By Basil Fernando –

Basil Fernando

The UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment Mr Juan E Mendez, published his preliminary findings on 7th May 2016 following an official visit to Sri Lanka. He has observed that torture is a common practice in Sri Lanka and structural reforms are required to prevent it. In concluding remarks he states, “…The current legal framework and the lack of reform within the structures of the armed forces, police, Attorney-General’s Office and judiciary perpetuate the real risk that the practice of torture will continue. Sri Lanka needs urgent measures adopted in a comprehensive manner to ensure structural reform in the country’s key institutions. A piecemeal approach will not be compatible with the soon-to-be-launched transitional justice process and could undermine it before it really begins.”

Findings

In his findings he states that “…I am persuaded that torture is a common practice carried out in relation to regular criminal investigations in large majority by the Criminal Investigation Department (CID) of the police…., he goes on to state that “…Fewer cases are reported today than during the conflict period and perhaps the methods used by the police forces are at times less severe. But sadly the practice of interrogation under physical and mental coercion still exists and severe forms of torture, albeit probably in less frequent instances, continues to be used…,” and that “… Both old and new cases continue to be surrounded by total impunity.”

Then he makes the following observations based on testimonies from victims and detainees whom he and his team of forensic experts have met.

“…I received many testimonies from victims and detainees who took the risk to speak out, despite concerns either for their own safety or their families. I was able to conduct thorough interviews and forensic examinations in a few cases, with the assistance of a forensic expert that accompanied me during my mission. I found the testimonies truthful and many were substantiated with physical evidence that is conclusive of torture. The forensic expert conducted a number of medical examinations that confirmed physical injuries consistent with the testimonies received. The forensic expert also analysed photographs taken shortly after the alleged torture and ill-treatment, and concluded they are diagnostic of severe physical torture.

The nature of the acts of torture consists mainly of transitory physical injuries caused by blunt instruments (essentially punches, slapping and, occasionally, blows with objects such as batons or cricket bats) which heal by themselves without medical treatment and leave no physical scars. There were also several accounts of brutal methods of torture, including beatings with sticks or wires on the soles of the feet (falanga); suspension for hours while being handcuffed, asphyxiation using plastic bags drenched in kerosene and hanging of the person upside down; application of chili powder to face and eyes; and sexual violations including mutilation of the genital area and rubbing of chili paste or onions on the genital area. While these methods of torture were in some cases of short duration, in other cases torture occurred over a period of days or even weeks during interrogation.”

PTA and the failures of the Magistrates

The UN Special Rapporteur observes that under Section 15(a) of the Prevention of Terrorism Act, some detainees continues to be detained in TID facilities, as they are considered by the Secretary of the Defence as a threat to national security. He observes the following regarding the hearings before the Magistrates. “…The hearings held before a magistrate, for the purpose of judicial control of the detention, do not amount to meaningful safeguards against either arbitrariness or ill treatment. The magistrates essentially rubber-stamp detention orders made by the Executive Branch and do not inquire into either conditions of detention or potential ill-treatment in interrogation. ”

The Rapporteur has conducted random interviews of defendants held under the PTA, or under charges of ordinary offences for over ten years in remand detention and others sent to ‘rehabilitation’ in lieu of prosecution which is supposedly voluntary on their part. He goes on to state, that “…Obviously, if after many years of detention the State does not have sufficient evidence to charge a detainee, the latter should be released unconditionally.”

The Rapporteur recommends that, “…The Government should repeal the current PTA. In the context of any replacing legislation, if at all necessary, a robust and transparent national debate should take place that provides for full participation of civil society. We understand that the Government is contemplating statutes on National Security, surveillance and intelligence services. Under any circumstance, those pieces of legislation should include protections against arbitrary arrest, absolute prohibitions on torture or cruel, inhuman or degrading treatment, provisions for access to legal counsel from the moment of deprivation of liberty, strong judicial controls over law enforcement or security agencies, and protections for the privacy rights of citizens. The Special Rapporteur on Human Rights while Countering Terrorism has produced very useful guidelines to incorporate in legislation of this sort. …”

The Rapporteur also expresses concerns about the allegations he has received recently of the so called ‘white van abductions”, and about the absence of clear rules in the law that says arrests have to be authorised by a judge. He further, observes, “…In practice the decision to arrest a person is made by a police officer. For that reason, it is important that detentions are made transparent, with proper identification of the arresting officer, and offering reasons based on objective evidence. Otherwise, distrust of the authorities will persist. ”

The Rapporteur then goes on to make his observations on the reasons that may lead to the practice of torture and observes that, the Sri Lankan criminal justice system and investigation practices that somehow may indirectly incentivise the use of torture. He observes “…The first is the role of confessions of suspects in criminal investigations, which currently seems to be the primary tool of investigation for the police. The need to extract a confession in order to build a case is in itself a powerful incentive to use torture. A second aspect is the practice of conducting the investigation while the suspect is in custody, rather than determining the detention based on preliminary investigations. Authorities have on a regular basis justified prolonged detention on the ground that the investigation was complex, or evidence hard to find, ignoring the fact that, outside of detentions in flagrante delicto, the evidence should be procured before the arrest. This access to the detainee for continuous questioning can also be an incentive for torture, aside from other considerations regarding conditions and legality of detention…”

The Rapporteur states that the Attorney General told the UN delegation that the statements made to the police do not form part of the criminal record in ordinary crime cases, though he acknowledged that under the PTA, statements made to a Senior Police Officer, are fully admissible in Court. He states further that in both cases, police routinely extracts self-incriminatory statements so the admissibility or not of the statements does not protect the detainee from possible coercion. In any case, the PTA provision is in direct contradiction with the obligation under the Conventions against torture to exclude all declarations made under torture.

