Complaint to the UN Human Rights Committee

Sandamali Pathmini, wife of Sugath Fernando, Negombo, Sri Lanka

Individual complaint (by representation) under the First Optional Protocol of the International Covenant on Civil and Political Rights

6 February 2009

1. Information on the Complainants/Authors:

1.1. Name: Mrs. Annakkarage Suranjini Sandamali PATHMINI Peiris, aged 33 years

Complainant above is filing this communication on her behalf AND on behalf of her deceased husband Mr. Siyaguna Kosgodage Anton SUGATH Nishantha Fernando AND her two minor children Siyaguana Kosgodage KALPANI Danushi Fernando, aged 17 years & Siyaguna Kosgodage SINESH Antony Fernando, aged 12 years, as their legal representative and lawful guardian.

The permanent address of the complainant is 349/2A, Jayamawatha Road, Dalupata, Negombo, Sri Lanka.

1.2. Nationality: Sri Lankan

1.3. Place & date of birth:

Complainant: Negombo, 07 April 1975

[Sugath (husband): Negombo, 05 October 1971, Kalpani (daughter): Colombo, 02 May 1992, Sinesh (son): Negombo, 26 August 1997]

1.4. State party: Sri Lanka

2. Representation:

2.1. The complainant is represented and assisted by the (1) Asian Legal Resource Centre (ALRC), (2) Mr. Bijo FRANCIS, Advocate, both having the address 19/F, Go-Up Commercial Building, 998 Canton Road, Mongkok, Kowloon, Hong Kong Special Administrative Region, (3) REDRESS, 87 Vauxhall Walk, London, SEII 5HJ United Kingdom & (4) Rehabilitation and Research for Torture Victims (RCT), Domus Parker, Borgergad 13, PO Box 2107, DK-1014, Copenhagen, Denmark

2.2. An authorisation signed by the complainant authorising the ALRC and the complainant’s lawyer to represent the complainant before the Committee is annexed herewith. The letters of consent from the REDRESS and RCT are also annexed herewith.

2.3. All future correspondence regarding this complaint may be addressed to: Asian Legal Resource Centre, 19/F, Go-Up Commercial Building, 998 Canton Road, Mongkok, Kowloon, Hong Kong SAR

3. Alleged breach of the International Convention on Civil and Political Rights (ICCPR):

It is averred:

§ that the complainant and her family have received numerous threats to their life to withdraw the complaints, including a Fundamental Rights Application filed against 13 police officers serving in Sri Lanka police, and that the complainant’s husband was shot dead on 20 September 2008 and further that so far not a single satisfactory and credible investigation has been initiated against the murder which amounts to the violation of Article 6, read with Article 2 (3);

§ that the complainant and her family were tortured and abused by the police officers serving in Sri Lanka police thereby violating their inalienable rights under Article 7;

§ that the State party has failed to provide any form of redress, including a proper investigation into the complainant’s case, even in instances where the rights under Article 7 of the complainant and her family were violated and that the incidents so far establish that the possibility of such redress does not exist in Sri Lanka, thereby violating their rights guaranteed under Article 2 (3) read with Article 7 of the ICCPR which binds the State of Sri Lanka

§ that the complainant and her husband have complained to the Inspector General of Police, the National Human Rights Commission, the National Police Commission and also to the Ministry of Disaster Management and Human Rights in Sri Lanka seeking protection against the threats to their life but were denied any form of protection by the State party; and that the complainant and her family have been subjected to further threats to their life by the police officers of all ranks and the criminals associated with these officers, and that the complainant and her family are prevented from pursuing their complaints and grievances, thereby the State party violated their rights under Article 9 (1) read with Article 2 (3);

§ that the State party has failed to provide any protection to safeguard the rights under Article 17 and Article 23 (1) of the complainant and her family and due to this, the peaceful family life of the complainant and her family is shattered, they were abused, assaulted and tortured in public view at their home; and further that for the past five months the complainant and her children have been unable to live in their house and are thus forced into a life of hiding fearing persecution; and that this life of uncertainty has affected the complainant’s peaceful family life and further terminated the possibility of her two children pursuing their education.

4. Summary of the facts alleged:

4.1. The complainant and her husband, Mr. Siyaguna Kosgodage Anton Sugath Nishantha Fernando, purchased a lorry on 24 May 2003 from Mr. Mahinda Pathirana, the then officer in charge of the Kochikade Police Station. The officer sold the lorry to the complainant and her husband making them believe that he was the owner of the vehicle. Later, it was revealed that the lorry was a stolen vehicle and that the officer with fraudulent intentions had changed its registration plate before selling it to the complainant and her husband.

4.2. Coming to know about the fraud played upon them by the officer, the complainant and her husband filed a complaint against police officer Mahinda. A disciplinary enquiry was initiated against the officer. Once the enquiry proceedings started, the officer and several of his colleagues tried to threaten the complainant and her husband asking them to withdraw the complaint. But they pressed on with the complaint. The officer was interdicted in December 2005. The officer however died in the same month. Due to the stubbornness the complainant and her husband exhibited in pursuing their complaint, some police officers started seeing the complainant and her family as a threat to their corrupt ways.

