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13. The following are responses to some of the issues raised by the CAT Committee to the Government of Sri Lanka by Janasansadaya, a human rights group based in Panadura, Sri Lanka and a partner organisation of the ALRC and AHRC.

 
Response

14. Since March 2005 Janasansadaya have observed that the HRC have begun inquiring into complaints made to them regarding police torture and have made recommendations and issued directives to the AG, NPC and IGP, as well as the police perpetrators, to pay compensation to the victims and take appropriate disciplinary action against the perpetrators.

15. Janasansadaya have also observed that the said “24-hour hotline” does exist. However, those who answer the hotline decline to reveal their identity, making it difficult for victims to follow up on their complaints—for instance, inquiring into what action has been taken or the plight of their loved ones. Furthermore, there are apparently no permanent staff employed to respond to the hotline. After office hours, the hotline is thus connected to the mobile phones of HRC officers who may be otherwise engaged and not in a position to respond immediately. This reduces the efficiency of the hotline.

16. Janasansadaya are unaware of any "Central Register for Detainees". In fact, interviews with the police in May 2004 by the Law & Society Trust failed to reveal the existence of such. Thus to our knowledge this is a fabrication invented to impress the international community.

17. The HRC's powers to monitor places of detention are quite limited. The reason for this is that although the Commission's officers are empowered to enter the main police station building, they cannot enter other buildings within the premises, such as the garage, kitchen or private quarters. From victims' experiences, torture usually takes place in these other buildings, not in the actual police station. To enter other buildings, the HRC must inform the IGP or the Assistant Superintendent of Police (ASP) in advance, which defeats the very purpose of the visit, allowing concealment of any illegal activities.

 

Response

18. It would not be false to say that there is neither effective nor comprehensive methodology adopted by the State party to prevent or combat torture. The first step towards prevention must be a firm conviction of the importance of prevention together with the intent to prevent torture. These can be ascertained through statements and policy directives issued by senior government officials and authorities. However, Janasansadaya have not noted any such statements or directives made publicly or privately by the IGP. Rather, his common response, whether made publicly or to individual incidents brought specifically to his attention, is to defend police behaviour—for instance, to justify police action by saying that the officers were using “minimum force” as required by the situation.

19. Furthermore, senior minister Ratnasiri Wickremanayake was recently quoted in the media as saying that the IGP should be given more powers vis-à-vis the NPC, which was set up as an independent body to monitor the police force. In fact, he stated that the IGP should actually be a member of the NPC, contrary to constitutional requirements. In the face of such attitudes, the mere denouncement of torture by late Lakshman Kadirgama, the former Minister of Foreign Affairs, while addressing the 61st Session of the CHR does not mean very much.

Response

20. The Sri Lankan Establishment Code sets out general departmental disciplinary inquiry procedures of state institutions. These procedures also apply to the police department. However, the partiality of police department disciplinary hearings maybe ascertained from the following facts: (i) the inquiring officer is always a senior police officer; (ii) the prosecutor is always a police officer; (iii) the defending officer is usually a senior retired police officer; and (iv) inquiries are held at police stations or within the office premises of senior officers. The result of such hearings then, is further victimization of torture victims. To illustrate, the inquiry may take an inordinate amount of time to be completed, being postponed on numerous occasions due to the absence of the inquiring officer, the prosecutor or the perpetrator. During these times, the complainants and witnesses are required to ‘hang around’ the police stations for hours and even days, which gives the perpetrators and their colleagues an ideal opportunity to pressurize the victims into either reaching a compromise or scaring them away. In other instances, the victims—who often belong to the poorer segments of society and have to forfeit their daily work and wages to attend these inquiries—simply give up in desperation. Then a verdict is given of ‘complainant not present’ and the inquiry discontinued (from the experiences of torture victim Suresh Pradeep Kumara^[4] who finally informed the inquiring officer that he will no longer attend the inquiry against his perpetrators).

