The hearing in the afternoon, following the cross examination of a witness relating to the Chowdhury trial, concerned the review application from the defense relating to the order that the tribunal had made on 29 March concerning the 15 witness statements that the tribunal said that could be admitted as evidence without the witnesses being subject to cross-examination.
The hearing was based around a written application by the defense - sections of which were read out by the defense lawyer Tanvir Al Amin - along with a supplementary application. Both applications are set out below.
The application quotes from an article in the Bangladesh newspaper Amar Desh, published on 12 March and in the paper Daily Janata on the same day. In addition the supplementary application refers to two (almost identical) TV reports (from Diganta and Islamic TV) which were shown in the tribunal. Translations of the newspaper articles as well as the TV news reports referred to in this application can be found on this page.
Subsequent hearings on this review can be found here:
22 May: Defence application seeking review of the order, hearing 2
The hearing was based around a written application by the defense - sections of which were read out by the defense lawyer Tanvir Al Amin - along with a supplementary application. Both applications are set out below.
The application quotes from an article in the Bangladesh newspaper Amar Desh, published on 12 March and in the paper Daily Janata on the same day. In addition the supplementary application refers to two (almost identical) TV reports (from Diganta and Islamic TV) which were shown in the tribunal. Translations of the newspaper articles as well as the TV news reports referred to in this application can be found on this page.
Subsequent hearings on this review can be found here:
22 May: Defence application seeking review of the order, hearing 2
Procedural history
1. That on 20 March 2012 the Prosecution sought to make an application pursuant to Section 19 (2) International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter “IC(T)A”) in order to tender into evidence the statements of the remaining 46 Prosecution witnesses (hereinafter “Prosecution’s Section 19 (2) IC(T)A Application”). Section 19 (2) provides: “A Tribunal may receive in evidence any statementrecorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable (emphasis added)”.
2. The Prosecution stated that the attendance of these witnesses would require unreasonable delay or expense. In response to the Prosecution’s Section 19 (2) IC(T)A Application, the Defence submitted that it should be dismissed on the grounds that:
i. Since Section 19(2) takes away a very important right of the Accused person it should be given a strict interpretation, and any doubt should be resolved on behalf of the Accused-Petitioner;
ii. The prosecution has utterly failed to prove the assertions made by them, those assertions are nothing but uncorroborated and unsubstantiated report of the Investigation Officer. The prosecution has to proof beyond reasonable doubt that the attendance of the witnesses cannot be procured without unreasonable delay or expense;
iii. There is a fundamental right to secure the attendance of witnesses and the right to cross-examine witnesses pursuant to both the Act and the Rules of Procedure and international practice including ICCPR and ICC;
iv. There is no independent evidence verifying the reasons provided for by the Investigation Officer or measures taken by the Investigating officer to secure the attendance of witnesses; and
v. No alternative proposals have been provided for including the use of protective measures pursuant to Rule 58A (1) of the Rules of Procedure.
3. On 29 March 2012, the Tribunal passed an order allowing for 15 of the Prosecution Witness (PW) statements to be tendered into evidence (hereinafter: “Section 19 (2) IC(T)A Order”) as follows: “In this regard we are of the view that regarding witnesses Usharani Malaker, Suhhraranian Bali, Ashish Kumar Mondal, Sumati Rani Mondal, Somar Mistri, Suresh Chandra Mondal, Ganesh Chandra Saha, Shahidul Islam Khan Selim, Md. Ayul AIi Howlader, Sitara Begum, Rani Begurn, Md. Mostafa, Abdul Latif Howlder, Anil Chandra Mondal and Ajit Kurnar Siril, the 15 witnesses, the prosecution has successfully satisfied the requirement of section 19(2) of the Act and. regarding those witnesses, we pass the order to receive the statements made by them to the investigation officer in evidence.”
4. This application is brought pursuant to Rule 26 (3) of the Tribunal’s Rules of Procedure which provides: “The Tribunal, on its own motion or on the application of either party, may review any of its order including the order of framing charge(s) in the interest of justice”.
5. For the following reasons, it is submitted that the admission of the 15 Prosecution witness statements into evidence, in the absence of live testimony is contrary to the interest of justice and directly prejudice to the rights of the Accused-Petitioner.
