Indian detained in Bangladesh, after completion of Sentence

11 July 2012
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INDIA/BANGLADESH: Indian detained in Bangladesh, after completion of his sentence

ISSUES: Illegal and arbitrary detention; freedom of movement and liberty; fair trail; due process of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information concerning the indefinite detention of a person after the completion of his sentence in Bangladesh. The victim in the case, Mr. Sahab alias Sahabuddin Seikh is a resident of New Sikarpur village under the jurisdiction of Murutia Police Station in Nadia district, West Bengal state. Sahab's wife, Ms. Rashida Bibi alleges that her husband had illegally crossed the international border to meet his aunt who is seriously ill. /

It is reported that authorities in Bangladesh arrested Sahab and charged him with a case for illegally entering Bangladesh. The conviction and sentence is reportedly over, but Sahab is indefinitely detained in Bangladesh, since neither the Indian nor Bangladeshi authorities have done anything to secure Sahab's repatriation to India. The family is extremely poor and has no means to approach the highest offices in New Delhi or at Dhaka to secure Sahab's release, hence the appeal. According to international human rights law, indefinite detention as it is reported in this case is arbitrary detention calling for a legal and practical remedy, which at the moment is not available to Sahab's family.

CASE NARRATIVE:

Sahab is an Indian citizen having identity documents like a ration card issued by the government of West Bengal and an election identity card, vide card number MMP1015080, issued by the Election Commission of India. Sahab is a resident of New Sikarpur village under the jurisdiction of Murutia Police Station. It is reported that in April 2010, the victim went to Bangladesh, illegally crossing the international border. The victim reportedly wanted to meet his ailing aunt who is in Bangladesh.

Once in Bangladesh, police officers from Doulatpur Police Station, in Kushtia district of Bangladesh arrested Sahab and charged him for being in Bangladesh without proper documents, including a visa. The police registered a case, vide Doulatpur Police Station case number 7/2010, with corresponding General Diary entry numbered 279/2010 dated 6 April 2010.

The police produced Sahab at the local magistrate's court in Doulatpur where he was convicted for the offence of being in Bangladesh illegally. The conviction was on 5 June 2011 and the sentence to undergo imprisonment for a period of 18 months as mandated in the Foreigners Act, 1946 of Bangladesh. The magistrate while sentencing Sahab allowed setoff from the prison term the period Sahab spent in judicial custody as an under trial prisoner. Hence Sahab's sentence was over by October 2011. However since then Sahab continues in custody in Bangladesh unable to secure a repatriation to India. Authorities in Bangladesh would also not allow Sahab to be released from custody since he does not have a visa to legally stay in Bangladesh.

In the meanwhile Sahab's wife, Ms. Rashida Bibi wrote to authorities in India and Bangladesh, seeking intervention to secure her husband's return to India. Rashida has written to the Governor and the Chief Minister of West Bengal and the High Commissioner of Bangladesh in India on 30 May 2012. Rashida also wrote to the Additional Superintendent of Police, Nadia and to the district administration in Nadia on the same day seeking immediate support to secure the return of her husband. None of the requests have been acted upon so far to Rashida's information.

ADDITIONAL INFORMATION:

The international border between India and Bangladesh is relatively porous. The border, drawn up during 1945-46, that separated the subcontinent into India and East Pakistan (today Bangladesh) divided families and villages without any form of consultative process with the people. This has led to families being divided, arbitrarily across both sides of the border. At the moment there are no hustle free or fast visa processing engagements between India and Bangladesh. People from both sides of the border will have to undergo time consuming, costly and a corrupt system of visa processing in Bangladesh or in India to go across the border. Additionally many living immediately near the border are exceptionally poor to afford to apply and obtain a passport, let alone, paying the visa fee and bribes "processing agents" demand and collect from legitimate applicants at the consulates.

The need to travel across the border, as it has reported in this case, often could be unforeseen and immediate. The Border Security Force stationed along the Indian side of the border and the Border Guards Bangladesh stationed in the Bangladesh side of the border exploits these circumstances at will. They demand and obtain bribes from persons wanting to cross the international border and also patronise cross-border smuggling. This not only leads to security breaches for both nations, but also places poor persons wanting to cross the border for various purposes at extremely high risk of getting arrested in Bangladesh or in India as the case may be. Sahab is the victim of one such transaction, though his wife does not exactly know how Sahab crossed the border into Bangladesh from India.

