Responses to Information Requests

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Issuance of Order Sheets and Arrest Warrants in Absentia

In correspondence with the Research Directorate, a lawyer from Dhaka-based law-firm The Law Counsel who practices banking and corporate law stated that the Chief Metropolitan Magistrate's (CMM) Court in Dhaka

is empowered in certain cases and does issue warrants of arrest on the first date against an accused in absentia. Whether or not a warrant shall be issued on the first date a matter comes to court depends on the nature of the offence. In less serious offences, the [CMM] would issue a summons first and then if the accused did not appear pursuant to the summons, [he or she] would [be] issue[d] a warrant of arrest to compel appearance on the following date. (Lawyer, The Law Counsel 1 Sept. 2016)

In further correspondence, the lawyer indicated that arrest warrants are issued with "Bangladesh Form 3905 (High Court Criminal Process Form No. 12)" (ibid. 19 Sept. 2016). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. The same source noted that the form for an arrest warrant is in Bengali and can be found on the website of the Law and Justice Division of the government of Bangladesh (ibid.). A sample of the form, including its translation into English, is attached to this Response.

2. Obtaining Copies of CMM Documents
2.1 Copies of Witness Statements and "Order Sheet"

Sources indicated that an accused person is allowed to obtain certified copies of an "'Order Sheet'" [1] and witness statements from the CMM court in Dhaka in a petition case by making an application for the documents (Lawyer, FM Associates 18 Aug. 2016; Lawyer, The Law Counsel 15 Aug. 2016). Sources indicate that in order to obtain these copies, the accused person has to have surrendered him or herself to authorities and not be a fugitive (ibid.; France June 2015, 23). However, the report of a fact-finding mission organized by the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides, OFPRA) cites a Bangladeshi lawyer as stating that if there is more than one accused person in a given case, they could possibly obtain a [translation] "simple copy of a 'certified copy'" of court documents through the lawyer of a co-accused (ibid.). The report further states that according to another lawyer, trials in absentia are [translation] "relatively rare," and that for such a trial to happen, several conditions to declare the accused a fugitive, which are set in the criminal procedure code, must be met first (ibid.). These conditions include a proclamation that has to be posted in different places, including at the last known home address of the accused, followed by an Order of Seizure of Property (ibid.). Finally, a notice to appear has to be published in the Bengali language in at least two daily newspapers (ibid.). Additional and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

In correspondence with the Research Directorate, a lawyer and managing partner at the Dhaka's office of FM Associates and who is also a barrister and advocate before the Supreme Court of Bangladesh indicated that fees also have to be paid to the court, after which the court takes two to three weeks to issue the certified copy of the documents (Lawyer, FM Associates 18 Aug. 2016). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to sources, applications for certified copies of CMM court "'Order Sheets'" and witness statements in petition cases do not need to be made in person, and can be obtained through a lawyer or a representative (ibid.; Lawyer, The Law Counsel 15 Aug. 2015) such as a family member or a friend (Lawyer, FM Associates 18 Aug. 2016). However, the lawyer at The Law Counsel indicated that, "in practice such applications will only be accepted from the accused or his lawyer" (15 Aug. 2016).

2.2 Copies of Arrest Warrants

Sources stated that, when an arrest warrant is issued, a copy is sent to the relevant police station and not to the person who is being accused (Lawyer, The Law Counsel 15 Aug. 2016; Lawyer, FM Associates 18 Aug. 2016). The Lawyer at FM Associates specified that arrest warrants are sent to the court's "dispatch section" prior to being forwarded to the police (ibid.). Sources indicated that neither the accused or his or her lawyer or representative can obtain a copy of an arrest warrant (ibid.; Lawyer, The Law Counsel 15 Aug. 2016). The Lawyer at The Law Counsel noted, however, that "the accused (if he is not a fugitive), or his or her legal representative, may obtain a copy of the order authorising the issuance of a warrant of arrest" (ibid.). Further and corroborating information, or information on how to obtain the order authorising the issuance of an arrest warrant, could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Appearance and Security Features
3.1 Court Documents

According to the lawyer at FM Associates, CMM court documents in a petition case exhibit the court seal, the case number, and the signature of the authority (18 Aug. 2016). The lawyer at The Law Counsel further stated that certified copies of court records are "issued on government printed paper (popularly known as folio)," and these contain "several" dates at the top of the sheet, including the date of application for the certified copy, the date on which the copy was ready for delivery, and the date of delivery of the certified copy, and the fee amount paid for the copy (15 Aug. 2016). He added that certified copies also have the signatures of the court officials who have verified the certified copy, and the seal of the court from which the copy was issued (ibid.).