Submissions
Report of the Investigation Officer – sole basis of the Order:
6. That in the prosecution’s Section 19 (2) IC(T)A Application it was alleged that the said 15 witnesses aremissing and for different reasons they could not be produced in the Tribunal. In support of the above claim the Prosecution relied upon a report of the InvestigationOfficer (‘IO’) which was annexed to the Application, though the defence was not given a copy of the report. By its Section 19 (2) IC(T)A Order dated 29 March 2012, the Tribunal solely relied upon the said report of the Investigation Officer and allowed to receive as evidence the statements of 15 witnesses as follows:
“In support of his submissions Mr. Syed Haider Ali has also gave as two investigating officer’s reports wherein we find that the witness Sukharanjan Bali could not be traced in his house and his wife and daughter informed the investigating officer that he left the house inAgrahayan, 1418 and did not come back to the house and he has become untraceable. By getting information from his neighbors, it is stated that the investigating officer became satisfied that he has become untraceable since that time. It has also stated that while the wife and daughter of Sukharanjan Bali talked to the investigating officer, it has been recorded in video. Regarding witness Usharani Malaker the investigating officer stated that he found this witness sick for her oldage ailments and her son and the neighbors informed that she cannot move because her oldage and he continuesher natural calls in her bed. If she is taken to Dhaka her life may be endanger. Regarding witnesses namelyAshis Kumar Mondal, Sumoti Rani Mondol and SamarMistri it is stated that they came back from Dhaka after January, 31 and after that they have become tracelessfrom their area. The people of the area said that they have left for India. Then the investigating officer requested the Officer-in-Charge of Pirojpur PoliceStation to send them to Dhaka for producing in the Tribunal, but after sometime the Officer-in-Charge through mobile phone told that they could not betarcedout because they might have left for India. The 1streport is dated 17.3.2012. In another report dated 10.03.2012 it is stated that witnesses Suresh Chandra Mondal, Gonesh Chandra Shaha, Shahidul Islam Khan Selim, Md. Ayub Aii Howlader, Sitara Begum, Rani Begum, Md. Mostafa, Abdul Latif Howlader, AnilChandra Mondal and Ajit Kumar Shil, the investigating officer went to their houses and only found the witness Sitara Begum sick in her house and others could not be found. The investigating officer stated in the report that during his investigation, he found that the local arms cadre has given threatening to those witnesses and as such due to fear of their life, they have kept themselves in the secret place so that they cannot be produced in the Tribunal and their life is saved. The investigating officer mentioned that the terrorist group who gave threatening are man of the accused. Basing on that report, the learned prosecutor Mr. Syed Haider Ali submitted that a prima-facie material was found by the prosecution in support of their statements that these witnesses cannot be produced in this Tribunal and their attendance cannot be procured without an amount to delay or expense.”
7. However, it is submitted that the Tribunal took this decision in the absence of any independent evidence verifying the reasons submitted by the Investigation Officer.
8. Moreover the copies of the report of the Investigation Report and the Police Reports dated 17.03.2012 and 19.03.2012 concerning the Prosecution Witness intimidation/threat was not provided to the Defence in order to be able to respond. This is the central document upon which the Tribunal relied to satisfy itself about the PW intimidation/threat. The Defence should be given an opportunity to respond to, and where necessary, challenge the repot of the Investigation Officer and the police reports.
Insufficient Evidence to support the Prosecution’s claim
9. It is submitted that in the absence of any independent evidence in support of the Prosecution’s Section 19 (2) IC(T)A Application, the Tribunal has relied on the scant reasoning provided for by the Investigation Officer in formulating its Section 19(2) IC(T)A Order dated 29 March 2012.
10. In reference to Prosecution witness Usha Rani Malakar, it was submitted by the Prosecution that they could not compel her attendance as she had lost her memory and was too ill to travel to the Tribunal in Dhaka to give live testimony. However the Prosecution failed to provide any proof of such illness or loss of memory by an independent medical authority. In fact Usha Rani Malakar is not sick and her attendance can be procured without an amount of delay or expense. It is stated that no summon was issued to Usha Rani Malakar asking her to come to tribunal to give evidence. It is submitted that there is no scope to receive in evidence the alleged statement of a PW under section 19(2) of the IC(T)A, without issuing any summon upon her for giving evidence.
11. Regarding Sukharanjan Bali this Hon’ble Tribunal is satisfied that this witness is missing for four months as hehas left for India. It is submitted that the prosecution failed to produce a single evidence/document to support this. If this person was really missing for such a long time then his family members would have filed a general diariy in the local police station reporting the news of his missing.Moreover, if this witness has really gone to the neighbouring country, India, the prosecution failed to offer any reason as to why his ‘attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable’. On 27th March 2012 the Daily Naya Diganta (Annexure – ‘A’ Series of the Reply to the Prosecution’s Section 19(2) Application) reported that this witness is not ready to give any false evidence as concocted by the IO in his name. Due to this reason the Prosecution cannot bring this person to the tribunal.
