Justice delayed, human rights denied: The Lalith Rajapakse Case

Communication No. 1250/2004

[Views of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights in Communication No. 1250/2004: Sri Lanka. CCPR/C/83/D/1250/2004. (Jurisprudence)]

Submitted by:  Sundara Aratchchige Lalith Rajapakse (represented jointly by The Asian Human Rights Commission and the World Organisation against Torture)

Alleged victim: The author

State party: Sri Lanka

Date of communication: 28 January 2003 (initial submission)

Document references: Special Rapporteur rule 97 (old rule 91) decision, transmitted to the State party on 26 January 2004 (not issued in document form)

Date of decision: 8 March 2005

Subject matter: Unlawful arrest; ill-treatment and torture in detention; threats from public authorities; failure to investigate

Procedural issues: None

Substantive issues: Unlawful and arbitrary detention; torture in custody; liberty and security of the person

Articles of the Covenant: 7, 9 and 2, paragraph 3

Article of the Optional Protocol: 5, paragraph 2 (b)

The Human Rights Committee, acting through its Working Group pursuant to rule 93, paragraph 2, of the Committee’s rules of procedure, adopts the following decision on admissibility.

[ANNEX]

1. The author is Mr. Sundara Aratchchige Lalith Rajapakse, a Sri Lankan citizen. He claims to be a victim of violations by Sri Lanka of articles 2, paragraph 3, 7 and 9 of the International Covenant on Civil and Political Rights. He is represented by counsel, the Asian Human Rights Commission and the World Organisation against Torture. The Optional Protocol entered into force for Sri Lanka on 3 January 1998.

Factual background
2.1 On 18 April 2002, the author was arrested by several police officers at a friend’s house. On arrest he was beaten and dragged into a jeep outside the house. He was subsequently taken to the Kandana Police station, where he was detained. He was charged with two counts of robbery. During his detention, he was subjected to torture, for the purpose of obtaining a confession, which caused serious injuries and may be described as follows: he was forced to lie on a bench and beaten with a pole; held under water for prolonged periods; beaten on the soles of his feet with blunt instruments; and books were placed on his head which were then hit with blunt instruments.

2.2 On 20 April 2002, the author’s grandfather found him lying unconscious on the floor of a police cell. He sought the help of a Member of Parliament, who made inquiries. When he returned to the police station, he was informed that the author had been taken to the Ragama Hospital. A few hours after the author was hospitalised, one of the police officers allegedly involved in the attack obtained an order to remand him in custody. Subsequently, the author’s mother and grandfather learned upon returning to the Ragama Hospital, that the author had been transferred to the Colombo National Hospital. Following his transfer, he remained unconscious for 15 days and did not speak with clarity until after 13 May 2002. On 15 May 2002, he was transferred to a remand hospital at Welikada.

2.3 On 16 May, the Special Rapporteur on Torture of the United Nations Office of the High Commissioner for Human Rights sent an urgent appeal to the State party, on behalf of the author. On the same day, an application for the author’s release was made to the Wattala Magistrate’s Court. The author was produced before the Magistrate on 17 May 2002, along with the medical report issued by the National Hospital. He was granted bail and subsequently taken back to the National Hospital by his mother and grandfather. He remained there for treatment until June 2002.

2.4 On 20 May 2002, the author filed a petition for violation of his fundamental rights in the Supreme Court of Sri Lanka. On 13 June 2002, the Supreme Court of Sri Lanka granted leave to proceed in the fundamental rights application; a hearing was scheduled for 23 October 2003. Since then, the hearing had been postponed twice and is expected to take place on 26 April 2004.

2.5 The author was subjected to constant pressure to withdraw his complaint and has been living under extreme psychological stress, which has prevented him from working and supporting his family, whose members are now obliged to live on charity. His family fears for his life. He has been repeatedly called to testify alone at a police station, even though he has already made a statement. Threats were also made against his grandfather, to force him to withdraw the complaint he had made to the Human Rights Commission of Sri Lanka. Both the author and his family have made several complaints about the threats to the National Human Rights Commission Hotline, and the National Human Rights Commission. The author does not mention the outcome of these complaints.

2.6 On 24 July 2002, the Attorney General initiated an investigation into the torture allegedly suffered by the author, on the basis of which he filed a criminal action under the Torture Act against certain police officers in the Negombo Magistrate’s Court. This case remains pending and, no date has been fixed for the trial, and the alleged perpetrators have neither been taken into custody nor suspended from their duties. A statement made by the Judicial Medical Officer, which was recorded on 11 October 2002, confirmed the many injuries suffered by the author, including a cerebral contusion, which is described as an injury that “endangers life”.

