Today the Tribunal heard matters in the following cases:

1. Prosecutor vs. Azharul Islam (Investigatory Stage)
2. Chief Prosecutor vs. Delwar Hossain Sayedee: Defense Resubmission of Closing Arguments (Accused Present)

The Prosecution filed an application requesting permission to interrogate Azharul Islam at the Witness Safe House for two days. Defense counsel for Azharul Islam submitted that there is no reasonable cause to take their client to the safe house. They argued that the Investigation Authority can interrogate him at the jail and requested the Tribunal to pass an order on February 5, 2013, as that was the date fixed for the prosecution’s submission of the investigation’s progress report. The Tribunal fixed February 5, 2013 for order.

In the Sayedee case Abdur Razzaq continued the Defense’s Closing Arguments, addressing legal points for the 3rd consecutive day. The Prosecution began its reply to the Defense’s final arguments.

Chief Prosecutor vs. Sayedee
Out-of-court Statements under section 19(2)
Abdur Razzaq submitted that on March 20, 2012 Prosecution filed an application under 19(2) for the admission of statements from 46 Prosecution Witnesses. Section 19(2) of the International Crimes Tribunal Act 1973 (ICT Act 1973) states that a Tribunal may receive in evidence any statement recorded by a Magistrate or Investigation Officer where the statement is made by any person who, at the time of trial, is dead or whose attendance cannot be procured without an unreasonable amount of delay or expense. The Tribunal heard this application and admitted the out-of-court statements of 16 prosecution witnesses on March 29, 2012. In support of this application the Prosecution submitted two Investigation Officer’s reports dated 17 March 2012 and 10 March 2012. Razzaq submitted that the Defense applied several times to obtain these reports but that all these applications were rejected.

Razzaq further noted that the Tribunal refused to allow the Defense to cross-examine the Investigation Officer (IO) in relation to these two reports. Razzaq stated that the Defense had sought review of the Tribunal’s decision and submitted documents related to the witness Safe House allegedly showing that 15 of the 19(2) prosecution witnesses were actually available to testify. This application too was rejected. The Defense exhibited phone bills (Exhibits-AY, AY-1 and AY-2), the food register, attendance register and General Diary book of the Witness Safe House (Exhibits-AX, AW, BG, BI, BI1,) and a certified copy of another case where Kalachan (one of the allegedly unavailable witnesses) testified (Exhibit- BG series). The Defense argued that these documents established the genuineness of the Safe House documents, proved that the Safe House exists, and showed that the Investigating Officer’s reports were false and that the 19(2) witnesses were in fact in the Safe House when the IO was claiming they had left the Safe House and did not come back. Regarding the source of these documents, Razzaq claimed the Defense got the Safe House documents from a newspaper reporter.

To discredit the statements of the19(2) witnesses, Razzaq showed the Tribunal the similarities between the statements of Asish Kumar Mondol, Sumoti Rani Mondol and Somor; and the similarities between the statements of Setara Begum, Rani Begum and Mostsfa. Razzaq alleged that these statements are merely copy and paste statements made by the Invesigating Officer and attributed to these witnesses. The statements bear no signature or date. Furthermore, Razzaq noted that the one of the 19(2) witnesses that the prosecution claimed to be unavailable (Gonesh Saha, son of Vagerothi), actually appeared as a Defense witness and gave testimony before the Tribunal. His testimony clearly denied that Sayedee was not involved with the killing of his mother and directly contradicted the 19(2) statement submitted by the Prosecution and attributed to him.

At this point the Chairman interjected and said that a person cannot be a witness for both parties at the same time. In reply Razzaq said the Tribunal should accept one statement and exclude the other, but that it is up to the Tribunal’s discretion which satatement they decide to take into consideration.

Razzaq submitted that the Prosecution claimed that Usha Rani Malakar was sick and mentally unfit to give testimony before the Tribunal, but that a TV interview in which Usha Rani Malakar and Shukhoronjon Bali denied ever making statements incriminating Sayedee contradicted that claim. Razzaq argued that if the Tribunal does not watch the interview it would prejudice Sayedee. He additionally alleged that the Investigation Officer gave the statements of 46 persons including Jewel Aych, Zafor Iqbal (son of victim Foyzur Rahman of Charge 5) and Shahriar Kobir to be considered as evidence under 19(2) of the ICT Act 1973; where it is evident from the news report of the Daily Jonota dated 22 April 2004 (Ex-AX) that they were not even aware that they were considered witnesses in this case. Razzaq argued that the Investigating Officer had committed fraud upon the Tribunal by using section 19(2) of the Act to present misleading and untruthful statements from witnesses who were actually available.