12. In respect of the Prosecution witnesses (i) Asish Kumar;(ii) Sumoti Rani; and (iii) Somor Mistri this Tribunal is satisfied that ‘they came back from Dhaka after January, 31 and after that they have become traceless from their area’ and ‘thy might have left for India’. It may be recalled that the Prosecution filed Hazira (Appearance) for these three witnesses in the tribunal on two occasions. First timeat the beginning of the trial and secondly on 01st February 2012. But on 2nd of February 2012 one of the prosecutorsinformed the tribunal that these witnesses left witness Safe House (hereinafter ‘Safe House’) on the previous day in the name of visiting their families and did not return back. On 27th March 20012 the Daily Naya Diganta reported thatthe close relatives of these three persons said that in fact these witnesses were in the custody of the IO for about 30 to 45 days. It was reported that they were tortured but they denied giving false evidence against the Accused. This is why they were not brought to the tribunal. Further on 12thApril the Daily Amar Desh reported that the Register, General Diary and the Food Book of the Safe House which are maintained for the witnesses of the Tribunal shows that Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri were in the Safe House in the control of the Prosecution until 16th March 2012. The Registrar of the Safe House shows that they stayed in the Safe House for 47 days in two terms. In the first term these witnesses were brought in the Safe House on 11th November 2011. They were kept in the Safe House until 22nd November 2012.The relevant part of the news report of the Daily Amar Desh dated 12th April is quoted below:
"In the application of the Prosecution it was said that witnesses Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mondol had been missing from 2nd February. The Prosecutor of the government Advocate Rana Dash Gupto in the case against Mowlana Delwar Hossain Sayedee informed the Tribunal that these witness left the Safe House on 2nd February in the name of visiting their relatives. Later on the Prosecution in their application stated that these three witnesses went to India secretly. But the Register, General Diary and the Food Book of the Safe House which are maintained for the witnesses of the Tribunal shows that Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri were in the Safe House in the control of the Prosecution until 16th March. The Registrar of the Safe House shows that Ashish Kumar Mondol, Somor Mistri and Sumoti Rani Mondol stayed in the Safe House for 47 days in two terms. In the first term these witnesses were brought in the Safe House on 11th November 2011. On that day nine witness were brought there. They were kept in the Safe House until 22nd November. During this time they were given training as to how they should give evidence in Tribunal. Apart from Ashish Kumar Mondol and Somor Mistri the other witnesses who came at that time were Mohammad Mahbubul Alom, Md. Mahtab Uddin Hawlader, Md. Mostofa Hawlader, Manik Poshari, Md. Ruhul Amin Nobin, Md. Altaf Hawlader and Mohammad Abdul Lotif Hawlader. The mobile numbers of all these witnesses are mentioned in the Register.''
It is therefore clear that these three witnesses were never missing. The prosecution did not produce them since they were not willing to support the false statement prepared by the IO in their names.
13. Finally, in reference to Prosecution witness: (1) Suresh Chandra Mondal, (2) Gonesh Chandra Shaha, (3) Shahidul Islam Khan Selim, (4) Md. Ayub Aii Howlader, (5) Sitara Begum, (6) Rani Begum, (7) Md. Mostafa, (8) Abdul Latif Howlader, (9) Anil Chandra Mondal and (10) Ajit Kumar Shil from the report of the Investigation Officer this Tribunal is satisfied that ‘that the local arms cadre has given threatening to those witnesses and as such due to fear of their life, they have kept themselves in the secret place so that they cannot be produced in the Tribunal and their life is saved’. The Tribunal is also satisfied that ‘the terrorist group who gave threatening are man of the accused’. It is submitted that the Report of the Investigation officer is not correct due to the following reasons:
(a) In paragraph 7(e) of the Reply the Accused has already denied these allegations as being incorrect, fabricated,false and impractical. The prosecution fails to substantiate these allegations and there is no factual basis.
(b) With regard to PW Gonesh Chandra Shaha it is stated that the Prosecution has mislead the court by stating in its Section 19(2) IC(T)A application that he is a ‘eye witness’. Close scrutiny of the statement served in the name of Gonesh Chandra Shaha shows that he never claims to have witnessed any event in the statement alleged to have been recorded by the IO. The report of the Investigation Officer also did not specify as to who, how and when have threatened this PW.
(c) PW Shahidul Islam Khan Selim was never missing and on 10th January 2012 he was bought to the Safe House for giving evidence in the instant case and he stayed there until 12th January 2012. But he was not produced by the Prosecution before the Tribunal as he was not ready to support the false statement concocted by the IO in his name. This was reported in the Daily Amar Desh on 12thApril 2012 and the relevant part of the news is quoted below:
"Witness freedom fighter Shohidul Islam Khan Selim stayed in the Safe House from 10th January to 12th January. He was taken to the Prosecution room in Tribunal for consecutive two days on 11 and 12 January. But the Prosecution did not produce him before the Tribunal. On 12 January at 2.30 pm he was returned back to his daughter’s house."
(d) With regard to PW Ayub Ali Talukder the Daily Arar Desh report dated 12th April 2012 shows that this witness stayed in the Safe House from 7 January 2012 to 10 January 2012. It is stated that the Prosecution did not produce this witness before the tribunal despite the fact that he was brought to the Safe House in Dhaka for giving evidence.
