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and continues to harm victims and witnesses of a crime, arbitrary power prevails and as such, rule of law is absent. By rule of law, Professor Wade prefers the connotation of law and order within community rather than anarchy or disorder. Thus if a rape victim in a community is continuously threatened by perpetrators not to file a case in a police station and she does not find protection with police, can it be said that rule of law exists in that particular community? In interpreting the concept of rule of law, Professor Wade adds that judicial decisions in disputed cases are important for rule of law and declared rules of law should provide in matters both of substance and of procedure. Thus even if the law of the land does not have provision for protection of victims and witnesses, it is the judiciary which can, by taking into consideration of particular circumstances and by its judicial interpretations/decisions ensure such protection to ensure de facto rule of law. Human security perspective of victims and witness protection Unlike traditional concepts of security, which focus on defending borders from external military threats, human security is concerned with the security of individuals. For some proponents of human security, the key threat is violence; for others the threat agenda is much broader. In a legal and prosecutional perspective, victims and witnesses need to be protected for their survival and participation in the prosecution Why survival? Survival is a right According to Article 3 of the Universal Declaration of Human Rights (UDHR), everyone has the right to life, liberty and security of person. This provision speaks of survival rights of victims and witnesses. If victims and witnesses do not survive and die due to post-offence vengeance of the offender/perpetrator, it amounts to violation of their rights for a second time. Why participation? Participation is a right If security of victims and witnesses is at stake, they cannot take part in prosecution of the offender. They are supposed to produce evidence and give testimonies against the offender. Proper trial of any offence requires participation of victims and witnesses in prosecution. Their evidence is the best evidence and may be the only evidence against the offender, so their protection is essential. This has been asserted in the Universal Declaration of Human Rights (UDHR), which states in its Article 10 that "everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of the rights and obligations…" Human rights perspective of victims and witness protection Right to protection of law is a fundamental right of victims and witnesses. Article 31 of the Constitution of Bangladesh ensures this right by stating that enjoyment of the protection of law, and to be treated in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Victims and witnesses, like common human beings, have universal inherent right to protection. As stated in Article 12 of the Universal Declaration of Human Rights (UDHR), "no one shall be Report 2005 151
subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation". Everyone has the right to the protection of the law against such interference or attacks. When should protection be given? Generally, victims and witnesses need to be provided with continuous protection in three stages of prosecution: Investigation/pre-trial stage Immediately after an offence is caused, victims and witnesses need protection. They may be passing a traumatic stage, which is a vulnerable time for them. An offender may have a continued grudge against victims or may develop a new grudge against witnesses. This phase starts with the making of a first information report and ends with the filing of a charge sheet. The act of filing a charge-sheet may anger the perpetrator of the crime, who has been intimidating the victim and witnesses in order to make them stop proceeding with the matter. This stage is crucial because police try to unearth facts and evidence during pre-trial/investigation stage. Physical security and psychological counseling for the victim and also for witnesses are essential during this time. Preventive measures need to be taken to check recurrence of offence. Trial stage During this stage, facts and supporting evidence are produced in court and victims and witnesses participate in the prosecution. To thwart the trial process, the offender may try to bar the participation of victims and witnesses. Security of victims and witnesses is important to protect them from other obstructions of trial. In case of non-bailable offences, the under trial offender/accused is put in jail, which is a protective measure for victims and witnesses. But accomplices of behind-the-bar offenders/accused might cause further harm to victims and witnesses during the trial period. Post-trial stage This stage is comparatively less dangerous for victims and witnesses than the other two stages. However, this period is not totally risk free. A convict may, out of vengeance, attempt to cause further harm to victims and witnesses either directly or through accomplices. So protective measures for victims and witnesses need to continue up to a certain period of time after the trial ends. Repatriation and rehabilitation are also part of post-trial protection of victims and witnesses. How to ensure protection for victims and witnesses A political State has three organs in executive, legislature and judiciary. Responsibility for ensuring protection to victims and witnesses lie with all these organs. Role of the Legislature Bangladesh does not have any specific distinct legislation to provide protection to victims and witnesses. A few criminal laws have inadequate provisions to provide protection to witnesses, but not to victims. In the background of the increasing number and diversified kinds of crimes, victim and witness protection legislation needs to be enacted urgently. Many of the rural people, 152 Report 2005
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Odhikar Report 2005 Published by Od
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2005 sees the third, and final year
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Synopsis of Activities Covering the
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laws of Bangladesh, particularly th
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they find the monitor writing notes
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Problems faced during thana monitor
