Five Takeaways from the UN Torture Review

Five Takeaways from the UN Torture Review

by Sri Lanka Campaign for Peace & Justice, London, November 18, 2016

Five takeaways from the UN Committee Against Torture review of Sri Lanka

This week saw the conclusion of the UN Committee Against Torture’s review of Sri Lanka, a regular process of expert-based scrutiny designed to monitor implementation of the Convention Against Torture. The meeting, held in Geneva between members of the Committee and a Sri Lankan delegation, followed a series of written submissions to the body made by both the government of Sri Lanka, the National Human Rights Commission, and various civil society organisations (all available here).

After the damning verdict of the Committee at the last review in 2011, the latest meeting offered the new government of Sri Lanka a major opportunity to signal a break with the past – to acknowledge the appalling scale of torture in Sri Lanka, and to demonstrate a genuine willingness to take the steps necessary to end its use.

That opportunity was sadly not taken. Instead, and in step with its three written submissions to the Committee (in October 2015, June 2016, and November 2016), the Sri Lankan delegation yet again chose the path of denial, defence and diversion. In light of a detailed and wide-ranging discussion by the committee, often frustrated by the delegation’s apparent efforts to run down the clock on proceedings, we highlight some of the key takeaways from the meeting.

1. The Government of Sri Lanka is still in denial mode

The first and most fundamental step towards ending torture is recognizing its existence. In Sri Lanka, a multitude of reports by local activists, international organisations and UN experts have pointed to its common and widespread use by police and security forces. These include, among others:

The latter of these – which offers arguably the most comprehensive (if perhaps conservative) data sets – indicates that 3,404 complaints of torture were received in the period 2010-2016. By comparison, the government of Sri Lanka maintained in its November 2016 report to the Committee that ‘150 ‘incidents’ were recorded by the Department of Police in the period 2012-2016.

Whilst during the session one of the Committee members highlighted the rate of torture complaints to the National Human Rights Commission as being “ten times” higher than government figures, a quick analysis of the data in fact reveals the rate of torture complaints to be over fifteen times higher across a comparable time frame.

Infographic: Denial Mode Contested Sri Lanka Torture StatisticsThroughout the entire two day session, the government delegation failed to engage whatsoever with questions – put repeatedly by the Committee members – about the existence of unofficial torture sites. Despite detailed and credible research confirming their use, including 29 instances recorded by the ITJP in 2015 and 2016, the government has maintained in its latest written submission that “no such camps/detention centres exist at present”.

2. Impunity still reigns for torturers in Sri Lanka

This much was clearly indicated by the government of Sri Lanka’s jaw-droppingly offensive decision to send as part of its delegation to the Committee, Mr Sirisa Mendis, the police official in charge of Sri Lanka’s most notorious torture site in the aftermath of the civil war. Mendis, who has for the past 17 months been the director of the Centre for National Intelligence at the Ministry of Defence, has a long list of allegations against his name, including numerous specific cases of torture allegedly under his command over many years.

The extraordinary nature of his attendance was not lost on Committee members who took the opportunity to pose questions directly to him about his complicity in torture. He did not respond to the allegations.

Siris Mendis Torture Sri Lanka

(ITJP, November 2016)

That such an individual remains in a position of authority in Sri Lanka, and that the government was brazen enough to send them to defend its record, accords with the extremely limited information the Committee was able to elicit about successful prosecutions against torturers. Despite repeated efforts by the Committee, this line of enquiry was repeatedly rebuffed by delegates who, rather than address issues of substance, frequently resorted to lengthy explanations of Sri Lankan case law and court procedure – missing the fact that having a legal system and upholding it are two very different things.

As such, observers were left to rely on the government’s November 2016 written submission to the Committee which claimed that a mere four individuals have been prosecuted to date under Sri Lanka’s Convention Against Torture Act. Even in relation to the government’s own figures on members of the security forces alleged to have been involved in torture (170), this is an astonishingly low figure. Committee members also failed to obtain a satisfactory answer as to why, on the government’s own statistics, only 17 of the 150 cases comprising those individuals had been investigated at all.