(e) With regard to PW Sitara Begum this Hon’ble Tribunalrelied upon the report of the IO which found that she wassick in her house and unable to give evidence due to the threat of the so called terrorist group of the accused. It is stated that the Prosecution failed produce any medical certificate to show that Sitara Begum was sick. In fact this PW is not sick and and her attendance can be procured without an amount of delay or expense. There is no other evidence to suggest that any terrorist has ever threatened her for not giving evidence in Tribunal. On 27th March2012 the Daily Naya Digonto reported that this witness was not ready to support false statement prepared by the IO in her name.
(f) With regard to the PWs Rani Begum & Md. Mostofa on 27th March 2012 the Daily Naya Digonto reported that Md. Mostofa denied any threat from any people of the Accused to him, his mother Sitara Begum and sister Rani Begum. According to Md. Mostofa they have not concealed themselves as they were living in their residence.According to the news report Md. Mostofa said as follows:
[No translation available]
(g) It is stated that PW Abdul Lotif Hawlader was never missing. In fact he came to the Tribunal to give evidence on 2nd February 2012. It is unclear as to how it can now be said that he has concealed himself? On 12th March 2012 the Daily Amar Desh reported that this witness was taken to the Prosecution room in the Tribunal for consecutive four days. It was also reported that he was brought to the Safe House for the first time on 16th November 2011 and stayed there until 22nd November. Later on 31st December2011 he was again brought to the Safe House and stayed there until 5th January 2012. On that occasion he was taken to the Prosecution room in the Tribunal consecutively on 2nd, 3rd and 4th February. On every occasion he was not produced before the Tribunal and returned to the Safe House. On 5th January at 6.30 am he was sent back to his house. The relevant part of the news report is quoted below(Annexure-‘X’):
"The witness Abdul Lotif Hawlader was taken to the Prosecution room in the Tribunal for consecutive four days. According to the Safe House Diary Abdul Lotif Hawlader was brought to the Safe House for the first time on 16th November of the last year. He was kept in the Safe House on 22nd November. Later on 31st December he was again brought to the Safe House. On that term he was kept their until 5th January. On that occasion he was taken to the Prosecution room in the Tribunal consecutively on 2nd, 3rd and 4th January. On every occasions he was not produced before the Tribunal and returned to the Safe House. "
(h) With regard to PW Anil Chondro Mondol on 12th April 2012 the Daily Amar Desh reported that this witness stayed in the Safe House from 12 January 2012 to 16th January2012. It was reported that the Investigation Agency brought him to the Safe House on 12 January and after four days’ stay he was not produced before the Tribunal as he did not agree to give tutored false evidence against the Accused. He was sent back to his house on 16th January. The relevant part of the news report is quoted below:
"Witness Anil Chondro Mondol stayed in the Safe House from last 12 January to 16th January. The Investigation Agency brought him to the Safe House on 12 January. After four days’ stay he was not produced before the Tribunal as he did not agree to give tutored false evidence. He was sent back to his house on 16th January."
(i) Regarding PW Ajit Kumar Shil the Daily Amar Desh dated 12th April 2012 reported that he was brought to the Safe House on 10th February 2012 and was kept there until 13th February 2012. After three days’ stay in the Safe House he was not produced before the Tribunal as he did not agree to give tutored false evidence against the Accused. The relevant part of the news report is quoted below:
"Witness Ajit Kumar was brought to the Safe House on 10 February. He was kept there until 13th February. After three days’ stay in the Safe House he was not produced before the Tribunal as he did not agree to give tutored false evidence."
14. That the above paragraphs clearly show that the Report of the Investigation Officer regarding unavailability of the 15 PWs is a false report and cannot be relied upon to receive in evidence the statements of the said witnesses under section 19(2) of IC(T)A. It is stated that the Investigation Officer has fraudulently prepared the said report to show that the PWs are not available to give evidence, while in fact these witnesses are available and they came to the witness Safe House in Dhaka for giving evidence before the tribunal. It is submitted that the Prosecution has also mislead the court by relying upon this fraudulent report of the Investigation Officer. It is to be noted that on 2ndFebruary 2012 one of the prosecutor informed the Tribunal that (i) Asish Kumar; (ii) Sumoti Rani; and (iii) Somor Mistri left the Safe House on last evening and missing thereafter while in fact these witnesses were in the Safe House in their custody at that time and they lived their until 16th March 2012. It is therefore clear that the impugned order was obtained by misleading the Tribunalby the fraudulent report of the Investigation Officer andsuppression of material facts and hence the impugned order is liable to be reviewed in the interest of justice.
15. That it is submitted that it is clearly insufficient to suggest that newspaper reporters are 'people in support of the accused' to threat the Prosecution Witnesses as alleged in last sentence of page 7 of the order. It is unclear how this conclusion, in the absence of any evidence, has been reached. In this regard the issue must be whether the Accused-Petitioner has caused any PW to feel threatened.
