By Basil Fernando –

Basil Fernando

Deterioration of the legal intellect: (4) – UNHRC finds fault with the police, the forensic pathologist, the Attorney General, and the Supreme Court

A determination issued by the United Nation’s Human Rights Committee on 1^st April 2015, reveals extraordinary failures on the part of Sri Lankan State agencies – the police, the forensic pathologist, the Attorney General, and the Supreme Court – regarding a custodial death that took place at the Moragahahena Police Station on 26^th July 2003. The following Committee Members participated in the examination of the case in question: Yadh Ben Achour, Lazhari Bouzid, Sarah Cleveland, Olivier de Frouville, Yuji Iwasawa, Ivana Jelic, Duncan Muhumuza Laki, Photini Pazartis, Mauro Politi, Sir Nigel Rodley, Victor Manuel Rodriguez-Rescia, Fabian Omar Salvioli, Dheerujlall B. Seetulsingh, Anja Seibert-Fohr, Yuval Shany, Konstantine Vardzelashvili, and Margo Waterval.

The facts of the case are that Sunil Hemachandra (Sunil) was once a healthy and a literate man with no criminal record. He was a daily paid labourer, mostly engaged in tapping of rubber and climbing trees for plucking coconuts.

His misfortunes began, ironically, when he won a lottery ticket of a little over 3 million rupees (approximately USD $25,000). Through the lottery agent, the Moragahahena police learned about Sunil having won the lottery; the Officer-in-Charge of the Moragahahena Police Station sent a police officer with the message that Sunil should arrive at the Station, along with his ticket, and stay there for his own safety. Sunil did not comply this request. Instead, he went with his mother and aunt, en-cashed his winning ticket, and immediately deposited it in his aunt’s bank account. Thereafter, he bought a van for 1.2 million rupees, a three-wheeler for one of his nieces, and gave 5,000 rupees to his nephew as a gift.

A few weeks later, a team of police officers from the Moragahahena Police Station came looking for Sunil; they inquired from his aunt whether Sunil had spent his lottery money. One of the police officers warned, “his [Sunil’s] happiness would not last long”. The police officers left a message for Sunil to report to the Moragahahena Police Station.

On the same day, Sunil, accompanied by an acquaintance, Chanaka, and along with the son of the lottery agent, Lionel, went to the police station. At the Police Station, one of the police officers (a Sub Inspector) requested Sunil to pay money as “support”. Sunil had replied that the money was not with him and declined to pay. The same police officer then insisted on the payment of 25,000 Rupees “to cover the expenses of a procession of the Vidyaratne Temple in Horana”, to which Sunil agreed.

On 22^nd July 2003, five police officers from the same police station arrived in a vehicle at Sunil’s aunt’s house and, seeing him asleep in his room, identified him as being “the one who won the lottery” and then they proceeded to beat him, which included hitting him on his head. The police officers proceeded to arrest Sunil and Chanaka and continued beating Sunil at the time of the arrest and during the ride in the police jeep to the police station, when he was hit on his head and in his abdomen. Chanaka was hit in the face, several times, when he asked the officers to stop beating Sunil.

Sunil and Chanaka were taken to the Moragahahena Police Station and placed in a small cell with several other detainees. Next morning, Chanaka found that Sunil was visibly unwell and was bleeding from his nose and his mouth, and was not able to stand. Chanaka alerted the police officers of Sunil’s critical health condition. However, the officers merely asked Chanaka to take Sunil to the backyard and to wipe the blood off his face. The bleeding however, continued uninterrupted from his nose and mouth and Sunil began vomiting blood clots. One of the police officers directed Chanaka to give Sunil an iron rod to hold, which is done in the case of epileptic attacks.

The same morning, Sunil’s aunt came to the police station and found Sunil lying on the floor of the cell bleeding from his nose and mouth. She too alerted the police about Sunil’s serious condition, but was chased away by the police.

It was only later during the day that Sunil was finally taken to the Horan Base Hospital in a police vehicle. Sunil’s aunt visited him at the Police Station and was told by Sunil that he had been brutally assaulted by the officers. She found him to be in severe pain and his face was red and swollen.

