Human Rights & Criminal Justice [Archives:1998/20/Focus]

May 18 1998

By Michael Hartman,
American Legal Specialist*
There are four ways that society needs to use the guaranteed human rights in the criminal justice system, and all four have to be used together.
First there is the constitution and the laws that are passed by parliament. The second are the regulations and protocols by the police. That means prosecutions by methods of practice that are dictated by the individual departments within the law. Many times the law gives discretion. It is important to prevent police and prosecutors from misusing that discretion, to make that as narrow as possible.
The third is that of expert training; training the police, the prosecutors and the judiciary. The police have to know how to gather evidence more effectively. It must understood why the police violate human rights. They are torturing people because this is the only way they know of getting information. Society needs to give the police other legal ways to do it.
The fourth area is legal literacy. People should be literate in their knowledge of their rights. The way you to do that is by the mass media. Also schools and public assemblies, for example are good forums for educating the people.
One method that can be used is employing law school students. This is used all over the U.S and in several European countries. Law students who have finished their human rights course are assigned to go to five public schools (not colleges) where they can talk in very basic terms about the rights of those students, who can educate their parents as well.
The constitution of Yemen is excellent in that it incorporates human rights documents, but it needs to go further. There are some things that need to be changed. In the criminal procedure code, for example, some of the articles give too much discretion to the police and the prosecutors. For instance, Yemeni law allows the police to search the house of anyone who is arrested. It has no limits on this, and by not saying where there is a legitimate law enforcement need for the house to be searched, would be a violation of human rights. This does violate some of the decisions of the European Court of Human Rights.
There are also many other areas mostly in search, seizure, arrest, detention and summons powers. The right of the police or prosecutor to summon to his office any individual without limitation on some connection between the individual and certain information, would also be considered a violation of human rights.
For example in Bosnia where I am working for the Council in Europe, it was concluded that a similar summons power which actually was less powerful than in Yemen, violated human rights. It only allowed people to be summoned or detained for a certain number of hours. It takes from the German as well as the French laws, as does Yemeni law which was found to be in violation of human rights declarations.
But that aside, for the most part the Yemeni criminal procedure law is an excellent law compared to other countries and some states in the U.S. The problem here is that of implementing the law, no problem is with the law itself.
As an example, the regulations that can be changed include those of detention and search and the protocols on having the right of attorney or to be represented. Also the client and the attorney must be able to communicate confidentially. That is if the client and the attorney want to speak in the jail, they have an absolute right under the human rights law.
The attorney should also be able to meet with his or her client sufficiently in advance to prepare for the trial. Here the Yemeni law only allows one day in the criminal procedure code, which is something that violates certain human rights requirements. In almost every nation these small problems can be found. The primary problem is that in most cases the law is not at fault.
The second issue is about reducing the police human rights abuses against the accused. They are doing this because it is rational, there is a reason behind it. The police are often told that they must solve crimes. If they do not, they get fired or do not get promotions. They are also told to enforce the law, to make arrests. To get convictions, they need to get evidence. If the police cannot get it through legal means they use illegal means.
They use unlawful means because of two reasons: one is that when they get such evidence it helps them in court and, second, because they are not punished. That’s the motive behind it.
So what must be done? In addition to educating the police, the general prosecution and the judges, the motive or the incentive to commit abuses must be reduced.
By increasing the chance of discovery and increasing the certainty and severity of punishment, the police will do what they are obliged to do. Evidence elicited under duress, say, needs to be excluded from use in court. The Yemeni criminal procedure code says: ‘Any torture of a person is inhumane treatment and any statement made under pressure will not be relied upon.’ This term is called “The Exclusionary Rule.” Not just torture is reason enough for excluding evidence, but also any other form of inhumane treatment for the sake of obtaining an admission of guilt.
The judges should consider expanding that principal to exclude not only the statements of the people, but also any evidence that is found. It should also include when an attorney has the right to be present but the police do not allow it. That is one way that would reduce the motives of the police to commit abuses. Another is to help the police, which is something that some human rights people do not want to do. They see the police as the enemy.
The human rights people must understand that the police should catch criminals because it is not only the rights of the accused we should be concerned about, but also the rights of the victims of the crime. The police need to be helped to solve crimes. If police officers are allowed to use other methods, they will be happy not to use this one. It must not be assumed that they like doing this, but they feel they have to do this to prevent crime.