Razzaq alleged that the family of victim Foysur Rahman never alleged that Sayedee was involved in the victim’s killing. The related case filed in 1972 named the individuals the family alleged were involved in Foysur Rahman’s murder and did not mention Sayedee. Razzaq referred to a book written by another son of Foysur Rahman (Ex-E) and a book written by the wife of victim Foysur Rahman (Ex-Q) in support of this claim. He questioned why the victim’s family did not give testimony before the Tribunal when they should have been the individuals most invested in seeing accountability for the murder of their father.

Razzaq argued that there is no provision similar to 19(2) in International Customary Law or domestic law. He submitted that on 12 July 2012 the former Chairman quoted Rule 92(A) from the Special Court for Sierra Leone (SCSL) and Rule 158(A) from the Special Tribunal for Lebanon (STL) and attempted to draw parallels between them and Section 19(2). Razzaq noted that the former Chairman left out part (B) of Rule 92 from the SCSL, which stated that if the evidence adduced under that rule goes to prove of acts and conduct of an accused as charged in the indictment, then this may be a factor against the admission of such evidence. He further submitted that 158(B) of the STL provides similar protections for the accused. He argued that the statements of Prosecution witnesses under section 19(2) relate to alleged conduct of the accused as charged in the indictment and is designed to prove the guilt of the accused. Therefore, admitting this evidence is prejudicial to Sayedee. He further argued that Rule 92 of the ICTR and Rule 92 of the ICTY also provide that this type of written statement, while sometimes admissible, cannot be related to the acts and conduct of the accused, therefore, extra caution should be taken before admitting these statements into evidence.

Regarding the admission of the 19(2) statements, Razzaq cited 45 DLR 502; (2008) 12 SCC 353 para 20; (2007) 8 SCC 751, para 19. He argued that the false 19(2) statements and the Safe House documents raise questions regarding the credibility of the Investigating Officer. He submitted that the Investigating Officer had committed fraud upon the Tribunal and the decision of these cases makes it clear that an order obtained by fraud is invalid and void.

Hearsay evidence
Regarding the probative value of hearsay evidence, The Defense argued that the Tribunal cannot convict an accused based solely upon hearsay evidence; (Katanga, ICTR, para 117 to 120); (Kajelijelic (ICTY) para 45 [NOTE our researcher is trying to clarify which case this is meant to be]; Lubanga (ICC) para 103. They further argued that the Judiciary’s essential quality is detachment founded on independence (Dannis vs USA (341-US-494-592) and that the bench must act dispassionately (SP Gupta, AIR 1982 (SC) 149. He said that the Prosecution failed to prove any charge beyond a reasonable doubt and did not even attempt to prove the elements of the crimes. Furthermore the Investigating Officer had lost all credibility. Therefore, they argued Sayedee should be acquitted.

Reply of the Prosecution:
Thereafter, Haider Ali began the Prosecution’s reply. He alleged that the 19(2) witnesses were unavailable because they had been threatened by affiliates of the accused. He argued that Gonesh was under the observation of the Tribunal and questioned how he was produced as a Defense Witness. He argued that the there is no restriction against receiving written statements as evidence under section 19(2) of the ICT Act 1973 and that it is up to the Tribunal’s discretion whether they take this evidence into consideration or not. He said that the Safe House documents produced by the Defense do not reference the Investigating Officer and that the Defense failed to prove the IO’s involvement with Safe House. Haider Ali claimed there is no existence of Safe House for witnesses. He raised his objection regarding the consideration of the General Diary of the Safe House (Exhibit BI and BI-1) and argued that these documents were not genuine, but were concocted by the Defense. He argued that that the Tribunal is formed to follow the ICT Act of 1973 and that the act in itself is sufficient. There is no need to cite foreign decisions. He further argued the case law used by the Defense is ineffective. He claimed that the Defense only provided some paragraphs of different decisions instead of the whole decision of the cases they relied on.