Wednesday, May 25, 2011

28 Apr 2011: Sayedee interrogation request

The hearing on 28 April 2011 dealt with two issues. The presence of Mr. Abdul Alim (the only accused to have got bail from the Tribunal (see blog)) and an application by the prosecution to take Sayedee into remand for questioning

This was a very short hearing. Counsel for the accused, Advocate Tajul Islam, told the tribunal that his client has been complying with the conditions set out in the Tribunal's March 31 bail order.

Prosecutor Zead Al Malum told the tribunal that the investigators have not yet submitted any investigation report against Alim, but the investigation is in progress, he said.

The Tribunal ordered that he appear again on 21 July, and that the investigation agency submit a report on their investigations by then.

This was the fourth application filed so far by the prosecutors seeking the interrogation of one of the accused. So far the Tribunal has dealt with applications relating to Nizami, Mujahid (on 5 April and 31 April, 21 April) and to Salauddin Quader Chowdhury (on 19 April). For each of these three defendants, the Tribunal finally ordered that the accused should be remanded for one day with the investigation agency in a 'safe house' for questioning.

The arguments both by the prosecution and the defence in relation to the application involving Sayedee was very similar indeed to the previous hearings involving Nizami and Mujahid and so the summary here is relatively brief.

The prosecution application argued by Mr.Sayed Rejaur Rahman sought remand for 3 days. He said that investigation was in progress and that interrogation was necessary as the investigation was nearly finished. He said that they had a lot of documents and evidence that needed to be tested. He said that a house in Dhanmondi had been gazetted

Before Tanvir Ahmad Al-Amin responded to the application for the defence, he made two points. First he argued that it was inappropriate for the prosecution to use the name 'delu' in its application. (This point has been raised in previous hearings). The Tribunal said that whether he is in fact 'Delu' or not will be a matter for evidence. The chair said that it was common in applications for nicknames to be used to identify people. The defence responded that it is not useful if in fact this is not his name. The lawyer argued that in the future they should not use the word 'Delu'

The lawyer then pointed to a part of the prosecution application in which Sayedee was termed as a 'criminal' rather than as an 'accused'. 'It is accepted that a person is innocent until proved guilty,' the lawyer said. The Tribunal chair responded by saying that if it is written in the prosecution submission that he is a criminal, he will not be proved as criminal by merely claiming so. The Tribunal also said that a person is innocent until proved guilty.

Subsequently one of the other Tribunal members told the prosecution that they should not use the word 'operadi' (criminal) in their application. 'The terms used should be fair,' he said.

Al-Amin then went on to argue against the interrogation application. He said that Section 16(1) of the 1973 Act had not been fulfilled.

He argued that the investigation officer needs first to form an opinion that remand is necessary. "There is no information or evidence in the application that can allow him to form an opinion that remand is indispensable. Just general allegations.' He also said that the investigation officer must make this opinion 'objectively' - it is not enough for him to subjectively believe that there is sufficient evidence there must be an objective basis.

The Tribunal asked, 'Where do you get this from that there must be an objective basis for the investigation officer's opinion'. The lawyer said that this was implied. He then referred to a House of Lords Case, R v A, to support his view that 'the investigation officer must objectively decide that necessary. That it be indispensable, not just necessary.'

'Indispensable means that if the information can be obtained in any other way, then that should be tried. The prosecution has not submitted documents to satisfy that custody of the accused is indispensable.' he said.

Al-Amin pointed to the application and said that there was nothing written as to why it was necessary that the accused should be in remand. He said that it was not stated why an interrogation 'in cell or at jail gate was not equally efficacious.'

He then argued that there was no evidence that the 'safe house' was really safe and secure. The lawyer argued that the house needed substantial changes to make it safe and secure. He also argued that there house was not properly equipped in case there was a medical emergency, and pointed to the age and health condition of Sayedee.

He then pointed to the 8 year old High Court order, referred to previously, that required interrogations to take place in prisons. 'This has not been applied, he said. ''Lordships, why did jail authority not make changes in light of the BLAST judgement.' He said that the jail authority had a legal obligation to comply.