21. Even with the victim's perseverance, disciplinary inquiries can take many years to complete. In the rare instances that a verdict is given, neither the victim nor the public is informed of the outcome. In fact, during a 2004 interview conducted by the Law & Society Trust with senior officers from the police legal division, the officers were unable to give details of even one completed disciplinary inquiry. The following table with statistics for completed and pending disciplinary inquiries by the police department in 2003 affirms the situation:

 

Year	2003
Complaints received	156
Inquiries pending	3
Inquiries completed	11

22. Finally, to give an appearance of transparency to these inquiries, sometimes civilian observers—usually retired judges—are allowed to sit in during sessions of disciplinary inquiries. They are not empowered to get actively involved or to raise objections during the sessions however. If they do, they are not invited again. It is thus clear that all these parody procedures are mere attempts to mislead public opinion.
 

Response

23. The impunity granted to state officials in Sri Lanka is such that not only do police officers remain at their posts during investigations of torture, but continue to do so after being indicted by the AG before the High Court under the CATA for committing torture.

24. In fact, even after the Supreme Court—exercising its fundamental rights jurisdiction under Chapter III of the Constitution—rules that victims have been tortured and directs perpetrators to pay compensation, in almost 99 per cent of the cases the perpetrators continue serving at their posts.

25. The following are examples in which accused who have been indicted before the High Court under the CATA continue to serve as policemen—sometimes in the same positions:
 

Case No	Court	Victim	Accused
HC/276/03	Kalutara HC	Ranjani Rupika	SI Senaka Samarasinghe of the Mathugama police
HC/294/03	Kalutara HC	M. Kusumawathi	SI Nishantha of the Beruwela Tourist police
HC/352/04	Kalutara HC	K.A. Samarasinghe	3 policemen of the Badureliya police
HC/1765/03	Panadura HC	S.A. Piyadasa	5 policemen of the Panadura police
HC/1350/03	Colombo HC No. 6	Sameera Madusanka	Policemen of the Peliyagoda police
NS 69930	Kalutara MC	Sanath Yasaratne (deceased)	Badureliya Police (the Magistrate held there was sufficient evidence against the accused and accordingly committed the case to the High Court

       

Response

26. The Sri Lankan police department conducts several programmes on torture and other abuses. However, these are largely for the purpose of obtaining promotions within the department as well as to serve as propaganda for the international community.

27. In fact, with regard to the practice of torture, police officers seem better trained at innovative methods of torture rather than non-coercive investigatory techniques. They are particularly adept at torture methods that leave minimal external injuries and thus minimize chances of detection, such as the piling of books on victims' heads and hammering with poles, which is known to cause severe internal head injuries but few external injuries.

28. Janasansadaya is not aware of any monitoring or evaluation of the few training programmes that exist. Furthermore, no mention was made of such monitoring and evaluation in the State party's second and third periodic reports to the Committee, or in the fourth and fifth periodic reports to the Human Rights Committee.

Response

29. Janasansadaya is unaware of any such training programmes for medical professionals.

30. There are an inadequate number of qualified JMOs in Sri Lanka; only around 30 in the entire country. These are mostly attached to general and teaching hospitals. In district, rural and base hospitals, the examination of torture victims and autopsies are therefore conducted by senior general practitioners or District Medical Officers (DMOs), who only posses basic medical degrees such as Bachelor of Medicine/ Bachelor of Surgery (MBBS); they do not have the qualifications to conduct such examinations. As a result, examinations are conducted improperly and vital evidence is lost.

31. With regard to police intimidation of medical officers, in the experience of torture victims the greater problem is the collaboration of these medical practitioners with the police to falsify medical reports, shield the perpetrators and thus promote the practice of torture. There are many incidents where after being tortured the victims were taken to a medical practitioner who issued a report stating that the victim was in good health without conducting any examinations.

32. In fact, often the police do not take the tortured person to a hospital but to a known medical practitioner, thereby obtaining false medical reports. These are then used in court to proclaim that the victim is in a suitable condition to be remanded.

33. Examples of errant medical professionals can be found in the Supreme Court case Sriyani Silva vs. Iddamalgoda^[5] as well as Ajith Navaratne Bandara's case (HRC inquiry), in which the HRC subsequently issued a warning letter to Dr. Sarath Siriwardena,^[6] the Panadura DMO, who is now Director of Health at the hospital.
 

