transfer for more than five years." In the same law, it is forbidden to transfer a judge from one court to another before three years from their initial appointment.
While the judiciary and the prison administration continue to trade accusations to blame the other for the suffering of inmates and detainees, years of prisoner’s lives are lost pending the preparation of the courts and the provision of handcuffs and transport vehicles.
By the end of 2019, the accused, Hassan Salem, would have spent a quarter of his life in prison. Despite this, he is still holding on to the hope that he will hear his name called among the list of people finally being transferred to court for prosecution.