4.3. The husband of the complainant had a fabricated complaint made against him by the Negombo Police in 2003. The complaint was made against the complainant’s husband when he visited the Negombo Police Station to register a complaint against three local thugs who had abused and robbed the complainant’s husband on the street. By the time the complainant’s husband reached the police station, the thugs had contacted the police officers known to them at the police station and instructed them to book the husband of the complainant in a petty case. When the complainant’s husband arrived at the police station, instead of recording his complaint, the complainant’s husband found that he was accused of a crime and a false case registered against him. The complainant’s husband filed a complaint to the Human Rights Commission of Sri Lanka (HRCSL) requesting an intervention in this case. The HRCSL did not take any action. Exploiting the trap the complainant’s husband had fallen into, the officer in charge of Negombo Police Station, Mr. P. P Mahagamage Darmadasa, demanded a bribe of 20,000 Sri Lankan Rupees from the complainant’s husband.

4.4. The complainant’s husband refused to pay the amount demanded. Instead the complainant and her husband filed a complaint at the National Police Commission (NPC) against the officer. No action followed. On 11 June 2004, the complainant and her husband filed a complaint at the Bribery Commission of Sri Lanka against police officer Darmadasa. The complainant’s husband also gave a statement at the Bribery Commission. After two years, in 2006, based on the statement given by the complainant’s husband, the Commission initiated proceedings against Darmadasa. These are pending before the Colombo High Court as B/1658/2006. This incident however turned several police officers associated with Darmadasa against the complainant and her family.

5. Intimidation and torture:

5.1. In 2006, the Superintendent of Police (SP) in Negombo, Mr. Mahanama, summoned the complainant and her husband to his office on the pretext that their statements needed to be recorded in the departmental enquiry against officer Darmadasa. At the SP’s office the officer shouted at the complainant and her husband. He threatened them that unless they immediately withdrew the complaint against Darmadasa, they would have to pay a heavy price for antagonising the police. The officer recorded no statement. Threatened and intimidated, the complainant and her husband filed a complaint against the officer, Mr. Mahanama.

5.2. In the same year, the complainant and her husband went to the Negombo Police Station regarding a document concerning one of their vehicles. At the police station, they met Chief Inspector Mr. Nishanta and another officer who introduced himself as an officer attached to the Crime Branch. Instead of assisting the complainants, the officers shouted at them in filthy language. The officers ordered the couple not to come to Negombo Police Station any more if they cared for their lives. The officers also threatened that if they want to live, they must withdraw the complaints they had filed against the police officers. It must be noted here that the Crime Branch within a police station is the branch that conducts enquiries into crimes. Regarding this incident, the complainant and her husband filed a complaint against the two officers at the office of the Deputy Inspector General (DIG) asking for an investigation and further informing the DIG that their life in under threat from police officers stationed in Negombo Police Station. To their surprise and frustration, the DIG directed this complaint to SP Mr. Mahanama, against whom the complainants had already filed a complaint.

5.3. In 2006, on the pretext of recording a statement on the complaint against SP Mr. Mahanama, the complainant and her husband were summoned to the office of the Senior Superintendent of Police (SSP). At the SSP’s office, the police officers verbally abused and threatened the complainant and her husband that they would be murdered if they pressed on the complaints. The officers demanded them to withdraw the complaint against officers Darmadasa and Mahanama. Shocked from the two incidents, the complainant and her husband filed yet another complaint at the DIG’s office requesting an investigation about the incident and further, protection for the complainant and her husband and their family from police officers. No action has been taken on these three complaints so far.

5.4. On 10 September 2006 the complainant and her husband were buying bread from a local market. They had arrived at the market on a motorcycle. At that time, the Negombo SSP was passing by, accompanied by his motorcade. A police officer from the motorcade approached the complainant and her husband and asked why they were not wearing their helmets. The complainant and her husband replied that they need not since they were not riding the motorbike. Then another police officer approached and ordered that they must immediately withdraw the complaint they had filed against the SP. The complainant and her husband refused, and informed the officers that it was none of their business. The officers started shouting at them and one officer snatched the keys for the motorcycle from the complainant’s husband. The police officers threatened the complainant that they would arrest the complainant’s husband if they refused to withdraw the complaints. The same day the officers registered a false case against the complainant and her husband. They were later released on bail from the Negombo Magistrate’s Court.

5.6. On 12 November 2007 two police officers, Sub Inspector Mr. Abayanayake and Police Constable Mr. Dissanayake came to the complainant’s house and asked the complainant and her husband that they should not give evidence against police officer Mr. Darmadasa at the Colombo High Court on 14 November. The complainant’s husband showed the officers the summons they had received from the court. At this, the officer threatened that the complainant and her husband would be murdered to prevent them from going to the court and started abusing the complainant and her husband using filthy language. Then, officer Mr. Abayanayake slapped the complainant’s husband on his face. The complainant protested against this.

5.7. The husband of the complainant at this time asked the complainant’s daughter to write down the number of the motorcycles the officers had arrived with. When the complainant’s daughter approached a motorcycle, the officer who was sitting on the motorcycle hit the complainant’s daughter with the front wheel of the motorcycle by driving the motorcycle towards the child. The complainant’s daughter fell down. Then the officers summoned more officers to come to the house. Six officers immediately came to the house.

5.8. Fearing for their lives the complainant immediately contacted the Bribery Commission seeking help. The officer who attended the call informed the complainant that he was passing the information over to the Head Quarters Inspector and ordering the officer to intervene. It must be noted here, that other than the local police stations there are separate offices of the Sri Lanka police in the provinces and in major towns.