Rapporteur then directs his observations regarding faultiness of the rules relating to the access to lawyers. The accused provides a statement to the police as routine practice and is never informed about the right to a lawyer. This according to the Rapporteur, amounts to an inadequate and meaningless legal protection, which fuels the widespread fear and mistrust of the police system among the population. He recommends “ …It would be important to establish a clear rule that persons must have access to a lawyer from the moment of deprivation of liberty. A current proposal to amend the Criminal Procedure Code that includes access to counsel only after a statement is taken by the police in the initial 24 hours of detention is not appropriate to effective assistance of counsel and would, therefore, violate due process.”

Judicial oversight of police action is superficial

The Rapporteur in examining the role of the judiciary and the prosecutors finds fault with the prevalent practices in Sri Lanka regarding their dual obligations of prevention and accountability. He states “… A modern accusatory system begins with affording more guarantees for the defendant. In it the public prosecutor is first and foremost the guardian of legality. Prosecutors must enforce the law against criminals but should also actively prevent miscarriages of justice by way of torture and manipulation of evidence, and intervene early on in the process. The accusatory system is more conducive than the inquisitorial system for the respect for human rights; but in its modern form it gives a lot of power but also heightened responsibility to prosecutors. ..”

He points out that judges and prosecutors should take it upon themselves as a matter of legal obligation to consider bail for lesser and non-violent offences and that they should ensure medical examination of the suspects so as to exclude any suspicion of mistreatment while in custody. They should initiate prosecutions to whosoever might be responsible for torture and mistreatment including superiors who may have tolerated and condoned such acts, ensuring that investigations, detentions interrogations arrests and conditions of incarceration takes place within the framework of rule of law.

Deficient and pronounced overcrowding in places of detention

The Rapporteur goes on to observe that there are serious defects relating to detention which results in acute lack of adequate sleeping accommodation, extreme heat, and insufficient ventilation, limited access to medical treatment, recreational activities and educational opportunities. He states that “…These combined conditions constitute in themselves a form of cruel, inhuman and degrading treatment…”

Regarding over-crowding he refers to his visits to prisons where he observed level of population exceeding capacity by well over 200 – 300 percent. “…Vavuniya Remand Prison offered a striking example of such overcrowding. One of its halls hosted 170 prisoners in what my team and I estimated to measure less than 100 square meters, providing less than 0.6 metres per person. In the same building, other prisoners were forced to sleep on the staircase for lack of space in the detention areas. In addition, we saw cells designed for one person occupied by four or five inmates. The larger prisons in Colombo were built in the mid-19th century and walls, roofs and staircases are literally crumbling on the prisoners. The Government has indicated that Welikada prison will be closed and a new prison will be built in Tangalle, but we understand the latter is not even in the planning stages yet. While replacement of old prisons is a good idea, in the meantime it is urgent to conduct maintenance and repair the unsafe conditions that amount to cruel, inhuman and degrading treatment or punishment. …”

Defects in torture prosecution and provisions for fundamental rights

Talking about the Torture Act that came into effect in 1994, he observes that there had been only a few prosecutions. In the prison system there is no formal complaint mechanism available to inmates to make complaints about torture and ill treatment, or any other matter. The complaint mechanisms available against the police is also inadequate. He makes the following comments on the fundamental rights provisions. “…Fundamental rights applications involve complex litigation and are thus not accessible to all. They are subject also to a 30-day term to file from the occurrence of the violation. In addition, even if successful, they result in compensation as the only remedy. The application is not available, for example, to vacate a court order that has been based on a forced confession, as it does not lie against judicial decisions. ..”

Impunity and lack of accountability

Like the previous Rapporteurs, who have observed the prevailing practice of impunity in Sri Lanka, the present Rapporteur also finds that “…Acts of torture that occurred in the past have been well documented. The Government has an obligation to investigate, prosecute and punish every incident of torture and ill-treatment, even if it happened in the past, because under international law prosecution of torture should not be time barred. The State also has the obligation to prevent such occurrences in the present, and the most obvious preventive measure is forceful prosecution of cases reliably reported.

Sri Lanka has a Victim and Witness Protection Act but potential beneficiaries complain that protection is ultimately entrusted to the police which, in most cases, is the agency that they distrust. The Government should consider amending the Act in order to make it more effective and trustworthy. ..”

The Rapporteur will make a more detailed report on these matters to the United Nations’ Human Rights Council at its 34th Session to be held in March 2017.

A scathing critique

The findings of the UN Rapporteur on torture and other cruel and inhuman degrading treatment or punishment, is a scathing critique of Sri Lanka’s failure to carry out its obligation to prevent torture and ill treatment. This Rapporteur’s findings demonstrates that the Government of Sri Lanka, fails to honour the basic obligation to prevent torture and ill treatment despite of many promises it has given to various UN bodies, including the Human Rights Council.

Sri Lanka seems to be trapped within extremely defective criminal justice system that cannot do away with torture and ill treatment. The investigators, prosecutors, and also the judiciary have not made an adequate attempt to overcome the defects of the criminal justice system. None of these institutions have shown a demonstrable will to end this universally condemned practice of torture and ill treatment. On the other hand the Government has failed to provide the necessary resources to undo the defects of a backward system. Therefore, Sri Lanka will continue to be condemned in international forums for its lack of will to develop a criminal justice system to be in keeping with its international obligations.