16. It is submitted that the Prosecution has failed to offer any alternative despite the Rules of Procedure being amended in June 2011 to allow for special protective measures to be implemented under Rule 58A (1), (2) and (3). It is stated that the 15 PWs are not ready to give evidence against the Accused and this is why the prosecution is not willing to produce them to give oral evidence in the Tribunal. If these witnesses are examined by the Tribunal then there is a very high possibility that the false allegations against the Accused will be revealed. These PWs are not ready to support the statements prepared by IO in their names.
IO did not record the statement of the witnesses and he should not be believed:
17. It submitted that one of the precondition to receive in evidence the statement of witnesses under Section 19(2) of IC(T)A is that the statement is recorded by the IO. If any prosecution witness denies giving any statement to the IO then there is no scope to receive in evidence the statements served in the name of that witness. Many of the prosecution witnesses has already said in public that they never give any statement to the IO though the prosecution has served statements in the names of those witnesses alleged to have been recorded by the IO. This was reported on 24th March 2012 in The Daily Sangram, on 25th March 2012 in the Daily Amar Desh and on 27th March 2012 in the Daily Naya Diganta. (ANNEXURE – ‘A’ series to the reply to the Prosecution’s Section 19(2) Application).
18. On 27th July 2011 the prosecution served witness statements of the Executive President of the Ghatok Dalal Nirmul Committee, Mr. Shahrier Kabir and the renowned Magician of Bangladesh, Mr. Jwel Eich alleged to have been recorded by the Investigation Officer. It is stated that on 22nd March 2012 the Daily Jonota reported that neither Mr. Shahrier Kabir nor Mr. Jwel Eich was aware that they are witnesses in the instant case. Therefore it is clear that they did not give any witness statement to the IO in the instant case. The relevant portions of the news report is quoted below for ready reference:
In fact Mr. Shahrier Kabir told that the IO has told lies in his name as follows:
"In this regard Shahriar kabir said that I am not a witness of Saydee’s case, I am witness of the Ghulam Azam case. And I have written in my book what I know about Sayedee, this book is already given to prosecution. I have signed on this book also. They are telling lie, no summon was served upon me."
19. The above news report clearly shows that the statements submitted by the prosecution in the names of Mr. Shahrier Kabir and Mr. Jwel Eich, alleged to have been recorded by the IO are not their statements. In fact they never made any statement to the IO. It is clear that the IO has concocted witness statements in their names. It is therefore submitted that if the IO can create and concoct witness statements in the names of renowned persons like Mr. Shahrier Kabir and Mr. Jwel Eich, he can do so for the other witnesses. As such the witness statements alleged to have been recorded by the IO cannot be relied upon.
20. That there is no proof that the above 15 witnesses gave any statement to the IO at the time of investigation. These are in fact prepared by the IO in the name of the PWs. There is no evidence to show that these are the statements of the relevant PWs.
21. Some of the PWs who have already given oral evidence before this tribunal did not admit giving evidence to the IO at the time of investigation despite the fact that Prosecution has served witness statements in their names claiming them to have been recorded by the IO at the time of Investigation. Further most of the material PWs who have already given evidence before the tribunal have contradicted their statement made to the IO. In fact some of the PWs have totally contradicted their statements alleged to have been made beofore the IO. Moroeover it is surprising to note that the statements of the PWs alleged to have been recorded by the IO are exactly the same. Sometimes it is merely a copy and paste work by the IOwhich indicates concoction and proves that the IO did not record the statements of the PWs correctly and honestly. In its Reply to the Prosecution’s Section 19(2) Application (“Reply”), the Accused-Petitioner in Paragraph 13 (b) and (c) of the Reply provided a detailed report regarding these witnesses who either denied giving evidence to the IO or contradicted their statements alleged to have been made to the IO. Paragraph 13 (d) of the Reply provides a summary of the witness statements which were merely cut and paste work by the IO. It is stated these were material facts in considering the Prosecution’s Section 19(2) Application clearly showing that the IO has concocted statements in the name of the PWs and as such cannot be ignored. It is to be noted that the prosecution was unable to refute any of the facts in the above paragraphs of the Reply. But this hon’ble Tribunal did not at all considered those material facts in the Reply and did not refute the arguments contained therein. As such the impugned order was passed without considering the material facts and hence should be reviewed in the interest of justice.
22. It is therefore submitted that the copies of the statements that were served in the names of the PWs are prepared and concocted by the IO. The PWs are not ready to support the statements that were served earlier in their names and they are not ready to give false evidence against the Accused and this is why the prosecution is unable to bring those PWs.
Fair Trial
23. It is respectfully submitted to this Hon’ble Tribunal thatmatters set out in the petition on behalf of the Accused-Petitioner concern fundamental principles for ensuring a fair trial and ensuring equality of arms between the parties.It should be recalled that an accused person must have, either personally or through his counsel, an effective opportunity to challenge the evidence against him. Any restriction of this right must be exercised in exceptional circumstances and where there are sufficient counterbalancing procedures put in place. If the Prosecution is permitted to serve hearsay statements in presenting its case, without affording the opportunity to challenge the author of the statement, where there exist grave concerns as to reliability of the statement and possible collusion, then the interests of justice will not be served and an accused’s right to receive a fair trial will be irreparably harmed. It is the duty of the Tribunal Judges to safeguard the fundamental rights of the accused and to ensure that there is equality of arms between the parties and that the defence has a fair opportunity to challenge the case brought by the Prosecution.
