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Sentencing Practice: Bangladesh–
In Abed Ali –V-State (42 DLR AD 171) our Appellate Division considered
mitigating and aggravating circumstances and considering proportionality
concept, refused to commute death sentence, stating that claimed
extenuating factor in the form of provocation remained unproven.
The Appellate Division’s decision in Abul Khair-V-The State (44 DLR AD
225) also reveal that our Courts consider mitigating and aggravating
circumstances in determining the sentence where statute allows discretion.
Our law also permits restoration and rehabilitation both for juvenile as
well as adult offenders. The children’s Act, as amended in 2013 allows
restorative rationale while the Probation of the Offenders Ordinance (XLV)
of 1960, allows this rationale for both Juveniles and adults .
Under Ordinance XLV of 1960, if a person (irrespective of age) without
previous conviction, is convicted of an offence punishable with no more
than two years imprisonment, a Court can pass a probation order in the
alter of inflicting punishment, or to discharge him after admonimation, or
subject to condition of signing a bond, when probation order appears
appropriate.
So, through a chain of high preponderant judicial pronouncement, as well as
by such statutory commandments as the Probation Ordinance and Children’s
Act, Bangladesh Judicial System apply all the sentencing rationales that
are in prevalence in the developed judicial regimes, such as (i) deterrent,
both individual and general, (2) just desert (retributive or not), (3)
resorative and rehabilitory (through statutory mandate). And, in applying
these sentencing rationale the Courts take account of the principles of
proportionality, commensurability, aggravating and mitigating circumstances
as are done in other developed judiciaries. (Paras:927-930); .....Allama
Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)-
[2 LM (AD) 76] ....View Full Judgment
Sentencing Practices in Crimes Against Humanity Cases Oberseas–
With the onset of the 2nd World War, the idea the responsibility of war
criminals found expression in many international instruments.
In October 1943 the leaders of three powers published the declaration on
responsibility of the Hitlerites for the atrocities committed, where it was
said that the guilty will be tried on the spot by the peoples who had
suffered violence in their hands. The declaration read,
“Let those who have hitherto not imbued their hands with innocent blood
beaware lest they join the ranks of the guilty, for most assuredly the
three allied powers will pursue them to the uttermost ends of the earth and
will deliver them to their accusers in order that Justice may be done (The
Nuremberg Trial Vol. 1 P 17-21).” (This declaration surely indicated
retirbutivism).
These Declaration, signed in Teharan guided the International Military
Tribunal at Nuremberg, (IMT) whose charter enunciated the basic indicia of
crimes against peace.
Although the theme of International Criminal Law and Courts were within the
contemplation of Hugo Grotius, (1625) the recognised patriarch of
international law, with the formulation of the Nuremberg Charter a new
generis of crimes known as War Crimes and Crimes against Humanity came to
the vogue, initially under public international law though.
Nuremberg trial was the first historical precedent for bringing to trial
and punishing the most dangerous of them who committed War Crimes and
Crimes against Humanity.
On 8th August 1945 the agreement between the Governments of the designated
states was signed and the Nuremberg Charter was ratified.
Although crimes and punishment for murder, rape, arson, unlawful
confinement had been in existence even before the Nuremberg charter, crime
against Humanity, comprising murder, rape, arson, unlawful confinement etc
emerged as a new concept which also permeated into the municipal law of
several countries subsequently. (Declaration signed by Three Powers,
(Nuremberg Trial Vol. 1 P 21).
Although co-ordinating the actions of the members of the Tribunal was not
an easy task for not only the socio political but also the legal systems of
the four Powers were unidentical, nevertheless, the jurists of four
countries found in each instance mutually acceptable solutions, by forging
a singular, in many ways, unique, procedural formula, quite effective as
they all shared the common will of punishing the perpetrators harshly.
(surely applying retributism)
So, the IMT widely resorted to the Soviet principle of an active Court,
allowed cross examination which is more characteristic of Anglo-Saxon Law.
Assessment of evidence in accordance with the inner conviction of the
Judges.
Although the sentencing rationale applied by 1TM has not been spelt out in
black and white, the language used in the 1943 Declaration, part of which
has been reproduced above, along with other expressions that found places
in other declarations, reproduced below, make it abundantly clear that
retribution and just desert conjugated with general deterrent rationale
played the dominant part. That they emphasised “retribution” as the
foremost is reflected from the following passages, which found place in
different declarations and statements; “The War criminals will be sent
back to the countries in which their abominable deeds were done in order
that they may be Judged and punished according to the laws of the liberated
countries and of the free governments which will be created
therein”(Declaration on the responsibility of the Hitlarites for the
atrocities committed 1943). The Soviet Union, advocated the principle that
“severe punishment must overtake all who are guilty of these most
atrocious crimes against culture and humanity. (lbid P = 87).
