Jailed for raising voice in court: The Tony Fernando Case
Articles 7, 9, 10(1) 14(1), (2), (3)(a), (b), (c), (d), (e) and (5) and 2(3) of the International Covenant on Civil and Political Rights (the Covenant) – Articles 5(1), 5(2)(b), 5(4) of the Optional Protocol to the Covenant – contempt of court – incompatibility of Article 105(3) of the Constitution with articles 14 and 19 of the Covenant – exhausting domestic remedies – interim measures – Rule 86 of the rules of procedure.
Tony Fernando came before the UN Human Rights Committee (the Committee) claiming that his rights under the Covenant were violated when he was summarily convicted of contempt of court by the Supreme Court of Sri Lanka on 6 February 2003 and sentenced to one year’s rigorous imprisonment. According to him, approximately two weeks later, a second contempt order was issued by the Chief Justice, the operative part of which stated that:
The petitioner was informed that he cannot abuse the process of Court and keep filing applications without any basis. At this stage he raised his voice and insisted on his right to pursue the application. He was then warned that he would be dealt with for contempt of Court if he persists in disturbing the proceedings of Court. In spite of the warning, he persists in disturbing the proceedings of Court. In the circumstances, we find him guilty of the offence of contempt of Court and sentence him to one-year rigorous imprisonment…
The author was imprisoned immediately and claimed that while in prison he was severely assaulted by prison guards. During this time he was also visited by the UN Special Rapporteur on the independence of judges and lawyers, who expressed concern about the case.
In March 2003 the author filed a fundamental rights petition to the Supreme Court, which remains pending before court. He also submitted an appeal against his conviction for contempt on the grounds that no charge was read out to him before conviction, that the sentence was disproportionate, and that the matter should not be heard by the same judges, since they were biased. Nonetheless the same three judges who convicted him heard the appeal, which was dismissed.
The author claimed violations of his rights under several articles of the Covenant including article 14 (right to fair trial) article 9 (arbitrary detention), and article 19 (freedom of expression).
The author was released from jail in October 2003 and on 5 December 2003, following death threats, the author requested interim measures of protection. On 9 January 2004, pursuant to rule 86 of the rules of procedure the Special Rapporteur on new communications requested the State party on behalf of the Committee to adopt all necessary measures to protect the life, safety and personal integrity of the author and his family, so as to avoid irreparable damage to them.
On the violation of articles 7 and 10(1) of the Covenant, regarding the author’s alleged torture and conditions of detention, the Committee noted that these issues were pending before both the Magistrate’s Court and the Supreme Court. A delay of 18 months did not amount to an unreasonably prolonged delay within the meaning of article 5(2)(b), of the Optional Protocol. The claim was thus considered inadmissible for non-exhaustion of domestic remedies.
On the author’s claim that his detention was arbitrary under article 9 as it was ordered after an allegedly unfair trial, the Committee was of the view that this claim is more appropriately dealt together with article 14 as it relates to post-conviction detention. As to the alleged violation of article 14(3)(c), the Committee found that this claim had not been substantiated for the purpose of admissibility and therefore was also inadmissible under article 2 of the Optional Protocol.
As to the remaining claims of violations of articles 9(1), 14(1), (2), (3)(a), (b), (d), (e), 14(5), and article 19, the Committee considered these claims sufficiently substantiated with no other bar to their admissibility.
On the merits of these claims, the Committee noted that courts in Common Law jurisdictions have traditionally enjoyed authority to maintain order and dignity in court debates by the exercise of a summary power to impose penalties for contempt of court. But here, the only disruption indicated by the State party was the repetitious filing of motions by the author, for which an imposition of financial penalties would have been sufficient, and one instance of raising the voice in the presence of the court and refusing thereafter to apologize. The penalty imposed was a one year term of rigorous imprisonment. No reasoned explanation had been provided by the court or the State party as to why such a severe and summary penalty was warranted in the exercise of a court’s power to maintain orderly proceedings. Article 9(1), of the Covenant forbids arbitrary deprivation of liberty. The imposition of a draconian penalty without adequate explanation and without independent procedural safeguards falls within that prohibition. The fact that an act constituting a violation of article 9(1) is committed by the judicial branch of government cannot exclude the responsibility of the State party as a whole.