2.7 On 29 September 2003, the author was acquitted of two charges of robbery that had been filed against him, as it transpired that the alleged victims had not made a complaint against him.

The complaint
3.1 The author claims that the treatment deliberately inflicted upon him, with the intent of obtaining a confession, amounted to torture, prohibited under article 7 of the Covenant.

3.2 He claims that his arrest was not made in accordance with the procedures established under Sri Lankan law, as no reason was given for his arrest, no complaint had been filed against him, no statement was taken and his detention exceeded the legal limit of 24 hours. All the above is also said to violate article 9.

3.3 The author claims that the State party’s failure to take adequate action to ensure that the author was protected from threats issued by police officers violates article 9, paragraph 1, of the Covenant. (1)

3.4 He claims that as the State party failed to ensure that the competent authorities investigate his allegations of torture promptly and impartially, it violated his right to an effective remedy under article 2, paragraph 3, of the Covenant.

3.5 On exhaustion of domestic remedies, the author notes that he sought to obtain redress both through criminal procedures, and through a fundamental rights petition in order to obtain compensation. As a result, the author claims, he and his family have been threatened and intimidated. An assessment of the effectiveness and the reasonableness of the length of the proceedings should take into account the circumstances of his case and the general effectiveness of the proposed remedy in Sri Lanka. In this context, he notes that: no criminal investigation was initiated for over three months after the torture in spite of the severity of his injuries and the necessity to hospitalise him for over one month; the alleged perpetrators were neither suspended from their duties not taken into custody, enabling them to place pressure on and threaten the author; and the investigations are currently at a standstill. Moreover, considering that the criminal procedures for dealing with torture allegations in Sri Lanka have generally been demonstrated to be ineffective, and that the authorities have shown a lack of diligence in the present case, the pending criminal or civil procedures cannot be considered to constitute an effective remedy for the alleged violations.

The State party’s submission on the merits and the author’s comments
4.1 On 15 April 2004, the State party provided its submission on admissibility. It stated that the Criminal Investigation Department (CID) of the Police commenced their investigation on 1 August 2002, upon a direction of the Attorney General. Having concluded its investigations, the CID forwarded its report to the Attorney General who advised it to record further statements of witnesses and to organize an identification parade. Subsequently, the Attorney General indicted the Sub-Inspector of Police under the Convention against Torture Act and forwarded the indictment to the High Court of Negombo on 24 July 2003. If convicted, this police officer will be sentenced to a mandatory jail term of not less that 7 years, and a fine. The State party submitted that the Attorney General would take steps to direct the State Counsel conducting the prosecution to inform the trial judge of the need to expedite the proceedings in this case.

4.2 On the fundamental rights application against officers of the Kandana Police, for the author’s alleged illegal arrest, detention and torture, for which he seeks reparation for damages, the State party confirms that this case remains pending. It submits that the author has not claimed undue delay in the matter and made no attempt to request the Supreme Court to expedite the hearing of the case. Where similar requests were made to the Supreme Court on legitimate grounds, the Supreme Court acceded to such request by giving priority to such cases. In sum the State party submits that the entire communication is inadmissible for failure to exhaust domestic remedies.

4.3 On the basis of the State party’s submission and on behalf of the Committee, on 25 April 2004, the Special Rapporteur on New Communications considered that the admissibility of the communication should be considered separately from the merits.

Authors’ comments on State party’s submissions
5.1 On 5 July 2004, the author comments on the State party’s submission. He reiterates his initial argument on admissibility and informs the Committee that there have been no developments in the criminal proceeding since the communication was registered. Despite the State party’s submission that it would ensure an expeditious hearing of the criminal case, it does not indicate a date for the hearing, nor does it explain why the matter has been delayed for two years: this constitutes in his view an unreasonable delay. He adds that his case will probably not be heard for some time, that there has been only one conviction in a case of torture in Sri Lanka and that case was not heard until eight years after the torture took place.

5.2 As to the fundamental rights case pending before the Supreme Court, he observes that this case was adjourned for the third time on 26 April 2004 and was rescheduled for hearing on 12 July 2004. This delay is said to be unreasonable and in contravention of Sri Lankan law, under which the Supreme Court should hear and dispose of any fundamental rights applications within two months of filing. As to the State party’s remark that the author may request the Supreme Court to expedite his case, the author is unaware of any such special procedure for making applications and the hearing of cases is a matter entirely at the discretion of the courts. The author notes that the State makes no comment on the efficiency of criminal procedures in Sri Lanka in cases or torture generally. He explains that due to his extreme poverty an indefinite delay before he receives compensation will have serious consequences both for him and his family, as he is unable to afford proper medical and psychological treatment.