The officers posted in these offices are known in Sri Lanka as ‘Head Quarters Officers’ since they are answerable to the police head quarters in Colombo rather than to the local police station. On instructions from the Bribery Commission, Mr. Somasiri, the Head Quarters Inspector, arrived at the complainant’s house with about 50 officers. 20 officers marched into the house compound, whereas 30 officers waited outside, keeping the villagers who had gathered around the house by then from intervening.

5.9. The officers then took turns to assault the entire family. Due to the assault, the complainant’s husband lost his consciousness and fell down on the ground. The officers continued kicking and hitting him. Some officers in the meanwhile assaulted the complainant. The Head Quarters Inspector Mr. Somasiri hit the complainant on her face with his pistol. Another officer punched the complainant’s son, who was just 10 years old, on his face. The same officer then banged the boy’s head on the wall. The boy started screaming from pain and fear and ran out of the house. Later, the officers threw the complainant, her husband, and her daughter into the police vehicle. As they were bundled into the police vehicle one police officer tried twice to forcefully remove the blouse from the complainant’s daughter.

5.10. Regarding this entire incident the complainant and her husband filed a case in the Supreme Court of Sri Lanka alleging torture and thus a breach of their fundamental rights. Senior Superintendent of Police, Negombo, Mr. Premasiri Vitharna, Superintendent of Police Mr. Mahanama, Head Quarters Inspector Mr. Somasiri Liyanage, Inspector of Police Mr. Bandara, Inspector of Police Mr. Subasinghe, Inspector of Police Mr. Silva, Inspector of Police Mr. Priyadarshana, Sub-Inspector of Police Mr. Abayanayake, Sub-Inspector of Police Mr. Rohana, Sub-Inspector of Police Mr. Nihal, Sub-Inspector of Police Mr. Leelasena, Police Sergeant Mr. Silva and Police Constable Mr. Dissanayage are the respondents in this case. The case, SCFR 446/2007, is pending before the Supreme Court.

5.11. The complainant and her daughter were hospitalised at the Negombo Hospital to receive treatment for their injuries. The police denied medical help to the complainant’s husband. While the complainant and her daughter were in the hospital, the police charged the entire family with yet another false case. The charge against the family was obstruction to police duty. The family obtained bail consequently. The complainant was hospitalised for five days. Later, the complainant had to undergo surgery to fix her fractured nose. Because of the torture, the complainant suffered the following injuries:

1. Contusion (1.5×1 inch) on the right side of the face just below the eye

2. Contusion (1.5×1 inch) on the left side of the face just below the eye

3. Pain and tenderness on the left side of the cheek underneath the fracture

4. Tenderness on the teeth on left side, underneath fractured crown of the 2nd teeth on the jaw, left side 5. Tenderness on the nose underneath fracture to nasal bone

5.12. The assault and torture of the complainant, her husband and children; the attempt to undress the complainant’s daughter, a minor girl, in full public view, and the fabrication of the false case against the entire family is a form of illegal and cruel punishment by the police officers for the complainant and her husband refusing to withdraw the fundamental rights case and the other complaints they had filed against the police officers. The show of force by the police in terms of the number of police officers who were assembled was a strong message to the villagers to stay away from whatever that happens between the complainant’s family and the police. It was also a threatening message to the public that no one should dare to initiate and pursue complaints against police officers.

5.13. The very fact that a large number of police officers could trespass into a house, and torture and threaten the residents of the house in public, showcases the breakdown of the entire policing system in Sri Lanka and the impunity the criminal elements in the Sri Lanka police enjoy as of now. This situation allows police officers like Mahinda Pathirena to run a business like selling stolen vehicles.

5.14. The emotional trauma and the isolation a family suffers after such an incident, the complainant’s children in particular, are beyond the scope of any form of redress.

6. Murder of the complainant’s husband:

6.1. On 23 June 2008 when the complainant and her husband were travelling in a three- wheeler, they saw a lorry near Chilaw at Dalupata Bridge on the Colombo road. There were four persons in the lorry, of which the complainant and her husband knew two persons. They were Mr. Niroshan and Mr. Namal. As the three-wheeler in which the complainant and her husband were travelling approached the lorry, Niroshan and Namal signalled the three-wheeler to be stopped. When the vehicle stopped, Niroshan and Namal shouted at the complainant and her husband that they are under instruction by the Negombo police to murder them. The complainant and her husband were frightened and they immediately returned home.

6.2. Shortly after reaching home, the complainant and her husband found Niroshan and Namal along with the two other unknown persons at their gate. They were shouting at the complainant asking her to open the gate. The complainant and her husband were so scared since they knew that Niroshan was an army deserter with criminal antecedents. The complainant and her husband were certain at this point that their lives were at serious risk from the police officers. The complainant and her husband, later on the same day, went to the office of the DIG (Crimes) and lodged a complaint about the incident. This complaint is numbered SIIV 345/266. The complainant’s husband also filed an affidavit before the police the next day narrating the incident. A translated copy of this affidavit is produced herewith.

6.3. The incident was reported to the Asian Human Rights Commission (AHRC), a sister organisation of the ALRC. The AHRC immediately wrote a letter on 24 June 2008, to the Minister of Disaster Management and Human Rights in Colombo seeking an intervention in this case. A copy of the letter issued by the AHRC is annexed herewith. The AHRC also wrote a separate letter to the UN Special Rapporteur on the question of torture seeking an intervention in the case. A copy of this letter is annexed herewith.

