19 Jul 2012: Sayedee witness controversy orders

Justice Nizmaul Huq passed a number of orders relating to Sayedee - all of which were connected with alleged fraud on the part of the investigation officer (see order given on 12 July)

1. Application for proceedings to be taken against Sayedee Investigation Officer
See this here

2. Application for safe house police details

See this here

3. Application for withdrawal of 15 witness statements
See this here

4. Bail

The application is set out below

1. Rule 34(3) of the Rules of Procedure (as amended on 28 June 2011 and 19 April 2012) (hereinafter: RoP) provides: “At any stage of the proceedings, the Tribunal may release an accused on bail subject to fulfilment of some conditions as imposed by it, and in the interest of justice, may modify any of such conditions on its own motion or on the prayer of either party. In case of violation of any such conditions the accused may be taken into custody cancelling his bail”.  

2. It may be recalled that on 23rd August 2011 this Hon’ble Tribunal rejected the Accused-Petitioner’s application for bail for sixth time. The main grounds upon which the prosecution opposed the Bail Applications those were accepted by the Tribunal in rejecting those applications are as follows:
a. The accused is an influential person and may interfere with the investigation process if released on bail;
b. The accused may intimidate prosecution witnesses;
c. There is a risk of absconding if the accused is released on bail.

3. It may be recalled that on 28th March 2012, the Accused-Petitioner filed a Response to the Prosecution’s application under Section 19(2) International Crimes (Tribunal) Act 1973 as amended in 2009 (hereinafter: “ICTA”) respectfully submitting that the Prosecution has failed to establish that securing the attendance of the remaining 46 Prosecution witnesses would be unreasonable (hereinafter referred to as the ‘Reply to the Prosecution’s Section 19(2) Application’). The Accused-Petitioner respectfully asked the Hon’ble Tribunal to recognise the Accused-Petitioner’s right to compel the attendance of the 46 Prosecution witnesses in order to examine them pursuant to Section 10(1) ICTA so as to avoid the irreparable risk of prejudice against the Accused-Petitioner’s right to fair trial.

4. On 9th May 2012 the Accused Petitioner filed an Application for Review of the order dated 29th March 2012 allowing the Prosecution’s Application under section 19(2) ICTA (hereinafter referred to as ‘the Review Application’). The Review Application revealed that the Investigation Agency (hereinafter: “the 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. It was argued in the review petition 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. It is respectfully repeated that there was 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 was 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 significantly impact upon the fairness of the proceedings.

5. It is respectfully submitted that fundamental principles for ensuring a fair trial and ensuring equality of arms between the parties extends to disclosure obligations and the presumption of innocence. 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.

6. In light of the Investigation Agency’s gross infringement of the Accused-Petitioner’s right to fair trial and as the Prosecution’s case is soon to close, the Accused-Petitioner prays that the Hon’ble Tribunal exercises its discretion in the interests of justice under Rule 34(3) and grants conditional bail to the Accused-Petitioner without further delay.

Perverting the course of justice and the Investigation Agency and Prosecution’s duty to the court

Section 19(2) ICTA Application
7. It is respectfully submitted that the Investigation Agency perverted the course of justice and wilfully misled the Hon’ble Tribunal by failing to give a truthful account as to the whereabouts of the aforementioned 46 remaining Prosecution witnesses. In the Review Application annexed a news report of the Daily Amar Desh dated 12th April 2012 which reveals that the prosecution witnesses were brought to the witness Safe House on different dates and they stayed there for long time. But despite that many of them were not produced before the Tribunal as the witnesses were not ready to give false evidences against the Accused-Petitioner. On 2nd February 2012 thought one of the Prosecutor informed the Tribunal that witnesses Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri left the Safe House on the previous evening and did not turn back. But the Daily Amar Desh reported that according to the Safe House Registrar these witnesses stayed in the Safe House until 16th March 2012 within the custody of the Investigation Agency and the Prosecution.

