Tuesday, February 19, 2013

7-17 Jan 2012: Mollah Defence closing argument 1

After the tribunal passed the order rejecting a retrial, over a period of seven day between 7 to the 17th (some full days, some half days) the defense gave their closing arguments. It was difficult to take accurate notes of these proceedings. The following posts on the closing arguments deal primarily with the factual arguments made by the defense and is taken from a defense written document that was substantially (but not completely) read out in court.

Apart from the issues dealt with in this and two other posts - here for part two and here for part three - the defense argued that: the international crimes tribunal was not meant for these kinds of prosecutions; that the prosecution was male fide and politically motivated; a fair trial was not possible after so many years having passed; the trial should not take place without the prosecution of the principal offenders who were the Pakistanis. He also set out his arguments relating to 'elements of the offenses', the standard of proof required, the probative value of heresy evidence.

To see the prosecution closing arguments; see here

Below are the arguments, placed by the defense before the court on "Procedural Deficit'.
Complaint Register
Complaint Register is the key point for the investigation. After geting a complain an Investigaton officer start his investigation.The entire case against the accused has been prepared pursuant to the said Complaint recorded at Serial No. 1 dated 21.07.2010.
No copy of this complain has been provided to the defence. To get a copy from defence filed 2 applications, after heaing those on 06.03.2012 and 26.12.2012 Hon’ble Tribunal passed an order rejecting the prayer of the Defence.

However P.W.-12 (Investigation officer of this Case) stated it in his deposition made before the Hon’ble Tribunal dated 08.10.2012 as follows: "My name is Md. Abdur Razzaque Khan, PPM; I am the investigation officer, investigation committee International Crimes Tribunal, Bangladesh. I am the investigation officer of this case the govt. of people’s Republic of Bangladesh has appointed me as the investigation officer as per the memo. 1-5/2010/01 dated 25/03/2010. I joined at the investigation committee thereby and still now i am here. I have collected many books of the liberation war and its background by reading its related parts for preparing the case. It was included in complaint register on 21/07/2010 as serial no.01 reserving in investigation cell in accordance with rule -5 of rules of procedure dated 15th July, 2010 through getting judicial notice of case no.60 of Pallabi thana dated 25/01/2008 by the office of honorable Registrar of International war crimes tribunal. I am given the charge of this case at 21.07.2010. I analyze the complaint during my investigation. I was given the case no 34 dated 31/12/2007 of Keranigonj thana according to the memo no ICT/98/10 dated 22/07/2010 through the office of honorable Registrar of International Crimes Tribunal.  I realized after analyzing the two complain that, the occupant Pakistani army and their local accomplices and the mentioned accused and their party along with their group of accomplices occurred killing, genocide and setting fire jointly in the area of Mirpur and Keranigonj during the liberation war from 25th March to 16th December. As there were took place many occurrences thereby this way according to the section 3(2) of International Crimes Tribunal Act by the accused, I applied for arresting the accused to the tribunal through the learned chief Prosecutor at 22.07.2010 for the sake of fair and effective investigation. The honorable tribunal has passed and orders to Prison them by this application." The Accused was arrested from the premeses of the Bangladesh Supreme Court on 13.07.2010 and shown him arrest in those 2 cases as stated by the P.W.-12. As well as he was taken in the police custody for interrogaton in those two cases also.

However P.W.-12 stated in his deposition dated 08.10.2012 that he received the Keranigong PS case no. 34(12)07 and Pollobi PS Case no. 60(01)80 by the office of the register and included them into the complain register. Despite of no provision in the Act or ROP of the Tribunal to receive any case from other ordinary court and the megitrat court has no power to transfer any case to any kind of Tribunal.
In that aspect our submission is that the recording of the complain register is illegal and undue process of law. As well and the investigation process is also illegal. 
Non-disclosure of exculpatory evidence to the Defence
On 18 December 2011, the Chief Prosecutor submitted the Formal Charge under section 9(1) ICTA on the basis of the investigation report before ICT-1.

On 28 December 2011, the ICT-1 ordered the Prosecution to disclose to the Defence by 2 January 2012 hard copies of the Formal Charge in compliance with Section 9 ICTA and Rule 18(1) and (5) of the Rules of Procedure and all supporting documents relied upon while forming the charge concerned in accordance with Rule 18(4).

On 2 January 2012 following Rule 18 (1) and (5) of the Rules of Procedure, the Prosecution submitted the material it intends to rely upon in support of charges against the Accused to the Tribunal. This material included nine volumes of documents and Prosecution witness statements.

On 10 January 2012, pursuant to Rule 18(1) and (5) of the Rules of Procedure, the Prosecution served to the Defence copies of the Formal Charge, which consisted of a 44 pages.

