Analysis of a Court Case: From Investigation to Verdict of a case of International Crimes Tribunal, Bangladesh

1. ANALYSIS OF A COURT CASE:
FROM INVESTIGATION TO
VERDICT
Barrister Tapas K. Baul
Prosecutor
International Crimes Tribunal, Bangladesh (ICT-BD)

2. LESSON PLAN
● The Organogram of the Tribunal
● Explaining the processes
o Making / Receiving / Filing Complaint to the Investigation Agency
o Investigation Process
o Handing over to the Prosecution
o Prosecution’s submission of Formal Charge to the Tribunal
o Charge Framing & Discharge Petition
o Trial
o Argument
o Interlocutory applications
● Importance of different stages
● Complicity, Conspiracy and Instigation
● Modes of Responsibility
● Challenges

3. Organogram of the
Tribunal
ICT-BD
Registrar’
s office: prosecutio
n and
investigati
on office defence
Hon’ble
Judges

4. Duties
1. Office of the Tribunal or Registrar’s office: [Rule 59 to 63 of ROP]
Maintains Judges Office and Day to Day activities of the Tribunal. It is consist of a Registrar
(equivalent to a District Judge), a Deputy Registrar (equivalent to an Additional District Judge),
three Researchers (equivalent to Senior Assistant Judges).
2. Chief Prosecutor’s Office: [Section 7 of the ICTA & Chapter III of ROP]
Section 7 of ICTA defines that there will be one Chief Prosecutor and under him there will be several
Prosecutors as many is deem required by the Government and all of them are appointed Law
Officers of the Government appointed through Gazette Notifications.
3. Investigation Agency: [Section 8 of the ICTA & Chapter II of ROP]
Responsible for investigation, keeping records of the investigation, communicating with Prosecution
Witnesses, collecting documentary evidences, submitting Investigation Report to the Prosecution,
maintaining liaison with other law enforcing agencies and witness protection
4. Judges [Section 7, 11, 11A, and 20 of the ICTA & Chapter V of ROP]

5. Complaint
● Definition: [Rule 2(6) of ROP]
o “... means any information oral or in writing obtained by the
Investigation Agency including its own knowledge relating to the
commission of a crime under section 3(2) of the Act;”
● This means:
o A complaint can be made
 orally
 in writing, or
 from its own knowledge
● After receiving the complaint:
o Start investigation [Rule 6] or stop it if there is no sufficient ground
[Rule 7]

6. Investigation Process
● Chapter II of ROP
● Proceed in person to the spot
● Investigate the facts & circumstances of the case
● If necessary, take steps for the discovery and arrest of the accused
● Interrogating the accused if he is in custody
● Maintaining case diary (CD)
● Presenting the progress report to the Tribunal if required/ Progress Report
every three months if the accused is in custody
● Obtaining a warrant of arrest through a Prosecutor if required for effective
and proper investigation
● Submitting investigation report within one year if the accused is in custody
● Investigation Report + documents + papers + any other evidences

7. Post Investigation Report
Stage
● After receiving IR, the Chief Prosecutor or any other Prosecutor authorized
by him shall prepare a formal charge in the form of a petition on the basis
of IR + evidences + other documents. [section 9(1) & Rule 18(1)]
● Preparation of Formal Charge:
o One Prosecutor is authorized by CP
o P scrutinizes the IR+evidences+other documents, e.g., CD
o P tests whether the elements of crimes u/s. 3(2) are present or not
o P visits Places of Occurrences, talks with PWs and other people to
validate IR
o Finally, he submits FC to the Tribunal along with IR+evidences+other
documents. A set of those are submitted to the defence without
disclosing the photo of PWs and some other details for their safety
and security.

8. Formal Charge & Charge
A formal charge and charges framed by the Tribunal must contain - [section
16 & Rule 20(1)]
● Name and address of the accused person,
● Name and address of the witnesses
● The date, time and place of occurrence
● Such particulars of the alleged crime as are reasonably sufficient to give
the accused person notice of the matter with which he is charged
● ATM Azhar Formal Charge
● GA Charge from Judgment
● SQC Charge from Judgment

9. Framing Charge Stage
● The Proceedings before a Tribunal shall commence upon the submission
of FC [section 9]
● The Tribunal shall after scrutinizing the IR, FC, and evidences will declare
the charges in the open court and the accused, if present in the dock, will
be arraigned, i.e., he will be asked whether he plead guilty or not.
● After charge framing a date is fixed for the initiation of trial.
● Generally, at this stage the defence submits a discharge petition.
● And if the Tribunal dismisses the discharge petition, then the defence will
submit a review petition to review the order.
● Finally, after all this the trial starts on the date fixed by the Tribunal.

