Tuesday, May 24, 2011

20 April 2011: Sayedee Bail Application

On 20 April, Nizami, Mujahid, Sayedee and Kamrazuman were all brought before the Tribunal.

Jamaat's UK Laywer's presence
At the start, the Chief Prosecutor raised an issue about the presence of a UK lawyer (Toby Cadman) acting for the Jamaat-e-Islami defence team who was sitting upstairs observing the Tribunal. The prosecutor appeared to suggest that he should not be allowed in court. The Tribunal chair said that the Tribunal members had given 'anxious thought about the matter and permitted him to remain there.' (It was not clear why the prosecutor made an issue about it, since Cadman had been present at the hearing the day before). However it may have been linked to an odd incident that happened on that day when at one point, during the half hour adjournment before the Tribunal gave its order, the prosecutors surrounded Cadman (who had come down from the seats upstairs, and alleged that he was recording the proceedings. He strenuously denied this, but the registrar walked Cadman out of the Tribunal and Cadman was not present when the order was read out.

Tribunal Chair's comment
The Tribunal chairman then went to say 'we would like to say something to you all'. He then talked about the issue that happened yesterday relating to the lawyers refusing to come into court unless all of them (as many as 50) were allowed to come in together. (He repeated much of what he said the day earlier). The court was content for ten or fifteen to come in but there was not enough space for all of them. 'It is absolutely impossible' he said.

He mentioned two lawyers by name as being responsible, as 'leaders' of the lawyers. Fakrul Islam (who had argued in the Tribunal on earlier occasions) and a former minister of law. He said that the leaders of the lawyers had a responsibility to keep things in order and said that if this did happen again in the future they would be forced to only allow those lawyers who had been instructed by the defendents to come to court.

Contempt of court?
After the chairman had finished, Judge AKM Zahir Ahmed then spoke. He said that an article had come to his attention, 'International Criminal Tribunal: Growing Independence or a Return to be being a rubber stamp' which was in part 'contemptuous'. He said,'Journalists are allowed to express their views' but cant be in contempt of court. [He was referring to an article that I had written!]

He then referred to various expressions that were used,'Who is he to say what does or does not have a backbone?' the judge asked. He then pointed to a sentence in which it was written that, 'The Tribunal just 'rolled over' without seeking any further information.' He said that this was not true and said that the Tribunal had looked at the sketch maps provided by the defence. He then asked the defence lawyer, Advocate Munshi Kabir, whether this was the case, and Kabir confirmed that the Tribunal had looked at the sketch map before making its decision.

He then said, 'Yes, you have a right to criticise' but you cannot use this language against the Tribunal. 'It is contemptuous and punishable'

Justice ATM Fazle Kabir then spoke, and asked whether 'David Bergman was present in court.' I put my hand up and he then asked me to stand up. He then said, 'We have gone through this report. Your manner of reporting is very nice, no doubt ... We know that you are of foreign origin and so we are warning you about your language.'

He then said that there were two words that were 'very much contemptuous.' He then referred to the use of the word, 'Rubber stamp'. 'We are very sorry about this but you can not use this words about our court. If you use these words in future then we will take action. According to the rules of this court in Bangladesh these words are absolutely contemptuous. In recognition of the fact that you are a foreigner, we will not take action against you' (see article responding to this incident: International Crimes Tribunal and contempt of court

Bail application for Sayedee
Tanvir Ahmed Al-Amin stood up to represent Sayedee. He first said that he objected to the use of the words 'alias Delu' after Sayedee's name in the prosecution application as this alias had never been used by Sayedee. He asked the Tribunal to order the prosecution not to use the two words 'alias Delu.' 'It was never a nickname of the accused. He is very much known as Delawar Sayedee,' he said.

The tribunal chairman said that this 'was a matter of evidence' and it will be dealt with later in the trial, and told the lawyers to start his main submission.

Sayedee was arrested on 29 June 2010, nine and half months ago, Al-Amin said.

He said that there ‘are no reasonable grounds for believing that the accused had committed the offence with which he is charged’. He has not been formally charged.

By an ‘order dated 29 December 2010, the Tribunal had directed the Investigation Authority to complete the investigation by 15 February 2011 and submit a report to the Tribunal via the Prosecution. That on 15 February 2011 the Investigation Authority filed the same investigation report submitted earlier on 14 December 2010 and prayed for further time to conclude the investigation and also for a direction to extend the detention order of the Accused-Petitioner until the investigation is concluded. Thereafter on 15th March 2011 this Hon’ble Tribunal extended the detention period of the Accused-Petitioner and directed the Investigation authority to conclude the investigation within one month or to submit a progress report of the investigation with case diary.’