On 17 January 2012, the Prosecutor, the Prosecution served a copy of an Additional Formal Charge upon the Defence. The Prosecution Documents consisted of 12 volumes of documents comprising of 2994 pages as follows.

Upon receipt of the Prosecution Documents it transpired that a number of documents listed in the seizure list index had not been included in the Prosecution Documents. No disclosure of these documents was made despite the Defence’s objections (Application for disclosure, 20 January 2012). What is more, upon receiving the 12 volumes of documents from the Prosecution, as 258 pages were illegible photocopies. 
On 22 January 2012, the Tribunal issued an order refusing the Defence’s application to obtain a copy of the investigation report finding that the Act does not contain any provision for supplying the copy of the investigation report to the Defence and that, as the Formal Charge is a distillation of the investigation report, the Defence was in no way prejudiced.(Order No. 5, 22 January 2012) 
On 15.10.2012 defence again filed “An application for an order directing for disclosure of the investigation report to the Defence.” After hearing this application on 23.10.2012 Hon’ble Tribunal rejected this application.

Adequate time and facilities in preparation of Defence case
In total, the Prosecution has effectively had over four decades in which to collect evidence and conduct witness statements in order to prepare their case. More recently, the Prosecution officially began its investigation against the Accused in mid-2010.

However, the Defence was not provided with adequate time nor facility in which to prepare its case contrary to both Article 14 (3) (b) of the International Covenant for Civil and Political Rights (hereinafter “ICCPR”) and Article 67 (1) (b) Rome Statute for the International Criminal Court (hereinafter “Rome Statute”) which provide for the right of an accused to have “adequate time and facilities for the preparation of his defence”.

The right to adequate time and facilities is thus a universal right that has been agreed to by Bangladesh as signatory state party to both the ICCPR and ICC.

However, the Accused’s right to adequate time has been substantially breached on a number of occasions. Firstly, the delay in bringing any proceedings against the Accused has inevitably caused the loss of opportunity to interview or call witnesses for them as well as the loss of material evidence. The Defence was deprived of a reasonable opportunity to collect and produce evidence at trial in view of these investigative circumstances.

Secondly, the Accused was only formally charged on 28 May 2012 whereby the Tribunal fixed 6 charges concerning crimes against humanity against him. However, the Tribunal directed the Prosecution to open its case on 20 June 2012 pursuant to Rule 38(2),[“An accused pleading not guilty will get at least three weeks time preparing his defense”.]  thereby granting the Defence only three weeks to prepare its case. 
On 28 June 2012, the Prosecution served on the Defence an updated list of witnesses and the statements of three new witnesses (These were Fazla Azim, Momena Begom and Abdur Razzaq (P.P.M.). The Defence submitted that three weeks was not sufficient to fully investigate the 6 charges fixed against the Accused; visit all the named places; interview all the necessary witnesses and compile accompanying witness statements and take full instruction from the Accused on the charges fixed against him (Hearings for formal charge on 2 May, 7 to 9 May, 13 to 14 May and 16 May 2012) Furthermore, it submitted that proceedings ought to be adjourned so as to allow time to prepare a proper defence against the three additional witnesses (Defence Application for Adjournment, 1 July 2012.) This was not withstanding the fact that: firstly, events in question occurred over forty years ago and would therefore require further time to investigate and secondly, the crimes charged, namely crimes against humanity, are complex and serious crimes that would require intensive analysis of the allegations provided for in the indictment dated 28 May 2012. The Tribunal rejected the submissions and directed the first Prosecution witness to be called on 3 July 2012. 
Third, on 6 August 2012, the Prosecution filed an application for the inclusion of three new Prosecution Witnesses (Dr. Mujammal Hussan Ratan, Abdul Mojid Paluan and Nurjahan.) On 7 August 2012, the Tribunal made an order to insert these three witnesses on to the list and to require the attendance any one or more of these witnesses for examination-in-chief in the morning of the 8 August 2012. (Order Nº 41, 7 August 2012 + Application to Review Order Nº 41, 15 August 2012.) On 8 August 2012, the Defence filed an application for an adjournment of 2 to 3 weeks so as to have the time to prepare its defence to the new evidence. The Tribunal granted an adjournment of merely 4 days.
Fourth, the Defence was subsequently denied any further time prior to the commencement of the Defence case. The Prosecution case commenced on 20 June 2012 and completed on 4 November 2012. On 11 November 2012, the Defence submitted that it required further time to prepare following closure of the Prosecution case and requested an adjournment of 7 days to 18 November 2012. The Tribunal subsequently adjourned proceedings for 4 days to 15 November 2012, with the first Defence witness called to testify that day. The Defence submits that the Tribunal should on reflection take the significant prejudice caused to the Accused by this ruling into consideration. 
Equality of Arms
The right to adequate time and facilities “is an important element of the guarantee of a fair trial and an application of equality of arms” (General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial”, UN Doc. CCPR/C/GC/32, para 32.) The latter being a development within the concept of the right to fair trial. 
It is international standard for any provision which departs from the principle of equality to be to the benefit of the accused (For example, ICC Rules of Procedure, Rule 141 (2): “…The Defence shall always have the opportunity to speak last”; ICC Rule 140(1)(d): “The Defence shall have the right to be the last to examine a witness”.) It is submitted that the Defence has been treated to unequal treatment in these proceedings for the following reasons. 
Firstly, pursuant to section 9(5) ICTA, the Defence was required to disclose its case, prior to the commencement of the Prosecution case or indeed closure of Prosecution case. In doing so, the presumption of innocence, which imposes the burden of proof upon the Prosecution, was seriously breached. [“A list of witnesses for the defence, if any, along with the documents or copies thereof, which the defence intends to rely upon, shall be furnished to the Tribunal and the prosection at the time of commencement of trial”. See also Rule 18(6): “The defence shall also require to submit three sets of list of witnesses along with the documents which the defence intends to rely upon before the Tribunal in compact disk (CD) or digital versatile disk (DVD) while furnishing the same under section 9 (5) of the Act”.] 
As abovementioned, the Defence has been seriously prejudiced in the time provided to prepare its case as compared to that of the Prosecution, thus breaching the principle of equality of arms. As well as cumbersome restraints on preparation time, the Defence was also subjected to a strict limit in presenting its case, both in terms of duration and witnesses.
Although the Prosecution case took 106 days to complete with 12 witnesses the Defence was subjected to unfair rulings in the interest of expediting proceedings. On 05 November 2012, the Tribunal set a limit of 6 witnesses, effectively one witness per charge. By 13 December 2012, the Tribunal ordered the cessation of the Defence witness despite the Defence having only called 6 witnesses. The Defence case was therefore forcefully closed after 29 days. 
The Defence submits that the above breaches of the principle of equality of arms have frustrated proceedings so as to render a stay of proceedings as the only suitable remedy.