Later, on the same day, two police officers from the same station arrived at the hospital to record Sunil’s statement. But he was only able to mention his name. However, the police officer wrote something on two lists of paper while talking to the other. The officers then obtained two impressions of Sunil’s left thumb, in lieu of his signature, although Sunil was capable of signing his name.

The next day Sunil’s family learned that he had been transferred to the National Hospital in Colombo, where he had undergone brain surgery. On 26^th July 2003, staff at the National Hospital informed his aunt that Sunil passed away earlier that day.

Three days before his death, while Sunil was in hospital, Sunil’s aunt went to the office of the Assistant Superintendent of Police in Horana, and attempted to complain of Sunil’s arrest and torture. But her complaint was not recorded by the Superintendent of the Police. It was only on 26^th July 2003, that the Assistant Superintendent of the police in Horana recorded a statement from the aunt and Chanaka, who was released from police custody.

Sunil’s aunt also made a complaint to the National Human Rights Commission (NHRC), and with the help of a human rights organisation “Janasansadaya” lodged a Fundamental Rights Petition before the Supreme Court of Sri Lanka, in which a number of officials and institutions were cited as respondents.

The aunt’s complaint to the NHRC remained unanswered till August 2008, when the NHRC stated that as a Fundamental rights case had been filed before the Supreme Court, the NHRC will not make any inquiry while the case is pending. Since then, Sunil’s family has not heard from the NHRC.

The Additional Magistrate of the Colombo Chief Magistrate’s Court opened an inquiry into Sunil Hemachandra’s death and heard the statements of Sunil’s aunt and Chanaka. The Additional Magistrate noted that in the police report from Moragahahena Police Station “there was no entry whatsoever, revealing the reason for which Sunil has been arrested by the police”. The Magistrate also noted after observing the victim’s body in the mortuary, that among other injuries he noted an injury of “about one inch slightly above the buttocks on the left side of the back”.

A few days later, a Consultant Judicial Medical Officer (JMO) from Colombo conducted a post mortem examination. His report documented ten pre-mortal injuries, four contusions, four aberrations, one peri-orbital haematoma (“black eyes”) around the left eye and one surgical incision. However, the JMO made no record of the injury on the left side of the back observed by the Additional Magistrate. The JMO identified the cause of Sunil’s death as “acute subdural haemorrhage following a head injury caused by blunt trauma”. The report identified four possible origins of fatal haemorrhage: a heavy blow on the back of the victim with a weapon or a kick with boots; a fall due to being pushed; accidental fall; or a fit due to alcohol withdrawal or epilepsy. Strangely, the report concluded that it was “possible that the cause of death was a fall following alcohol withdrawal, a finding seemly derived solely from the discovery of an “enlarged and fatigued liver” in the body of the deceased.

On 8^th August 2003, the Magistrate of Horana directed the Senior Superintendent of the Panadura Police to investigate and produce the suspects before the court as the circumstances surrounding the victim’s death seemed suspicious.

However, on 29^th August 2004, the Attorney General decided that no charge could be filed in connection with Sunil Hemachandra’s death as there was no evidence of any assault on the victim. On the basis of this reference by the Attorney General, the Magistrate removed the case from the roll.

Regarding the author’s petition to the Supreme Court, which was made in September 2003, a decision was made on 6^th August 2010. The Supreme Court dismissed the application based on the conclusion that “the fall being due to a fit following alcohol withdrawal was highly possible”.

Concluding findings of the UNHRC

The UN Human Rights Committee considered Sunil’s case on the basis of information placed before the Committee. It should be noted that Sri Lanka as a State party was under obligation to reply to complaints placed by the UNHRC under the Optional Protocol to the International Covenant on Civil and Political Rights. However, despite requests having been made to the state party, twice, by the UNHRC, the State party made no reply to the allegations made in this Communication.