The Committee concluded that the author’s detention was arbitrary, in violation of article 9(1). In the light of this finding, the Committee did not see the need to consider the question of whether the provisions of article 14 may have any application to the exercise of the power of criminal contempt. Neither did it consider whether or not there was a violation of article 19.
In accordance with article 2(3)(a) of the Covenant, the State party was obliged to provide the author with an adequate remedy, including compensation, and to make such legislative changes as necessary to avoid similar violations in the future. The State party was also requested to avoid similar violations in the future.
Justice delayed, human rights denied: The Lalith Rajapakse Case
Articles 2(3), 7, and 9 of the Covenant – rule 87 of the Rules of Procedure – admissibility – exhausting of domestic remedies – Article 5(2)(b) of the Optional Protocol to the Covenant – freedom from torture or cruel, inhuman or degrading treatment or punishment – right to liberty and security of person – right to an effective remedy.
Lalith Rajapakse came before the Committee claiming that treatment inflicted upon him by the police for purposes of obtaining a confession-as a result of which he was hospitalised and also rendered unconscious for two weeks-amounted to violation of article 7 of the Covenant, while his arrest was in violation of article 9. He also claimed that the State party had failed to take adequate action to ensure that he was protected from threats issued by police officers, which violated article 9(1), and that the State party’s failure to ensure that competent authorities investigated his allegations of torture promptly and impartially violated his right to an effective remedy under article 2(3) of the Covenant.
On 20 May 2002 the author had filed a petition for violation of his fundamental rights in the Supreme Court of Sri Lanka and on 13 June 2002 had been granted leave to proceed but to date the court hearings had been constantly postponed. Meanwhile, he claimed that he was subjected to constant pressure to withdraw his complaint and had been living under extreme psychological stress. This had prevented him from working and supporting his family, whose members had been obliged to live on charity. On 24 July 2002, the Attorney General initiated an investigation into the torture allegedly suffered by the author and consequently filed a criminal action in the Negombo Magistrate’s Court under the Convention against Torture Act (No. 22 of 1994) against certain police officers. This case remained pending and no date had been fixed for the trial. The alleged perpetrators had neither been taken into custody nor suspended from their duties. On 29 September 2003 the author was acquitted of two charges of robbery that had been filed against him as the alleged victims had not made a complaint.
The State party submitted that the communication was inadmissible due to failure to exhaust domestic remedies.
The Committee noted that the issues raised by the author had continued to remain before the High Court and the Supreme Court despite nearly three years having passed. The State party had not provided any reasons as to why both the fundamental rights case and the indictment in the High Court could not have been considered more expeditiously, nor had it claimed the existence of any elements of the case that should have complicated the investigations and judicial determination of the case for nearly three years. Therefore this delay amounted to an unreasonable prolonged delay within the meaning of article 5(2)(b) and the communication was found to be admissible with reference to articles 7 and 10.
The State party was required to submit written explanations or statements within six months clarifying the matter in accordance with article 99(2) of the Optional Protocol.
The long search for a son: The Sarma Case
Articles 2(3)(a), 6, 7, 9, 10 of the Covenant – articles 5(1) & 5(4) of the Optional Protocol to the Covenant — Committee’s competence to hear the case- exhausting domestic remedies – violation of freedom from torture of victim and his family – enforced disappearance, a violation of article 9 in its entirety – effective remedy including effective investigation, immediate release (if alive), adequate information and compensation – State’s obligation to expedite current criminal proceedings against those responsible.
Jegatheeswara Sarma came before the Committee claiming that the State party had violated his son’s rights under articles 6, 7, 9, and 10 of the Covenant and that he and his family were victims of a violation of article 7. He alleged that on 23 June 1990 his son (together with himself and others) was abducted by the State army in a cordon and search operation on suspicion of being a Liberation Tigers of Tamil Eelam member, tortured while in custody and then disappeared. About one year later a high-ranking army officer told his wife that her son was dead, but about six months later he saw his son in an army vehicle. He gave evidence before the Presidential Commission of Inquiry into Involuntary Removals and Disappearances in the Northern and Eastern Provinces and complained to the President. However, the army denied any knowledge of the abduction.