3. Without legislative reform to address torture, the enabling context for its use prevails

Though praising several policy measures, including the improved independence of national oversight bodies under the new government, the Committee were extremely critical of the failure to deliver on reforms that would introduce basic safeguards against torture in custody.

In particular, concerns were raised about the slow pace of proposed amendments to the Criminal Procedure Act, designed to provide detainees with access to legal counsel immediately after arrest, as well as in relation to the draft Counter Terrorism Act (CTA) framework, especially the apparent absence of safeguards against arbitrary arrest, the admissibility of confessions, and the broad definition of ‘terrorism’ under the draft. Given the near unanimouscondemnation of Sri Lankan civil society of the draft, the Sri Lankan delegation’s watery response – that the draft is an “evolving document” – provided scant reassurance that the government will undertake the wholesale scrapping and re-write that is required.

While discussions about the CTA draft drag on, Sri Lanka’s notorious Prevention of Terrorism Act (PTA) – a draconian piece of emergency war-time legislation which Amnesty International have described as “facilitat[ing] torture” – remains not only in force but in frequent use.

4. Sexual violence by the Sri Lankan military is not being addressed

A key area of focus for the Committee related to the widespread and systematic use sexual violence by the Sri Lankan army both at home and abroad – practices that a recent UN report, the ‘OISL’, found to be “part of an institutional policy within the security forces”. Yet despite multiple unequivocal requests for further information about the numbers of individuals prosecuted and convicted for such crimes, no figures were provided by the Sri Lankan delegation.

Much emphasis was placed instead by the Sri Lankan delegation on its response to allegations of systematic sexual abuse by 134 Sri Lankan soldiers serving as part of a UN Peacekeeping Mission in Haiti in the between 2004 and 2007 (an extremely narrow response given the breadth of allegations put forward). Having failed to respond the Committee’s question about why only 23 individuals allegedly involved had been subject to “disciplinary actions” (consisting of three individuals losing their jobs and the remainder undergoing unspecified lesser punishments), government representatives went to lengths to explain additional steps taken, including the issuing of instructions to the military warning against torture, as well as the introduction of a “3-tier vetting system” to prevent soldiers with histories of sexual misconduct from participating in peacekeeping forces. Given that no publicly available information exists about these measures, nor systems in place for their scrutiny, they are claims cannot be taken at face value.

5. The international community is not doing enough to send a strong message on torture

EU GSP+ plus criteria for Sri Lanka

EU Criteria for the Return of GSP+ Status to Sri Lanka

The government of Sri Lanka is eager to regain the “GSP+” preferential trade status with the EU that was stripped in 2010 following human rights concerns. For its part, the European Union appears enthusiastic about restoring it as part of the ‘normalisation’ of relations with the Sirisena/Wickremesinghe administration. But given the outcome of the Committee’s review, a restoration of the GSP+ status would fly in the face of the European Union’s own rules and criteria that, among others, would require Sri Lanka to fully implement the Convention against Torture, amend the Code of Criminal Procedure, and repeal the Prevention of Terrorism Act. The fact that none of these have been satisfied has been made abundantly clear over the past few days.

Unfortunately it is not just the EU who now seem willing to overlook systemic torture in Sri Lanka for the sake of normalizing diplomatic relations. British Minister of State Baroness Anelay (also Special Representative on Preventing Sexual Violence in Conflict) recently visited Sri Lanka and, to judge by her subsequent statement, made absolutely no attempt to send tough messages regarding justice, accountability and human rights. Worse still, she appeared to offer a deeply irresponsible endorsement of the Sri Lankan government’s plans to expand its peacekeeping contributions, taking at face value the government’s totally unverified claims about new vetting procedures, and further still, suggesting that the Sri Lankan army was fit to “share experience” on tackling sexual violence.

At this key moment, when so much hangs in the balance with respect to Sri Lanka’s justice and reconciliation process,this simply isn’t good enough. Unless the international community makes it clear to the Sri Lankan Government that the absence of progress thus far is unacceptable, and demonstrates a willingness to use its influence to address serious abuses committed by the state, the future of Sri Lanka’s fragile peace will remain in doubt.