6.4. On 20 September 2008, the complainant’s husband along with their son, were waiting in their lorry at Dalupota junction near their house. While they were sitting inside the lorry, two masked persons approached the complainant’s husband and fired two shots from a small firearm. The first shot missed, but the second shot hit the complainant’s husband entering his head through the ear and killing him instantly. The complainant’s husband fell on to the lap of his 10-year-old son and started bleeding. The assassins left the scene on the vehicle with which they arrived. The complainant’s husband was declared dead at the hospital. The translations of the statements given by the complainant and her children during the inquest proceedings concerning the murder are provided herewith.

6.5. On 23 September 2007, the day on which the statements were recorded, a woman lawyer, Ms. Chamari Mahanama, who assisted the complainant and her children to give their statements, was threatened over telephone by an unknown person. The caller threatened that they would murder her if she further assisted the complainant and her family. This incident shows the swiftness with which information passes between police officers and the criminals and how observant the police officers are, concerning the complainant and her movement and the persons who were associated with her.

7. Further threats:

7.1. Despite the complaints filed by the complainant and her husband to the authorities in Sri Lanka seeking protection, interalia, the President of Sri Lanka; the Chief Justice of the Supreme Court of Sri Lanka; the Minister of Disaster Management and Human Rights and the secretary of this ministry; the Inspector General of Police; the Deputy Inspector General of Police, Peliyagoda; the National Police Commission; the Human Rights Commission of Sri Lanka and the Magistrate’s Court of Negombo, the complainant’s husband was murdered. It also proves that none of these complaints were acted upon by the authorities in Sri Lanka.

7.2. On 23 September 2007 Ms. Chamari Mahanama, who was assisting the complainant with the inquest, started receiving threatening calls on her mobile telephone informing her that if she went to the courts in the following few weeks, she would be killed. Similar calls were made to the Right to Life, a local human rights organisation, threatening them that if they wished to help the complainant with her cases, they might have to make a costly sacrifice, including the lives of some of their staff. Finding that in spite of repeated complaints, the state of Sri Lanka and its mechanisms are not willing to protect the complainant and her family, and is instead sparing no opportunity to make the complainant’s life further worse, the complainant started living in hiding along with her two children.

7.3. On 11 November 2008, the complainant filed an affidavit at the Negombo Magistrate’s Court stating that there were serious threats to her and her family as they were pursuing a fundamental rights case and complaints of bribery and torture instituted against police officers. On 7 December 2008, the complainant filed yet another affidavit at the Paliyagoda Police Station stating that she and her children were finding it extremely difficult to live in hiding since no investigation had been carried out regarding her husband’s murder and that the same murderers were searching for the complainant and her children to assassinate them. The complainant averred in the affidavit that the reason why the murderers of her husband were not identified or arrested was because the murder was organised by the police officers who threatened the complainant and her family at various occasions. The complainant also averred in the affidavit that the only persons whom she suspected of the murder of her husband were the respondents in the fundamental rights case filed by her which is pending in the Supreme Court of Sri Lanka. A translated copy of this affidavit is produced herewith.

7.4. On 24 January 2009, the staff at the Right to Life, received a call from the telephone number 011 2260156. According to the allotment of telephone numbers in Sri Lanka, this was must be a landline telephone number registered in Colombo. The caller threatened that if the organisation continued to help the complainant with her case and complaints, the persons assisting her would be murdered. When the staff of this organisation immediately tried to call back this number, they found that the number was not in service. Such numbers, often referred to as dummy numbers, are allotted to the police service for crime investigation.

7.5. The President of the organisation, Mr. Britto Fernando, filed a complaint to the Inspector General of Police (IGP) informing him about the incident and requesting immediate action to investigate the matter. No proper investigation has been done so far in this regard by the police. A copy of the complaint filed by the Right to Life to the IGP is annexed herewith.

7.6. On 27 January 2009 the complainant’s lawyer Mr. Amitha Ariyarathne was at the Negombo Police Station to file a complaint on behalf of the complainant seeking protection for the complainant and her children. Inside the police station, a group of officers, including an officer named Mr. Bandara, abused lawyer Amitha using filthy language and threatened the lawyer that he would be also killed if he further helped the complainant to pursue their complaints. Bandara is one of the respondents in the Fundamental Rights application filed by the complainants pending the Supreme Court. This officer also assaulted Amitha, threatening him that if he came back to the police station to deal with the complainant’s case Amitha would not return alive. He also wanted Amitha to force the complainant to withdraw all the complaints against the police officers, including the one regarding bribery, the fundamental rights application, the complaints filed at various stages against the police officers for threatening the complainant and her family and the complaint on torture. Fearing for his life, the lawyer left the police station.

7.7. A complaint was filed immediately by the lawyer stating the facts to various authorities in Sri Lanka, including the Bar Association of Sri Lanka. No investigation has been initiated against these complaints by the authorities so far. Another lawyer, Mr. J.C. Weliyamuna, who is appearing for the complainant in her fundamental rights application, also faced similar situation. On 27 September 2008 two grenades were hurled into lawyer Weliyamuna’s house at night. Fortunately the lawyer escaped. In this case too no proper investigation has been carried out. The statements and press releases issued in connection with this incident are annexed herewith.