Response

34. Janasansadaya is unaware of any systematic medical examination of prisoners upon their arrival in prison. When a remandee complains of having been tortured, prison officials may admit such persons to the prison hospital; however, these usually lack qualified personnel and adequate facilities for the treatment of torture injuries.

35. At other times, even court orders for the remandee to be produced before a JMO are not complied with by prison officials.

Response

36. As stated above the HRC is empowered to visit the main police station building. However, according to a circular issued by the IGP in 2004, the HRC was explicitly prohibited from visiting adjoining buildings within the police station premises—where it had been reliably noted that most torture takes—place the HRC obtained prior approval from the ASP in charge of the police station.

37. Furthermore, reports of such visits have not been made public.

38. Non-governmental organizations (NGOs) are not permitted to visit places of detention. In reality, not even lawyers can accompany their clients to police stations or be present during interrogations, unless the police agree.

Response

39. Janasansadaya is unaware of any Central Police Registry for detainees and interviews with the police hierarchy failed to reveal such a Registry as well. Furthermore, oftentimes local police stations will refuse to give any information regarding persons detained, or are even unaware of such information.

 

 
Response

40. While the above question presumes that detained persons are in fact informed of their rights, the reality is that they are simply dragged to the police station, or even severely assaulted before being taken. While Sri Lanka's Criminal Procedure Code (CPC) requires that a person be informed of the reason of arrest at the time of arrest, this provision seems to be confined to the legal statutes. For this reason many victims are produced in court on charges unknown to them. They then plead guilty to these charges, having been coerced by the police to do so, who threaten them with further torture.

41. Many police stations even objected to displaying posters printed by the HRC depicting the rights of an arrested person within their premises.

42. When individuals have mustered the courage to ask for the reasons of arrest, they have been mercilessly tortured for daring to question the police. After having drugs, illicit liquor or offensive weapons (bombs) planted on them, they have then been remanded and maliciously prosecuted.

43. To illustrate: On 9 March 2004, John Pollage Udaya Saman Jayasuriya^[7] was tortured by the Kadugannawa police to such an extent that he lost four front teeth, merely because he asked the identity of the two policemen in civilian clothes who asked for his driver's licence and insurance. Similarly, on 13 May 2004, A.G. Ravindra^[8] got his ear cracked by the Katupotha police after asking for the reason of his arrest.
 

Response

44. In Sri Lanka criminal investigations have rarely been initiated after torture victims lodge complaints; investigations have only begun after international human rights organisations such as the AHRC, the Committee or the Special Rapporteur on Torture referred specific cases to the AG or the IGP and requested investigations. While these authorities have the capacity to initiate investigations, they do not do so without undue pressure from outside agencies.

 

Response

45. The Special Investigation Unit (SIU) is a non-permanent arrangement at the AG’s department, which attend to cases on ad hoc basis.  There are a very few personnel attached to the SIU and it is under resourced.  There are also a very few personnel AG's department for the preparation of indictments.  Due to such arrangements and inadequacy of staff and resources the cases get delayed for a very long time.

46. It is indeed difficult to think of specific measures that have been taken to fight impunity for human rights violations when measures provided by law and existing in statute books for decades have not been utilized. For example, the Establishment Code specifically provides for the interdiction of public servants charged or indicted on a criminal offence until the completion of the court case and they are exonerated. However, in numerous cases policemen indicted before the High Court under the CATA continue to serve at their posts. Not only does such action deter the course of justice, but it also sends a clear message to the perpetrators that torture is acceptable.
 
47. Sri Lanka ratified the CAT in March 1994 and enacted domestic enabling legislation—Act no 22 of 1994—in November 1994. In the 11 years this legislation has been in place, there have been only two convictions under the Act before the High Court, both in 2004.

Response

48. The NPC cites a lack of resources and personnel as the reason for which it cannot investigate any complaints of torture received from the public. Therefore, when any of the five NPC coordinators—three of which are retired DIGs—receive a torture complaint they refer it to a DIG of police, who in turn sends the complaint either to the ASP or the SP in charge of the relevant police station. This officer then refers the complaint to the OIC of the station at which the victim alleges to have been tortured. Meanwhile, the ASP or the SP may summon the victim and witnesses to record their statements. These statements may then be referred to the police legal division but are usually not, unless the IGP is notified of the incident by international sources, in which case he will request a report from the relevant DIG, who in turn will request it from the ASP or the SP.