Committee Against Torture Considers Report of Sri Lanka

by UN Committee Against Torture via UN Information Service, Geneva, November 16, 2016

The review may also be viewed at http://webtv.un.org/meetings- events/human-rights-treaty- bodies/committee-against- torture/59th-session/

Committee against Torture                                                                             CAT/16/27
                                                                                                                     16 November 2016
 
 
 
COMMITTEE AGAINST TORTURE CONSIDERS REPORT OF SRI LANKA
 
 
 
The Committee against Torture completed this afternoon its consideration of the fifth periodic report of Sri Lanka on the implementation of the provisions of the Convention against Torture.
 
Image result for UN Committee Against Torture Sri LankaIntroducing the report, Mr. Jayantha Jayasuriya, PC, Attorney-General of Sri Lanka, said that the Act N°22 of 1994 had given effect to the country’s obligations under the Convention.  The Government was firm in its commitment to a zero tolerance policy on torture and had recognized the competence of the Committee against Torture to receive individual communications.  Sri Lanka had set up the National Authority for the Protection of Victims in Crimes and Witnesses and had set in motion a Constitutional reform process to ensure the sustainability of the reconciliation mechanisms and all other efforts to ensure equal rights and justice for all, and ensure durable peace and non-recurrence of conflict. 
 
Dr. Rohan Perera, PC, Permanent Representative of Sri Lanka to the United Nations in New York, updated the Committee on the review of the Prevention of Terrorism Act, saying that the draft policy and the legal framework on the new legislation which would conform to international norms and standards had been presented to the Cabinet of Ministers; it was awaiting the views of the Parliamentary Sectorial Oversight Committee on national security prior to being approved by the Cabinet.
 
Mr. Ravinatha Aryasinha, Permanent Representative of Sri Lanka to the United Nations Office at Geneva, said that the Government had embarked on an inclusive process with the objective of ensuring the right to truth, justice, reparations and guarantees of non-recurrence.  A Secretariat for Coordinating Reconciliation Mechanisms was already consulting experts and working on obtaining training and capacity building for the relevant mechanisms, and a task force consisting entirely of civil society representatives had been appointed to seek the views of the public that would inform the designing of mechanisms. 
 
In the discussion that followed, Committee Experts expressed serious concern about continued, systematic, routine, and widespread use of torture by State officials against suspects in police custody throughout the country.  Impunity for torture was hanging like a sword over the entire country and this review, noted an Expert, and asked how Sri Lanka was tackling the issue, and how it was prosecuting and sentencing public officials for crimes of torture.  There were significant differences in the number of cases of torture reported by the Government, and those documented by civil society organizations, including the National Human Rights Commission, which had received approximately 3,000 complaints for torture between October 2010 and August 2016.  Experts also raised the issue of secret places of detention and the mandate of the National Human Rights Commission to conduct unannounced visits to prisons and police stations; legal safeguards for persons detained under the Prevention of Terrorism Act, including the length of detention, access to legal representation, and admissibility of confessions in the court of law; and the serious risk of retaliation against victims, their families, and witnesses reporting acts of torture.
 
In his concluding remarks, Mr. Jayasuriya said that the Experts’ concerns, questions and observations would be fully taken on board, including in the preparation of the National Human Rights Action Plan 2017-2021. 
 
Jens Modvig, Committee Chairperson, in closing remarks thanked the delegation of Sri Lanka and looked forward to receiving written replies as indicated.
 
The delegation of Sri Lanka included representatives of the Attorney General’s Department, Department of Police, Ministry of Defence, as well as representatives of the Permanent Mission of Sri Lanka to the United Nations Office at Geneva and to the United Nations in New York.
 
The Committee will reconvene in public on Friday, 18 November, at 10 a.m., to consider the second periodic report of Namibia (CAT/C/NAM/2).
 
Report

The fifth periodic report of Sri Lanka can be read here: CAT/C/LKA/5.
 