7.8. On 30 January 2009, at about 9pm, an unknown arsonist burned down the office of lawyer Ariyarathne. Ariyarathne and his wife, who is also a lawyer, escaped by sheer miracle from being burned alive in this incident. A statement issued by the AHRC in this context is annexed herewith.

8. Proceedings at the domestic level:

8.1. The complainant, human rights defenders and the lawyers assisting the complainant have filed complaint after complaint seeking protection for the complainant and her family. Now, the human rights defenders and the lawyers are at the same situation as that of the complainant. The office of the human rights organisation, Right to Life, is closed down due to the threats to life of its staff from police. Lawyer Ariyarathne had his office burned down completely. The complainant has been staying in hiding for the past five months along with her children. No one has been arrested in connection with any of these crimes so far. Even the statement of the complainant has not been recorded as part of the investigation. Here, the complainant wishes to highlight the fact that she and members of her family were tortured on 12 November 2007 and her husband was shot dead on 20 September 2008. Given the circumstances, the complainant is of the bona fide fear that she will not survive to give her statement.

9. Admissibility:

9.1. Sri Lanka acceded to the International Covenant on Civil and Political Rights on 11 September 1980 and to its First Optional Protocol on 3 January 1998. The alleged breaches of the ICCPR took place after Sri Lanka’s accession of both these instruments and the Human Rights Committee is therefore competent to examine the present case.

9.2. The complaint is in conformity with the requirements of Article 5 of the Optional Protocol and Rule 96 of the Rules of Procedure of the Human Rights Committee.

9.3. In particular, regarding Article 5.2 (a) of the Optional Protocol and Rule 96 (e) & (f) the complainant wish to confirm that the present matter has not, at any time, been submitted to another procedure of international investigation or settlement.

9.4. As for second limb of Article 5.2 (b) of the Optional Protocol and the question of exhaustion of domestic remedies it should be noted that the complainant has attempted to obtain redress through criminal and fundamental rights application in order to obtain redress which has not rendered any result whatsoever. Instead, the complainant as a result of her quest to obtain redress has lost her husband, was tortured along with her minor children, her family life has been permanently interfered with and is now denied the possibility of receiving any support from human rights organisations or lawyers in Sri Lanka. The facts indicate that the complainant would be murdered at anytime unless there is an intervention from a strong international body like the Human Rights Committee to provide them protection.

9.5. Regarding the criminal proceedings against the alleged perpetrators it is submitted that: 1) no person has been arrested so far in any of the complaints filed by the complainant, her deceased husband, human rights activists or by the lawyers; 2) the complaint filed by the complainant against torture and abuse of the complainant and her family as early as 12 November 2007 is not yet investigated or enquired into; 3) and it is highly unlikely that any credible proceedings will be initiated in Sri Lanka as regards to the complainant’s case and that the complainant or her family will not be alive to participate in it.

9.6. An assessment of the effectiveness and the reasonableness of the length of the proceedings should be made within the context of the circumstances of the case at hand and the general effectiveness of the proposed remedy in Sri Lanka. Regarding the case at hand, an evaluation should be made of what positive action was taken by the authorities, to ensure that a thorough investigation of the facts that took place that would lead to the prosecution and conviction of those responsible for the acts of torture and the threat faced by the complainant and those who are willing to help them

9.7. In this respect, it should be noted that: 1) no credible criminal investigation into the murder of the complainant’s husband or in the case of torture of the complainant and her family is initiated up till today in spite of the fact that the complainant has suffered serious injuries, so severe that she had to be hospitalised and has to live in hiding for security; 2) that the alleged perpetrators were not suspended from active service and due to this they continue to threaten the complainant and those who are willing to help her in Sri Lanka; 3) that no arrest has been made in connection with the crimes narrated above; 4) that due to lack of protection and threats to life, the complainant or even the lawyers are unable to pursue the remedies theoretically possible in Sri Lanka and that such a situation, in effect, for all practical purpose, means that there are no domestic remedies available for the complainant to be exhausted in Sri Lanka; 5) and the complainant did not believe that the court proceedings would be completed in the near future and the pendency of court proceedings in itself is no guarantee to the safety of the complainant and her family, but on the contrary, and has been proved, pursuing remedies in itself is a threat to the life of the complainant and her children; 6) It should also be noted that the State party has not brought about a legislation for protection of witnesses. In addition to this, the UN and its various agencies have made several recommendations to the State party, none of which has been implemented so far. A compilation of these recommendations is annexed herewith.

9.8. The United Nations Committee against Torture (CAT) has consistently ruled that, under the Convention against Torture to which Sri Lanka is party, allegations of torture should be investigated promptly, without delay. The CAT also considers that no formal complaint need to be lodged and that it is sufficient that the victims bring the facts to the attention of the authorities. In the case of Encarnación Blanco Abad [CAT/C/20/D/59/ 1996, 14 May 1998, paras 8.2 and 8.6] the Committee considered delay of three weeks and more than two months in initiating procedures into allegations of torture to be excessive and, in the case of Khaled M’Barek [CAT/C23/D/60/1996, 24 January 2000, paras 11.5–11], the Committee considered unwarranted a delay of 10 months in ordering an inquiry into allegations of torture. The Committee stated:

…The Committee observes that promptness is essential both to ensure that the victim cannot continue to be subjected to such acts and also because in general, unless the methods employed have permanent or serious effects, the physical traces of torture, and especially of cruel, inhuman or degrading treatment, soon disappear. [Encarnación Blanco Abad v. Spain, para. 8.2]

9.9. The complainant and her family were tortured on 12 November 2007. The husband of the complainant was killed on 20 September 2008. In spite of the extreme gravity of the situation, no action was taken by the authorities to investigate the acts of torture or of the murder which was carried out by police officers or at their behest. The fact that the police officers themselves are engaged in crimes in Sri Lanka is an alarming situation that annuls the possibility of the complainant receiving any form of redress in Sri Lanka. As early as on May 1998 the Committee against Torture in its report had called upon the Government of Sri Lanka to carry out prompt, independent and effective investigations into cases of torture. The Human Rights Committee has also made similar observations.

