Rules 44 and 51(2)
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The tribunal has given discretionary power under rule 44 to admit any
evidence oral or documentary, print or electronic including books, reports
and photographs published in news papers, periodical and magazines, films
and tape recording and other materials as may be tendered before it and it
may exclude any evidence which does not inspire any confidence in it. In
exercise of discretionary power, the tribunal has discarded affidavits as
having no reliability. Rule 51(2) provides that the defence shall prove the
documents and materials to be produced by it in accordance with law. In
order to prove any documentary evidence by the defence, it is required to
prove the same in accordance with section 9(5) of the Act which provides
that a list of witnesses for the defence, if any along with documents or
copies thereof, which the defence intends to rely upon, shall be furnished
to the tribunal at the time of the commencement of the trial. Salauddin
Qader Chowdhury vs Chief Prosecutor, International Crimes Tribunal, Dhaka,
Bangladesh, 67 DLR (AD) 295
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Salauddin Qader Chowdhury vs Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh |
67 DLR (AD) 295 |
Rule 46(2)
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International Crimes (Tribunals) Act, 1973
Section 3(2), 20(2), 20(3) r/w
The Rules of Procedure, 2012
Rule 46(2)
Ordered (Abdul Quader Mollah case)– That the accused Abdul Quader Molla
son of late Sanaullah Molla of village Amirabad Police Station Sadarpur
District –Faridpur at present Flat No . 8 /A, Green Valley Apartment,
493, Boro Moghbazar PS. Ramna, Dhaka is found guilty of the offences of
‘crimes against humanity’ enumerated in section 3(2) of the
International Crimes (Tribunals) Act, 1973 as listed in charge no. s 1, 2,
3, 5 and 6 and he be convicted and condemned to a single sentence of
‘imprisonment for life’ for charge nos . 5 and 6 And also for the
crimes as listed in charge no s . 1, 2 and 3 to a single sentence of
‘imprisonment for fifteen (15) years’ under section 20(2 ) of the Act
of 1973. The accused Abdul Quader Molla is however found not guilty of
offence of crimes against humanity as listed in charge no. 4 and he be
acquitted there of.
However, as the convict Abdul Quader Molla is sentenced to ‘imprisonment
for life’, the sentence of ‘imprisonment for 15 years’ will
naturally get merged into the sentence of ‘imprisonment for life’. This
sentence shall be carried out under section 20(3) of the Act of 1973. The
sentence so awarded shall commence for thwith from the date of this
judgment as required under Rule 46(2) of the Rules of Procedure, 2012(ROP)
of the Tribunal- 2 (ICT-2) and the convict be sent to the prison with a
conviction warrant to serve out the sentence accordingly. Let copy of the
judgment be sent to the District Magistrate, Dhaka for information and
causing necessary action. Let certified copy of the judgment be furnished
to the prosecution and the convict at once. (A. H. M. Shamsuddin Choudhury,
J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375]
....View Full Judgment
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Government of Bangladesh =VS= Abdul Quader Molla |
8 LM (AD) 375 |
Rule 56(2)
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The Evidence Act, 1872
Section-32, 33 r/w
International Crimes Tribunals Act, 1973
Section 19(1) r/w
The International Crimes (Tribunal-1) Rules of Procedure, 2010
Rule 56(2)
Hearsay evidence–
Mr. Shajahan repeatedly complained that the Tribunal below erred in
admitting hearsay evidence.
Without any insinuation I only wish to express my surprise as to how Mr.
Shajahan could be oblivious of the express provision in the Act which
stipulates that the tribunal shall not be bound by technical rules of
evidence and may admit any evidence which is deemed to have probative
value, and of the express provision in Rule 56 (2) which confers discretion
on the Tribunals to accord due consideration to hearsay evidence
Again, it is not only our Act, hearsay evidences were admissible in the IMT
in Nuremberg and Tokyo Tribunal as well as by other national tribunals such
as US Military Tribunal in Nuremberg and Soviet Tribunals and the British
Tribunal that tried war criminals before as well after the hostility ended
in 1945.
Statutes of modern UN sponsored tribunals such as ICTY, ICTR, SCSL, STL and
even that of International Criminal Court (ICC) do not proscribe hearsay
evidence for very cogent reasons. The very nature of the crimes concerned
and the manner of their commission are such that credible hearsay evidence
are indispensable.
Although there is no rule governing the admissibility of hearsay evidence
before the ICTY, ICTR and SCSL, the Trial Chambers of all these tribunals
have refrained from adopting a practice to exclude all hearsay evidence.
There is no rule declaring hearsay rule per se inadmissible. General scheme
for admissibility of evidence set out in Rule 89 for ICTY, ICTR and SCSL
has guided the chambers in their deliberation on hearsay evidence.
In Prosecutor-v-Galic, the Appeals Chamber of ICTY defined the scope of
admissibility of hearsay evidence pursuant to Rule 89(1) saying that the
said Rule “permits the admission of hearsay evidence in order to prove
the truth of such statements rather than merely the fact that they were
made. According to that decision a hearsay evidence may be oral i.e. where
someone else had told him something out of Court or in black and white, for
example when an official report, written by someone who is not called as a
witness, is tendered in evidence. The Appeal Chamber expressed that Rule
89(c) clearly encompasses both these forms of hearsay evidence” (Decision
on Interlocutory Appeal, June 7, 2002). The Trial Chamber of ICTY expressed
in Prosecutor –v-Tadic on a defence motion on hearsay (5th August 1996),
“out of Court statement that are relevant and found to have probative
value are admissible”.