Presentation of the Report
 
JAYANTHA JAYASURIYA, Attorney General of Sri Lanka, started by saying that Act N°22 of 1994 had given effect to Sri Lanka’s obligations under the Convention against Torture and that the Constitution guaranteed the protection from torture and cruel and degrading treatment, which was non-derogable.  Strengthening human rights and good governance were fundamental components of the Government’s agenda.  The 19thAmendment to the Constitution had reintroduced the two-term limit for the post of Executive President and had strengthened independent Commissions, including the Judicial Service Commission, National Police Commission, Public Service Commission and the Human Rights Commission.  The Assistance to and Protection of Victims of Crime and Witnesses Act had been adopted in 2015, and a National Authority for the Protection of Victims in Crimes and Witnesses had been set up, under which the Police Victim and Witness Protection Division had been inaugurated on 3 November 2016.  A Constitutional reform process had been set in motion to ensure the sustainability of the reconciliation mechanisms and all other efforts to ensure equal rights and justice for all, and ensure durable peace and non-recurrence of conflict. 
 
Several policy measures had been taken over the last two years which recognized the importance of a transparent and independent mechanism for the investigation into alleged incidents of torture in custody.  In August 2016, Sri Lanka had recognized the competence of the Committee against Torture to receive individual communications, and all armed forces had been instructed that strict action would be taken against perpetrators of human rights violations.  The Government was firm in its commitment to a zero policy on torture.  Sri Lanka was in the process of drafting its voluntary National Human Right Plan 2017-2021 which would contain the prevention of torture as one of the thematic areas.  The Human Rights Commission of Sri Lanka had been strengthened as an independent institution and it was expected that it would meet criteria of the Paris Principles and obtain status A in time to come.    
 
ROHAN PERERA, Permanent Representative of Sri Lanka to the United Nations in New York, updated the Committee on the review of the Prevention of Terrorism Act, and said that a Commission had been appointed to develop the policy and the legal framework on new Counter Terrorism Legislation in Sri Lanka, which would conform to international norms and standards, including international human rights law.  Sri Lanka aimed to develop legislation that was consistent with the principles of democracy, good governance and the rule of law, and to effectively and comprehensively respond to contemporary manifestations and threats of terrorism and attacks on the national security of Sri Lanka.  The Committee had engaged with the United Nations Counter Terrorism Executive Directorate and with other agencies that had provided technical assistance.  The draft policy and legal framework had been presented to the Cabinet of Ministers, and they were now awaiting the views of the Parliamentary Sectorial Oversight Committee on national security prior to approval being granted by the Cabinet.
 
RAVINATHA ARYASINHA, Permanent Representative of Sri Lanka to the United Nations Office at Geneva, briefed the Committee about the engagement with the United Nations system on human rights issues, and said that several high-level United Nations officials had visited the country since early last year, including the High Commissioner for Human Rights and the United Nations Secretary-General.  Consistent with the Human Rights Council resolution 30/1, the Government had embarked on an inclusive process with the objective of ensuring the right to truth, justice, reparations and guarantees of non-recurrence.  A Secretariat for Coordinating Reconciliation Mechanisms was already consulting experts and working on obtaining training and capacity building for the relevant mechanisms, and a task force consisting entirely of civil society representatives had been appointed to seek the views of the public that would inform the designing of mechanisms.  The Task Force had completed the work and was due to present the report to the President and the Prime Minister this month.  Sri Lanka had ratified the International Convention for the Protection of All Persons from Enforced Disappearances in May 2016; the process of promulgating enabling legislation had been set in motion, and Parliament had passed legislation on 11 August 2016 to establish an independent Office on Missing Persons.
 
Questions by the Country Co-Rapporteurs

ALESSIO BRUNI, Committee Expert and Co-Rapporteur for Sri Lanka, congratulated Sri Lanka for having made the declaration recognizing the competence of the Committee to receive individual communications and asked about the intention concerning the ratification of the Optional Protocol to the Convention concerning the establishment of a national preventive mechanism.
 