The State party maintained that the Committee was not competent to judge the case as the alleged violation occurred prior to the entry into force of the Optional Protocol and also that the author had not demonstrated the exhaustion of domestic remedies. In reply the author claimed that the suffering of himself and his family was continuing to date. He also listed 39 letters and requests to various authorities regarding the disappearance without any tangible outcome to date. Thus he argued that he had exhausted all available domestic remedies.
On the merits of the case, the State party submitted that it did not, either directly or through the relevant field commanders of its army, cause the disappearance of the author’s son. Instead, criminal investigations had revealed that one Corporal Sarath was responsible for his abduction, without the knowledge of responsible officers and independent of the cordon and search operation.
The author indicated that enforced disappearances are a clear breach of various provisions of the Covenant, including article 7. There was little doubt that his son’s disappearance was imputable to the State party because the Sri Lankan army is indisputably an organ of that State. Where the violation of rights is carried out by a soldier or other official who uses his or her position of authority to execute a wrongful act, the violation is imputable to the State, even where the soldier or other official is acting beyond his authority. The author, relying on the judgment of the Inter-American Court of Human Rights in the Velasquez Rodriguez Case and that of the European Court of Human Rights concluded that even where an official is acting outside of authority, the State party finds itself in a position of responsibility if it provided the means or facilities to accomplish the act.
On the admissibility of the communication, the Committee’s view was that although the disappearance took place before the entry into force of the Optional Protocol for Sri Lanka, its effects may have occurred or continued thereafter. Also, the author had exhausted the remedies that were reasonably available and effective in Sri Lanka.
On the merits of the communication, it was noted that the State party had not denied that the author’s son had been abducted by an officer of the Sri Lankan army and had been unaccounted for since. Also, the Committee held that for purposes of establishing State responsibility it was irrelevant that the officer to whom the disappearance was attributed had acted outside authority or that his superior officers were unaware of his actions. Therefore the State was responsible for the disappearance of the author’s son and the violation of article 9 in its entirety. The facts also revealed a violation of article 7 both with regard to the author’s son and the author’s family. On article 6, it was noted that the author had not asked the Committee to conclude that his son was dead and he had indicated that he had not abandoned hope for his son’s reappearance. Therefore the son’s death had not been presumed.
The Committee held that the State party was under an obligation to provide the author and his family with an effective remedy, including a thorough and effective investigation, the son’s immediate release if he was still alive, and adequate information resulting from its investigation as well as adequate compensation for the violations suffered.
A confession under duress: The Nallaratnam Singarasa Case
Articles 14(1), (2), (3)(c), 3(f), 3(g), (5), 7, 26 and 2(1), 2(3) of the Covenant – articles 5(2)(a), 5(2)(b) and 5(4) of the Optional Protocol to the Covenant – right to fair trial – right to be presumed innocent until proven guilty – right to be tried without undue delay – to have the free assistance of an interpreter if one cannot understand or speak the language used in court – not to be compelled to testify against oneself or to confess guilt – freedom from torture or cruel, inhuman or degrading treatment/punishment – Rule 90(b) of the Rules of Procedure, author’s right to be represented – Committee’s competence to hear the case – exhausting domestic remedies – effective remedy including release or retrial and compensation – ensuring sections of the Prevention of Terrorism Act are compatible with Covenant provisions.
Nallaratnam Singarasa, a member of the Tamil community currently serving a 35-year prison sentence claimed violation of articles 14(1), (2), (3)(c), 3(f), 3(g); (5) as well as 7, 26 and 2(1), 2(3) of the Covenant. He claimed that on 16 July 1993 he was arrested by State security forces on suspicion of supporting the Liberation Tigers of Tamil Eelam and detained under the Prevention of Terrorism Act (PTA), which provided for detention without charge up to 18 months (renewable every three months). He further alleged that while in detention, he was not afforded legal representation or external interpretation, but was interrogated and subjected to torture and ill-treatment before his statement was recorded and his thumbprint forcibly placed on it. This statement was later produced as his alleged confession. After 14 months of detention he was indicted in the High Court in three separate cases under the PTA.