The same position was taken by the Trial Chamber of ICTY in
Prosecutor-v-Blaskic, while deciding on the standing objection of the
defence to the admission of hearsay evidence with no inquiry as to its
reliability. (January 21, 1998).
It was held that hearsay evidence must have indicia of reliability in order
to be admissible: reliability is not merely a matter of going to the weight
of the evidence.
Similar view was also expressed in Prosecutor-v-Natelic and Martionovic,
ICTY Appeal judgment, May 3, 2006, para 217 and 516, Prosecutor-v-
Aleksovski, decision on prosecutor’s appeal on admission of Evidence,
16th February 1999, para 15, Prosecutor-v-Milosevic, decision on testimony
of defence witness, Dragan Jasovic, April 15, 2005, page – 4,
Prosecutor-v-Mihitino Vic, decision denying prosecution Second Motion for
admission of evidence pursuant to Rule 92, (13th September 2006, para 5,)?
Prosecutor-v-Prlic, decision on appeals against decision admitting
transcript of Jadranko Prlics questioning into evidence, (23rd November,
2007, para-52).
It has been held by all these tribunals that hearsay evidence can be
admitted to prove the truth of its contents, and the fact that it is
hearsay does not necessarily deprive the evidence of its probative value
and that the chamber must be satisfied of its reliability given the context
and character of the evidence for it to be admitted (Prosecutor –V-
Aleksovski- ICTY, decision on Prosecutor’s appeal on admissibility of
evidence, 16th February 1999, para – 15, Prosecutor-v-Semanza, decision
on the defence motion for exclusion of evidence on the basis of violations
of the rules of evidence, Res Gestae Hearsay and violation of the Statute
and Rules of the Tribunals, 23rd August 2000.
In the case of notorious Milosevic, though the Appeal Chamber of ICTY held
that hearsay evidence will usually be given less weight than that given to
the testimony of a witness who has given it under a form of oath and who
has been cross examined, it nevertheless also stated, “it depends upon
infinitely variable circumstances of the particular case …..”.
(Prosecutor –V – Milosevic, decision on admissibility of Prosecution
Investigator’s evidence, 30th September 2002, para 18.
ICTY Chamber also made it abundantly clear that the right to cross
examination incorporated as part of the fair trial provisions of Article
21(4)(e) Statute and Article 20(4)(e) of ICTR statute “applies to the
witness testifying before the Trial Chamber and not to the initial
declarant whose statement has been transmitted to this Trial Chamber by the
witness” (Prosecutor –v- Blaskic, decision on standing objection of the
defence to the admission of hearsay with no inquiry as to its reliability,
21st January 1998, para 29).
The SCSL in Prosecutor-v-Brima (decision on joint defence evidence to
exclude all evidence from witness, 24th May 2005, para 12) observed “it
is now well settled in the practice of international tribunals that hearsay
evidence is admissible”. It went on to say, “the probative value of
hearsay evidence is something to be considered by the Trial Chamber at the
end of the trial when weighing and evaluating the evidence as a whole, in
light of context and nature of the evidence itself, including the
credibility and reliability of the relevant witness”.
The Appeal Chamber in Prosecutor-v-Norman, (Fofana appeal against bail
refusal, 11th March 2005, para 22) held that the relevant rule has
conferred a broad discretion upon the tribunals to admit hearsay evidence.
Even the East Timore’s Special Panel for serious Crimes held hearsay
evidence to be admissible, though hearsay upon hearsay will deserve little
weight (Prosecutor-v-Marques, 11th December 2001).
The ICC in Prosecutor-v-Katanga of Ngudjolo (decision on the confirmation
of charges, 30th September 2008, ICC-01/04-01/07-717, para 137) held that
though any challenge on hearsay evidence may affect its probative value, it
may not affect its admissibility. ICC further stated in that case that
hearsay is admissible even if the source of the evidence is anonymous.
Whilst relying on ECHR jurisprudence propounded in Kostovski-v-The
Netherlands, judgment delivered on 20th November 1989, the pre-trial
Chamber of ICC, in Prosecutor-v-Katanga of Ngudjolo, supra, reiterated
previous finding of the Pre-Trial Chamber in Prosecutor –v-Labanga that
there is nothing in the statute or the Rules which expressly provides that
the evidence which can be considered hearsay from anonymous sources is
inadmissible per se. In addition, the Appeals Chamber has accepted that,
for the purposes of the confirmation hearing it is possible to use items of
evidence which may contain anonymous hearsay, such as redacted versions of
witness statement. (Prosecutor-v-Labanga ICC-01/04-01/06-803, para 101).
The Pre-Trial Chamber further stated that the probative value of anonymous
hearsay evidence will be determined in the “light of other evidence”.
The International Military Tribunal in Nuremberg allowed the use of hearsay
evidence through affidavits, but it also required that any such affiant to
be available for cross examination.
Its charter, developed under the Moscowc Declaration 1943, provided for a
criminal procedure that was closer to civil law than to common law with
wide allowance for hearsay evidence.
The London Charter enunciated simple evidentiary rule repeatedly propounded
in the US internal position papers, reading; “The Tribunal shall not be
bound by technical rules of evidence. It shall adopt and apply to the
greatest possible extent expeditious and non-technical procedure and shall
admit any evidence which it deems to have probative value” which stands
virtually reproduced in Section 19(1) of the Act. (our provisions are not
dissimilar) (Paras:713-731); .....Allama Delwar Hossain Sayedee =VS=
Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76]
....View Full Judgment
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Allama Delwar Hossain Sayedee =VS= Government of Bangladesh |
2 LM (AD) 76 |