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A slow judiciary

  • Published at 12:20 pm December 10th, 2017
  • Last updated at 01:36 am December 11th, 2017
A slow judiciary
A speedy trial facilitates in acquiring justice for both parties in a proceeding. An effective criminal justice system inevitably needs to ensure that the accused stands trial for the crimes they are alleged to have committed. Depending on the gravity of the offense, the police are empowered to keep a person in their custody for 24 hours, after which any further detention must be authorised by the judiciary. Save a few exceptions, all are entitled to be released on bail. The society has a particular interest in bringing swift prosecutions, and the society’s representatives are the ones who should protect that interest. This right, even though has been read into Article 35 of Bangladesh’s Constitution, has not been effectually enjoyed by the citizens due to faulty implementation on the part of the government. This non-realisation has especially affected under-trials in Bangladesh, who are languishing and rotting in prison. Some of them not even guilty of an offense, awaiting their turn for their first hearing in a trial. An example of this type of case is Shipon, a 43-year-old man from Old Dhaka, who languished in jail for more than 16 years in a murder case with little progress in his trial. He was arrested in the year 2000, and finally released after the High Court Division of the Supreme Court granted him bail on November 8, 2016. While Shipon came out on bail, many other under-trials have been kept in different jails for five to 18 years. The number of total prison population (including pre-trial detainees/ remand prisoners) is 79,280 in November 2017; and among them 77.7% are pre-trial detainees/ remand prisoners. Now, the question is: Even though the right to a speedy trial is guaranteed under the Constitution of Bangladesh, why are so many people still languishing in jail? In order to ensure that the right to speedy trial is protected for our citizens, we can look into other countries’ adopted programs and policies that were successfully implemented. What we can learn Strasbourg is the capital and the largest city of the Grand Est region of France and is the official seat of the European parliament. The issue of excessive length of domestic proceedings is the most frequent guest in Strasbourg proceedings. A committee of experts on effective remedies for excessive length of proceedings has indicated that this problem can be dealt with by adopting several pilot judgments. The committee said that this way, the problem of the excessive length of domestic proceedings would be solved the fastest and would not require the introduction of changes into European Convention, while significantly reducing the Strasbourg court’s caseload. In the northwest of Italy, in December 2001, the chief judge of the First Instance Court of Turin promoted the so called “Strasbourg Program” to decrease the length of civil proceedings, particularly zeroing the three year old pending cases. The program has been proved to be extremely effective, which is the consequence of a systematic and tenacious local initiative. The program conductors have expressed that strong commitment from the judge and the chief judge can help court-delay reduction.
Even though the right to a speedy trial is guaranteed under the Constitution of Bangladesh, why are so many people still languishing in jail?
The same was stated in Lord Woolf’s report. Poland, taking into consideration the best elements of the Italian law and with a view to implementing the recommendations that the court had made in the case of Kudła v Poland, enacted a law which applies to situations of undue delay in court proceedings, as well as any other proceedings regarding enforcement of a court decision conducted by a court enforcement officer. The purpose of enacting the 2004 act was to enable the Polish authorities to remedy and redress at domestic level violations of the right to a hearing within a reasonable time, and consequently, to reduce the number of applications lodged with the Strasbourg Court. According to the act, a party is entitled to file a complaint, seeking ascertainment of the fact that the proceedings which are the object of the complaint involve an infringement of the party’s right to have a case examined without undue delay, when the proceedings are pending longer than needed to clarify the factual and legal circumstances essential for resolving the case or to successfully conclude executory or other proceedings regarding enforcement of a court decision. In the Netherlands, as a result of criticism and an increase in backlogs at the courts in the period between 1998-2002, a substantial reform program of the Dutch judiciary was launched, which was based on two lines of reform activities. Firstly, there were the reform plans initiated by the Ministry of Justice and secondly, there were the innovation projects developed by the judiciary itself. The other possible measures were: Promoting a single sitting judge at the district courts; use of an objective workload model (LAMICIE Model) and a specific system for the allocation of financial resources to the courts; methods for measuring the length of proceedings; and nominations of judges. The right to trial within a reasonable time is guaranteed in Slovenia and its importance is well recognised. An act on the protection of this right was enacted in 2006 as a part of the Lukenda Project with a view to eliminating backlogs in the Slovenian courts by the end of 2010, by providing for structural and managerial reform of the judiciary. In general, the 2006 act provides for a combination of two types of legal remedies: One which is specified for speeding up a court proceeding (supervisory appeal and the motion to set a deadline) and the other which is specified for awarding damages. The US in Barker V Wingo (1972) identified four factors to establish the breach of the right to speedy trial, and they are: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. In the UK, human rights are protected by the Human Rights Act 1998. The act gives effect to the human rights set out in the European Convention on Human Rights. Therefore, in our case, while we deal with the issue of protecting a citizen’s right to a speedy trial, we must not forget that a defendant’s constitutional right cannot be established by any inflexible rule -- but can be determined only on an ad hoc balancing basis, in which the conduct of the prosecution and that of the defendant are weighed. We should also conduct extensive research on different countries’ practices adopted for the protection of citizen’s right to speedy trial, and then undertake and implement the required measures in Bangladesh for ensuring that no prisoner is denied the right to speedy trial. Tasmiah Nuhiya Ahmed is Advocate, Supreme Court of Bangladesh, and Research Assistant (Law), Bangladesh Institute of Law and International Affairs (BILIA).
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