3.2 Arrest Warrants

The lawyer at The Law Counsel stated that arrest warrants do not have security features (15 Aug. 2016). According to the lawyer at FM Associates, arrest warrants exhibit the seal of the court, memo number, date of issuance, and the signatures of the "Present Officers" (POs) of the court (18 Aug. 2016). Further information, or information on how to obtain the order authorising the issuance of an arrest warrant, could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

4. Verification of Court Documents
4.1 Court Documents

Without providing further information, the lawyer at FM Associates indicated that, in order to verify whether court documents are genuine, "the appropriate court seal, the case number and signature of the relevant judge of the court, the date of the issue of the documents along with the signature of the court authority shall be present" (18 Aug 2016). The Lawyer at The Law Counsel stated that there is a "separate office" at the court that maintains a register of the issuance of certified copies, including date of application for the copies, "case particulars (i.e. case numbers and name of the parties in the case)," and the date of delivery of the certified copies (15 Aug. 2016). The same source added that, in order to determine whether or not a document is genuine, it can be verified, "to a certain extent," by checking whether an entry has been made in such register (ibid.).

4.2 Arrest Warrants

According to the lawyer at The Law Counsel, arrest warrants are issued through a formal court order, and therefore "the fact of issuing a warrant of arrest will be found in the order sheet of the court which issued the warrant of arrest" (Lawyer, The Law Counsel 15 Aug. 2016). He further provided the opinion that, "[i]f there is any doubt as to the genuineness of the [warrant of arrest], it has to be compared with the order of the court authorising its issuance" (ibid.). The same source also noted that in his opinion, "there have been very good forgeries in recent times" and that "the only reliable method of checking the genuineness of a certified copy is to compare [it] with the original kept in the court's record" (ibid.). In further correspondence, the same lawyer explained that the verification of court documents for a pending case must be completed in person by a lawyer of one of the parties to the case (ibid. 19 Sept. 2016). Verification requests cannot be made by third parties (ibid.). According to the same source, "once a proceeding has come to an end, an application may be made by any person to check/verify [court] documents" (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

5. Prevalence of Fabricated Petition Cases

The lawyer at the Law Counsel provided the opinion that it is "highly unlikely" that the CMM Court itself fabricates petition cases, but that it is "usually" the complainant who will fabricate and file a petition case, "to harass the accused," after which the CMM Court, depending on the nature of the offence, issues a summons or arrest warrant (Lawyer, The Law Counsel 1 Sept. 2015). In further correspondence, he explained that "in certain cases," fabrication of allegations in Bangladeshi courts is "not uncommon" (ibid. 19 Sept. 2016). The same source provided the following examples of "fabricated allegations [that] are very common":

1. where the complainant and the accused are members of opposing political parties, with the fabricated complaint being filed to show loyalty to political superiors in the hope of advancement or
2. where a divorced/separated wife alleges domestic violence or alleges demand of dowry after the divorce proceedings have been initiated by the (former) husband (this is usually done to prevent the divorce as it still carries a lot of social stigma in the rural areas). (ibid. 19 Sept. 2016)

Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Information on instances of fabricated cases at the Chief Metropolitan Magistrate's Court Dhaka between 2014 and October 2016 could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Note

[1] According to the report of a fact-finding mission organized by the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides, OFPRA), in the case of a procedure in absentia of the accused, the details on actions taken by the court to find the accused are registered in the Order Sheet, which is a part of the administrative court file (France June 2015, 23).

References

France. June 2015. Office français de protection des réfugiés et apatrides (OFPRA). Rapport de mission en République populaire du Bangladesh. [Accessed 15 Sept. 2016]

Lawyer, The Law Counsel, Dhaka. 19 September 2016. Correspondence with the Research Directorate.

Lawyer, The Law Counsel, Dhaka. 1 September 2016. Correspondence with the Research Directorate.

Lawyer, The Law Counsel, Dhaka. 15 August 2016. Correspondence with the Research Directorate.

Lawyer, FM Associates, Dhaka. 18 August 2016. Correspondence with the Research Directorate.

Additional Sources Consulted

Oral sources: Ain o Salish Kendra; Asian Human Rights Commission; Bangladesh – Bangladesh Police, Law and Justice Division; Bangladesh Legal Aid and Services Trust; British School of Law; Dhaka – Metropolitan Police; lawyer based in Bangladesh specializing in corporate law; lawyer based in Bangladesh specializing in criminal law; lawyer based in Toronto trained in Bangladesh specializing in immigration.

Internet sites, including: Amnesty International; Bangladesh – Bangladesh Police, Ministry of Law, Justice and Parliamentary Affairs; BBC; CNN; The Daily New Nation; The Daily Observer; The Daily People's Time; The Daily Star; Dhaka – Metropolitan Police; ecoi.net; Factiva; Fédération internationale des ligues des droits de l'homme; Freedom House; Human Rights Watch; The Independent; IRIN; The News Today; Norway – Landinfo; Observatoire pour la protection des défenseurs des droits de l’Homme; Odhikar; Radio France internationale; Transparency International; UN – Development Programme, Refworld; US – Department of State.

Attachment

Bangladesh. N.d. Law and Justice Division. Bangladesh Form No. 3905, High Court Criminal Process Form No. 12: Arrest Warrant, Section of Criminal Proceedings. Translated by the Translation Bureau, Public Works and Government Services Canada. [Accessed 19 Sept. 2016]