49. In a recent interview, the NPC chairman explained the absence of an established public complaints procedure through a lack of resources, operation and not seeing eye-to-eye with the incumbent.

50. Although the 17th Amendment to the Constitution of Sri Lanka grants significant power including authority over all police promotions, transfers, disciplinary action and dismissals with the exception of the IGP, the Commission has yet to fully assert its powers. Under the view that it cannot interfere with the daily functioning of the police, the NPC has delegated these powers with regard to officers at the rank of Inspector and below to the IGP. With regard to disciplinary action against officers above the rank of inspector, the NPC chairman has complained his instructions are not complied with.

 

Response

51. Despite the Human Rights Committee's recommendation in 2003 of the importance of a witness protection scheme, to date there is no such programme. As a consequence, victims and other witnesses in torture cases and extrajudicial killings continue to be intimidated, threatened and even killed, such as Gerald Mervyn Perera.^[9] Janasansadaya is unaware of any financial or other resources being allocated for such purposes.

Response

52. Under its fundamental rights jurisdiction, the Supreme Court is empowered to award compensation to victims of human rights violations. This is to be paid either by the State, the individual perpetrators, or both. However, recently the court has been awarding amounts of compensation far below what would be proportionate with the gross human rights violations found.

53. In recent times the Apex Court has also shown a certain reluctance to grant leave to proceed in fundamental rights (FR) cases which may be seen as a regression from certain earlier developments that were held in a positive light, for example, the strong judgments in Silva vs. Iddamalgoda (2003) and in W.R. Sanjeewa AAL (for Gerald Perera) vs. Sena Suraweera (Inspector of Police) and eight others case (2003).^[10]

54. Another disturbing trend is the attempts made by court to induce the victims to enter into ‘out-of-court settlements’ with their perpetrators. This results in the perpetrators being fully exonerated, and also prevents the victims from petitioning court of further violations of their rights.

55. Torture victims or families of those killed in custody may seek compensation via a civil suit. In fact, a few victims have instituted action in the District Courts against their perpetrators and the State, for example, L. Madusanka vs. Iddamalgoda et.al.,^[11] and Kusumawathi's case.^[12] However, proceedings before the District Courts are time consuming and costly, and many victims cannot afford it.

56. In the case of L. Madusanka vs. Iddamalgoda for instance, although the case was instituted in 2002, it is only in November 2005 that a date for trial had been fixed. Inordinate delays occurred due to the inability or wilful neglect of the police in handing summons to the defendants and also due to the delay in filing answer by the AG’s department. These court delays also provide ample opportunity for the intimidation of victims and for the perpetrators to abscond.

57. In a positive development, the HRC have also begun to recommend compensation for the victims. However, the compensation recommended has to date not been paid by any of the perpetrators.

 

Response

58. In accordance with the Criminal Procedure Code, the torture victims—the aggrieved party—has a right to retain a lawyer to look after his interests in court. However, in practical terms this right depends on the discretion of the court. In certain instances, lawyers may be prevented from conducting cross-examinations or even participate in the trial at all, such as in the Bindunuwewa massacre case.

59. This situation is worsened when cases are prosecuted in the Magistrates Court, for instance when police charged perpetrators with causing simple hurt. In such cases, it is the police who lead the prosecution against the defendant, who is a fellow policeman. With the victim's legal representative being unable to actively participate in the trial, the likelihood of partiality is enhanced.

Response

60. We are unaware of the existence of any such facilities and interviews conducted by senior police officials of the legal range of the police department and the Army revealed that there were no such facilities.
 
 

Response

61. In May 2005, the Ministry of Education issued a circular (ED/01/12/01/04/24) prohibiting corporal punishment in schools and also warned that teachers found to mete out such punishment to students would be liable for disciplinary action. However, Janasansadaya found that many schools, especially among those falling under provincial councils, had not received this circular.