24. It is submitted that one of the fundamental safe guard to fair trial is the right of the accused to cross examine the prosecution witness(es) so that he can test the veracity of the statements of the PWs and challenge his credibility. This right cross examination is recognised by Sections 10(1)(e) and 17(3) of the IC(T)A which are quoted below for ready reference:
Section 10(1)(e): ‘(e) the witnesses for the prosecution shall be examined, the defence may cross-examine such witnesses and the prosecution may reexamine them;’ (emphasis added)
Section 17(3): ‘(3) An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.’(emphasis added)
25. It is submitted that this right of cross examination is also recognised by Article 14 (3) (e) ICCPR and Article 67 (1) (e) ICC Rome Statute, to which Bangladesh is a state party to.
26. Article 6(3)(d) of the European Convention on Human Rights (hereinafter: Convention), and by analogy Article 14(3) of the ICCPR, which serves as an extension to the equality of arms principle, guarantees an accused person the right to summon and examine witnesses under the same conditions vis-à-vis the prosecution. Article 6(3)(d) guarantees the right to have such a witness called to give oral evidence and be subject to cross-examination (Eur. Court HR, Kostovski v. Netherlands, 20 October 1989, Series A No. 166). The fundamental principle is whether the proceedings, taken as a whole, are considered fair in accordance with the general principles.
27. The starting point is that all evidence must normally be produced in the presence of an accused at a public hearing with a view to adversarial argument. As a general rule, this requires that an accused person be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings.
28. In the leading Kostovski XE "Kostovski v. the Netherlands"case (Eur. Court HR, 20 October 1989, Series A no. 166, pp. 20-21, paras. 41, 44) the following passages can be found: “In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument (see the Barberà XE "Barberà, Messegué and Jabardo v. Spain" , Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 34, para. 78).”
“As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings (see, mutatis mutandis, the Unterpertinger XE "Unterpertinger v. Austria" judgment of 24 November 1986, Series A no. 110, pp. 14-15, para. 31).
“…The right to a fair administration of justice holds so prominent a place in a democratic society (see the Delcourt XE "Delcourt v. Belgium" judgment of 17 January 1970, Series A no. 11, p. 15, para. 25) that it cannot be sacrificed to expediency…”
29. In Al-Khawaji & Tahery v. United Kingdom (Eur. Court HR, [2009] ECHR 26766/05, judgment of 20 January 2009), with reference to the case of Doorson XE "Doorson v. the Netherlands" v. Netherlands (Eur. Court HR,judgment of 26 April 1996, Reports of Judgments and Decisions 1996-II, p. 446), the European Court held that allowing a witness statement to be admitted as evidence where the witness is not available for cross-examination and that evidence is the sole or decisive basis for convicting the accused violates the right to a fair trial.
30. It is clear that Section 19(2) of the Act sets boundaries as to when the statement of an absent witness may be admitted by the Tribunal. It is clear that the provision is to apply in exceptional circumstances only where a witness has died or whose attendance may not reasonable be secured. It is clear in this regard that is incumbent upon the Tribunal to enquire as to the reasonableness and to enquire whether the Investigative Agency have taken reasonable steps to secure the witness’ attendance. It is quite unclear as to what steps the Investigative Agency has taken to substantiate its claim that the witnesses in question cannot be produced.
31. The commentary set out above concern fundamental principles for ensuring a fair trial and ensuring equality of arms between the parties. It must be recalled that an accused person must have, through his counsel, an effective opportunity to challenge the case against him. Any restriction of this right must be exercised in exceptional circumstances and where there are sufficient counterbalancing procedures put in place. If the Prosecution is permitted to serve hearsay statements, without the opportunity to challenge the author of the statement, where there exists grave concerns as to reliability and possible collusion, then the interests of justice will not be served and an accused’s right to receive a fair trial will be irreparably harmed. It is the duty of the Tribunal to safeguard the fundamental rights of the accused and to ensure that there is equality of arms between the parties and that the defence has a fair opportunity to challenge the case brought by the Prosecution.
Defence Arguments which are not refuted in the impugned order:
32. It is respectfully submitted that the Hon’ble Tribunal failed to consider and discuss the arguments of the Defence counsel filed in the Reply to the Prosecution Petition. In light of such a failure the following points are now raised in which it is humbly prayed that the Hon’ble Tribunal set out clear reasons in its decision:
(a) That it is stated that the reasons given by the prosecution for non-attendance of the PWs are not correct and does not qualify for admission under section 19(2) of IC(T)A. Section 19(2) of IC(T)A is applicable only for the statements of a person who is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal consider unreasonable. This section does not apply for persons who are alleged to have been missing.