In his comprehensive September 2015 report on Sri Lanka, the High Commissioner for Human Rights had recommended that the Government issue clear, public and unequivocal instructions to all the branches of the military and security forces that torture, rape, sexual violence and other human rights violations were prohibited and that those responsible would be investigated and punished.  The Ministry of Defence had issued the instruction to all armed forces in March 2016, and the President had issued a directive to the police in June 2016 – was the implementation of those instructions being monitored and were those found guilty of their violations punished?
 
The Government of Sri Lanka had rejected the allegations that torture remained widespread and unpunished, claiming that only 30 cases of torture attributed to the police had been reported during the 2011-2014 period.  At the same time, civil society organizations, including Freedom from Torture, had referred to 279 cases of torture from 2009 to 2015.  Could the delegation explain the discrepancy between governmental and non-governmental sources on information on cases of torture? 
 
Why was the information lacking on judicial cases of prosecution and sentencing of public officials specifically for the crime of torture?  The Co-Rapporteur asked for concrete and recent examples of prosecutions and sentences, and the penalties inflicted on those public officials found guilty of torture?
 
According to the report by the Special Rapporteur on torture after his recent visit to Sri Lanka, there had been only five or six prosecutions and not a single conviction between the entry into force of the Convention against Torture Act in 1994 up to May 2016.  This was in contrast with the information provided in the State party’s reports.  Could the delegation comment?
 
Taking note of the hotline established in October 2015 to receive complaints of unlawful arrest, detention, or torture, Mr. Bruni remarked that the officers of the Human Rights Commission were unable to visit detention facilities immediately to verify the complaints, due to a number of administrative and logistical obstacles.  According to the reports by the Human Rights Commission, approximately 3,000 complaints for torture had been received between October 2010 and August 2016, which had been referred to the Attorney General for prosecution under the Convention against Torture Act 1994.  How many of those 3,000 cases had been followed by prosecution?  What was the state of implementation of the Commission’s Directives to officers arresting persons under the Prevention of Terrorism Act, recalling that torture, cruel and inhuman and degrading treatment were prohibited at all times?
 
The Special Rapporteur on torture had stated in his report that torture was a common practice carried out by the Department of the Police in relation to criminal investigations; in cases where there was a real or perceived threat to national security, there was a corresponding increase in acts of torture and ill-treatment during detention and interrogation in the Terrorism Investigation Division facilities.  This statement was supported by medical evidence found by forensic specialists, said Mr. Bruni and asked for the delegation’s comments on those findings by the Special Rapporteur.
 
What was the status of the amendments to the Criminal Procedure Act of 2013 which aimed to strengthen safeguards for detainees; were they still under discussion in the Parliament?  Could the delegation comment on the August 2016 amendments to the Criminal Procedure Code which would deprive suspects arrested and detained by the Police of access to a lawyer prior to the recording of their statement and would hinder the efforts to stop torture in Sri Lanka?
 
Persons detained under the Prevention of Terrorism Act often spent a long time in detention before appearing before a magistrate – the Special Rapporteur on torture had found several inmates who had spent 10 years in remand detention under this Act.  What was being done to address the practice of prolonged detention without judicial supervision or review?
 
What progress was being made in the investigations into secret detention camps, including at the Naval Base of Trincomalee?
 
The Committee Rapporteur congratulated Sri Lanka on the efforts to search for thousands of missing persons and on the ratification of the International Convention for the Protection of All Persons from Enforced Disappearances in May 2016.  Was Sri Lanka considering making a declaration under article 31 of this Convention recognising the competence of the Committee on Enforced Disappearances to receive individual communications?  What forms of legislation were being considered to address various forms of enforced disappearances and what progress was being made on the adoption of legislation criminalizing enforced disappearances? 
 
The Working Group on Enforced or Involuntary Disappearances had visited Sri Lanka in November 2015 and had issued a number of recommendations, including to immediately repeal the Prevention of Terrorism Act and replace it with legislation which conformed to the international obligations of the State.  What was the status of implementation of those recommendations?  Were the recommendations by the Human Rights Commission concerning the functioning and effectiveness of the Office for Missing Persons being taken into consideration?
 