9.10. Moreover, the alleged perpetrators who attacked the complainant and her family are not yet arrested or even suspended. It is also important to note here that the police officers involved in the case are from all ranks, are organised to behave like a gang of criminals, daring enough to threaten human rights activists and attempt to murder and burn down the office of the lawyer who assisted the complainant. The officers continue to threaten and intimidate the complainant at their will. Given the experience of the complainant from the authorities in Sri Lanka, the complainant has lost faith in getting any result from the proceedings that are currently dragging on for the last several months in Sri Lanka.

9.11. Finally, regarding the general efficacy of the remedies within Sri Lanka, it should be considered that in Sri Lanka it is common for investigations to suffer long delays and illegal interventions by corrupt officers at various levels due to the collapse of the rule of law regime in the country. The consistent position taken in the recent months by the Government of Sri Lanka is that due to 28 years of war, criminal investigations as required by law are not possible as of now in Sri Lanka. In this context it is also notable that to date, there are only two cases where the perpetrators were sentenced for engaging in torture in Sri Lanka.

9.12. The Human Rights Committee has consistently taken the view that a remedy need not have to be exhausted if it has no chance of being successful. Moreover, it is important to recall that international jurisprudence has recognised that safeguards against serious violations of human rights, such as the one that exists in cases of murder and torture, entail independently of other remedies an obligation upon the states to carry out full and effective investigation. Such an obligation implies that victims of torture be entitled, in addition to the payment of compensation, to “a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure.” [European Court of Human Rights, Askoy v. Turkey, 18 December 1996, Reports 1996-VI, para. 98.]

9.13. The lack of progress in the proceedings together with the fact that the alleged perpetrators have continued in their jobs as police officers has resulted in literally rendering the perpetrators absolutely immune to any proceedings, which is likely to culminate in rendering no punishment to the assailants. This also works as an immense pressure upon the complainant in pursuing any of the pending proceedings within Sri Lanka.

9.14. Considering that, in Sri Lanka, criminal procedures for torture have generally been demonstrated to be ineffective, together with the extreme lack of diligence shown by the authorities in the present case, the complainants submit that the criminal proceedings opened cannot be considered to constitute an effective remedy to the violations alleged.

9.15. As for reparations, in Sri Lanka, the Supreme Court has jurisdiction to hear complaints for Fundamental Rights and grant compensation to victims of torture. Such a complaint was filed by the complainant in 2007. However, for the complainant, as of now there is no guarantee that she could engage a lawyer to conduct the case, since those who helped the family have been subjected to attack and threat by the police. Moreover the complainant and her family has not been provided any protection so far and does not expect such protection to be provided by the state under the current circumstances. This has forced the complainant to stay away from public view, including appearing in courts.

9.16. Regarding the complaints on bribery and torture, no investigation has been initiated by the authorities so far. As of now, there are NO procedures in Sri Lanka to ensure that cases of exceptional gravity, like this case, are heard expeditiously.

9.17. The European Court assesses the reasonableness of the length of a proceeding according to the particular circumstances of the case, including, notably, the complexity of the case, the conduct of the parties and what is at stake for the complainants. In cases where delays have a “quality of irreversibility”, the Court has stated that:

…the authorities are under a duty to exercise exceptional diligence since,…there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing [H v. the United Kingdom, 26 May 1987, para. 85].

9.18. In the present case, special emphasis should be placed on what is at stake for the complainant. The husband of the complainant was murdered; the entire family was tortured and continues to endure this ordeal. The complainant’s capacity to earn a livelihood has been affected. So is the possibility of her two children attending school or her finding legal assistance to pursue the complaints. Due to these circumstances the complainant is facing extreme psychological trauma. And as far as the complainant and her family is concerned, there are no effective remedies within Sri Lanka, The very fact that the complainant is pursuing a process to bring the assailants to justice, she is exposing herself and her children to grave danger.

9.19. Lack of adequate medical and psychological treatment accessible in a timely manner in cases of such extreme gravity can result in irreversible consequences for the health of a person. Monetary compensation granted after the complainant and her family suffering irreversible damage cannot be considered to be an adequate remedy. As there is no alternative process to ensure victims of torture and severe crimes suffering from acute trauma and injury, rehabilitation in a timely manner, a procedure that is not concluded with sufficient celerity to guarantee the full rehabilitation of the complainants cannot be considered to be an effective remedy in the sense of Article 2.3.

9.20. International law demands recourse solely to remedies that are sufficient and effective, that is, capable of providing redress for the violations suffered. In the present case, neither the criminal nor the civil procedure can be considered as such a remedy for the injuries the complainant and her family have suffered.

