Saturday, April 16, 2011

31 Mar 2011: Alim gets bail

This is the third day of hearings relating to the arrest/detention/bail of Abdul Alim. There was previously a hearing on 27 March, and 28 March.

It started of with the Tribunal reprimanding the Chief Prosecutor for allowing Alim to be sent to Gazipur jail, two hours away from Dhaka, rather than Dhaka Central Jail which is what the Tribunal order had stated.

Tajul Islam for the defence got up said that he had filed a supplementary application.

He again enumerated the accused Alim's medical condition. Prostate and eye problems that required operations, arthritis, cant move without wheelchair etc.

He then said that the supplementary application proposes certain conditions that the tribunal could impose for granting bail. These are:

1. The petitioner surrenders his passport before the competent authority;
2. He does not apply for any travel documents without the prior permission from the Tribunal;
3. He resides at the residence of his elder son Mr. Faysal Alim at flat No.3/ A and 3/ D, House No. 81, Road No. 03, Block-F, Banani Residential Area, Dhaka-1213;
4. He reports to a local police station on an regular basis;
5. He does not travel to any areas where he is alleged to have committed crimes, specially to Joypurhat, without prior permission from the Tribunal;
6. He does not contact any of the prosecution witnesses;
7. He does not interfere with any part of the investigation process.

He then went onto say that 'the proposed house to be resided in by the petitioner is owned by the elder son of the petitioner namely Md. Faysal Alim. ...That the house is an apartment building which is easily accessible to the investigators if necessary for quizzing the petitioner in connection with this case. .. That it is stated that the house is situated in a very known place which is very much accessible and observable for the investigators or for the law enforcing agencies, if required.'

He said that Mr. Faysal Alim, the son of the petitioner is a well known businessman and is the Secretary General of Bangladesh Mobile Phone Importers Association and a member of the Dhaka Chamber of Commerce and Industries and is willing to provide surety of an agreed amount as a condition for bail.

He went on to say, 'That the physical conditions of the accused petitioner has deteriorated after his arrest and his left leg has become completely crippled and he needs to take physiotherapy regularly for his arthritis problem, and his left ear is completely non-functioning and considering all the above conditions this Tribunal may grant bail to the petitioner on humanitarian grounds and for ends of justice.'

He concluded reading out from the supplementary petition by stating 'that the petitioner is an old, sick and physically inactive man and he has been living an isolated life in his own residence for the last couple of years and he has not been taking part in any social or political activities and he is totally inactive in politics and in such situation it is not possible for him to influence the witnesses or process of investigation politically.'

Islam then spoke in response to the prosecutor's written response to the bail application.

He quoted the prosecutor's submission as saying that there there was no provision for bail in war crimes cases. Islam then refered to Rule 2(3) of this tribunal's Rules of Procedure where he said that there was a definition for bail which states that, 'Bail refers to setting an accused at large on furnishing bond before the Tribunal.' He argued that, as a result of this definition, there was a clear provision of bail.

He then referred to Rule 65 of the Rules of Procedure and Evidence relating to the International Crimes Tribunal for Yugoslavia concerned with 'Provisional Release'. This states that
(a) Once detained, an accused may not be released except upon an order of a Chamber.
(b) Release may be ordered by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.
(b) The Trial Chamber may impose such conditions upon the release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others.
(d) Any decision rendered under this Rule by a Trial Chamber shall be subject to appeal. ...'
He again also referred to Article 58 of the Rome Statute (see previous blog) and again stated that all the conditions had been met.

He said that bail was allowed both in the ICT's own rules and in rules of other courts.

He also said that it was 'impossible' for the accused to find a stand alone house, as was proposed by the prosecutor in his written submission. That in the building where it was proposed for the accused to stay, there were 20 flats, of which 8 were owned by sons of the accused.

Ialam was asked whether he was seeking bail on the merits of the case or just on humanitarian grounds and he responded, 'not on the merits of the case.'

Haider Ali for the prosecution then stood up. His application in response to Islam's petition for bail and supplementary application made the following points:
In his application:
- denied that Alim was ‘using a wheelchair because of his illness’
- claimed that the procesuction have provide information necessary to allow an arrest warrant under Rule 9 of the Rules of Procedure to be used.
- said that it is ‘false, fabricated and baseless’ for the defence to allege that there was no evidence to suggest that witnesses were being threatened.
- said hat it is ‘entirely false’ for the defence to claim that the allegations made against Alim are vague, or that Alim saved thousands of lives
- said that the ailments that the defence say that Alim is suffering from ‘are not compatible with his medical certificate’
- stated that it is ‘wholly false’ to say that Alim cannot move without a wheelchair, and not correct that he cannot interfere with witnesses as he cannot leave his home
- claims that that the defence argument that bail is a right nor a privilege, and that the prosecution had failed to establish ‘substantial reasons’ for detention, is not ‘relevant with the existing law’
- stated that the allegations against the accused are so serious that Alim should not be entitled to bail, even with conditions.
- argued that the ‘International Crimes (Tribunals) Act 1973 (as amended in 2009) is compatible with the [law relating to] International Criminal Tribunal on Yungoslavia and the International Crimes Tribunal on Rwanda as well as other international laws. And there is no provision to enlarge a person accused of crimes against humanity which is proved and hence the application for bail is not maintainable
- said that the proposed conditions for bail set out by the defence ‘are not applicable for this bail petitioner
- claimed that the building where it is proposed by the defence that Alim stays is five stories and consists of twenty flats where several families live, that the building is not owned by the sone of the bial petitioner solely and that it why it is risky to enlarge the accused on bail’