The Foreigners' Act, 1946 of Bangladesh and India prescribes punishment for illegal residents. The criminal prosecution and adjudication system in both countries are such that those arrested under the Act, for being illegally residing in the country are refused bail pending trial. Unfortunately trials in both countries could take years to conclude, if not decades, which is not rare. Often courts commute sentences to accommodate long periods detainees spend prior to trials so that the post conviction period of detention is reduced. This has happened in Sahab's case as well. Unfortunately the lest of these benefit extended by the courts is of no use since often repatriation of persons take much longer than the pre-trial and post sentence periods of detention.

The process of repatriation, in cases like that of Sahab, in both sides requires lengthy bureaucratic procedures. The foreign ministry, home ministry and the local administration of both countries will have to work in tandem to ensure that a person like Sahab who has completed his sentence in Bangladesh or India as the case may be could safely be returned home. Unfortunately this process is not only ridden with corruption, just as the entire administrative apparatuses in both countries, it is also a fact that such cases receive least priority in both sides of the border. Conditions like these get worse to the detriment of the victims who get trapped into the quagmire of bureaucracy, legality and corruption, when the person involved is poor, and often illiterate.

Rashida is not aware whether Sahab was provided any legal assistance in Bangladesh during his trail. It is also not known about the conditions in which Sahab's is before and after the trail. The family is unable to maintain any form of communication with Sahab and Rashida do not know where, and how her husband is detained, or how to communicate with her husband. The family, as mentioned before is exceptionally poor and resides in a shack. They depended on Sahab's income as a labourer for survival and the couple has three children, all of them minors. That Sahab has completed his sentence; each day he is detained in custody in Bangladesh not only violates his liberty, but is detrimental to the welfare of his family in India.

The mandate of the United Nations' Working Group on Arbitrary Detention was established by resolution 1991/42 of the Commission on Human Rights has a mandate, most importantly (a) to investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the international human rights standards set forth in the Universal Declaration of Human Rights or in other international legal instruments accepted by the states and (b) to formulate deliberations on issues in order to assist states to prevent and guard against the practice of arbitrary deprivation of liberty.

The facts and circumstances as enumerated in Sahab's case is covered by the opinion adopted by the Working Group in communication 4/2011 (Switzerland) decided by the Working Group in its sixth session held in May 2011. It is a settled position of international human rights law (per Chahal v. United Kingdom, European Court of Human Rights) that states, while dealing with detention of illegal aliens within its territory, could deprive the liberty of a person only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible. Concerning Sahab no such proceedings are underway, though his wife has been requesting for it, to allow her husband to return home. In the A. v. Australia and C. v. Australia cases (communication No. 900/1999, CCPR/C/76/D/900/1999, para. 8.2), the UN Human Rights Committee clarified that, "in order to avoid a characterisation of arbitrariness, detention should not continue beyond the period for which the state party can provide appropriate justification". In Sahab's case, no such clarification is offered by Bangladesh, nor sought by India.

SUGGESTED ACTION:
Please write to the authorities mentioned below demanding an intervention in the case. The AHRC is making a separate submission to the UN Working Group on Arbitrary Detention, calling for an intervention in the case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear __________,

INDIA: Please take immediate action to return Mr. Sahab alias Sahabuddin Seikh to India, currently detained in Bangladesh after completing his sentence for illegally crossing over to Bangladesh from India

Name of victim: Mr. Sahab alias Sahabuddin Seikh, resident of New Sikarpur village, Sikarpur post under the jurisdiction of Murutia Police Station, Nadia district, West Bengal (currently detained in Kushtia district, Bangladesh)

Date of incident: Arrested in April 2010, convicted on 5 June 2011 and sentence completed in October 2011
Place of incident: Doulatpur, Bangladesh; Doulatpur Police Station case number 7/2010, with corresponding General Diary entry numbered 279/2010 dated 6 April 2010

I am writing to express concern regarding the case of Mr. Sahab, alias Sahabuddin, who is currently detained in Bangladesh after the completion of his prison sentence. The facts of the case made available to me are as follows:

Sahab is an Indian citizen having identity documents like a ration card issued by the government of West Bengal and an election identity card, vide card number MMP1015080, issued by the Election Commission of India. Sahab is a resident of New Sikarpur village under the jurisdiction of Murutia Police Station. It is reported that in April 2010, the victim went to Bangladesh, illegally crossing the international border. The victim reportedly wanted to meet his ailing aunt who is in Bangladesh.