9.21. In view of the above, the complainant submits that the requirements set forth by Article 5 of the Optional Protocol and Rule 96 (e) & (f) of the Rules of Procedure of the Human Rights Committee have been complied with and that the present communication is admissible.

10. Rights Breached:

i) Article 6 – Right to life read with Article 2 (3)

10.1. In spite of more than a dozen complaints and a fundamental rights application initiated by the complainant as against the violation of rights suffered by the complainant and her family, no domestic body has rendered an effective remedy to their grievances. The only body that conducted an internal inquiry is the local police way back in December 2005 against the first complaint the complainant and her husband had filed against the police officer who sold them a stolen lorry. Even this proceeding did not culminate in any definitive result since the officer died before the procedures were over. The complainant and her family are denied legal assistance, emotional support and are forced to live in hiding.

10.2. As early as 2004 the complainant and her husband have been complaining to the authorities in Sri Lanka about the threats they received directly and indirectly from the police. After the incident on 12 November 2007, when the complainant and her family were publicly assaulted, the complainant and her husband frantically sought help from the authorities. Complaint after complaint filed by the complainant and her husband were not acted upon. Instead, after the filing each complaint, the threats intensified. Complaints filed to the state agencies like the Bribery Commission were handed over straight to police officers who were waiting for opportunities to hurt the complainants. All these culminated in the murder of the husband of the complainant and further have forced the complainant and her family to live in hiding. The lack of affirmative action by the State party, to safeguard the life of the complainant and her family, the complainant’s husband in particular, violates the inalienable rights guaranteed under Article 6 of the ICCPR read with Article 2 (3) of the Covenant.

10.3. The Human Rights Committee has consistently found that a State party to the Covenant is under the obligation to provide an effective and enforceable remedy to violations of that instrument. Remedies recommended by the Committee have included compensation, the release of persons arbitrarily detained and that criminal proceedings be expedited, leading to the prompt prosecution and conviction of the persons responsible. The Committee has also on a number of occasions ruled that the duty to provide a remedy includes an obligation to ensure that similar events do not occur in the future.

10.4. In this case, not only did the State party fail to provide any form of protection to the complainants, but allowed, due to the state’s lack of affirmative and prompt action, the husband of the complainant to be murdered. The state through its non-action continues to allow lawyers and human rights activists helping the complainants to be threatened and further encourages the perpetrators to attempt to murder the lawyer assisting the complainant and her family and burns down the lawyer’s office. The result of these incidents is that the complainant and her family are left with no other option other than to approach the Human Rights Committee, expecting an intervention by the Committee in their case.

10.5. In Luyeye Magana ex-Philibert v. Zaire the Committee concluded that the lack of effective remedies was in itself a violation of the Covenant [Communication No. 90/ 1981, 30 March 1981, UN Doc. Supp. No. 40 (A/38/40) at 197 (1983), para. 8].

10.6. Regarding the obligation to provide a remedy for the crime of torture the Committee has stated:

…Article 7 should be read in conjunction with Article 2, paragraph 3…. The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective…. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible [General Comment No. 20 on article 7 concerning prohibition of torture and ill-treatment, adopted at the Committee’s forty-fourth session in 1992, para. 14].

10.7. The Committee clearly stated that in cases of torture complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective, and that the notion of an effective remedy must include as full rehabilitation as may be possible.

10.8. In the present case, the State of Sri Lanka has failed to comply with the above. Investigations into the crimes, including that of torture, committed against the complainant and her family were not initiated after the elapse of two years since the incident, in spite of numerous written representations by the complainant. Neither was any disciplinary or other action taken against the alleged perpetrators and the existing proceedings appear to be at a standstill. The complainant and her family have thus become the object of threats and other acts of intimidation and has become internal refugees within their own country.

10.9. Thus the State party has breached Article 6 read with Article 2 (3) of the Covenant.

ii) Article 7- Freedom from Torture

10.10. The complainant and her family were severely tortured on 12 November 2007. In consequence of this, the complainant and her daughter had to be hospitalised. The complainant even had to undergo a surgery to fix the fracture on her nasal bone that she suffered from the assault by the police officer. The right against torture, a non-derogable right of the complainant and her family under Article 7 was not only violated but they were to stay in hiding due to the continuing threat to their life. Additionally, anyone getting associated with the complainant and her family stands a risk to their life and property from the police. The complainant’s lawyer’s office was burned down, the office of the human rights organisation providing legal and emotional support has to be closed and the complainant and her family are forced into hiding, ironically from the state’s police who are at duty to protect a citizen. All this is because the complainant is pursuing domestic remedies. This situation has deprived the complainant and her family their rights to pursue the cases. The domestic mechanism in Sri Lanka, both judicial and non-judicial, has absolutely failed in giving any redress to the complainant amounting to a clear violation of Article 7 read with Article 2 (3) of the Covenant. An act of torture, though recognised as a crime in Sri Lanka under Act Number 22 of 1994, no one has been punished for the offense in this case and the fundamental rights application filed at the Supreme Court of Sri Lanka by the complainant is still pending.

iii) Article 9.1- Right to Liberty and Security of the Person

10.11. The complainant and her family were tortured; the complainant’s husband was murdered; and complainant and her family are forced to live in hiding. The complainant and her family are under continuous threat from the assailants who have successfully evaded any form of punishment or even arrest for the crimes they have committed against the complainant and her family.