Al-Amin said that this shows that there was ‘no progress of investigation and the Investigation Authority has failed to exercise due diligence in investigating this case and even after nearly ten months, the Prosecution has failed to establish a prima facie case against the accused. Without a formal charge, there can be no reasonable grounds to believe the Accused-Petitioner committed crimes under the Act and should be detained without bail.’

Al-Amin said that the investigation agency has previously argued that the accused should be detained in jail because:
- he may abscond;
- he may interfere with the witnesses and use his ‘armed cadre force’ to interfere with witnesses;
- the witnesses are in fear of their security as a result of threats made by the ‘armed cadre force. The witnesses have filed six General Diaries in Pirojpur Sadar and Zianagar (Indurkani) Police Stations;
- he may interfere with the investigation process through his ‘armed cadre force’ in Pirojpur;
- he may destroy evidence relevant to the case;
- there is a possibility of an increase in terrorism in Bangladesh that may destabilize the country.

Sayedee's lawyer said that the accused was unlikely to abscond as he was ‘seventy-one years of age and of ill health. He has been a diabetic patient for the past thirty-five years as well as suffering serious heart problems and chronic arthritis in his neck, upper limbs, waist and knees,’ and that he has no place to live outside Bangladesh

He said that the accused would be willing to surrender his passport and to undertake that he will not apply for travel documents without prior permission from the Tribunal. He added that the accused was willing to comply with a residential condition to reside at his address at 914, Shahidbag, Dhaka 1217 and was willing to report to the local police authorities on an agreed regular basis.

He said that the accused would not repeat any alleged offences as he was an internationally reputed Islamic scholar who has given religious teachings for 50 years and has been twice elected as Member of Parliament in 1996 and 2001 by the people of Pirojpur, and has no previous convictions.

Al-Amin said that there is no evidence of a risk of an increase in terrorism in Bangladesh by his client's release as the accused has publicly criticized acts of terrorism in his religious preachings.

He said that was no evidence to suggest that that the accused has any connection to an ‘armed cadre force’ and as a result no threats have been made to any witnesses.

He added that, ‘With respect to the six General Diaries filed at police stations, it is submitted that in General Diary No. 1239/10 dated 26 August 2010, the Pirojpur Sadar police station submitted a report on 21 September 2010 before the learned Senior Judicial Magistrate in Pirojpur. The police report stated that there was no evidence concerning the allegation of threats made and as a result the arrested individual was released on 23 September 2010. With regard to the remaining five general diaries, though they were filed 7 to 10 months ago, the police could submit its reports very recently on 28th January 2011. Moreover there is no allegation against the Accused-Petitioner in the said general diaries.’

The Tribunal asked was the accused not an MP, 'does he have no influence?' the lawyer said that 'Does it mean that he will use his influence to effect the witnesses?'

Al-Amin went onto say that the accused is willing to undertake that he will not travel to any crime-base areas without prior permission from the Tribunal and to undertake not to contact any Prosecution witnesses or to interfere with the investigation process.

He argued that the accused has not been subject to detention ‘in accordance with the Bangladesh Constitution or the Code of Criminal Procedure, 1898’ .

He also argued that there was an ‘international obligation to grant the right of bail to the Accused.’

In relation to this, Al-Amin submitted that Bangladesh is a State Party to both the International Covenant on Civil and Political Rights (ICCPR) and the International Criminal Court (ICC) and the prosecution have failed to prove, as required by these treaties that the Accused-Petitioner’s detention is both reasonable and necessary as required by the UN Human Rights Committee [which enforces ICCPR].

His continued detention is, it was argued, arbitrary and contrary to Art. 9 (1) ICCPR and Article 55 (1) (d) of the ICC. The accused has also been detained with out being promptly informed of any formal charge in breach of Article 9 (2) of the ICCPR and Article 60 (1) of the ICC. It was submitted that his detention without charge is a product of delay on behalf of the Prosecution as stipulated in Article 60 (4) ICC.

Article 9 (1) of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 55 (1) (d) Rome Statute (“ICC”) states that “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

He argued that that the Human Rights Committee’s constant jurisprudence defined the notion of “arbitrariness” as being broadly interpreted as: “to include elements of inappropriateness, injustice, lack of predictability and due process of law. This means that remand in custody must not only be lawful but reasonable and necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime.”
Article 9 (2) of the ICCPR states that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons of his arrest and shall be promptly informed of charges against him.”
Article 9 (3) ICCPR states that, “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.”
Article 60 (1) of the ICC states that, “Upon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights…to apply for interim release pending trial (emphasis added).”
Article 60 (4) of the ICC states that “The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions (emphasis added).”