The prosecution then replied and explained that there was no reason why the safe house should not be considered safe. He said that the safe home was appropriately equipped and doctors could be made available if there was an emergency.

The Tribunal then made its order:
This is an application filed by the prosecutor praying for an order under section 16(1) to commit the arrested accused Delwar Hossain Sayedee in the custody of the investigation officer for a period of 3 days for purpose of interrogation is taken up for hearing.

Application for not committing the said accused in the custody of the investigation officer for interrogation has also been filed by defence and is taken up for consideration.

Syyed Rejaur Rahman appearing for the prosecution argued that for proper investigation of the case the accused person should be committed in the custody of the investigation officer for purpose of investigation. He further submitted that the government has by gazette notification declared the house no-405/b, road-27. (New house no-20/a. road no-16) Dhanmondi, as Safe home and interrogation if allowed should be done in that house. Further submitted that materials collected by Investigation agency required to be examined by the investigation officer. He also submitted that some materials also collected by investigation agency during investigation which connect the accused person to the offence in question and for testing those documents it is necessary for taking him in custody.

It was further submitted that the investigation of the case is at the fag end and if the investigation will be prohibited the whole investigation will be defeated and incomplete.

Also submitted that the investigation agency has the right to interrogate the accused person for getting the whole picture of occurrence and this right should not be taken away. So prayed for custody of accused person in custody of investigation officer.

On the other hand Mr. Tanvir Ahmad Al-Amin appeared for the accused petitioner and submitted that the prosecution could not make out a case under section 16(1) of the Act to commit the accused person in the custody of the investigation officer. Further submitted that there is nothing in the petition that investigation officer was satisfied objectively for the purpose of committing the accused person in the custody of the investigation officer for interrogation and that no materials were available in the petition for the Tribunal to form its opinion that such order is indispensable.

He further submitted that the safe home as has been stated by the prosecution is not safe for accused person considering his security. Furthermore not stated in the application that there was arrangement for medical treatment in case of emergency when known that accused person is diabetic and heart patient.

We have heard both the parties. On perusal of petitions we are or the view that the reasons for committing the accused person in the custody of the investigation officer have been satisfied and investigation officer was satisfied that this interrogation is required for proper investigation. Also of the view that this committal of accused person in custody of the investigation officer is indispensable for proper investigation of this case. As such we allow the petition with the following conditions.

It is stated that that accused person is a diabetic with heart problems. Considering this we are inclined to allow this petition with some conditions stated below

The accused is given to the custody of the investigation officer by the Jail authority for interrogation in designated safe house for person of one day.

The jail authority shall produce the accused person at 10 am and take him back from custody at 5 pm.

The investigation officer is required to arrange a room for interrogation.
We also direct the jail authority to depute one doctor of the jail hospital to be present at the adjacent room during period of investigation.

The investigation officer should also allow one advocate of the accused in the adjacent room with the doctor.

The advocate and the doctor are allowed to see the accused at interval time. The doctor present should be able to look at health condition of the accused person if necessary.

The investigation officer will inform the jail authority and lawyer at least 48 hours before the time of interrogation.

The investigation officer will not put any pressure or threat on the accused during investigation.

The accused must be questioned in the language he speaks, Bengali, so that he can understand questions and give responses to them, and at the conclusion of the interrogation or questioning the accused shall be offered the opportunity to clarify anything he has said, before the Investigation Officer.

At the same time, the Investigation Officer comply with 16(2) of the Rules 2010.

With these conditions, the prayer is allowed.

Let a copy of the order be sent to the Superintendent of Dhaka Central Jail for information and necessary action. Copy thereof also be sent to investigation agency and the defence counsel.'

The following was then added to the order by the Tribunal chair:
'Also perusal of case find that investigation of case at fag end and we are of the view that interogation of the accused person is indispensable.'

At least this time the tribunal ruled that in its view interrogation was 'indispensable' (previously the Tribunal's orders had not even stated that interrogation was 'indispensable' as required by rule 16). The only reason he gave was that the the investigation was at the 'fag end'. I am not sure if that is a sufficient a reason to decide that interrogation was 'indispensable', but at least a reason was given.

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