10.12. None of the domestic systems are able to provide protection to the complainant and her family even though the complainant and her murdered husband have made written requests for protection from their assailants, who are continuously threatening the complainant to withdraw the pending complaints and the case in the court. It is not a rare or an isolated incident in Sri Lanka where a person who is pursuing his legal rights is threatened with dire consequences or murdered by the respondents in such cases. This case is no exception. In Sri Lanka, as was proved in December 2004, in the case of the murder of a torture victim Mr. Gerald Melvin Perera, the police were responsible for hiring and ordering an assassin to murder Mr. Perera since he was pursuing a case of torture against the police. In such circumstances, the chances of survival of the complainant until her case and complaints are finally resolved, rendering justice to the complainant and her family is impossible without appropriate interventions.

10.13. In the present case, the persons alleged to have been responsible for torturing the complainant and her family and murdering the complainant’s husband were neither suspended from their job nor arrested. In addition, the complainant and her family have been subjected to numerous threats and acts of intimidation. Though the authorities have been duly notified they have not taken adequate action.

10.14. By failing to take adequate action to ensure that the complainant and her family are protected from threats by those who tortured them and murdered the 2nd complainant, or from other persons acting on behalf of the perpetrators, the state of Sri Lanka has breached Article 9 (1) read with Article 2 (3) of the Covenant.

10.15. Thus the current situation of the complainant and her family is a breach of Article 9.1 of the Covenant.

iv) Article 17 and Article 23 (1) – Right against arbitrary intervention with privacy of a family & the right of the family to be recognised as a fundamental unit of the society that is entitled to protection by society and the state

10.16. Since 2004, the complainant and her family have been harassed by the police officers through various means. A litany of threatening telephone calls and visits by local thugs acting at the behest of the police officers and by the police officers themselves to threaten and abuse the complainant and her family members at their home has interfered with the peaceful life of the complainant and her family. On each occasion, the complainant or her husband tried to inform the state agencies about these intrusions and further requested for protection. None of these requests found result. Additionally, the frequent incidents involving dangerous elements of the society at their home isolated the complainant and her family from their neighbors.

10.17. The complainant and her family were tortured at their home on 12 November 2007 in full public view. A complaint filed against this incident has not resulted in a proper investigation since the past two years. After the murder of the complainant’s husband, due to the lack of any affirmative action by the State party or its agencies, the complainant and her family have been forced to live in hiding since the past five months. The result is a life of uncertainty, financially and emotionally affecting the complainant and her family thereby violating their rights under Article 17 and Article 23 (1) of the convention. Additionally, the children of the complainant are prevented from attending school thereby being denied their right to education.

11. Conclusion

11.1. Considering the above it is respectfully requested that the Human Rights Committee declare that:

a) the state of Sri Lanka has breached Article 7 read with Article 2 (3), Article 6 read with Article 2 (3), Article 9 (1) read with Article 2 (3), AND Article 17 & Article 23 (1) of read with Article 2(3) of the International Covenant on Civil and Political Rights;

b) Recommend that the state of Sri Lanka adopt all necessary action to:

1) provide adequate remedy for the breach of covenant rights cited above of the complainant and her family

2) provide adequate compensation for the complainant and her family for the breach of rights they have suffered so far

3) ensure that the complainant and her family receives full protection, the perpetrators arrested thus enabling the complainant to pursue her complaints without any delay;

4) take all appropriate measures to ensure that the criminal procedures relating to the assault and torture of the complainant and her family are initiated and concluded promptly;

5) adopt any measures necessary to ensure that the complainant or anyone willing to assist her in the process are not submitted to further threats;

6) recommend to the State party to make appropriate changes in its legislations so as to provide effective, impartial and adequate remedy for violations of individual rights without delay by ensuring speedy investigation and trial.

12. Interim measures:

12.1. The complainant requests the Human Rights Committee acting through its Rapporteur dealing with new communications to take immediate steps through the State party to ensure that:

– the complainant and her family receive immediate protection so that they could lead a normal life;

– the officers against which the complainant has filed SCFR 446/2007 are immediately placed on suspension;

– the complainant receive legal and other help to continue their prosecution

12.2. Grounds on which such interim measures are sought:

The complainant wishes to emphasise that the narration of incidents in the foregoing paragraphs of the communication itself is a reasonable and justifiable ground under which the Committee could be convinced to request the State party to provide interim measures to safeguard the complainant and her family. Yet, the complainant wishes to highlight the under mentioned aspects to highlight the circumstances under which the complainant seeks interim measures:

i) the complainant and her family are living in hiding for the past four months;

ii) the complainant wishes to send her children to school, an essential requirement to ensure their future, which as of now is impossible;

iii) the complainant’s son requires immediate medical attention and trauma counseling, since the boy finds it hard to cope after his father was shot dead in his presence;

iii) the complainant is fighting a case against prominent police officers in her locality and that includes even senior police officers;

iv) the lawyer who assisted the complainant had his office burned down, an intentional act of crime, that effectively prevents lawyers from helping the complainant;

v) the human rights group that assisted the complainant also had to close down its office due to death threats;

vi) in the recent past, murder of individuals who fight cases against government officers, politicians, influential individuals or the police is on the rise in Sri Lanka.

(Signed)

Bijo FRANCIS

Advocate

Leave a Reply

Your e-mail address will not be published. Required fields are marked *