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Our Neighbours -- Sri Lanka

Torture in Sri Lanka

Asian Legal Resource Centre -- ALRC

Thursday, 1st April 2004

Statement on 'The need for a witness and torture victim protection scheme in Sri Lanka' received by Commission on Human Rights

(Geneva, 1 April 2004) -- The written statement of the Asian Legal Resource Centre (ALRC) on 'The need for a witness and torture victim protection scheme in Sri Lanka' (E/CN.4/2004/NGO/36) was distributed yesterday at the 60th Session of the United Nations Commission on Human Rights in Geneva.

The full text of the statement follows.

This year, ALRC submitted 30 written statements to the Commission, on topics as diverse as caste discrimination in Nepal, food scarcity in Myanmar, custodial deaths and torture in India, extrajudicial killings in Thailand, policing in Pakistan, the National Human Rights Commission of Sri Lanka, and impunity in Asia.

The complete list of statements, with full texts and links to the original versions, can be viewed on the ALRC website, at http://www.alrc.net/mainfile.php/60written/.

Asian Legal Resource Centre -- ALRC, Hong Kong

The need for a witness and torture victim protection scheme in Sri Lanka

1. In its concluding observations after considering the periodic report of Sri Lanka, dated November 2003, the Human Rights Committee stated that

"The authorities should diligently enquire into all cases of suspected intimidation of witnesses and establish a witness protection program in order to put an end to the climate of fear that plagues the investigation and prosecution of such cases" (CCPR/CO/79/LKA [Future]).

2. In a speech of 2 December 2003, the Attorney General of Sri Lanka, Mr K C Kamlasabayson PC, made the following observations:

"Another important feature that requires consideration is the need for an efficient witness protection scheme that would ensure that witnesses are not intimidated and threatened. No doubt this would involve heavy expenses for the State and amendments to the law. I will only pose a simple question. Is it more important in a civilized society to build roads to match with international standards spending literally millions of dollars rather than to have a peaceful and law abiding society where the rule of law prevails?"

3. The absence of a witness protection scheme seriously affects criminal justice. In Sri Lanka, many complainants have been murdered on their way to court, and while going about their daily lives. Because victims are frequently and seriously threatened, many fear to pursue their complaints. Meanwhile, despite a lot of talk about how to deal with increased crime, there have been hardly any efforts to develop a witness protection scheme. The most vulnerable persons are those who have made complaints against the state authorities, and particularly police officers accused of torture, as the following cases illustrate.

a. Michael Anthony Fernando has filed a fundamental rights application in the Supreme Court regarding torture by the police, and another in the Magistrates Court of Colombo. He also has a complaint before the Human Rights Committee pertaining to abuse of power by the Chief Justice of Sri Lanka after sentencing him to one-year imprisonment for contempt of court. As a result, he has received death threats. He has since sought the Committee to offer interim protection measures.

b. Lalith Rajapakse, a young man who suffered serious injuries as a result of the torture by police officers at Kandana Police Station, made several complaints to the Special Rapporteur on torture. After filing a fundamental rights case against the perpetrators in the Supreme Court, and with the state also filing a criminal case in the Court under the Convention against Torture Act, No. 22 of 1994, he was threatened to settle or withdraw the case. He has since complained further to the National Police Commission and the National Human Rights Commission.

c. Saliya Pushpa Kumara, a 15-year-old boy tortured by the police at Puttlam, has also complained of serious harassment of him and his family by the alleged perpetrators. They have threatened him to withdraw his fundamental rights application in the Supreme Court, and his complaint to the Prosecution of Torture Perpetrators Unit. He has alleged that the police tried to obstruct him from getting hospital treatment, as they feared it would result in a medical report. Only after the National Child Protection Authority intervened was he able to get medical treatment. He has since been given shelter by a charitable organization, away from his village.

d. In the case of Chamila Bandara, a 17-year-old boy allegedly seriously tortured by some officers of the Ankubura Police Station, there was an attempt to kidnap him from the hospital where he was receiving treatment. He was removed from the hospital for his safety, and ever since has been living away from his village, under the protection of local human rights organisations. His mother was also forced to leave the village due to constant severe harassment. His two younger sisters have been unable to go to school due to death threats. Complaints have been made to the Special Rapporteur on torture, the National Police Commission and the National Human Rights Commission. Human rights organisations have also complained to the National Human Rights Commission that its Area Coordinator has been collaborating with the alleged perpetrators in this case, and harassing the victim and his family.

4. The Asian Legal Resource Centre submits to the Commission that the Prosecution of Torture Perpetrators Unit must develop an effective witness protection scheme for victims of police abuses. The National Police Commission should also act to deal quickly with police accused of such abuses. When they continue to operate in the same police stations, the perpetrators of torture and other serious crimes are a threat to the safety of the complainants, and also are able to destroy evidence. The Supreme Court of Sri Lanka has itself remarked that it is common for police to fabricate evidence and alter documents.

5. The investigation and prosecution of torture cases in Sri Lanka should also follow the same procedure as applies to other crimes, where, when a prima facie case is established, the accused is arrested and immediately produced before a magistrate. However, this procedure is not followed in torture cases under Act No. 22 of 1994. There is no reason to deviate from this standard procedure. Police officers charged with crimes should not be treated differently from other alleged criminals. If the provisions of the Criminal Procedure Code were applied to the alleged perpetrators of torture, they would provide some measure of protection to the complainants and victims.

6. The above recommendation of the Human Rights Committee should be complied with as soon as possible. The Committee has required the Government of Sri Lanka to report on this and several other matters within a year. The Asian Legal Resource Centre hopes that some significant progress will occur within that time to address this serious defect in criminal justice procedures in Sri Lanka.

 
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