Monday, September 20, 2010

Defence lawyers access to court documents

In an earlier post, I looked at the time it has taken for the Tribunal to hear defence lawyers' applications challenging the arrest/detention of the five men accused of war crimes.

Another application which has also not yet been heard by the Tribunal concerns access to copies of prosecution documents filed with the Tribunal.

The Tribunal registrar, Mohammed Shahinur Islam, confirmed to me last week, that he has not yet given to the defence lawyers copies of any of the documents filed by the prosecution team as part of its application seeking their arrest. These prosecution documents were filed almost two months ago, and resulted in the detention of the first four defendants six weeks ago.

The failure to provide documents is despite the fact that they were arrested under rule 9 of the Rules of Procedure which states that, "At the time of executing the warrant of arrest ... copy of allegations is to be served upon such person." (emphasis added)

In addition, in the 26 July order itself directing the arrest of the four men, the court specifically stated that the copy of the allegations should be served on the men.

Tajul Islam, the main Tribunal defence lawyer says that "copies of allegations must mean the copy of the application filed by the prosecutor, as well as any investigation report supporting the application by the prosecutor."

In the Tribunal registrar's view, however, "Although rule 9(3) says that copies of allegations should be given, it does not say what particular document should be given."

He therefore defends the Tribunal's decision so far not to provide any documents. "The defence laywers have an application before the court and it will be dealt with then," he said.

The defence lawyers filed an application with the court on 2 August 2010 seeking "certified copies of the record of ICT BD-case no 1/2010 including all petitions and documents filed with the Tribunal and all orders passed by the Tribunal upto and including 2nd August 2010."

The defence lawyers have however had an opportunity to inspect the documents - but during the inspection they were not allowed to take any notes of the documents.

The Tribunal registrar said, "There is no provision in the law or rules to allow them to take notes. It is not permissable."

The 1973 Act and the Rules do not provide much detail what - and when - documents should be provided to the defendants.

Apart from rule 9(3) in the Rules of Procedure relating to "copy of allegations", the only other mention of documents is set out in section 9(3) of the 1973 Act itself which states that, "The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be prodcued along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges."

In ordinary criminal court practice in Bangladesh, provisions in the Criminal Rules and Orders (Practice and Procedure of Subordinate Courts) 2009 set out what court documents can be given to the defence lawyers and others.

Although these particular rules do not apply to the proceedings before this Tribunal - nonetheless they do provide an interesting comparison to the way in which the Tribunal is dealing with the provision of information to the defence.

Rule 243 allows the parties to have wide access to documents filed with the court. It states that:
"Parties to a criminal proceeding are entitled to obtain copies certified or uncertified of any portion of the record of trial or inquiry including such police papers as may be used as evidence at the trial or inquiry and final report submitted by the police under section 173 of the [Criminal Procedure] Code."
Rule 221 says that the documents should be given by the next day. Sub-section (1) states that, "Subject to the provisions of sub-rule (2), information shall ordinarily be supplied by forenoon of the next open day after the presentation of the application."

And sub-section (2) states that "Urgent application shall ordinarily be complied with on the the day on which they are presented. ... The Judge-in-charge or the presiding Officer should see that whenever possible, information capable of being supplied from the current records, Registrars, etc, which can be easily located, is supplied to the applicants on the day the applications are filed."

In the ordinary courts, documents sent by the police to the magistrate seeking police detention, and other prosecution applications for detention would be provided to the defence.

These court rules also set out the normal court procedure in relation to 'inspecting' documents - and they are in fact almost as strict as those now being applied in the Tribunal. Rule 328, note 2 states that;
"An advocate may read any document or record specified in his application the inspection of which has been allowed by the court, but he shall take no notes other than such short memorandum (to be written in pencil on slips of paper to be provided by the Assistant before whom the inspection takes place) of the date and nature of the documents, names of parties etc as may be necessary to identify or describe the document or record in case a copy is required, but this permission does not extend to the taking of a copy of the proceeding or document or any part thereof to to making extracts therefrom."

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