The tribunal then dealt with an application to seek the prosecution of the Sayedee Investigation Officer and the discharge of the accused. (Back to main page for this day)
The written application by the defense is set out below
1. That this application has been filed before the Hon’ble Tribunal pursuant to section 11(4) of the International Crimes (Tribunal) Act 1973 as amended in 2009 (hereinafter: “Act”).The following order was passed (summary)
2. That pursuant to this application, the Hon’ble Tribunal draws up proceedings under section 11(4) of the Act against the Investigation Officer and orders the discharge of the Accused-Petitioner and directs a fresh investigation of the case.
3. It is recalled that on 28.03.3012 the Hon’ble Tribunal heard the Accused-Petitioner’s Response to the Prosecution’s application under section 19(2) of the Act. In this Response it was submitted that the Prosecution had failed to factually establish that an unreasonable amount of delay or expense would be incurred in securing the attendance of the remaining 46 Prosecution witnesses. It was further submitted that there would be an irreparable risk of prejudice against the Accused-Petitioner’s right to fair trial pursuant to section 10(1)(e), (f) and (g) of the Act, Article 14(3)(e) of the International Covenant of Civil and Political Rights (hereinafter: “ICCPR”) and Article 67(1)(e) of the Rome Statute of the International Criminal Court (hereinafter: “ICC”).
4. The review of the Prosecution’s Section 19(2) Application revealed that the Investigation Agency (hereinafter: “IA”) perverted the course of justice and wilfully misled the Hon’ble Tribunal when submitting that the remaining 46 Prosecution witnesses were not available when in fact they were in the Prosecution’s custody at the time.
5. It is respectfully submitted that the failure by the Investigation Officer to secure the attendance of the remaining 46 Prosecution witnesses amount to 1) an obstruction of justice and 2) is highly prejudicial in the case against the Accused-Petitioner.
Obstruction / Abuse of process under section 11(4) ICTA
6. Section 11(4) ICTA provides a discretion for the Hon’ble Tribunal to punish any person who obstructs or abuses its process. (emphasis added)
7. Further, Article 70(1) ICC provides measures for offences against the administration of justice, namely, that the Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: “(c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence”
8. Further, by reference, Rule 77(A)(iv) RoP of the International Tribunal for the Former Yugoslavia (hereinafter: “ICTY”) provides measures for contempt of court, namely that,
“The Tribunal in the exercise of its inherent power may hold in contempt those who threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness” [emphasis added]
9. The Reply filed by the Accused-Petitioner (hereinafter referred to as ‘the Reply’) to the Prosecution’s Written Objection towards the Accused-Petitioner’s Application for Review of the order under section 19(2) ICTA includes a bundle of 497 pages containing the Prosecution Witness Attendance Registrar, the General Diary Book, the Food Registrar, which were each records maintained by the Witness Safe House in Dhaka. These were joined to the Reply as Annexes A, B and C.
10. All three Annexes provide evidence as to the specific date and time of the arrivals and departures of the Prosecution witnesses at the Safe House. It is clear that the Prosecution Witnesses who were alleged to be absent by the Prosecution and the Investigation Officer and therefore unavailable for cross-examination were in fact present.
11. In its Written Objection towards the Accused-Petitioner’s Application for Review of the order under section 19(2) ICTA, the Prosecution and the Investigation Officer denied the existence of the Prosecution Witnesses Attendance Registrar, General Diary Book and the Food Registers maintained in the Witness Safe House in Dhaka.
12. It is respectfully submitted that the Investigation Officer failed to disclose this information to the Hon’ble Tribunal (actus reus).
13. Further, it is respectfully submitted that the Investigation Officer had actual knowledge of the presence of the Prosecution Witnesses and that he knowingly interfered with the administration of justice by the Hon’ble Tribunal (mens rea).
14. Further, it is submitted that the Prosecution and the Investigation Officer cannot have been mistaken in fact and/or in law as to the presence of the witnesses and their duty to call them before the Tribunal. It is respectfully submitted that the witnesses in question were at all times under the control of the Prosecution and the Investigation Officer.
Prejudice to the case of the Accused-Petitioner under section 11(4) ICTA
15. Section 11(4) ICTA provides a discretion for the Hon’ble Tribunal to punish any person who does anything which tends to prejudices the case of a party (emphasis added).
16. It is submitted that “tends” amounts to showing that there is reasonable suspicion that the action or statement may prejudice the case of a party.
17. It is recalled that Article 14 ICCPR and Article 67 ICC provide that an accused person shall be entitled to a fair hearing conducted impartially.
18. It is respectfully submitted that the failure by the Investigation Officer has had a real and serious impact on:
a. The Accused-Petitioner’s right to fair trial;
b. The Hon’ble Tribunal’s ability to prosecute;
c. The public confidence in the ability of the Hon’ble Tribunal to secure the fundamental rights to the Accused-Petitioner;
19. Therefore, it is respectfully submitted that the Hon’ble Tribunal ought to deter further similar breaches by the Investigation Officer and any other person under a legal duty to Hon’ble Tribunal, and draw up proceedings under section 11(4) of the Act against the Investigation Officer for committing fraud upon the Tribunal and perverting the course of justice.