8. Chapter II and III of Rules of Procedure of the International Crimes Tribunal (hereinafter: “RoP” and “ICT”) regulate the powers and the functions of the Investigation Agency and the Prosecution. Pursuant to Rule 18(2) and 18(3),

“(2) The Investigation Agency shall,
a. work with the Prosecutors in preparing the report under rule 18(1), and after submission of the report, shall assist the Prosecutors in the task of formulating the formal charge including arrangement of documents and materials; and
b. also assist the Prosecutors in tendering evidence at any stage of trial.

(3) As and when directed by the Tribunal, the Investigation Agency shall produce witness before the Tribunal as required by the Prosecutors. The law enforcing agency of the concerned area shall provide all necessary assistance to the Investigation Agency in executing the process issued for securing attendance of witness.”

9. In the aforementioned Response by the Accused-Petitioner to the Prosecution Section 19(2) Application, it was respectfully submitted that the Prosecution failed to:
a. produce any proof of fact for the reasons cited as a failure to secure the attendance of witnesses;
b. establish measures taken to secure the attendance of witnesses or proof of expenses incurred or potentially incurred in securing the attendance of such witnesses;
c. offer any alternative despite the Rule 58A(1), (2) and (3) of the Tribunal’s Rules of Procedures allowing for the implementation of protective measures.

10. Pursuant to Rule 18(3), it is respectfully submitted that the IA has failed to produce witness before the Tribunal as required by the Prosecutors, and in the alternative, the Learned Prosecutors have failed to require the production of witnesses from the IA.

11. It is respectfully submitted that this confirms that the Accused-Petitioner’s right to fair trial have been infringed by the Prosecution and the Investigation Agency.

The Prosecution’s case is at a close and the Accused-Petitioner is unlikely to tamper with witnesses or evidence or interfere with trial proceedings

12. The Prosecution is currently examining its last witness, the Investigation Officer.

13. This Hon’ble Tribunal by its orders denied bail to the Accused-Petitioner on the grounds that the Accused-Petitioner was an influential man and member of parliament and he may interfere the investigation process or may the prosecution witnesses if released on bail.

14. It is respectfully submitted that the Hon’ble Tribunal should reconsider its decision to refuse bail as the circumstances of the case have changed and there can be no argument that the Accused-Petitioner may intimidate the Prosecution witnesses or may interfere the investigation process as was argued by the Prosecution on different dates when opposing the bail applications.

15. The Prosecution has already admitted that the Accused-Petitioner is not named in the 6 General Diaries filed in Pirojpur Sadar and Zianagar (Indurkani) Police Stations alleging that witness intimidation had occurred. Nevertheless, upon previous applications for bail, the Prosecution objected to bail on the grounds that the Accused-Petitioner is an influential character and would hamper the trial process if released.

16. To date, it is respectfully submitted that there is no evidence of the Accused-Petitioner interfering or attempting to interfere with the proceedings.

17. Notwithstanding, under the newly inserted Chapter VIA of the Rules of Procedure, a number of measures can be ordered by the Hon’ble Tribunal to ensure witness protection and prevent witness intimidation or interference. Rule 58A (1) provides: “The Tribunal on its own initiative, or on the application of either party, may pass necessary order directing the concerned authorities of the government to ensure protection, privacy and well-being of the witnesses and or victims. This process will be confidential and the other side will not be notified”.

18. Further, the Accused-Petitioner’s residence is at 914, Shahidbagh, Dhaka and that the alleged crime bases concern the Pirojpur District nearly 300km away in the south-western region of Bangladesh. That he is a religious scholar and a man of good character.

19. Further, the Accused-Petitioner is willing to surrender his passport before the competent authorities and to undertake that he will not apply for travel documents without prior permission from the Hon’ble Tribunal.

20. Further, the Accused-Petitioner is also willing to comply with a residence condition to reside at his address at 914, Shahidbagh, Dhaka 1217 whereby his presence can be regularly checked and monitored. He is willing to report to this Tribunal on an agreed regular basis.