Once in Bangladesh, police officers from Doulatpur Police Station, in Kushtia district of Bangladesh arrested Sahab and charged him for being in Bangladesh without proper documents, including a visa. The police registered a case, vide Doulatpur Police Station case number 7/2010, with corresponding General Diary entry numbered 279/2010 dated 6 April 2010.

The police produced Sahab at the local magistrate's court in Doulatpur where he was convicted for the offence of being in Bangladesh illegally. The conviction was on 5 June 2011 and the sentence to undergo imprisonment for a period of 18 months as mandated in the Foreigners Act, 1946 of Bangladesh. The magistrate while sentencing Sahab allowed setoff from the prison term the period Sahab spent in judicial custody as an under trial prisoner. Hence Sahab's sentence was over by October 2011. However since then Sahab continues in custody in Bangladesh unable to secure a repatriation to India. Authorities in Bangladesh would also not allow Sahab to be released from custody since he does not have a visa to legally stay in Bangladesh.

In the meanwhile Sahab's wife, Ms. Rashida Bibi wrote to authorities in India and Bangladesh, seeking intervention to secure her husband's return to India. Rashida has written to the Governor and the Chief Minister of West Bengal and the High Commissioner of Bangladesh in India on 30 May 2012. Rashida also wrote to the Additional Superintendent of Police, Nadia and to the district administration in Nadia on the same day seeking immediate support to secure the return of her husband. None of the requests have been acted upon so far to Rashida's information.

The international border between India and Bangladesh is relatively porous. The border, drawn up during 1945-46, that separated the subcontinent into India and East Pakistan (today Bangladesh) divided families and villages without any form of consultative process with the people. This has led to families being divided, arbitrarily across both sides of the border. At the moment there are no hustle free or fast visa processing engagements between India and Bangladesh. People from both sides of the border will have to undergo time consuming, costly and a corrupt system of visa processing in Bangladesh or in India to go across the border. Additionally many living immediately near the border are exceptionally poor to afford to apply and obtain a passport, let alone, paying the visa fee and bribes "processing agents" demand and collect from legitimate applicants at the consulates.

The need to travel across the border, as it has reported in this case, often could be unforeseen and immediate. The Border Security Force stationed along the Indian side of the border and the Border Guards Bangladesh stationed in the Bangladesh side of the border exploits these circumstances at will. They demand and obtain bribes from persons wanting to cross the international border and also patronise cross-border smuggling. This not only leads to security breaches for both nations, but also places poor persons wanting to cross the border for various purposes at extremely high risk of getting arrested in Bangladesh or in India as the case may be. Sahab is the victim of one such transaction, though his wife does not exactly know how Sahab crossed the border into Bangladesh from India.

The Foreigners' Act, 1946 of Bangladesh and India prescribes punishment for illegal residents. The criminal prosecution and adjudication system in both countries are such that those arrested under the Act, for being illegally residing in the country are refused bail pending trial. Unfortunately trials in both countries could take years to conclude, if not decades, which is not rare. Often courts commute sentences to accommodate long periods detainees spend prior to trials so that the post conviction period of detention is reduced. This has happened in Sahab's case as well. Unfortunately the lest of these benefit extended by the courts is of no use since often repatriation of persons take much longer than the pre-trial and post sentence periods of detention.

The process of repatriation, in cases like that of Sahab, in both sides requires lengthy bureaucratic procedures. The foreign ministry, home ministry and the local administration of both countries will have to work in tandem to ensure that a person like Sahab who has completed his sentence in Bangladesh or India as the case may be could safely be returned home. Unfortunately this process is not only ridden with corruption, just as the entire administrative apparatuses in both countries, it is also a fact that such cases receive least priority in both sides of the border. Conditions like these get worse to the detriment of the victims who get trapped into the quagmire of bureaucracy, legality and corruption, when the person involved is poor, and often illiterate.

Rashida is not aware whether Sahab was provided any legal assistance in Bangladesh during his trail. It is also not known about the conditions in which Sahab's is before and after the trail. The family is unable to maintain any form of communication with Sahab and Rashida do not know where, and how her husband is detained, or how to communicate with her husband. The family, as mentioned before is exceptionally poor and resides in a shack. They depended on Sahab's income as a labourer for survival and the couple has three children, all of them minors. That Sahab has completed his sentence; each day he is detained in custody in Bangladesh not only violates his liberty, but is detrimental to the welfare of his family in India.