The delegation was asked to explain the procedure of voluntary rehabilitation of suspects prior to their reintegration into society, as an alternative to prosecution, to inform on the allegations of torture or ill treatment registered during rehabilitation programmes, and to confirm that the International Committee of the Red Cross had access to former combatants under the rehabilitation programme.
 
Turning to the issue of coerced confessions, the Country Rapporteur noted that the Prevention of Terrorism Act contained provisions which were contrary to the general exclusionary rule of confessions.
 
With regard to the review of the Prevention of Terrorism Act, Mr. Bruni asked when the new policy and legal framework would come into force and about the calendar for its adoption.  Mr. Bruni also asked whether the draft framework brought the definition and scope of terrorism-related offences in line with international legal standards, whether it contained clear safeguards against arbitrary arrest and detention, torture and ill-treatment, and whether it provided for effective oversight of any form of detention by the judiciary.
 
FELICE GAER, Committee Vice-Chairperson and Co-Rapporteur for Sri Lanka, welcomed the high-level delegation which included two Ambassadors and a Chief of Intelligence Service, and noted that much had happened in the country since the last review.  The High Commissioner for Human Rights in his June 2016 update on the situation in Sri Lanka had expressed concerns about the slow pace in the investigation of emblematic cases, lack of protection for victims and witnesses, transitional justice strategies, and security sector reform.  Furthermore, in its concluding observations following the 2011 review, the Committee had expressed serious concern about allegations that State party officials continued to engage in widespread use of torture against suspects in police custody, particularly to extract confessions to be used in criminal investigations.  Sri Lanka was called upon to urgently investigate all allegations of torture and prosecute and punish those found guilty. 
 
Routine torture remained a serious problem; it was carried out by the police, including by its Criminal Investigations Division and Terrorism Investigation Division.  The Committee had information that the police had received 150 claims of incidents of alleged torture by the police involving 170 officials between 2012 and October 2016; the Human Rights Commission claimed that it was receiving complaints of torture at a rate that was 10 times what was claimed by the Government, and was on track to receive 300 complaints this year alone.
 
The Committee continued to be concerned about impunity for torture, and about abductions and enforced disappearances, particularly in the north of the country which put the transitional process in jeopardy.  Because of shortcomings in the State system, victims of torture and their family members were reluctant to file their complaints, thus contributing to the phenomenon of underreporting and to the lack of effective State response to allegations of torture. 
 
What was being done to address the serious risk of retaliation against victims, their families, and witnesses reporting acts of torture? The victim and witness protection division had been created within the police, whereby the police was set to provide protection, but it was the police that people were afraid of in the first place; what steps were being taken to ensure that the Protection Division was autonomous and independent from the police?
 
Human rights defenders continued to experience harassment by the Government because of their activism.  Were claims of harassment and enforced disappearances against human rights defenders being investigated and were those involved prosecuted?  What reassurances could Sri Lanka provide that its national human rights monitoring system could operate freely and that all those cooperating with the United Nations human rights system were protected from reprisals?
 
Was the Police Commission the body which looked into the 150 cases of allegations of torture filed against the police, and if not, which body was in charge?  What were the outcomes of investigations and which penalties had been handed out?
 
There were serious concerns about institutions for investigating allegations of torture – only 17 of the 150 reported cases of torture had been investigated and only a handful of the police officials had been criminally sentenced.  What was the total number of torture investigations?  Was the Prosecution of Torture Perpetrators Unit (PTP Unit) still active and investigating complaints of torture, and if so, how many cases was it actively prosecuting?  What was being done to create more independent investigative and prosecution capacities for the complaints of torture?  What action was being taken to prevent torture from occurring?
 
Ms. Gaer asked the delegation to respond to the observations made in the report of the United Nations Secretary-General in which he had noted that rape and sexual violence had increased in the post-war period in Sri Lanka, and to inform on steps taken to investigate and prosecute all cases of sexual violence, in particular those committed by the military.
 