Molotov expressly and publicly promised that the Soviet nation “would
never forgive the atrocities, rape, destruction and mockery which the
bestial bands of German invaders have committed and are committing against
the peaceful population of our country “(lbid P-87, statement p-16).
Molotov’s statement clearly indicates that he meant retributive
punishment. Encouraged by the Soviet example, the London representatives of
the Captive European States, who met at the conference of January 13, 1942
at the palace of Saint-James, issued a declaration to the effect that they
“place among other principal war aims, the punishment through the chanel
of organised justice of those guilty or responsible for these crimes
whether they have ordered them, perpetrated them or in any way participated
in them”. (Text of Resolution on German War Crimes signed by
Representatives of Nine Occupied Countries: Voices of History 1942-1943 by
F Watts, New York 1943 page 33).
This text also indicate that the allied countries meant retributive
punishment through the chanels of organised justice.
Molotov repeated his pledge, stating “Hiltar’s government and its
accomplices will not escape severe responsibility and deserved punishment
for all their unparalleled crimes perpetrated against the peoples of the
USSR and all freedom loving people. “(Vneshniaia Politika). Again, the
flavour of Retributive and “Just Desert” rationale is apparent from
Molotov’s statement.
The British Prime Minister, Winston Churchill on 8th September 1942 made
the following statement in British Lower House;
“I wish most particularly to inform his Majesty’s Government and the
House of Commons with the Solemn words which were used lately by the
President of the United States, namely, that those who are guilty of the
Nazi Crimes will have to stand up before tribunals in every land where
their atrocities have been committed in order that an indelible warning may
be given to future ages, and the successive generations of men may say, “
So perish all those who do the like again”. (The Nuremberg Trial and
International Law. Page-14) The voice of the British Prime Minister, who
had a pivotal role in setting the IMT into motion, is easily discernable to
the thesis that he also meant retributive punishment with element of
general deterrence.
President Roosevelt of the United States also, by his reply dated 21st
August 1942, to the representatives of the Governments in exile, associated
himself with the idea of judicially administered retribution. (Nuremberg
Trial and International Law page- 15)
Molotov advanced an additional suggestion stating;
“The Soviet Government considers it essential to handover without delay
for trial before a special international tribunal and to punish according
to all the severity of criminal law, any of the leaders of Fascist Germany
who in the course of the war have fallen into the hands of states fighting
against Hitlerite Germany”. (lbid page 52-54). The phrase “punish
according to all the severity” can not be misunderstood as regards the
applicable sentencing rationale.
Joseph Stalin, who had a prime role in setting up the IMT, delivered a
speech on 6th November 42, part of which is reproduced below, which divulge
that retributory sentence was contemplated;
“Let these butchers know that they will not escape responsibility for
their crimes or elude the avenging hand of the tormented nations” (War
Speeches p-48). The words “avenging hand” keep no room for qualm on the
theme that retributive punishment was meant.
On 19th April 1943, the Soviet Presidium passed a decree prescribing that
German-Fascist criminals guilty of grave crimes against Soviet citizens
were to be punished with death by hanging and their accomplices with hard
labour.
Between July 14th and 16th 1943, eleven Soviet citizens were tried pursuant
to the aforementioned decree under the Soviet municipal law for atrocities
committed in Soviet Union in collaboration with the German occupation
authorities, and eight of them were sentenced to death notwithstanding
their guilty plea. The punishment awarded was obviously retributive. This
was the first instance of a trial of this kind for crimes connected with
the 2nd World War. (Trial in the case of atrocities by German-Fascist
invaders and their accomplices on the territory of the city of Krasnodar
and the Krasnodar region during their temporary occupation – Moscow 1943)
and also New York Times 30th July 1943 P-5).
Barely a week after the release of the Moscow Declaration, Stalin on 6th
November 1943 stated;
“Together with our Allies, we must adopt measures to ensure that all the
fascist criminals responsible for the present war and the suffering of the
people, should bear stern punishment and retribution for all the crimes
perpetrated by them no matter in what country they may hide” (War Speech
P 82) Here the word “retribution” was actually used.
This statement was adopted by the “Commission on the Punishment of War
Criminals of the London International Assembly. (History of the United
Nations War Crimes Commission and the Development of the Laws of War,
London 1948 page -100-1001).
Immediately after the cessation of the 2nd War, a series of public trials
were conducted in Kiev, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie
Luki and Nikolaev and death sentences were meted liberally. (Pravda,
December 16-21, 1945, New York Times, 30th December 1945 P-6 and January
6th 1946, P-4, New York Times, 31st December 1945, Pravda, 27th December
1945 P-3). (Paras:934-955); .....Allama Delwar Hossain Sayedee =VS=
Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment
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