He argued that the accused was fit to go to jail and would receive all appropriate treatment.

He argued that Article 58 of the Rome Statute needed to be read with Article 60(2). This states that: 'A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.'

Ali said that this meant that if the Tribunal was satisfied that 'There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court' - the words stated in 58, para 1 - he had to be detained.

He said that the interpretation was 'crystal clear'.

He said that the accused was directly involved in serious offences committed in 1971. 'He has directly participated in them'.

That although all the allegations relate to Alim's home district, 'he committed offences throughout Bangladesh' and was therefore not necessarily safe to stay in Dhaka.

That he has previously come to Dhaka in March 2010 without any problems to his health.

That the medical team that examined him said that he was 'stable at present'

Tajul Islam, for the defence, then made some additional comments. He criticised the way in which medical examinations are done in Bangladesh. He disagreed with the prosecutions interpretation of Article 58 of the Rome statute.

He said that the Tribunal has 'inherent power to give bail.'

The prosecutor Ali then responded and said that 'illness is part of life, medicine is available in the prison.'

There was then a gap of about two minutes when the Tribunal members had short conversations with each other and then the Tribunal chair gave the following order:
'The accused MD Abdul Alim, has been produced in the Tribunal today and is present in the dock. The application for bail which was filed earlier for the accused person, was taken up for hearing. Mr Tajul Islam, learned counsel, appearing for the accused, submitted a supplementary petition to the application for bail, which was received. AM Haider Ali, also submitted a written submission agsinst the prayer for bail of the accused, which has also been kept on record.

Mr Tajul Islam submitted before the Tribunal that the accused person was a minister and also a member of parliament. He is above the age of 80. He has many different diseases and also cannot walk freely, and can only move with the help of a wheelchair.

He submitted that at moment he did not want to seek bail on the merits of the case, but only in consideration of illness, and on humanitarian grounds. In support of the submission, he submitted medical documents showing that he had an operation on his prostate gland, other illnesses and that he has prescriptions.

After the arrest of the accused person, when the police sent him to Tribunal he was examined by a board of doctors and a certificate was provided. On persual of the certificate we find that he has diabetes, hypertension, arthritis and also had difficulties in walking. It is stated this his condition was stable at present and needs to continue his medicine. We have also seen the accused in the Tribunal.

Syed Haider Ali has submitted that there is no disagreement that the accused has some diseases but that medical treatment was available in jail and that he has already obtained treatment and medication in Jail.

It was further submitted that considering the gravity of the the offences and that treatment was available in jail, the accused should not be given bail.

We have heard the learned counsel. Upon perusing the medical records we find that the accused person is an old man aged more than 80 years old, and also in the police report it is stated that he is 80 years old.

Also ... he can only move freely with the help of a wheelchair. He was brought to the tribunal by a wheelchair carried by the police.

Mr Tajul Ialam further submitted that in the case of bail, he is happy to follow conditions given by Tribunal. He also made some offers about condition in his application.

In consideration of the age of the petitioner, his sickness, difficulty in moving freely, bail should be given under certain conditions.

1. The accused petitioner must submit his passport before the registrar of the Tribunal to be kept on record.
2. The accuser petitioner is to stay in the address given in the bail petition, that is 2/C and 2/D, house no 81, Road 3, Block F , Benani Dhaka, home of his sons and he must not leave or change address without prior approval of the tribunal.
3. He must not make any statement for print or electronic media or make any contact with a witness, victims, political personalities or any political party.
4. He must cooperate with the investigation body as and when required.
5. He must not make any contacts with any victim or witnesses directly or by telephone or by any other means.
6. If he has a cellphone, he must give the cell number to this Tribunal.
7. He must not abuse privilege of bail by whatever means.
8. He must be present in Tribunal on date fixed.

If any of these conditions are violated or not following by the accused person, the bail granted shall stand cancelled and he will be taken into custody.

Issue this order accordingly. He is granted bail on the conditions and with two sureties of 1 Lakh, one from his son and another from [unclear name]. Failure to give surety he will be kept in detention.

He will come to the Tribunal on 24 April.

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