Were the recent arrests of people by the Terrorism Investigation Division under the Prevention of Terrorism Act and their detention in unofficial places of detention being investigated, and what actions were being taken to prevent the use of unofficial places of detention?
 
How many cases of sexual violence and abuse had been investigated and prosecuted since the end of the conflict in 2010?
 
What was being done to investigate allegations of sexual abuse committed by Sri Lankan soldiers serving in the United Nations peacekeeping mission in Haiti between 2004 and 2007?  What measures were in place to vet the future participants in the United Nations peace keeping missions and ensure that they had never been implicated in sexual violence and abuse, nationally or internationally?
 
The delegation was asked to inform about the deaths of people in custody; intentions to pass a law prohibiting the use in court of any confession not given in accordance with the law; and house building programmes for internally displaced persons living in camps.
 
The Committee Co-Rapporteur commended the commitment of Sri Lanka to ensure truth, justice and accountability as per the Human Rights Council resolution 30/1 and asked about the progress made in implementing the resolution and establishing the Special Council and other mechanisms.  What were the plans concerning the setting up of the Truth and Justice Commission, and could the delegation reassure the Committee that no individual would receive amnesty for acts of torture committed in the past in exchange for testimony?
 
Questions by the Experts

A Committee Expert asked how the recommendations issued by the National Human Rights Commission were implemented, including those related to conditions of detention, and the backlog in dealing with complaints of torture.  What was the situation of detention of women and what measures were being taken to address experiences of women in detention? 
 
What was being done to investigate and prosecute acts of sexual violence against Tamil women committed during the conflict?  Abortionwas criminalized, including for cases of rape and incest – would the law be amended to create any exceptions to the total ban?
 
Welcoming the commitment and action taken to combat trafficking in persons, the Expert noted the lack of data on cases and how victims of trafficking were dealt with.
 
Another Expert acknowledged the difficulties of the transitional justice period and noted the discord between the sources of information on the number of cases of torture.  What would be done to investigate all allegations of torture and what would be the role of civil society in the investigation of cases of torture that had been documented by those organizations? 
 
It seemed to many that a state of emergency was de facto in place in Sri Lanka, as a number of legal safeguards were not being observed, remarked another Committee Expert, raising issues of coerced confession, the overwhelming powers of the police in defining the length of detention and formulating charges, and the very low age of criminal liability of children which currently stood at eight years of age.  What was being done to address the situation of internally displaced children who were unaccompanied minors?
 
What were the policies and laws applicable to people affiliated with the Tamil Tiger who had fled the country and were then repatriated to Sri Lanka by countries?
 
How many cases of torture had been identified by medical screening and routine examinations in places of detention?  What procedure was in place through which prisoners could access medical services which were not available in prison and who was in charge of deciding on the degree of urgency?
 
Questions by the Country Co-Rapporteurs

ALESSIO BRUNI, Committee Expert and Co-Rapporteur for Sri Lanka, urged Sri Lanka to address the issue of conditions of detention as a matter of urgency, and especially extreme overcrowding.  The Special Rapporteur on torture had found that prisoners in Vavuniya Remand Prison had less than 0.6 square meters of living space which was a form of cruel, inhuman and degrading treatment.
 
What mechanism was in place to receive and examine complaints of asylum seekers and refugees of torture in their countries of origin and to ensure that the principle of non-refoulement was applied?  Was there a law in place guaranteeing the observance of this principle?
 
FELICE GAER, Committee Vice-Chairperson and Co-Rapporteur for Sri Lanka, asked about the mechanism in place for victims of torture to request and obtain redress, statistics on habeas corpus cases, and whether there was a time limit in bringing cases to the Supreme Court concerning the protection of fundamental rights.  Would there be a mechanism to ensure remedies and assistance to victims under the transitional justice mechanisms?
 