5.3 The author submits that the procedure in itself is deficient, as is demonstrated by the fact that only one person has been charged in the criminal case although several were involved in the allegations. The State party’s argument that the author only identified one individual in the identification parade is hardly satisfactory, since the author was in a coma for over two weeks following the alleged torture and obviously under the circumstance his capacity for identification was limited. In addition, other evidence existed on which other officers could have been charged, including documentary evidence by the police officers themselves to the Magistrate’s Court and Supreme Court. In his view, sole reliance on the author’s identification, particularly in the circumstance of this case, has resulted in the complete exoneration of the other perpetrators. The author also argues that the only charge filed against the police officer in the criminal proceeding is that of torture; no charges have been filed regarding the illegal arrests and/or detention.

5.4 The author observes that the State party has offered no information on what measures have been adopted to put a stop to the threats and other measures of intimidation to which he has been subjected and adds that there is no witness protection programme in Sri Lanka.

5.5 On 10 December 2004, the author provides an update on the proceedings to date. He submits that his hearing before the Supreme Court was again postponed and given a new hearing date for 11 March 2005. This is the fourth time the case has been rescheduled. According to the author, whether the case will be heard on that day will depend on how busy the Court is, and the case may very well be postponed again. The hearing in the High Court is scheduled to take place on 2 February 2005, the purpose of which is to serve the indictment upon the police officer accused of torture. After the indictment is served, the actual trail could, in the author’s view, take several years to determine. He states that these prolonged delays have exacerbated his exposure to threats and serious risk of harm at the hands of those that do not wish him to pursue judicial remedies. He refers to the recent murder of a torture victim, Mr. Gerald Perera, in mysterious circumstances just a few days before a hearing in the High Court of Negombo, where he was to provide testimonial evidence against 7 police officers accused of torturing him, and fears the same fate. Threats to the author have continued and he has recently been forced to go into hiding to protect himself against harm.

5.6 On 10 March 2005, the author explains that the 2 February 2005 hearing in the criminal case was postponed again until 26 May 2005. Local counsel assisting the author filed a motion with the court on 2 February 2005 to expedite the case. The motion was denied on the grounds that a new judge has been assigned to the case and that it will be up to the new judge to schedule the case according to his priorities. On 14 March 2005, the author states that the 11 March 2005 hearing before the Supreme Court was not heard on the merits but postponed until 26 June 2005.

Issues and proceedings before the Committee
6.1 Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

6.2 The Committee notes that the issues raised by the author still continue to remain pending before the High Court as well as the Supreme Court, despite nearly three years having passed since their institution and the police officer alleged to have participated in the torture of the author still continues under indictment in the criminal case. It is significant to note that the State party has not provided any reasons why either the fundamental rights case or the indictment against the police officer could not have been considered more expeditiously, not has it claimed the existence of any elements of the case which should have complicated the investigations and judicial determination of the case preventing its determination for nearly three years. For these reasons, the Committee finds that the delay in the disposal of the Supreme Court case and the criminal case amounts to an unreasonable prolonged delay within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. The Committee therefore finds this communication admissible with respect to the alleged violations of articles 7 and 10 of the Covenant.

7. Accordingly, the Human Rights Committee decides:

a) That the communication is admissible;
b) Pursuant to article 99, paragraph 2, of the Optional Protocol, the Committee invite the State party to submit, within six months of the date of transmittal of the present decision, written explanations or statements clarifying the matter and indicating what measures it has taken, if any;
c) That in accordance to article 99, paragraph 3 of the of the Committee’s rules of procedure any explanations or statements received from the State party shall be communicated to the author with a request that any comments he wishes to make by submitted to the Human Rights Committee, through the United Nations Commissioner for Human Rights within six weeks of the date of transmission; and
d) That the present decision be communicated to the State party and to the author of the communication.

Note
(1) The author refers to the Committee’s jurisprudence. See Communication No. 821/1998, Chongwe v. Zambia, Views adopted on 25 October 2000, Communication No. 195/1985, Delgado Paez v. Colombia, Views adopted on 12 July 1990, Communication No. 711/1996, Dias v. Angola, Views adopted on 18 April 2000.

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