62. Regardless of the circular, corporal punishment and ill treatment are still prevalent in schools throughout the country. The following are a few examples:

62.1. When Charmali, Dilshan and Ravishka, three six-year-olds, were admitted this year to a junior school in Panadura, the school principal demanded their parents pay Rs. 2,000 per child as an ‘admission fee.’ When the parents refused because they could not afford it, the principal denied the children desks and chairs, forcing them to sit on the floor. After numerous complaints were made to the authorities, the children were given desks and chairs, but as of yet no disciplinary action has been taken against the school principal, either for soliciting a bribe or for the cruelty meted out to the children.

62.2. Mahesh Madusanka, a 17-year-old Advanced Level student of the Merril Kariyavasam School in Matugama, was illegally remanded for five days in an adult remand prison after school authorities made complaints against him and the police misrepresented his age to the Magistrate. After being released on bail, Mahesh attempted to resume his studies but was chased away by the school principal. After his parents brought the matter to the notice of the relevant authorities, Mahesh was allowed into school but was continued to be marked as absent. According to Mahesh’s parents, this was a blatant attempt to forcibly remove their son from school on the grounds of absenteeism and also to prevent him from sitting for his Advanced Level examination the following year. After much lobbying, the provincial education authorities finally placed Mahesh in a new school but they have taken no action against the errant principal.

62.3. Ten-year-old Sampath Madusanka of the Halkandavila School in Payagala complained that his teacher assaulted him with a long stick when he failed to answer a question put to him. This assault resulted in his hospitalization for seven days and serious injury to his eye. Furthermore, the hospital subsequently wrote to the school principal voicing its concern about several students from the school seeking medical treatment at the hospital for being assaulted by school staff.

Response

63. It is our opinion that it is very unlikely that Sri Lanka will ratify the Optional Protocol to the CAT or set up a national mechanism to conduct visits to places of detention. This is because last year when HRC officials attempted to visit police station where there was a suspicion that victims were being tortured, the HRC officials were abused and assaulted and prevented from inspecting the station. Subsequently by a circular the IGP had required prior notice of any impending visits of HRC officials, which, needlessly to say, would defeat the very purpose of such visits.

 

Response

64. To our knowledge there is no need to export any special equipment for inflicting torture. The police seem to have an enormous talent to improvise ingenious instruments of torture as indicated by the numerous horrifying reports from victim of torture.

 
Response

65. Janasansadaya is not aware of any measures being taken to disseminate information regarding the submission of reports to or the concluding observations of the Committee. To date the government has also not made any public statement in this regard.


______
Notes:
[4] AHRC UA Reference, UA-65-2005 (19 April 2005)
[5] Case Reference, 2003 (2) Sri L.R. p. 63
[6] AHRC UA Reference, UA-20-2001 (19 June 2001), UP-69-2004 (12 November 2004) and UP-40-2005 (08 April 2005)
[7] AHRC UA Reference, UA-31-2004 (01 April 2004); E/CN.4/2005/62/Add.1 paras. 1524 and 1525
[8] AHRC UA Reference, UA-63-2004 (09 June 2004) & UP-49-2004 (26 August 2004)
[9] SCFR. 328/2002 - W.R. Sanjeewa AAL (for Gerald Perera) Vs. Sena Suraweera (Inspector of Police) and eight others; AHRC UA Reference, UP-44-2002 (21 June 2002), UP-47-2002 (02 July 2002), UA-157-2004 (21 November 2004), UP-74-2004 (23 November 2004), UP-76-2004 (25 November 2004), UG-05-2004 (30 November 2004), UP-79-2004 (09 December 2004), UP-89-2004 (17 December 2004), UP-01-2005 (03 January 2005), UP-14-2005 (16 February 2005), UP-23-2005 (08 March 2005) and UP-24-2005 (24 March 2005); E/CN.4/2003/68/Add.1, para. 1571; E/CN.4/2004/56/Add.1, para. 1557 and E/CN.4/2005/62/Add.1 para. 1576
[10] Case Reference, SCFR. 328/2002 Supreme Court of Sri Lanka
[11] Case Reference, MR 32765 Colombo District Court
[12] Case Reference, MR 5130 Kalutara District Court