The other thing that needs to be done is to increase the certainty of discovering and penalizing the police and prosecutor abuses. In the Yemeni criminal procedure code, the prosecutor is given the authority of supervising and handling the investigations. The first thing that should be done to curb police abuses should be against the prosecutors. They need help in training and to understand their role. They do have the power and they should be using it lawfully.
If the prosecutors do not do it, the judges and lawyers must be relied upon. Article 225 of the criminal procedure code allows a defense lawyer to appeal to a court-of-appeals judge if there is a wrongful detention. This should be used by defense attorneys in any court case. The court-of-appeals judge finding this out should make an order to the police.
There are other things to be done to increase the certainty of punishment. Articles 32, 33, and 35 of the criminal procedure code allow the court, if it discovers what seems to be a case of abuse, to order the police officer that committed it, to be referred to prosecution or indictment in another court. This referral power must be used by the judge.
The second method besides referral for prosecution is to use discipline procedures. Articles 85-90 in the criminal procedure code set out ways to discipline police officers by the prosecutor and by the courts. These should be used because unless there are certain punishments, these violations will never stop.
If a police officer can become a hero because he solved a crime, because the judges allowed illegal evidence in, because his supervisors do not care, he is not punished, he does not risk losing his job, he does not risk being disciplined and he does not risk being tried as a criminal, why should not he keep on doing it?
Article 38 of the Yemeni Constitution says: ‘The police is a civilian force.’ Also in Article 148: ‘No special courts shall be established under any conditions.’
Judges need the power to be able to punish the police, the military courts should be the ones to try the police. Article 47 of the constitution states: ‘The law shall determine appropriate compensation for any harm suffered by any victims of human rights abuses.’ The law is not followed. A law should be passed immediately since the constitution requires it, that does give compensation to the victims of police abuse.
Where does the compensation money come from? The money should not be taken from the general treasury, but must be taken from the police. That is what happens in the U.S.
The constitution requires compensation for the harm suffered by the victims. Follow the constitution, but take the money from two places – from the individual police officer who beats the man and the supervising prosecutor who did not prevent the abuse. Any other money should come from the budget of the police department. This can be done by using civil law suits.
The one good thing about the courts is that they put the case in the hands of the most independent people in the country, the judges. It cannot be simply left to the police to decide what compensation should be paid. The attorneys fees should be paid by the police department.
It is easy to win a law suit of money damages than it is to prosecute officials at higher standards beyond a reasonable doubt. Once a policeman is accused, he has rights too.
Without a lawyer, a person’s rights cannot be obtained through court. Yemen is in massive violation of the human rights requirement of supplying an attorney. The Yemeni Constitution says: ‘The right to defend oneself by representation is guaranteed by all areas of investigation.’ That means within a maximum of 24 hours, a detainee has the right to an attorney not just for trial, but during investigations as well. This is stipulated by the Yemeni Constitution, which also states: ‘The state shall guarantee judicial assistance to those who cannot afford it.’ Article 9 of the criminal procedure law, section one states: ‘The government must provide for the poor defense by lawyers. The council of ministers, based on the recommendation of the minister of justice, shall issue procedural rules for the regulation of the provision for the defense attorneys in court.’
The law tells people what to do, the Council of Ministers is violating the law of the land. A lawyer is needed in order to sue in court the Council of Ministers. It cannot be done, the government may not want to spend their money but the law requires it and the international human rights require payment of a lawyer. This is not something that should be provided on a voluntary basis by lawyers, the law requires it to be done. This law is better than in some American states and it is better than some European countries. It is an excellent law, but it is not being followed. How can the government simply ignore this?
* Michael Hartman served as a prosecutor for 15 years in San Francisco. He also has quite an extensive legal experience in Bosnia, Pakistan, Egypt, Nepal, and India.
He now works for the United Nations Center for Crime Prevention (UNCICP), and teaches part-time at the School of Law, University of California.
Last week, Mr. Hartman visited Sanaa at the invitation of the US Information Service office. He presented a paper at the Rights of the Accused Workshop, which was recently held in Sanaa. He also talked at several gatherings.
The above article is a summary of his paper.