Additional Witnesses and Further Investigation:
That there has no provision in the Act or ROP for additional investigaton but P.W.-12 confirmed it in his deposition dated 08.10.2012 that he had done additional investigation and recorded the deposition of additional witnesses.

After submitting the investigation report, I ahave continued trying to collect the additional witnesses against accused Abdul Quader Mollah. During the collection of additional witnesses I recorded the statements of 15 witnesses against the accused about commission of crime described in section 3(2) of the ICT …

After submiting the investigation report I submitted to the office of chief prosecutor of the tribunal according to section 9(4) the quoied statement of witnesses, seizure list and seized boks, against the accused

About this matter submission of the defence is that after submission of the Investigation Report the duty of the investigation officer is compleat and he has no more jobs with out assisting the prosecution. Though there has no clear provision in the Act or ROP of the Hon’ble Tribunal regarding the additional investigation, the investigation officer could not do any further investigation without taking any order of the Hon’ble Tribunal for additional investigation. That’s why the results of his further investigation are undue process of law.

On 10.04.2012 Prosecution filed statements of 3 additional witnesses and on 02.05.2012 prosecution again filed statements of more 3 additional witnesses.

On 28.05.2012 with the order no. 10 Hon’ble Tribunal passed an order allowing those six (6) additional witnesses.

On 06.08.2012 prosecution filed statements of another 8 additional witnesses, subsequently without any pervious notification to the defence Hon’ble Tribunal passed an order upon this application and directed the prosecution to examine them from next day.

At the time of the prosecution case, total 12 Prosecution has been examined by the prosecution, among them P.W. 11 and 12 are Investigation Officer.

The witness examined by the prosecution showed in Chart as stated below:

Number of Submitted witness
Name of Examined Witness
Main witness Statements
P.W.1:-Mujaffar Ahmed Khan
P.W.-3:- Momena Begom
P.W.-6:- Shafi Uddin Molla
P.W.-9:- Amir Hosan Molla
Additional Statements
Dated 10.04.2012
P.W.- 2:- Sayad Shahidul Hoque Mama
P.W.-5:- Khandakar Abul Ahsan

Additional Statements
Dated 02.05.2012
P.W. 4 :- Poet Kazi Rozi

Additional Statements
Dated 06. 08. 2012
P.W.7:- Abdul Majid Paluan
P.W. 8:- Nurjahan
P.W. 10:- Sayad Abdul Quaium
Investigating Officer

P.W.11:- Monowara Begom
P.W.12:- Abdur Razzaq
Production of Witness without sufficient notice:
The Hon’ble Tribunal has, on a number of occasions, permitted the Prosecution to call witnesses according to a time table of which the Defence has not been aware. The most brutal example was on 12 August 2012 when the Tribunal instructed the Defence to prepare to cross-examine a new witness the following day without the Prosecution giving notice of who this witness would be.