Al-Amin then argued that on the basis of his medical condition the accused should get bail. He said that the accused has been a diabetic patient for the past thirty five years and requires regular medical assessments to ensure that his blood sugar level is kept under control. ‘Since being detained on 29 June 2010, the penal authorities have consistently failed to test his blood sugar levels and have failed to provide adequate medical treatment. As a result the Accused-Petitioner’s blood sugar levels have risen to such an extent that his diabetes is no longer under control. This has led to the exacerbation of existing health complaints in his shoulders, arms, prostate gland, eyes, foot and other parts of his body.’

He also said that he had complained of serious pain in his heart and requires immediate medical attention. On 14 January 2011 a cardiologist advised that he should undertake a number of medical assessments/examinations, but he said that no such medical examinations has yet been undertaken.’ He also said that the accused suffers from chronic arthritis and experiences pain in his neck, upper limbs, waist and knees and the level of pain has increased substantially due to lack of physiotherapy.

He then made a complaint about his client's treatment at Banga-Bandhu Sheikh Mujib Medical College Hospital also known as PG Hospital after the Tribunal had directed the Jail authority to arrange for necessary medical test and treatment. After eleven days on 26th March 2011 the jail authority took the accused to PG Hospital where he was met (1) Prof Dr Abu Siddique, Chairman, Department of Cardiology, (2) Prof Shahadat Hossain, Colorectal Surgery Unit and (3) Prof Farid, Endocrinology Dept who checked him separately for few minutes each. The accused apparently complained about his chest pain to the cardiologist. But, in front of him the cardiologist wrote down in his note that the patient ‘denied any chest pain’. He did not suggest any medical checkup to ascertain his actual heart condition though he said that the accused was complaining about serious pain in his heart.

‘Due to the manner that the above medical checkup was conducted, the accused has serious doubt about the bona fide intention of the above doctors to provide necessary medical treatment to him. It appeared to him that it was a sham medical checkup only to show that the jail authority has complied with the earlier direction of this Hon’ble Tribunal,' the lawyer said.

He said that that the accused has the same medical complaints as earlier and that the medical treatment provided by the Jail authority is not sufficient. On 17th April his physical condition turned worse and as such the jail authority had to take him to PG Hospital where Dr. A. K. M. Asaduzzaman, Consultant Pain Medicine Unit found that he has 'frozen shoulder' in his self side.

At this point the Tribunal asked for any evidence to support this, and a medical note was given by the lawyers.

The Tribunal also took exception to a comparison the prosecution tried to make with how Salauddin Quader Chowdhury was treated, and said, 'You should be more careful in your drafting' The lawyer said that he would not rely on this comparison any longer. (Tt was not clear to me what this was about.)

He asked that the tribunal give the accused conditional bail so as to seek urgent medical treatment in a private specialized hospital.

Finally he asked that bail be given on the following conditions. Sayedee would:
- surrender his passport before the competent authorities;
- not apply for any travel documents without the prior permission from the Hon’ble Tribunal;
- reside at 914, Shahidbag, Dhaka - 1217;
- report to an agreed local police station on an agreed regular basis;
- not travel to any crime-base areas without prior permission from the Hon’ble Tribunal;
- not contact any of the Prosecution witnesses;
- not interfere with any part of the investigation process.

The lawyer also submitted that Mr. A. K. M. Mustafizur Rahman, a family friend is willing to provide surety of an agreed amount as a condition for bail.

He said, 'If at any time any of the bail conditions are breached, the Tribunal can withdraw bail.'

He said that the prosecution have argued that the current law is in line with the ICCPR, ICC and said that if this is the case then the lordships should provide bail.

There wss then a discussion about the extent to which the Tribunal had to follow the ICC or the ICCPR, with the Tribunal noting that it was a 'national court' Al-Amin said that Bangladesh was a state party and that these were 'persuasive authority'.

Rezaul Karim then spoke on behalf of the prosecution. He gave to the Tribunal some documents and maps, presumably relating to the investigation that they were undertaking.

He said that if there is any problem with the medical treatment, this could be provided by the jail, and pointed to a previous order given to Salauddin Quader Chowdhury who was allowed to go to a private hospital.'

There was a discussion about the significance of a 'frozen shoulder'.

He was asked how long before the investigation will be be concluded and they will be able to charge the accused and Karim said '30 days'

Karim said that in light of the seriousness of the allegations he should not be given bail. 9 months was not a long time in detention in these circumstances, he said.