21. Further, it is submitted that the Accused-Petitioner is willing to undertake that he will not travel to any crime-base areas without prior permission from the Hon’ble Tribunal. He is also willing to undertake not to contact any Prosecution witnesses or to interfere with the trial proceedings.

22. The Accused-Petitioner humbly prays that the Hon’ble Tribunal takes into consideration the lack of evidence connecting the Accused-Petitioner to any claims of witness intimidation as well as the imposition of several factors safeguarding the trial process and witnesses. This includes:
a. The conclusion of the investigation and the prosecution case;
b. The newly inserted witness protections provisions; and
c. The bail conditions volunteered by the Accused-Petitioner as an additional guarantee.

23. It is respectfully submitted that a measure restricting the liberty of a charged person must be necessary and proportionate to the circumstances.

24. It is humbly prayed that the Hon’ble Tribunal determines that as the Prosecution case is close to its conclusion and for the abovementioned reasons, there is no likelihood that the Accused-Petitioner will tamper with witnesses or evidence or interfere with trial proceedings and reasonable to review the Accused-Petitioner’s bail application de novo to grant him conditional bail.

Bail is a right and not a privilege

25. By its order dated 14th July 2011, while rejecting the 5th bail petition of the Accused-Petitioner, this Hon’ble Tribunal stated that it did not consider that there was a right to bail under the provisions of the ICCPR. It is respectfully submitted that this is an erroneous application of the fundamental principles to which the ICCPR guarantees.

26. In addition, the amended Rules of Procedure provide for the right to be presumed innocent under Rule 43(2) RoP.

27. The presumption of innocence is also enshrined in Article 14(2) ICCPR, which provides: “Everyone charged with a criminal offence shall have the right to be presumed innocent until guilty according to law”.

28. The presumption of innocence enshrined under Rule 43(2) RoP and Article 14(2) ICCPR is a fundamental principle and as a result the provision for bail is a right and not a privilege under domestic and international law. That this has been upheld by the Human Rights Committee (hereinafter: HRC), which has held that there is a requirement under the ICCPR, for bail to be reasonably available. (UN Human Rights Committee, "Consideration of Reports Submitted under Article 40 of the Covenant, Comments of the Human Rights Committee, Argentina", CCPR/C/79/Add.46, 1995.)

29. Following Rules 9(5), 33 and 34(3) RoP and Article 9(3) ICCPR, this right arises at any stage of judicial proceedings.

30. It is respectfully submitted that the presumption in favour of bail is a protected right under national and international law. It falls in the first place on the appropriate judicial authorities to ensure that, in a given case, the overall detention of an accused person does not exceed a reasonable time and that any period of detention is necessary and proportionate. To this end the Hon’ble Tribunal must examine all the circumstances arguing for and against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty. The Hon’ble Tribunal must set those reasons out in its decisions on the applications for provisional release. In this regard, it is respectfully submitted that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of continued detention, but, after a certain lapse of time, it no longer suffices. The Hon’ble Tribunal should then establish whether the other grounds cited by the Prosecution to justify the deprivation of liberty (e.g., Eur. Court HR, Kemmache v. France, judgment of 27 November 1991, Series A no. 218, paragraph 45). Where such grounds were ‘relevant’ and ‘sufficient’, the Hon’ble Tribunal must also ascertain whether the competent national authorities have displayed ‘special diligence’ in the conduct of the proceedings.

31. It is respectfully submitted that the Prosecution have failed to established ‘relevant’ and ‘sufficient’ reasons to justify continued detention of the Accused-Petitioner.

32. The Accused-Petitioner humbly prays that the Hon’ble Tribunal recognises the right to bail and upholds the fundamental right to be presumed innocence and grants the Accused-Petitioner to be released on conditional bail.