10. Trial [section 10]
● Prosecution shall submit list of witnesses three weeks before the
commencement of the trial [section 9 (3)]
● Defence will also submit a list of witnesses, evidences and documents
supporting their case [section 9(5)]
● The prosecution shall make an opening statement
● Examination-in-chief and cross-examination
● Prosecution may call additional PWs and submit any other documents to
the tribunal at any stage of the trial with the permission of the Tribunal
[section 9(4)]
● Generally prosecution sums up their case first, then the defence sums up
their case and then prosecution submits their reply on legal points

11. Modes of Liability
❏ Three types of liability, i.e., individual, Superior, and Joint Criminal
Enterprise
❏ Joint Criminal Enterprise: Section 4(1) and 4(2)
❏ Three types of JCE, i.e., JCE I (direct), II (presence in the hierarchy,
e.g. concentration camp, and III (indirect or constructive)
❏ Elements
❏ Superior Responsibility: Section 4(2)
❏ Two types of SR, i.e., military and civilian
❏ control: de facto or de jure?
❏ Discussion of cases: SQC and GA

12. Rules of Evidence
● Section 19
● Chapter VI of ROP
● Burden of proof is on Prosecution
● Beyond reasonable doubt
● Alibi: Responsibility is on defence
● Non technical rules of evidence
● Hearsay evidence
● receiving evidence of dead person’s statement recorded by IO or 1st class
Mags
● Common knowledge [para 46, 108 (RP 65) of SQC] & Judicial Notice [Para
74 of GA]

13. Judicial Notice
Principles of Judicial Notice is in line with the norms of International Criminal
Law. Provisions are similar to the provisions laid down in ICTR, ICTY,
SCSL, ICC statute etc. Two kinds of facts can be taken into Judicial Notice:
● Common Knowledge: Karemera et al Appeal Judgment
o “Notorious facts of history”
o Genocide and Crimes against Humanity committed in 1971
● Adjudicated knowledge or facts: Karemera et al Motion Decision dated 09
November 2005
o Facts decided in the court through judgment
o Only the facts and knowledge those are recognized in Quader Molla
Appeal Judgment

14. Common Knowledge
❏ Appellate Division in Quader Mollah, per A.H.M. Shamsuddin Choudhury,
J at page 752
❏ “We would nevertheless add that given the fact that the whole world
knows what went on in Bangladesh in 1971 and given that it has been
proved by evidence that the Appellant committed the offence with a
view to obliterate the war of Liberation and the cherished aspiration of
the Bengali people to attain Liberation, in conjunction with Paki army
which was bent to crush that aspiration in a planned, pre-meditated
and systematic manner through countrywide operation, it is axiomatic,
that the offences formed part of systematic and widespread operation
and hence the same stand proved any way on Judicial notice of fact of
common knowledge.

15. Other Principles
➢ Hearsay Evidence: Two kinds
○ From a known source
○ Unanimous hearsay evidence
➢ Single uncorroborated witness
➢ Old evidence
➢ Collective memory

16. Verdict
● Section 20
● Appeal under Section 21

17. Rights of the Accused
Persons
● Article 47(3) and 47A of the Constitution
● Right to be represented by a legal counsel of A’s choice
● Appointing legal counsel if there is none
● Submitting a copy of all relevant evidence and documents before charge
hearing
● Defence witnesses for alibi
● Cross-examination
● Health check up
● VIP facilities in the Jail
● Comfortable secured vehicle for transportation
● Adjournments + Review Petitions under Rule 46A
● Being tried by HCD Judges
● Right to Appeal

18. Conclusion
WISHING YOU ALL THE SUCCESS IN THE COURSE
READY TO ANSWER IF YOU HAVE ANY QUESTIONS

19. Sources
Books:
1. International Criminal Procedure: Principles and Rules, edited by Göran Sluiter, Håkan
Friman, Suzannah Linton, Sergey Vasiliev, Salvatore Zappalà, Oxford University Press, R.P.
1110, available in: Google books
2. The Oxford Handbook of International Adjudication, Cesare Romano, Karen Alter, Yuval
Shany
Oxford University Press, 2013 - Law - 976 pages, RP. 863. available in: Google books
3. Annotated Leading Cases of International Crimes Tribunal: The International Criminal Tribunal
for Rwanda 2000-2001, Volume 6, André Klip, Göran Sluiter, Intersentia nv, 2003 - Law - 693
pages, RP. 118, available in: Google books.
4. Old Evidence and Core International Crimes, Morten Bergesmo, and Cheah Wui Ling (ed), Torkel
Opsahl Academic EPublisher, Beijing, 2012