In response, Sayedee's lawyer, Al-Amin said that seriousness of the allegation can not used as a reason to deny bail. He said that there was no prima facie case against the accused. And that if the accused breaches his bail conditions, bail can be withdrawn at any time.

There was a delay of about one minute before the Tribunal chairman read out the order (no discussion took place):
'The accused Delwar Hossain Sayedee, alias Delu, has been produced before this Tribunal. An application for bail on behalf his behalf has been taken up for hearing. Mr Tanvir Ahmed Al-Amin, learned counsel appearing for the petitioner, submitted that the accused petitioner was a renowned personality in his area, elected MP twice. He is in custody for about 10 months and being arrested on other cases. He is an old man, more than 70 years old. He is also a sick man and on last occasion when the he prayed for bail, the jail authorities had been directed to arrange medical treatment in PG hospital, and at the direction of the Tribunal, the accused petitioner was taken to the hospital and doctors attended him but one of the doctors did not give due consideration to the comments made by the petitioner regarding his illness and did not pay heed to him.

Also alleged that other doctors did not pay head to his statements regarding illness. As such it is argued that the accused petitioner will not get proper treatment at the hospital.

Legal counsel further submitted that the investigation agency again submitted a progress report about the investigation but no formal charge has been given, and he has been in custody for a long time. Further submitted that if enlarged on bail, he was ready to abide by all conditions imposed by the Tribunal. Also gave the address where the accused person would stay in Dhaka City if he was enlarged on bail, and will stay at the address of his own house and will not go to the area of the alleged activities.

AS such the learned advocate applied for enlarging the accused on bail, considering all these aspects.

In response to these submissions made by petitioner, Syed Rezaul Karim submitted that on last occasion, the petitioner's bail was rejected and there are no new grounds to enlarge him on bail. He also alleged that his case involves crimes against humanity and evidence is being collected by the investigation agency. Case diary and case map were shown to the Tribunal. Mr Karim also submitted that in cases involving crimes against humanity, accused are not normally granted bail, and only in exceptional circumstances can be enlarged but according to him the [1973] Act does not permit.

Lastly submitted that in case the petitioner not get proper treatment in PG hospital, a different hospital can be nominated.

We have heard the learned counsel and the petitioner and have given our anxious thought.

The petitioner is in custody for upto 10 months, after arrested in different cases and in this tribunal was shown arrested in August. The investigation is at the fag end as submitted by the prosecution.

In relation to health problems of accused petitioner we directed the jail authorities to take him to hospital, and this was complied with though some objections about the hospital treatment were made.

We do not find any new grounds for bail and when perusing the case diary we think prima facie case against him is present.

Without going into the details of the incident at the hospital, the accused petitioners should be taken to Barden hospital as chosen by the accused, and the cost of the treatment will be borne by the accused petitioner.

With this, the application for bail has been refused.

Also presented with a progress report and find that some progress has been done but that the investigation must be concluded without any delay. Direct the investigation agency to submit the investigation report as early as possible but if cannot submit within short time, must submit by 31 May.

May a copy of this order be given to Jail authorities for completion of directions to arrange treatment in Barden hospital at teh cost of the petitioner.

1. It seems increasingly difficult to justify the continued detention of Sayedee. He has been in detention, without charge for ten months. Prior to his detention, he showed no signs of fleeing the jurisdiction, and it is difficult to see how his flight is a real risk if his passport and other travel documents are taken away from him which the defence have offered, and he remains at an address which the police can guard and watch over. In relation to intimidating witnesses or interfering with evidence, there are a number of points. (a) Another of the accused, Alim, has been on bail and the prosecution has been no allegation that he has interfered with the ongoing investigation; (b) the crimes that Sayedee are alleged to have committed are in Pirojpur and not in Dhaka where Sayedee would remain if he was in detention and (c) if Sayedee was going to interfere with the investigation, he could just as easily do this through his many supporters from jail.

In the last order, the Tribunal stated, 'If the accused is enlarged on bail the Investigation Authority may face some difficulty as the accused is an influential person. So we reject the bail application.'

It is notable that new order does not refer to this point as a reason to keep Sayedee in detention.

2. In its order, the Tribunal has failed to engage with many of the points that the defence has made. It has not said anything on the role of the international obligations. If the Tribunal does not believe that these apply to the Tribunal, then it should say this clearly; if on the other hand it thinks that they do technically apply but are not relevant in these particular circumstances, the Tribunal should explain this. But to remain silent indicates quite a failure of judicial consideration. Similiar points relating to international law were made in the last bail application, but again these were completely ignored.

3. However, this application again reflect the problem that the defence lawyers are not allowed to appeal the bail finding; all the accused can do is simply come back again and again to the same three judges!

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