(b) It is not correct that the IO has recorded statements of the said PWs. In fact the copies of the statements that were served in the names of the PWs are prepared and concocted by the IO. The PWs are not ready to support the statements that were served earlier in their names and they are not ready to give false evidence against the Accused and this is why the prosecution is unable to bring those PWs.
(c) The nature of proceedings before the Tribunal are adversarial in nature and allow for the cross examination of all witnesses by both the Prosecution and Defence and the Tribunal pursuant to section 10 (1) (e), (f) and (g) IC(T)A. Moreover it is settled legal principle that an accused person should be given opportunity to cross examine the prosecution witness(es) so that he can test the veracity of the statements of the PWs and challenge his credibility. This is also supported by the application of Rule 20 (1) of the Rules of Procedureand upheld in Article 14 (3) (e) International Covenant on Civil and Political Rights (hereinafter: “ICCPR”) and Article 67 (1) (e) of the Rome Statute for the International Criminal Court (hereinafter “ICC”), to which Bangladesh has agreed to be a party. Article 6(3)(d) of the European Convention on Human Rights also guarantees the right to have a witness called to give oral evidence and be subjected to cross-examination.
(d) The Prosecution has failed to factually establish that an unreasonable amount of delay or expense would be incurred in securing the attendance of the remaining Prosecution Witnesses. The Prosecution has also failed to offer any alternative despite the Rules of Procedure being amended in June 2011 to allow for special protective measures to be implemented under Rule 58A. The Prosecution cannot prejudice the Accused if they fail to give protection to the PWs.
(e) The duration of investigation is usually lesser than the duration of trial. For instance under the traditional criminal trials in Bangladesh section 167(5) of Cr.PC set out 120 days as primary time lime for investigation and section 339(c) of CrPC set out 180 days for magistrate court trial and 360 days for session court trial. It may be noted here that the ammended Rule 9(5) of the International Crimes Tribunal Rules of Procedure, 2010 provides that ‘the investigation officer shall conclude the investigation within one yea’ of arrest of the Accused. On the other hand there is no time limit regarding duration of trial under IC(T)A, though section 11(3)(a) provides for ‘expedicious hearing’. In the instant case the IO took more than a year to investigate the case. But the trial of the case has started since the last three and half months only i.e. from 7th December 2011 when the Tribunal started recording evidence of the prosecution witnesses. As such it cannot be said that the trial is being delayed for the want of prosecution witnesses. It is submitted that the Prosecution failed to show why the trial must be finished within such a short time. It is submitted that the right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency.
(f) The Hon’ble Tribunal has rightly quoted the arguments of the learned defence counsel Mr. Abdur Razzaq that IC(T)A is a strict law and always to be followed strictly and if any dispute arise about the explanation of the Act then the explanation in favour of the accused side should be accepted by the Tribunal. But it is submitted that the Hon’ble Tribunal failed to refute the argument in the impugned order and interpreted and applied section 19(2) of IC(T)A to the prejudice of the Accused.
Fundamental points:
33. It is respectfully submitted that there is nothing before the Hon’ble Tribunal, other than the unsupported statement of the Investigative Officer, that the statements of the 15 Prosecution Witnesses are authentic. Further, there is nothing before the Hon’ble Tribunal, other than the unsupported statement of the Investigative Officer, to substantiate the claims that the witnesses are unavailable. To admit such statements in the absence of any credible supporting evidence will impact upon the fairness of the proceedings.
34. It may be recalled that the Tribunal allowed the Prosecution Section 19(2) application regarding the 15 PWs by holding that ‘we are satisfied that the prosecution has been successful in making out a case that some of the mentioned witnesses cannot be procured without an amount of delay or expense’. It is submitted that a mere delay or expense to procure attendance of the prosecution witness is not sufficient to quality any statement under Section 19(2) of IC(T)A. The section requires that it must be an ‘unreasonable’ delay or expense. It is humbly submitted that in absence of a finding that the attendance of the 15 witnesses cannot be procured without anunreasonable delay or expense, the impugned order fails to fulfill the requirement of Section 19(2) and hence should be reviewed in the interest of justice.
35. Furthermore, it is respectfully submitted that the Defence objects to the submission of witness statements under section 19 (2) ICT(A) whereby the statement is attributed to a particular charge which has not been previously mentioned or supported by a live witness in proceedings before this court. The effect of which means that there has been no opportunity for the Tribunal to hear live evidence relating to a particular charge or for the Defence to cross-examine on the specific charge. For example, Prosecution witnesses Ashish Kumar Mondol and Suresh Mondol refer to allegations which support Charges 1, 2, 3 and 4 in their statements. However, no other witnesses have been called to testify to the allegations raised in Charges 1 to 4. Prosecution witnesses Sumoti Rani Mondol, Shomor Mistri, and Suresh Mondol who do refer to the same allegations in their statements, were never called to testify before this Tribunal despite being on the Prosecution’s witness list and scheduled to testify in January and February 2012. For this reason it is submitted that the statements of Ashish Kumar Mondol and Suresh Mondolshould not be admitted into evidence under section 19 (2) ICT(A) as to do so would be prejudicial to the nature for proceedings brought against the Accused-Petitioner.