The mandate of the United Nations' Working Group on Arbitrary Detention was established by resolution 1991/42 of the Commission on Human Rights has a mandate, most importantly (a) to investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the international human rights standards set forth in the Universal Declaration of Human Rights or in other international legal instruments accepted by the states and (b) to formulate deliberations on issues in order to assist states to prevent and guard against the practice of arbitrary deprivation of liberty.

The facts and circumstances as enumerated in Sahab's case is covered by the opinion adopted by the Working Group in communication 4/2011 (Switzerland) decided by the Working Group in its sixth session held in May 2011. It is a settled position of international human rights law (per Chahal v. United Kingdom, European Court of Human Rights) that states, while dealing with detention of illegal aliens within its territory, could deprive the liberty of a person only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible. Concerning Sahab no such proceedings are underway, though his wife has been requesting for it, to allow her husband to return home. In the A. v. Australia and C. v. Australia cases (communication No. 900/1999, CCPR/C/76/D/900/1999, para. 8.2), the UN Human Rights Committee clarified that, "in order to avoid a characterisation of arbitrariness, detention should not continue beyond the period for which the state party can provide appropriate justification". In Sahab's case, no such clarification is offered by Bangladesh, nor sought by India.

I therefore request you that:

1. The External Affairs Ministry and the Ministry of Home Affairs - Government of India, immediately communicate to their counterparts in Bangladesh seeking information and immediate release of Sahab;
2. The Ministry of Foreign Affairs and Home Ministry in Bangladesh cooperate with requests from India concerning the case and provide all necessary assistance to repatriate Sahab to India;
3. The Home Ministry in Bangladesh immediately seek information from the Kushtia district administration as to where Sahab is detained and immediately communicate information regarding his conditions in detention to Sahab's family;
4. Further the Home Ministry in Bangladesh issue appropriate orders to the BDR and to the district administration in Kushtia to ensure without delay the safe return of Sahab to India and to let him safely cross the border into India;
5. The BSF, the External Affairs Ministry and the Ministry of Home Affairs in India immediately informed about the date and venue of border crossing so that Sahab's family could be informed about the repatriation;
6. A separate inquiry ordered by the Home Ministry in India as to why no actions have followed upon receipt of request from Ms. Rashida concerning the repatriation of her husband, to the authorities in India.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Honourable Mrs. Sheikh Hasina
Prime Minister
Government of the People's Republic of Bangladesh
Office of the Prime Minister
Tejgaon, Dhaka
BANGLADESH
Fax: +880 2 811 3244 / 3243 / 1015 / 1490
Tel: +880 2 882 816 079 / 988 8677
E-mail: pm@pmo.gov.bd or psecy@pmo.gov.bd

2. Dr. Dipu Moni MP
Honourable Foreign Minister
Ministry of Foreign Affairs
People's Republic of Bangladesh
Ramna, Dhaka-1000
BANGLADESH
Tel: +880 2 9562852
Fax: +880 2 9562188 +880 2 7171433
Email: minister@mofa.gov.bd

3. Mr. Hassan Mahmud Khandker
Inspector General of Police (IGP)
Bangladesh Police
Police Headquarters'
Fulbaria, Dhaka-1000
BANGLADESH
Fax: +880 2 956 3362 / 956 3363
Tel: +880 2 956 2054 +880 2 956 2054 / +880 2 717 6677 +880 2 717 6677
E-mail: ig@police.gov.bd

4. Honourable Mr. P. Chidambaram
Minister of Home Affairs
Government of India
Ministry of Home Affairs, North Block
Central Secretariat, New Delhi - 110 001
INDIA
Fax: +91 11 23094221

5. Honourable Mr. S. M. Krishna
Minister of External Affairs
Government of India, Patiala House
New Delhi 110001
INDIA
Fax: + 91 11 2301 3254 /2301 1463
Email: eam@mea.gov.in

6. Ms. Mamata Banerjee
Chief Minister
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@nic.in

7. Mr. R. K. Singh
Home Secretary
Government of India
Ministry of Home Affairs, North Block
Central Secretariat, New Delhi - 110 001
INDIA
Fax: + 91 11 23093003
Email: hshso@nic.in

8. Chief Secretary
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 2214 4328
Email: chiefsec@wb.gov.in

9. Director General & Inspector General of Police
Government of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: dgp_westbengal@gmail.com

10. Additional Chief Secretary (Home)
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Email: sechome@wb.gov.in

11. Ms. Smita Panth
DS Bangladesh, Ministry of External Affairs
Government of India, Patiala House
New Delhi 110001
INDIA
Fax: 91 11 2301 4717
Email: jsbsm@mea.gov.in

Thank you

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

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