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04/02/2014

Death row kids

Yemen is a party to the Convention on the Rights of the Child, which expressly prohibits the execution of individuals who were under the age of 18 at the time of the offense for which they were convicted.  Article 31 of Yemen’s Evidence Code also expressly prohibits the execution of a person who at the time of the alleged crime was a minor: “If the perpetrator was between fifteen and eighteen of age he shall be sentenced to no more than half the maximum penalty prescribed by the law, and when such punishment is the death penalty he shall be sentenced instead to imprisonment for a term of not less than three years and not more than ten years.” Article 47 of the Yemeni constitution states that, “there shall be no crime nor a punishment without a reference in the law.” Furthermore, Article 48 (a) states that, “the state will ensure personal freedom, dignity and security.” And Article 48 (h) of the same constitution states that “physical or psychological torture is a crime punishable by the law.

These constitutional principles taken together mean that, in theory, there should be no Yemeni children on death row. However, as a Human Rights Watch (“HRW”) report shows,[1] Yemen is one of four countries that still executes children in disregard of both national and international law.

According to the HRW report, as of March 4, 2013 there were 23 juveniles on death row in Yemen, all of whom had been convicted and sentenced to death despite being under the age of 18 at the time of the crime, and despite serious allegations that they were systematically tortured during their interrogation.

Juvenile convictions are often obtained in Yemen because of the simple fact that many individuals have no governmental ID or birth certificate to prove their age at the time of the crime or at the time of the future execution. As such, Yemen fails twice in observing its obligations under international law. First, each state is obligated to provide children with a universal, mandatory, free and adequate registration system. Such an obligation is widely recognized under various instruments of international law. For example, the right of registration is recognized in Article 24 of the ICCPR that states, “Every child shall be registered immediately after birth.”   It had been also recognized in the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.  In its 1997 “Guidelines for Action on Children in the Criminal Justice System,” the Economic and Social Council (ECOSOC) stated that, “States should ensure the effectiveness of their birth registration programmes.  In those instances where the age of the child involved in the justice system is unknown, measures should be taken to ensure that the true age of the child is ascertained by independent and objective assessment.

The second failure has to do with the judiciary’s reluctance to protect juvenile offenders by giving them access to a reliable medical test to determine their actual age and by giving them the right to contest their age determination. A child without a provable date of birth is extremely vulnerable, since he will not have the legal and procedural rights and assurances that are linked to his juvenile status, particularly in relation to sentencing.     

The risk of sentencing children to death becomes more pronounced when the judiciary fails to ensure that the burden of proof for establishing a juvenile’s age falls on the state. Such standards were established by the Committee on the Rights of the Child in its 10th General Comment where the Committee stated: “If there is no proof of age, the child is entitled to a reliable medical or social investigation that may establish his/her age and, in the case of conflict or inconclusive evidence, the child shall have the right to the rule of the benefit of the doubt.”  In other words, in case of doubt as to a defendant’s actual age, the court must observe and extend the presumption of innocence and the doubt shall be interpreted in favor of the suspect.

However, as was documented by HRW, in many cases the Yemeni courts and the justice system in general failed to observe these well-established international standards and chose to ignore the claims and the evidence raised by juveniles, making it virtually impossible, without the existence of official documents, to convince the court of the juvenile’s age at the time of the crime. By doing so, the justice system denies children the protection of Yemen’s law forbidding the imposition of the death penalty on juvenile offenders. By denying them their right to prove their age, the court fails its obligation to protect and observe the right of minors not to be sentenced as adults, in accordance with article 31 of the Yemeni Evidence Law that clearly states that: “A person does not have a full criminal liability if he was less than eighteen at the time of the committed act, and if the age of the accused cannot be established the judge must estimate his age with help of an expert.

Finally, the HRW report shows that some of these juveniles were sentenced to death based on confessions that were extracted by torture and cruel and degrading treatment. This practice must stop immediately. Yemen’s government and its judiciary must discharge their responsibility to protect children in conflict with the law. They must investigate the allegations of widespread torture in its prisons and during police investigations. The government should also re-open all criminal cases which ended with death sentences for alleged juvenile offenders.

For more information, watch this video of Human Rights Watch’s report:

http://www.youtube.com/watch?v=qUo16UkIF0Q

 

--Tamer Massalha



[1] Human Rights Watch, “Look at Us with a Merciful Eye”, March 4, 2013. http://www.hrw.org/reports/2013/03/04/look-us-merciful-eye.