36. It is submitted that pursuant to Rule 18 (2), it is the Investigation Agency’s duty to assist the Prosecution in pre-trial and trial proceedings. It is respectfully submitted that therefore the Investigation Officer has an vested interest in the outcome of the Prosecution’s Section 19 (2) IC(T)A Application and indeed the overall Prosecution case against the Accused-Petitioner. The Investigation Agency is therefore not an independent body on which to base such a serious decision which directly impacts the fundamental rights of the Accused-Petitioner as detailed in the Defence response to the Prosecution’s Section 19 (2) IC(T)A Application. These include the right to compel a witness to attend and the right to cross-examine the witness as upheld in sections 10 (1) (e), (f) and (g) IC(T)A, Rule 20 (1) of the Rules of Procedure, Article 14 (3) (e) ICCPR and Article 67 (1) (e) ICC Rome Statute, to which Bangladesh is a state party to.
37. It is submitted that: (1) in the absence of independent evidence verifying the Investigation officer’s reasons; (2) in the absence of consent of Prosecution witnesses to use statements in place of live testimony and (3) in consideration of the Investigation Officer’s vested interest in the Prosecution’s case, consideration must be taken of Prosecution witness accounts taken by independent journalists, as cited at the time of hearing of the Prosecution’s Section 19(2) application.
38. It is respectfully submitted that on 12 April 2012 The Daily Amar Desh (Annexure – ‘X’) published details taken from the Safe House Registrar in which the account given by the Investigative Officer as to the availability of the Prosecution Witnesses is challenged. It is noted that the learned Prosecutor when questioned on this point was unable to present an adequate answer as he was not in charge of the Safe House Registrar. In this regard, it is respectfully submitted that a further enquiry should beordered by the Tribunal to inspect the Safe House Registrar to independently verify the assertions made by the Investigative Officer. In the absence of such enquiries the Hon’ble Tribunal cannot be satisfied that the Prosecutor has met his burden under section 19 (2) of the Act and that the Accused-Petitioner cannot be guaranteed a fair trial in accordance with Article 14 of the ICCPR.
39. It is respectfully submitted that the intent of section 19(2) is envisaged for exceptional circumstances covering death, illness and extreme financial burden. It is not envisaged to serve as a tool of convenience to the Prosecution.
ConclusionThe supplementary application is set out here
40. For the abovementioned reasons, the Accused-Petitioner prays that the Tribunal reviews its Section 19(2) IC(T)A Order dated 29 March 2012 and out rightly dismisses the Prosecution’s Section 19 (2) IC(T)A Application.
1. That on 9th May 2012 the Accused-Petitioner has filed an Application for Review of the order dated 29th March 2012 passed under section 19(2) of the International Crimes (Tribunal) Act 1973 (hereinafter referred to as ‘the Review Application’). Thereafter this Hon’ble Tribunal fixed today i.e. 21st May 2012 for hearing of the Review Application. Further to the Review Application the Accused-Petitioner intends to make the following additional statements and submissions:Subsequent to this, there was then some oral arguments, which are on a separate page.
2. That it is stated that on 15th May 2012 the Islamic Television aired a news report which reveals that the Prosecution witness Usha Rani Malakar, Shkhoronjon Bali, Gonesh Chondro Shaha and Chan Mia Poshari explicitly specify that they did not provide any evidence that inculpate the Accused-Petitioner. The video recording of the news report of Islamic Television with transcript has been annexed herewith and marked as Annexure 1.
3. That it is stated that on 11th May 2012 the Digonto Television has also aired another news report which reveals the same facts regarding the Prosecution witness Usha Rani Malakar, Shkhoronjon Bali, Gonesh Chondro Shaha and Chan Mia Poshari. The video recording of the news report of Digongto Television with transcript has been annexed herewith and marked as Annexure 2.
4. That it is submitted that the above Video Recordings clearly shows that these prosecution witnesses did not give any evidence incriminating the Accused-Petitioner. This is contrary to the statements tendered into evidence by the Prosecution in the names of the said prosecution witnesses. It became clear that the Investigation Agency concocted facts to falsely incriminate the Accused Petitioner with the alleged occurrences. It is also noted that there is no obstacle to Prosecution witnesses giving accounts to journalists under either the Act or Rules of Procedure. Consequently, it is respectfully submitted that the admission of these video recordings directly challenges the truthfulness of the 15 Prosecution witness statements tendered into evidence by the impugned order under Section 19(2) IC(T)A dated 29 March 2012.
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