In Case 6895/94, despite the High Court being informed that the victim had been tortured and the Judicial Medical Officer stating that he displayed scars and a serious eye injury that permanently impaired his vision, the High Court accepted his alleged confession. On allegations of torture, the court held that his failure to inform the magistrate of the assault amounted to him not behaving as a ‘normal human being’. The author’s testimony that he had not reported the assault to the magistrate for fear of reprisals on his return to police custody was not considered. Accordingly, he was convicted and sentenced to 50 years’ imprisonment based solely on the alleged confession. The Court of Appeal affirmed his conviction but reduced the sentence to 35 years, while his petition for special leave to appeal to the Supreme Court was refused.
The author opined that among other things article 14(1) was violated when he was convicted by the High Court based solely on an alleged confession extracted under circumstances that violated his right to fair trial.
The delay of four years between his conviction and the denial of leave to appeal to the Supreme Court was a violation of article 14(3)(c), while not being provided with a qualified external interpreter when interrogated by the police (he could not read or speak Sinhalese) violated his rights under article 14(3)(f). In addition, the reliance on his alleged confession and shifting the burden on him to prove the confession was not made voluntarily violated article 14(3)(g), section 16(2) of the PTA violated article 14(2) (presumption of innocence), and the decision of the Court of Appeal to uphold his conviction despite ‘irregularities’ violated article 14(5). Articles 7 and 2(1) were violated because among other things there was a continuing violation of his rights as Sri Lankan law did not provide any effective remedy for his torture and ill treatment. Finally, the constitutional bar to challenge section 16(1) of the PTA violated article 2(3) when read with article 7 of the Covenant.
The State party argued that the communication was inadmissible as the author was required to personally submit a communication or prove that he was unable to do so. The State party also asserted that he had not exhausted domestic remedies, such as requesting for a presidential pardon; applying to the Supreme Court under article 11 of the Constitution for a declaration of rights violation, compensation and if warranted an order of release; complaining to the police of his alleged torture and ill-treatment; or instituting criminal proceedings against the perpetrators in the Magistrates Court.
On the merits of the communication, the State party denied that the author’s rights under the Covenant were violated or that either the State of Emergency or PTA violated the Covenant.
On the admissibility of the communication, the Committee found that the author had exhausted domestic remedies in that a presidential pardon did not constitute an effective remedy for the purposes of article 5(2)(b) of the Optional Protocol, and also on article 7 the Court of Appeal had already dismissed his appeal for lack of merit and refused leave to appeal to the Supreme Court.
On the merits of the communication, the Committee’s views were that the author had been denied a fair trial as guaranteed under article 14(1) when the courts relied solely on a confession obtained under the aforementioned circumstances. Article 14(3)(c) conferred a right to review of a decision at trial without delay. Thus a delay of more than two years (as in the present case) violated the author’s rights under articles 14(3)(c) and 5 of the Covenant.
Also, the wording in article 14(3)(g) that no one shall “be compelled to testify against himself or confess guilt” must be understood as the absence of any direct or indirect physical or psychological coercion from the investigating authorities on the accused when obtaining a confession. It is implicit in this principle that the prosecution prove that the confession was made without duress. Even if the State argues that the threshold of proof is “placed very low” and “a mere possibility of involuntariness would suffice…” the willingness of the courts at all stages to dismiss the complaints of torture and ill treatment on the basis of the inconclusiveness of the medical certificate (especially one obtained over a year after) suggests that this threshold was not complied with. Hence by placing the burden of proof regarding the confession on the author, the State party violated article 14(2) and 14(3)(g), read together with articles 2(3) and 7 of the Covenant. Therefore the facts disclosed violations of article 14(1), (2), (3)(c) and 14(g) read together with articles 2(3) and 7.
The Committee held that the State party was under obligation to provide the author with an effective and appropriate remedy including release or retrial and compensation as well as to avoid similar violations in the future. The State should also ensure that the impugned sections of the PTA be made compatible with the provisions of the Covenant. The State party was requested to inform the Committee within 90 days of the measures taken to give effect to the Committee’s views.
Muzzling the freedom of expression: The Victor Ivan Case
Articles 2(3), 14(3)(c), 19, 26 of the Covenant – article 5(1), 5(2)(b), 5(4) of the Optional Protocol to the Covenant – right to fair trial – freedom of expression – equality and equal protection of the law – effective remedy – Committee’s competence ratione temporis – exhausting domestic remedies – violation of articles 14(3)(c), and 19 read together with article 2(3) of the Covenant.
