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Sri Lanka Impunity Report Nov 12 Final

Sri Lanka Impunity Report Nov 12 Final

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Published by Sri Lanka Guardian
A new Sri Lanka report on the Judiciary, the Attorney General and State Immunities published by the International Commisison of Jurists and released today.

The 158-page report, Authority without Accountability: The Crisis of Impunity in Sri Lanka, documents how, and why, it has become nearly impossible for people who have suffered serious violations of their human rights to receive justice in Sri Lanka. Recent attacks on judicial officers and judges only highlight the systematic erosion of accountability mechanisms.

More Information at
www.srilankaguardian.org
A new Sri Lanka report on the Judiciary, the Attorney General and State Immunities published by the International Commisison of Jurists and released today.

The 158-page report, Authority without Accountability: The Crisis of Impunity in Sri Lanka, documents how, and why, it has become nearly impossible for people who have suffered serious violations of their human rights to receive justice in Sri Lanka. Recent attacks on judicial officers and judges only highlight the systematic erosion of accountability mechanisms.

More Information at
www.srilankaguardian.org

More info:

Published by: Sri Lanka Guardian on Nov 01, 2012
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12/04/2012

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Gerard Perera was arrested on 3 June 2002. While in police custody,
Gerard Perera was subjected to torture and ill-treatment: he was hung
with a rope, beaten with an iron rod and wooden poles, and burnt with
lighted matches.661

As a result of the torture and ill-treament, Gerard
Perera sustained ‘acute renal failure, loss of sensation over the 8th

cervical
and first thoracic vertebrae, damage to the median and ulnar nerves,
complete loss of power of both shoulder joint muscles and inability to
grasp objects with fingers.’662

Gerard Perara was released on 4 June 2002
after the Police admitted to mistakenly arresting him, after which he filed
a fundamental rights petition before the Supreme Court, alleging inter alia
a violation of the right to freedom from torture or ill-treatment.

The Supreme Court held that the petitioner’s arrest was not made on
credible information663

and violated Article 13(1) of the Constitution. The
subsequent detention violated Article 13(2) of the Constitution.664

The
Court also held the petitioner was subjected to torture and to cruel and
inhuman treatment by the third, sixth and seventh respondents, with the
knowledge and acquiescence of the first respondent—the Officer-in-
Charge (OIC) of the police station—in violation of Article 11.665

On the

issue of command responsibility, the Court held:

As Officer-in-Charge he had overall responsibility to
supervise and control the conduct of his subordinates, and it
was he who had the power to release the Petitioner. He is
therefore liable if the Petitioner’s arrest and/or detention
were unlawful, and for any torture that occurred at the
Station.666

The Court further held:

The number of credible complaints of torture and cruel,
inhuman and degrading treatment whilst in Police custody
shows no decline. The duty imposed by article 4(d) to
respect, secure and advance fundamental rights, including
freedom from torture, extends to all organs of government,
and the Head of the Police can claim no exemption. At the
least, he may make arrangement for surprise visits by

660

Guideline 15 of the UN Guidelines on the Role of Prosecutors supra fn. 86 .

661

Sanjeewa, Attorney-At-Law (on behalf of Gerald Mervin Perera) v. Suraweera, OIC
Wattala Police Station
[2003] 1 Sri.L.R. 317, p 320.

662

Ibid., p 317.

663

Ibid., pp 326-327.

664

Ibid., pp 327-328, per Justice Mark Fernando.

665

Ibid., p 328.

666

Ibid., p 322.

Authority without Accountability: THE CRISIS OF IMPUNITY IN SRI LANKA| 131

specially appointed Police officers, and/or officers and
representatives of the Human Rights Commission, and/or
local community leaders who would be authorised to
interview and to report on the treatment and conditions of
detention of persons in custody. A prolonged failure to give
effective directions designed to prevent violations of article
11, and to ensure the proper investigation of those which
nevertheless take place followed by disciplinary or criminal
proceedings, may well justify the inference of acquiescence
and condonation (if not also of approval and
authorization).667

The Court held that the petitioner was entitled to compensation for
infringement of his rights as well as reimbursement of medical expenses
attributable to torture.668

Following the fundamental rights case, seven police officers were indicted
in the Negombo High Court under the Torture Act No. 22 of 1994;669
however, none of the accused police officers were suspended from their
posts pending the outcome of the case. Even though Gerard Perera
himself was the principal witness in the case, State agencies had taken no
efforts, despite repeated requests, to guarantee his safety. On the 21
November 2004 -only a few days before the scheduled date of his
testimony- Gerard Perera was killed,670

and several of the same accused
police officers in the torture and ill-treatment case were indicted for their
involvement in his death.

Prior to Gerard Perera’s death, the Attorney-General decided to withdraw
the indictment against the Officer-in-Charge of the police station, Sena
Suraweera. The withdrawal came in spite of the Supreme Court’s ruling
that the OIC was responsible for the torture of Gerard Perera. In
delivering its verdict, the High Court noted its surprise over the decision of
the Attorney-General to withdraw the indictment.671

The trial in the torture case proceeded for another five years and the
verdict of the High Court was given on 2 April 2008. The High Court
acquitted all of the accused. As Gerard Perera was killed before he could
testify, there were no eye- witnesses for the prosecution’s case. The
Court held that that even though it was proven that the victim was taken
into custody and subsequently subjected to torture, it had not been

667

Ibid., pp 328-329.

668

Ibid., pp 329-330.

669

Republic of Sri Lanka v. Suresh Gunasena and Others, H.C. Case No.326/2003

(Negombo High Court).

670

See Asian Human Rights Commission, Sri Lanka: Gerald Perera, courageous worker
who fought for his rights, slain in attempt to derail justice
, 24 November 2004, accessed
at: http://www.humanrights.asia/news/ahrc-news/AS-52-2004.

671

Ibid. Also see Asian Human Rights Commission, Sri Lanka: Evolution of the falsifier's
role of the Attorney-General's
Department, 17 April 2008, accessed at:
http://www.humanrights.asia/news/ahrc-news/AHRC-STM-097-2008.

Authority without Accountability: THE CRISIS OF IMPUNITY IN SRI LANKA| 132

proved beyond reasonable doubt that the accused were responsible for
the torture.672

The Attorney-General declined to appeal the acquittal. The aggrieved
party brought an appeal in the Court of appeal shortly after the High
Court verdict.673

On 18 October 2012, the Court of Appeal quashed the
acquittal of four of the accused and ordered a retrial of the case.674

Criminal proceedings were launched in respect of Gerard Perera’s death.
The Sub-Inspector of Police, who was also an accused in the torture case,
was the first accused in the murder trial. The second accused was a close
associate of the first accused.675

One of the principal witnesses in the murder trial, a police officer,676
alleged that he had been threatened to change his evidence to deny any
involvement of the accused.677

The witness feared for his life after seeing

what happened to Gerard Perera.678

At the time there was no formal

legislation protecting witness and complainants:

Most Asian countries have no effective means of witness
protection, without which it is nearly impossible for witnesses
and victims to provide testimony, which in turn is a crucial
component of the justice process. A major reason for this
absence is that witness protection requires a credible policing
system. When the policing system itself is used to kill and
harass witnesses, there is no possibility of protection.
679

Failing to investigate and prosecute credible allegations of torture violates
human rights obligations under Articles 2 and 13 of the CAT and Articles
2(3) and 7 of the ICCPR. It also violates the State’s general duty under
international law to provide effective remedy and reparations for gross
human rights violations.680

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