21 September, 2018

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Psycho-Legal Aspects Of Torture

By Kingsley Karunaratne

The event was organized by the Janasansadaya in Panadura and held at the auditorium of National Library and Documentation Services Board, Colombo-07. Mainly the participants were professionals in the field of Judicial Medical field, including Consultants Judicial Medical Officers around many leading government hospitals in Sri Lanka, Judicial Medical Officers, Doctors, Lawyers and Human Rights activists. The seminar was mainly focused on two aspects.

Firstly the  ‘Importance of Judicial Medical Reports in Fundamental Rights Cases‘ was  explained to the seminar  by Ms. Ermiza Tegal, a leading lawyer in  Supreme Court, Colombo. She said ‘the Judicial Medical Report (Medico Legal Examination Report) is the most important document in Fundamental Rights cases’.

At times, torture victims are unable to re-collect the full story to the Judicial Medical Officer, concerned due to the loss of memory resulted in torture. However to file a fundamental rights case, there should be only 30 days time after the incident happened. If the incident was reported to the Human Rights Commission first, the applicant of the FR will get one months period from the date of reporting to the Human Rights Commission. Any way she requested from the forum to pay much attention to this matter.

Next she was explaining the process in Fundamental Rights cases.

1)30 days for filing petition and Affidavit.

2) Support for leave to proceed (Generally after medical reports are submitted to the Supreme Court).

3) If leave to proceed granted, notices are sent to all the respondents to file objections.

4) Objections are filed and Counter affidavit   of the petitioner is filed in reply.

5) Written submissions are filed by both sides and case is argued.

6) Judgment.

Attorney General, if there is a case, according to the medical reports, he will inform that there is no representation for the accused by the AG. Then the accused has to hire a   private counsel for him to represent for his case.

Then there are no Judicial Medical officers covering the whole island. They are present in all main hospitals. In other hospitals, DMO has to examine the victims of torture .In the case of rural areas, (when a torture happened in a rural hospital area), obtaining a comprehensive medical report for submission is a problem.

It is important JMO/DMO makes a statement to the effect that details recorded during the medical examination correspond or not with the narrative of the victim.

Details of the injuries are important as this establishes seriousness of the conduct of the perpetrators and may be a factor when considering compensation.

Legal professionals are limited by experience and expertise to evaluate medical reports and reliance will be placed on the expert opinion of the medical officer. Therefore it is very important to pay much attention to the MLR.

JMO’s/DMO’s are the experts that observe the patient that complains of torture. They are in a unique position to document the details of injuries that may not be visible for much longer. They are the first person to hear the victim’s account of the narration of events. This is significant for corroboration of history with facts in the affidavit to court.

MLR’s can carry significant evidentiary weight and may be of particular assistance to decision makers and torture survivors themselves ,given the particular vulnerabilities which may affect their ability to give evidence.

She also produced the following two judgments to go through to get an idea on the process of FR cases.

1)       Inquiry under the Medical Ordinance in the Professional Conduct Committee of Sri Lanka. The case of Dr. W.R. Piyasoma-

Complainant:  Mullakandage Amitha Priyanthi, 315/a, Weragala, Paiyagala.

VS.

Respondent: Dr.W.R. Piyasoma, No.42/21, Tappawatta Road, Godigamuwa, Maharagama.

2)       S.C. (F.R.) Application No.663/2003.

Petitioner- Romesh Cooray.

VS.

Respondents-Jayalath, Sub Inspector of Police and Others.

Next the Dr. Neil Fernando, Consultant Psychiatrist at the National Institute of Mental Health, Angoda explained the Psychological aspects of Torture.

There is little focus on psychological aspects of torture because it is more difficult to observe and diagnose.

However the psychological aspect of torture can be severe and long lasting.

By documenting psychological impacts of torture, there will be more information that can be submitted to Court and Court and the petitioner’s will understand the full impact of the torture or inhuman and degrading treatment that was meted out.

Need for JMO/DMO’s to identify symptoms of psychological effects of torture and make referrals.

All forms of torture do not have the same outcome.

Psychological sufferings differ.

Perpetrators justify torture. Need to gather information. Unless you hit cannot get information that is the reply of the Perpetrator.

Can lead to a deterioration of cognitive, emotional and behavioral functions. .Physical incapacitation Disintegration of individual’s Personality.

Not everyone tortured develops diagnosable mental illness. Main defect- Disorder with torture is PTSD (Post Traumatic Stress Disorder) and Depression.

Context of psychological Evaluation.