Determination of penalty for breach of section 11(4) ICTA
1. Section 11(4) ICTA provides a discretion for the Hon’ble Tribunal to punish an offence under this section with simple imprisonment of a maximum of a year, or with a fine of a maximum of Taka 5,000, or with both.
2. Pursuant to Section 70(4)(a) ICC: “Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals”
3. It is noted that Sections 186 and 187 of the Bangladesh Penal Code provide corrective measures where there has been obstruction of a public servant in the discharge of his public functions, and where there has been an omission to assist public servant when bound by law to give assistance.
Section 186: “Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred taka, or with both.”
Section 187: “Whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred taka, or with both”
4. Despite the provisions of the Penal Code, it is respectfully submitted that the Hon’ble Tribunal ought to apply the parameters provided for specifically under section 11(4) the Act.
Application for discharge and direction for new investigation
20. It is respectfully submitted that the right to defend oneself and to cross-examine witnesses are both fundamental principles of domestic and international law. They are provided for under sections 10(f) and 17 and section 10(e) of the Act, respectively.
21. In addition, it is respectfully submitted that the duty of an Investigation Officer and the Prosecutor to remain impartial and serve to their best ability the Tribunal and the interests of justice is paramount in proper judicial proceedings.
22. It is respectfully submitted to the Hon’ble Tribunal that the Act and the Rules of Procedure of the Tribunal do not stipulate provisions for the conduct of an Investigation Officer and/or a Prosecutor. Furthermore, the Hon’ble Tribunal has held on a number of occasions that rules of domestic criminal procedure law do not apply to the Tribunal. Therefore, it is respectfully submitted that the Hon’ble Tribunal should look to established instruments of international and common law when determining the mandate of the Prosecutor at the Tribunal.
23. Part 5 of the Rome Statute deals with the Investigation and the Prosecution as one. Under Article 54 ICC lays down the duties and powers of the Prosecutor with respect to investigations. It is therefore submitted that the Prosecutor and the Investigation Officer are bound by the same duties to a court or Tribunal and by the same ethical code of conduct.
24. Pursuant to Article 54(c) ICC, the Prosecutor shall: “Fully respect the rights of persons arising under this Statute” (emphasis added). This includes the right of the Accused-Petitioner. Therefore, it is respectfully submitted that the Prosecutor and the Investigation Officer are therefore under a duty to respect the right of the Accused-Petitioner to put his defence and to cross-examine the witnesses under the aforementioned sections.
25. In addition, Article 42 of the Rome Statute provides the rules for the Office of the Prosecutor and crucially, the duty of impartiality and fairness. Article 42(1) of the Rome Statute provides that “the Office of the Prosecutor shall act independently as a separate organ of the Court”.
26. Furthermore, the UN issued Guidelines on the Role of the Prosecutor in 1990 (hereinafter: UN Guidelines) (Guidelines on the role of the Prosecutor, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990) stipulate: “[Prosecutors] play a crucial role in the administration of justice, and rules concerning the performance of their important responsibilities should promote their respect for and compliance with the above-mentioned principles [Namely, the “Principles of equality before the law, the presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal”], thus contributing to fair and equitable criminal justice and the effective protection of citizens against crime”.
27. Sections 13(b) of the UN Guidelines provide that “in the performance of their duties, prosecutors shall: “Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect” [emphasis added]
28. Section 23 of the UN Guidelines provides that “Prosecutors shall respect the present Guidelines. They shall also, to the best of their capability, prevent and actively oppose any violations thereof.”
29. It is respectfully submitted that the significant breaches by the Prosecutor and the Investigation Officer seriously call into question the entirety of the investigation and the Prosecution case against the Accused-Petitioner. Combined with the aforementioned breach of section 11(4) ICTA, it is respectfully submitted that the case against the Accused-Petitioner has been perverted and should be discharged.
30. Further, it is respectfully submitted that the Hon’ble Tribunal ought to order a new investigation.
31. Therefore is respectfully submitted that the Investigation Officer has knowingly committed fraud upon this Hon’ble Tribunal and perverted the course of Justice and therefore liable to be prosecuted under section 11(4) ICTA. Further the Investigation Officer has:
a. Failed in his primary duty to the Hon’ble Tribunal;
b. Failed in his duty of impartiality; and
c. Failed to uphold the strict domestic and international standards of fairness.
32. For these reasons, it is respectfully submitted that the Hon’ble Tribunal draw up proceedings against the Investigation Officer under Section 11(4) ICTA.
33. Further, for these reasons, it is respectfully submitted that the Hon’ble Tribunal discharge the Accused-Petitioner and direct a fresh investigation.
34. For the abovementioned reasons, the Accused-Petitioner humbly prays that this Hon’ble Tribunal draws up proceedings against the Investigation Officer, and issues an order for discharge and a direction for fresh investigation.
Wherefore it is most humbly prayed that the Hon’ble Tribunal would be pleased to draw up proceedings against the Investigation Officer under section 11(4) ICTA and issue an order for discharge of the Accused-Petitioner and a direction for fresh investigation and pass any further order(s) as it may deem fit and proper.
Next application is about the matter where 2 applications have been filed for drawing up proceeding against the IO and discharging the accused. We have found in the order, things will be considered after taking the evidence. At this point we find no reason to draw up any proceeding against the IO. And the petition stands rejected.