UNHRC arrived at the following findings:

Arbitrary deprivation of life

Regarding the author’s claims under Article 6, in relation to arbitrary deprivation of Sunil Hemachandra’s life, the Committee recalled its jurisprudence, in which it determined that by arresting and detaining individuals, the State party takes the responsibility to care for their life, and that a death of any type in custody, should be regarded as prima facie a summary and arbitrary execution. “Consequently there should be a thorough, prompt, and an impartial investigation to confirm or rebut this presumption, especially when complaints by relatives or other reliable reports suggest unnatural death”. Members of the Moragahahena Police Station arrested Sunil Hemachandra on 22^nd July 2003 at his place of residence. Four days later, on 26^th July 2003, he died in the National Hospital in Colombo, as a direct result of an “acute subdural hemorrhage following a head injury cause by blunt trauma”. Although the victim was bleeding uninterruptedly, i.e. he was in a visibly critical medical condition the day after his arrest and placement in detention (23^rd July 2003), the police failed to seek medical assistance for at least three hours.

State party’s investigation into suspicious circumstances of the death of Sunil inadequate

The Committee has recalled that criminal investigation and consequential prosecution are necessary remedies for violations of human rights, such as those protected by Article 6 and 7 of the Covenant. In this case, the Committee has observed that all investigative steps undertaken by the State party were carried out by members of the Moragahahena Police Station, i.e. the same police forces which arrested and detained Sunil Hemachandra; that the investigation ordered on 8^th August 2003 by the Magistrate of Horana was closed, further to the Attorney General’s decision of 29^th April 2004 not to pursue charges for assault; that it took the Supreme Court seven years to rule on the Fundamental Rights Petition filed by the author; that, in its decision on 6^th August 2010, the Supreme Court discarded the possibility of the victim’s custodial death as a result of torture, without ordering any independent investigation to ascertain the facts and identify possible perpetrators: no police officer was identified as a suspect and interrogated, let alone suspended or brought to justice. In the absence of any explanation by the State party, the Committee has concluded that the State party’s investigations into the suspicious circumstances of the death of Sunil Hemachandra are inadequate. The Committee has concluded that the State party’s authorities, either by action or omission, were responsible for not taking adequate measures to protect Sunil Hemachandra’s life, and to properly investigate his death and take appropriate action against those found responsible, in breach of Article 6 paragraph 1, read alone, and in conjunction with Article 2 paragraph 3 of the Covenant.

Torture and failure to provide immediate medical attention

The UNHRC has concluded that severe torture had been committed at the Moragahahena Police Station and that the State party has also failed to provide immediate medical attention even after the serious condition of the detainee was brought to their notice.

Illegal arrest

The UNHRC concluded that the arrest and detention of Sunil Hemachandra was also illegal and that the State party failed also to inform the reason for his arrest.

UNHRC Recommendation to be fulfilled by the Government of Sri Lanka within 180 days

The UNHRC has recommended that Sri Lanka as a State party should undertake a prompt, thorough, and independent investigation into the facts, ensuring that the perpetrators are brought to justice, and ensuring reparation, including payment of adequate compensation and public apology to the family. The State party should also take necessary measures to ensure that such violations should not recur in the future. The State party had been requested to provide information about measures taken to give effect to the Committee’s views within 180 days. The State party is also requested to publish the Committee’s views and to have them translated into the official language of the State party and be widely circulated.

Will the new government act differently from the Mahinda Rajapaksa government?

The Mahinda Rajapaksa government completely ignored all the views and recommendations of the UNHRC delivered during the term of its office. The question now is whether the new government headed by President Maithripala Sirisena – who has promised to discontinue with the way the previous government conducted itself in relation to international affairs including relationships to the United Nations – will act differently with regard to the findings and recommendations of the UNHRC in Sunil Hemachandra’s case.

President Maithripala Sirisena has made good governance the major slogan of his government. The UNHRC observations and recommendation in this case expose the extreme deficiencies relating to good governance in Sri Lanka; of particular importance are the failures mentioned by the UNHRC regarding the failure to conduct impartial inquiries into custodial deaths. Also of importance is the UNHRC criticism of the Attorney General’s interventions into criminal cases in order to stop the investigations, as it happened in Sunil’s case.

What is also unique in this case is that the UNHRC has made observations regarding the failures of the Supreme Court of Sri Lanka to call for a fresh inquiry, whereby the Court could have intervened to defeat the police scheme to deny justice by subverting inquiries into a custodial death.