Psychological symptoms or behaviors can be pathological or adaptive.

Diminished interest in activities, feelings of detachment would be understandable.

Psychological consequences of torture,

Re-experiencing torture, flash backs or intrusive memories, recurrent nightmares when sleeping, Distress at exposure to ones that symbolize or resemble the trauma.

*Avoidance and emotional memory

Avoiding of any thoughts, conservatious, activities, plans or people that arouse recollection of the trauma.

In the MLR’s, if you observe the patient clearly and understand it you must report that the victim is having memory problems. Even in Sexual abuse cases this may happen mostly.

Hyper arousal:

*difficulty falling or staying sleep.

*irritability or outbursts of anger.

*difficulty in concentrating.

*hyper vigilance.

*exaggerated startle respiration.

*anxiety.

Symptoms of Depression:

*depressed mood.

*auddonia .
*appetite.

*insomnia.

*Psychomotor agitation.

*fatigue and loss of energy.

*feelings of worthlessness.

*difficulty in attention.

*thoughts of death & dying, suicidal ideation, suicide attempts.

From 100, 15 will suicide.

Must help the victims.

Damaged Self –Concept:

*subjective feeling.

*personality change.

*sense of foreshortened future.

*give-up carrier, marriage, children or normal life span.

Disassociation, depersonalization and a typical behavior:

* Disassociation.

*depersonalization

*Impulse control problems.

Somatic Complaints:

*headaches,*back pains, *musculoskeletal pain.

Sexual Dysfunction:

*It is common among sexual torture or rape victims.

*subjective things.

Psychosis:

*delusions.

*hallucinations, *auditory, *visual, *tactile,       * bizarre ideation, *illusions,

(Behavior should be observed while interviewing personally and also while him/her behaving in community.)

Examining scientifically the victim and issuing the report is very important.

Neuropsychological impairment:

*torture-physical trauma.-brain impairment.

*blows to the head.

*suffocation,

*prolonged malnutrition.

Basic components of assessment:

*preliminary information.

*detailed description.

*Post & present state of mental health.

*psychological evidence of torture.

*fitness to give evidence in courts.

*treatment and recommendations.

Post & present state of mental health:

*current psychological complaints.

*symptoms of PTSD & other psychological symptoms.

After the lecture of Dr. Neil Fernando, the question session started. Mr. Chithral Perera, Secretary of Janasansadaya explained the different ways & means using for torture at present. Also he expressed how the torture of school children being done at present. Cutting of hair, Cutting of trousers, Defaming, Verbal Abuse, Sexual Abuse, are among them.

In reply to a question, Consultant Judicial Medical Officer, Avissawella Base Hospital said that ‘we do not favor either the victim or the perpetrator. We carry out the examination scientifically and forwarding the medical report (MLR) to the Court. The independence of the Judicial Medical profession is important to us’.

Following things were also discussed at the seminar.

It was observed, though the Sri Lankan Government had signed the United Nation’s Convention against the Torture as far back as in 1993, and enshrined its own law the following year. Since then, in eighteen years only five police officers have been convicted under this act.

Yet people complain all the time of being tortured in police custody. The Human Rights Commission received 347 complaints in 2011, a year in which 12 people died in police stations and 168 complaints until 30th of June, this year.

Even worse, there is no doubt that most cases go unreported as people prefer to stay silent, for fear of intimidation and reprisals against both victims and witnesses.

The fundamental problem lies in the way our police investigate a crime; they open an investigation only after the arrest of a suspect, unlike most countries where they investigate before arresting.

New reforms have to be brought in by the state, to remove the culture of impunity and to make the police force people friendly .The police must also be made independent and delinked from military.

The action against torture is only in the law books; however no significant progress is not recorded so far. In a situation like that conducting a seminar like this is very important to show the administrators of the country and the general public that at any cost, the torture has to be eliminated from our society.

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    The important requirement that the person being examined for evidence of torture first relate what happened to him and this should be recorded. Further details should be elicited from him by questioning.
    The examination must be conducted in private – this was not emphasised.

    Another seminar should be held on conducting Postmortem Examinations and submission of reports to court,and to prosecution and defence counsel.
    Nowadays, postmortem reports appear to be hidden, and not even mentioned during trial.This is puzzling.
    The postmortem examintion determines the time,cause & manner of death.
    In the old days,on the first day of a murder trial,the first evidence led is from the medical officer who reads out the postmortem report.He is then cross examined by prosecution and defence lawyers,and the case proceeds.

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