UN Working Group on Arbitrary Detention Condemn Bangladesh ICT
Below is a statement by Toby Cadman concerning the UN Working Group on Arbitrary Detention's recent findings on the arbitrary and unlawful detention of Messrs. Azharul Islam, Ghulam Azam, and Mir Quasem Ali. All three of which are currently facing charges of crimes against humanity and genocide before the International Crimes Tribunal in Bangladesh.
On 23 November 2012 the United Nations Working Group on Arbitrary Detention (hereinafter: Working Group) adopted Opinion No. 66/2012 (“Bangladesh”) at its 65th Session.
The Opinion will be reproduced in the Working Group’s annual report to the Human Rights Council (hereinafter: HRC) who will expect to hear the response from the Government of Bangladesh (hereinafter: Government) on 5 March 2013.
As is set out in the opinion, Bangladesh is a state party to the International Covenant on Civil and Political Rights (hereinafter: ICCPR) and, as such, it is expected to promote and uphold the rights contained therein. The Working Group received the communication alleging the arbitrary and unlawful detention of Messrs. Azharul Islam, Ghulam Azam, and Mir Quasem Ali (hereinafter: Accused). The three members of the Bangladesh Jamaat-e- Islami political party were reportedly arbitrarily detained without charge during the pre-trial proceedings of the Bangladesh International Crimes Tribunal (hereinafter: Tribunal), despite their voluntary submission to stringent conditions negating the risk of absconding, interfering with witnesses or reoffending. In relation to all the accused, the Tribunal repeatedly refused bail on the basis that their ill-health was not sufficiently serious to justify being remanded on bail and also on the grounds that bail was a privilege that they were not entitled to in such cases.
The Working Group addressed a communication to the Government on 14 September 2012 concerning these three cases. The Government failed to reply. In reaching its conclusion on the matter before it, the Working Group looked at the presumption in favour of bail and the
burden of proof. In particular the Working Group reinforced the principle that bail is right and not a privilege.
The Working Group stated that pursuant to article 9(3) ICCPR, it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings. Further, it recalled that the Human Rights Committee, the body charged with interpreting the ICCPR, emphasised that pre-trial detention should be an exception rather then the rule. The Working Group accepted that it had previously held that “a judge may legitimately allow the exception (detention) to prevail over the rule (release) in the case of international crimes or, in national legal systems, of extremely grave crimes” (see Deliberation No. 6), however it qualified this finding by aligning itself with the position of the European Court of Human Rights that the seriousness of the offence “can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually prejudice public order. In addition, detention will continue to be legitimate only if public order remains actually threatened” (Tomasi v France).
With regards to the second point, the Working Group stated that the burden of proving that an accused person would fail to surrender, re-offend, or interfere with witnesses falls
squarely on the prosecution. Despite this clear rule, it found that in proceedings before the Tribunal, despite not having any proper reasons to do so, the judges had shifted the burden to the accused who have to show “exceptional circumstances to qualify for provisional release”. The Working Group found that the Tribunal had a “flawed approach” and “effectively reversed the burden of proof from the prosecution to the accused and made the pre-trial
release on bail the exception rather than the rule”. It concluded, “Messrs Islam, Azam and Ali have been deprived of liberty in violation of the principle that release must be the rule and provisional detention the exception as provided for in article 9 of the UDHR and article
9 of the ICCPR”. It held that the case falls in Category III of the categories applied by the Working Group and called the Government to conform with the standards and principles set out in the UDHR and ICCPR and to reconsider the applications for bail by the three accused.
In closing, the Working Group indicated that the allegations of torture or cruel, inhuman treatment to the Special Rapporteur on torture. It is reported that such a communication was made on 3 December 2012. In it the applicant submitted that Professor Azam’s medical
condition, the inadequacy of his medical assistance and care provided whilst in detention; and the advisability of maintaining the detention measure in view of the state of health of the applicant (Mouisel v France) meant that his continued detention amounted to torture. Further,
it submitted that a lack of immediate treatment might also be tantamount to torture (Hurtado v Switzerland). It was recalled that the European Committee for the Prevention of Torture (CPT) had stated that “an inadequate level of health care can lead rapidly to situations falling within the scope of the term ‘inhuman and degrading treatment’.” Accordingly, it argued that the following conduct by the prison authorities towards Professor Azam, namely, the lack of immediate action by the prison guards; the ill-treatment of the Accused-Petitioner by prison guards; the order for his immediate return to his prison cell following a stroke; the
denial of neurological treatment, prescribed diet and recuperation time with appropriate medical supervision; the subsequent scheduling by the Tribunal of the continuation of proceedings only two days later; the denial of his prescribed dietary requirements; the failure to
insure assistance when bathing, cleansing or going to the toilet; the failure to insure the availability of warm water for ablutions; and the slow provision of general medical assistance; amounted to torture under Article 3 ECHR.