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After the 2004 High Court directive
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(4) Sumon Tortured to Death by Rapi
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through a Government Order issued o
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22 Persons Reportedly Killed by Law
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iii. Conflicts with political right
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Chapter-3 Odhikar's work involving
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Environment of the custody cell Fin
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Police’s behavior towards accused
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4. Motijheel Thana During the monit
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In all, the findings from the monit
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Children were seen kept with the ad
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1. If any domestic animal is slaugh
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Chapter 4 Fact Findings in 2005 One
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General findings It becomes difficu
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Recognising the need for laws to pr
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* Second Working Session (2:00-4:00
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focus on legal agencies and human r
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due to insecurity providing protect
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We are in such a situation that you
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the whole judicial system. Ensuring
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threatening looks or gestures at a
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concrete suggestions to how to disc
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force against basic freedoms and hu
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Leave us alone. We will get on with
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cultivating and having their liveli
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own judicial system. It is a proble
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name of eviction, etc., but also be
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Farhad Mazhar: Some of the suggesti
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come to terms with the emotional im
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ecourses, a strong commitment of th
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initiative, SAARC cooperation, SAAR
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� Police and even powerful local
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* To facilitate bilateral agreement
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grievous offences like rape, murder
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see how the press, the police and p
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2. Victims must be given some compe
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Susan Ward, AED: I have just two fe
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Chapter 6 Other Major Achievements
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Annexture: 1 Fact-finding reports 2
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A Medical Officer of Mymansingh Med
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However, six of them were held by t
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that he was shifted to bed no. 16 o
Page 98 and 99: Alleged fabricated news about the r
Page 100 and 101: at Courtbari in Gabtoli. A sergeant
Page 102 and 103: down the factory, said a senior off
Page 104 and 105: Bangladesh. This is not humanly pos
Page 106 and 107: Medical Offficer of the Roumari Hea
Page 108 and 109: throwing stones at them. Four polic
Page 110 and 111: ecommendations would be made to the
Page 112 and 113: Mr. Mallik Sayeed Mahbub, the Upzil
Page 114 and 115: Death of a young person in prison i
Page 116 and 117: Abul Qulam Azad alias Suman was the
Page 118 and 119: case. The other case was filed unde
Page 120 and 121: was not tortured during remand, he
Page 122 and 123: Masum killed at Crossfire by Detect
Page 124 and 125: Metropolitan Detective Police Nurul
Page 126 and 127: into the room. They were those he w
Page 128 and 129: perpetrators, you need evidence for
Page 130 and 131: things I am doing in my business, i
Page 132 and 133: commitment of engaging her in house
Page 134 and 135: Torture of a Political Activist by
Page 136 and 137: number of those cases or the laws u
Page 138 and 139: victim was made one of the accused.
Page 140 and 141: morning to protest the robbery of a
Page 142 and 143: judgment, Fazley Rabbi Chowdhury, s
Page 144 and 145: police and police station simply to
Page 146 and 147: Annexture: 2 Country Papers that we
Page 150 and 151: either victims or witnesses tend no
Page 152 and 153: The Nature and Extent of Witness In
Page 154 and 155: Gang-Inspired Fear: A Particularly
Page 156 and 157: Other Forms of Intimidation Less co
Page 158 and 159: V ictim and witness protection - Sr
Page 160 and 161: Procedure, made a request to the Sr
Page 162 and 163: of court". Assistance available to
Page 164 and 165: 6. Acknowledgements and References:
Page 166 and 167: charges saying 16-year-old Mathura
Page 168 and 169: National Police Journal one of the
Page 170 and 171: At the international level, rights
Page 172 and 173: law are maxims that Indian state an
Page 174 and 175: combined with the fact that no inde
Page 176 and 177: other local boys, including Firoz a
Page 178 and 179: sorely missing as an utterly callou
Page 180 and 181: nor India are signatories to the Ro
Page 182 and 183: (f) Rape, sexual slavery, enforced
Page 184 and 185: Superior orders and prescription of
Page 186 and 187: witness are determined by the conse
Page 188 and 189: is valid because the society is mor
Page 190 and 191: necessary. Such action plan calls f
Page 192 and 193: Protection to witnesses The State p
Page 194 and 195: Monitoring of the protocol The Stat
Page 196 and 197: attention. Victims have the right t
Page 198 and 199:
Nepal's Human Rights Obligations un
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