Bail can be granted to an individual accused of serious crimes

33. The international tribunals including the International Criminal Court, International Criminal Tribunal for the former Yugoslavia (“ICTY”), International Criminal Tribunal for Rwanda (“ICTR”) and the Special Court for Sierra Leone (“SCSL”) all have jurisdiction over crime against humanity and genocide and further all of the tribunals provide for the right to provisional release. (Article 60(2) ICC; Rule 65 of the relevant Rules of Procedure for ICTY, ICTR and SCSL ).

34. In Prosecutor v Hadizihasanovic, the ICTY held that the rule regarding provisional release/bail must be interpreted in light of the ICCPR and that in this regard; no distinction should be made between domestic criminal and international criminal proceedings. (Decision granting provisional release to Enver Hadizihasanovic and others, Case No. IT-01-47-PT, December 19 2001).

35. In Prosecutor v Stanisic, both the Trial Chamber and Appeals Chamber at the ICTY held that: “the gravity of charges cannot by itself serve to justify long periods of detention on remand”. (Prosecutor v Stanisic, Trial Judgement of July 28 2004, Case No. IT-03-69-PT, Decision on Provisional Release, para. 22).

36. The ICTY has on a number of occasions provided provisional release to accused persons formally charged with crimes against humanity and genocide.
37. It is respectfully submitted that decisions refusing bail and extending detention have previously been argued in consideration primarily of the gravity of the offences and their categorization as crimes against humanity and genocide. The Prosecution has repeatedly referred to the scale of the atrocities during the War of Liberation. Whilst the gravity of offence and mode of commission are relevant factors in determining the issue of custody, they are not sufficient alone to justify lengthy periods of detention. Further, as already stated, it is important to note that the Prosecution’s allegations of interfering with the course of the investigation and interfering with prosecution witnesses is made without substance to any reliable facts. It is accepted that this is ordinarily a legitimate ground for detaining individuals and that the risk satisfies the requirement of ‘relevant’ and ‘sufficient’ reasons, if properly made out. It is recognized that there are inherent problems in assessing the necessity of detention, both during the pre-trial stage and during the trial and appellate phases, in cases of war crimes, crimes against humanity and genocide. However, in considering the issue of whether ‘relevant’ and ‘sufficient’ reasons have been made out, this requires more than merely raising the issue as a fanciful possibility; it needs to be established by clear evidence. The Hon’ble Tribunal, in considering the question of bail are required to conduct a proper inquiry into the allegations raised by the prosecution and the arguments put forward the Accused-Petitioner in reply. It is respectfully submitted that a Court cannot merely rubber stamps prosecutorial requests for detention without any real inquiry into the specific facts of the case at hand.

38. It is respectfully submitted that the nature of the charges that have been brought against the Accused-Petitioner does not prevent the Tribunal from granting bail. The Accused-Petitioner humbly prays for the Tribunal to take note of the practice of the international tribunals and grant conditional bail.

Conditions of bail

39. It is respectfully submitted that taking into consideration the arguments made in this application, the Hon’ble Tribunal may grant conditional bail to the Accused-Petitioner on the condition that he:

a. Surrenders his passport before this Hon’ble Tribunal;
b. Does not apply for any travel documents without the prior permission from the Hon’ble Tribunal;
c. Resides at 914, Shahidbagh, Dhaka - 1217;
d. Reports to this Hon’ble Tribunal on an agreed regular basis;
e. Does not travel to any crime-base areas without prior permission from the Hon’ble Tribunal;
f. Does not contact any of the Prosecution witnesses; and
g. Does not interfere with any part of the trial proceedings.

40. It is further submitted that Mr. A. K. M. Mustafizur Rahman, Son of Late Moulvi Khalilur Rahman of 180/6/11 East Rampura, Dhaka – 1219, who is a family friend of the Accused-Petitioner, is willing to provide surety of an agreed amount as a further condition for bail.

41. Taking into consideration the Accused-Petitioner’s health, age and good character as well as his willingness to comply with the aforementioned bail conditions, it is respectfully submitted that the Accused-Petitioner should be granted conditional bail.

The application was rejected.

After dealing with these orders, the tribunal moved onto cross examine Sayedee's investigation officer.