Victor Ivan Majuwana Kankanamge, the editor of Ravaya newspaper, came before the Committee claiming violation of his rights, among other things, under articles 2(3), 19 and 26 of the Covenant. He claimed that the Attorney General indicted him thrice before Sri Lanka’s High Court for criminal defamation without proper assessment of the facts as required under Sri Lankan legislation, and this was designed to harass him. As a result, he had been intimidated, his freedom of expression restricted and the publication of his newspaper obstructed. Though not specifically raised, the Committee also considered violation of article14(3)(c).
Earlier, the author’s petition to the Supreme Court for a violation of his fundamental rights guaranteed under the Sri Lankan Constitution had been refused leave to proceed.
The State party argued that the communication was inadmissible as the alleged violation occurred prior to the Optional Protocol entered into force for Sri Lanka and thus it was covered by the reservation made by the State. Also, it argued that the author did not exhaust available domestic remedies viz. making representations to the Attorney General, complaining to the Ombudsman or the National Human Rights Commission (NHRC). The State contended that section 393(7) of the Criminal Procedure Code afforded the Attorney General a discretionary power to file indictments in the High Court and in the present case, the Attorney General acted in accordance with the law, impartially and in the best interest of justice.
On the admissibility of the communication, the Committee found that the alleged violations had occurred not only at the time of filing the indictment, but were continuing and constituted new alleged violations as long as the indictments remained in effect. It also held that the State party had failed to demonstrate that-in the light of the contrary ruling by the Supreme Court-making representations to the Attorney General, complaining to the Ombudsman or the NHRC constituted an effective remedy. Thus the communication was declared admissible.
On the merits of the communication, the Committee found that as the three indictments against the author had not been adjudicated and had been pending for several years, the proceedings have been unreasonably prolonged and thus they violated article 14(3)(c) of the Covenant. Regarding the nature of the author’s profession and other circumstances, the indictments for criminal defamation for several years left the author in a situation of uncertainty and intimidation and had a chilling effect, which duly restricted the author’s exercise of his rights to freedom of expression. Thus the facts also revealed a violation of article 19 read with article 2(3). The Committee held that the State party was under an obligation to provide the author with an effective remedy including appropriate compensation, and under an obligation to prevent similar violations in the future.
Accordingly the State party was directed within 90 days to provide information about the measures taken to give effect to the Committee’s views.
President puts a life at risk: The Jayalath Jayawardena Case
Articles 2(3)(a) and 9(1) of the Covenant – article 5(2)(a) and 5(2)(b) of the Optional Protocol to the Covenant – violation of the right to security of person – legal immunity of the Head of State – State’s failure to investigate death threats – exhausting domestic remedies – appropriate remedy.
Jayalath Jayawardena, a medical doctor and politician, came before the Committee claiming that (a) the public allegations made by the President of Sri Lanka of the author’s alleged involvement with the Liberation Tigers of Tamil Eelam put his life at risk, but he had no remedy against the President as she was immune from legal suits; (b) that the State failed to protect his life when it refused to grant him sufficient security; and (c) the State failed to investigate his complaints regarding death threats against him. Although not specifically invoked, the Committee considered the communication under article 9(1) of the Covenant.
The State party maintained that the communication was inadmissible, as the author had not availed himself of any domestic remedies under the Constitution and the Penal Code. It also contested the fact that the author had received death threats. Instead, it alleged that rather than vindicating human rights violations, the author was engaged in a political exercise to bring discredit to the government internationally.
The Committee found that while the State party did not contest that due to her immunity the President could not have been the subject of a legal action, it did not indicate whether the author had any effective remedies to obtain reparation for the harm allegedly caused by the President. Also the State party had failed to investigate the author’s claims of death threats. Thus the author had exhausted domestic remedies regarding these issues.
The State party did not contest the allegation that the President had put the life of the complainant at risk, nor the fact that the statements were made. Also, because the Head of State acting under immunity enacted by the State party made these statements, the Committee concluded that the State party was responsible for the violation of the author’s rights under article 9(1).
Accordingly, the author was entitled to an appropriate remedy. The State party was directed within 90 days to provide information about the measures taken to give effect to the Committee’s views.
The communication was not admissible as the author had not exhausted domestic remedies. The fact that the President enjoyed immunity from suits did not mean that there was no procedure for redress against other state organs.