If follows a lot of advice from Stephen Rapp, US War Crimes Ambassador at Large, Human Rights Watch and International Centre for Transitional justice (see blog, April 2011)
You can see the new rules for yourself by downloading them from there.
You can download the original July 2010 rules here and the first set of amendments made in October 2010 here
Key points in amended rules seem to be:
- new bail regime, specifically provision in which a detained person pending investigation should be released on bail after one year if investigation is not completed except in 'exceptional circumstances.' (section 4 and 10)
- new right for lawyer of accused to be present before a magistrate if he or she is making a confessional statement, though they cannot say anything. (Section 6: NB: This right does not exist in current Bangladesh law).
- provision to allow tribunal to review any of its own orders. (Section 7: Though note this is not an appeal to a separate appellate court)
- provision stating that 'An accused pleading not guilty will get at least three weeks time for preparing his defence.' (section 11)
- provision that states that a person charged with an offence 'shall be presumed innocent until he is found guilty.'(section 12)
- a provision that gives the right to to a defendant to 'engage his counsel as his choice who is legally authorised to appear before the tribunal. (Section 12: NB: since the lawyer has to be legally authorised this does not effect the existing rule relating to foreign counsel which states that any foreign lawyer has to get the permission of the Bar Council which has stated that it is not legally able to allow non-Bangladeshi counsel to appear.)
- a provision that makes clear that the prosecution must prove its case 'beyond reasonable doubt' (section 16) , and altering the existing rule on alibi evidence ensuring that a 'mere failure to prove the plea of alibi ... shall not render the accused guilty. (section 17)
- a clarification on when statement given in the course of an interrogation of an accused can be used as evidence. Section 20 states:
'(3) Any statement made to the investigation officer or to the prosecutor in course of investigation by the accused is not admissible in evidence except that part of the statement which leads to discovery of any incriminating material.'(This seems to be quite a shift from what the Tribunal has stated numerous times in court and as part of one ruling, as part of its justification that no lawyer need be present during an interogation, that nothing said during an interrogation can be used as evidence.)
- power given to the tribunal to issue orders to ensure protection of witnesses and victims (section 21)
Are there any other key provisions that I have missed? (please comment)
Too soon to make any clear judgment on this, but it does seem at first glance that whilst some important developments have taken place through this amendment, these amendments are far from what Rapp, Human Rights Watch and other international lawyers have argued are necessary.