This recurrent problem has been compounded by the readiness of the Tribunal to grant Prosecution applications to admit additional witnesses midway through the trial process, leaving the Accused-Petitioner much aggrieved and the Defence frustrated at its inability to adequately prepare due to a lack of sufficient notice. 
The imperative nature of this right is reflected in Article 14 (3) (b) of the International Covenant for Civil and Political Rights (hereinafter: ICCPR) and Article 67 (1) (b) of the Statute of Rome for the International Criminal Court (hereinafter: ICC), which together provide for the right of an accused to have ‘adequate time and facilities for the preparation of his defence’. 
The Human Rights Committee of the United Nations (hereinafter: HRC), which is responsible for upholding ICCPR provisions, has, on numerous occasions, held that: ‘the right of an accused person to have adequate time and facilities for the preparation of his defence is an important element of the guarantee of a fair trial and an emanation of the principle of equality of arms’. (Smith v. Jamaica (282/88) para. 10.4; Paul Kelly v. Jamaica (253/87) para. 5.9; Aston Little v. Jamaica (283/88) para. 8.3)

Providing further support for this principle, Article 6 (3) (d) of the European Convention on Human Rights (hereinafter: the ECHR), guarantees an accused person the right to summon and examine witnesses under the same conditions as the prosecution.

It is accepted by the Petitioner that, according to the RoP, and, as is the practice in other international tribunals, additional witnesses may be called under section 9 (4) of the Act.

The Prosecution attempted to surprise the Defence by not revealing the order in which witnesses are to be called is not an acceptable trial tactic, but rather represents a deliberate attempt to mislead the Tribunal and to keep the defence in a darkness regarding the trial process, which severely prejudice the Accused. 
However the Tribunal recognize the fraud against it and the defence on the part of the Prosecution and exercise its powers under section 11 (4) of the Act whereby it may: ‘…punish any person, who obstructs or abuses its process…’ or ‘…does anything which constitutes contempt of the Tribunal’. 
Limiting time of cross Examination
In the Case of Chief Prosecutor vs. Abdul Quader Molla Hon’ble Triubnal recorded the deposition of P.W.-1 on 03.07.2012, P.W.-2 on 10.07.2012, P.W.-3 on 18.07.2012, P.W.-4 on 24.07.2012, P.W.-5 on 29.07.2012, P.W.-6 on 01.08.2012, P.W.-7 on 08.08.2012, P.W.-8 on 13.08.2012, P.W.-9 on 26.08.2012, P.W.-10 on 17.09.2012, P.W.-11 on 07.10.2012 and P.W.-12 on 08.10.2012.

Hon’ble Tribunal limited the time of cross examining of the prosecution witness, that’s why most of the time defence was unable to conduct the cross examination properly.

Due to the time limit by the Hon’ble Tribunal at the time of Cross Examination Defence could not put some important question and take some contradiction with the I.O. which was highly prejudiced the defence.

Limiting the Number of Defence Witnesses & Imposing fine:
On 15.07.2012 Defence filed A list of 965 Defence Witnesses submitted under Section 9(5) of the International Crime Tribunal Act 1973 as amended 2009 (ICT(A)) and Rule 18 (6) of the ICT rules of Procedure.

On 18.10.2012 Prosecution filed An application to limit the number of Defence Witnesses between 3 to 4 under rule 53(iii) of the Rules of the Procedure of International Crime (Tribunals) Act, 1973 in respect of regulating the matter of time management by disallowing the list of vast number of defence witnesses submitted earlier in context of section 9(5) of the Act as well as rule 18(6) of the Rules of Procedure of the Act, 1973.

After perusing this application on 05.11.2012 Hon’ble tribunal unlawfully limited the numbers of defence witnesses between 6, in spite of having no lawful authority by Act or ROP to limit the number of Defence witnesses.

Though prosecution examined totally 12 witnesses, being aggrieved by this order of the Hon’ble Tribunal from defence several application has been filed to specific the number of Defene witnesses within 12 according to the arms of equality.

However on 03.01.2013 Hon’ble Tribunal passed an order imposing fine of 10,000/= to the accused petitioner. Because of filing several applications to limit the number of DWs between 12.

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