Responses by the Delegation
 
Responding to concerns expressed by the Committee Experts about the recent amendment to the Code of Criminal Procedure Act, a delegate explained that its aim was to statutorily recognize the right to representation of a suspect at the initial stages of the investigation process.  Hence, the right of the suspect to see a lawyer immediately after the arrest was safeguarded by this piece of legislation.  Parliament had approved the bill in January, and the Cabinet in August 2016; however, taking into consideration the opposition by some parties, the Cabinet had returned the bill to the Parliamentary Oversight Commission, which had then appointed a Committee to seek views from all concerned parties, including the Bar Association, the police, the prosecution and others.
 
With regard to concerns raised on the conduct of prosecutions by the Attorney General on alleged perpetrators of torture who were police officers, the delegation informed that the Office of the Attorney-General had a wide array of powers in the administration of criminal justice and had developed long standing, time tested traditions to ensure that all those powers and privileges were exercised to ensure equality among all who were brought before the justice system, and that justice was delivered without any fear or favour.  The independence of the Office had been further strengthened by the 19th Amendment to the Constitution and the laws established that guaranteed the tenure of office of the Attorney-General.  Politicians, public servants, military personnel and police officers were among those successfully prosecuted by the Attorney-General.  The Office did not represent any public official accused of torture and prosecuted alleged perpetrators of torture while ensuring legal and procedural standards.
 
Concerning the definition of torture in the Act N°22 of 1994, the delegation said that it conformed to provisions of Article 1 of the Convention and was sufficiently broad to cover the element of “suffering”.  Furthermore, the Constitution guaranteed the right of all persons not to be subjected to torture or cruel, inhuman and degrading ill-treatment or punishment, and that this right was non-derogable.
 
Sri Lanka followed the common law system under which each suspect was presumed to be innocent.  The magistrate had no power to conduct investigation, but would assist the police officers; it was the sole duty of the police to conduct investigations.  If sufficient grounds were found upon completing investigation, the police officer could arrest a suspect without an order by the magistrate.  The police had the right to detain suspects for up to 48 hours for serious crimes; before the 48 period had expired, the higher ranking official of the police had to apply to the magistrate to approve the extension of detention for another 24 hours.  This procedure had been in place for the past 10 years and there had been no complaints of torture during the pre-trial detention period.  Once the investigation was completed, the police would decide whether to file a charge case with the magistrate, and the Attorney-General had the power to decide whether to send the case to a higher court.
 
A confession voluntarily made to the police officer or in the police station was not admissible before the court of law; the only exception was if the confession was made voluntarily to a magistrate in the police station.  The rules of evidence were changed in the 1979 Prevention of Terrorism Act, under which a confession made to a senior officer was made admissible in court if made voluntarily.  It was up to the court to decide whether the confession was made voluntarily or not. 
 
In response to issues raised concerning the role of the Police Division on the Protection of Victims of Crimes, and whether it was appropriate to entrust the protection duty to police officers, it was explained that the main body for the protection of victims was the National Authority for the Protection of Victims in Crimes and Witnesses, which had the duty to instruct the police division on necessary standards of protection.  The duty of protecting victims was the key task and therefore it must be entrusted to the police under the guidance of the Authority, whose members included high-level officials from the justice and human rights institutions, including the National Human Rights Commission. 
 
Victims were entitled to the payment of compensation for any physical or mental injury, and for the destruction of property, and a Victim Compensation Fund would be established.
 
There were four main institutions in which training of the police officers was conducted: the Police College, Police Academy, training wing of the Special Task Force, and the In-Service Training Division.  The curriculum of all four training institutions included the concept of human rights under the Constitution of Sri Lanka, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Istanbul Protocol, the Convention on the Elimination of All Forms of Discrimination against Women, and other international human rights instruments.  Trainees also received instructions of zero tolerance for torture and possible punishments for breach of code of conduct.  The Sri Lanka Police was in the process of designing a master degree programme in policing and investigation in cooperation with foreign universities, which would include training on the United Nations Code of Conduct for Law Enforcement Officials and relevant human rights instruments, including on torture.
 
More than 1,500 Tamil-speaking officers, including women, had been recruited since the end of the war; they had been trained and posted in the northern provinces, where they discharged their duties in Tamil.  Tamil-speaking officers had been deployed in all investigative units where they were able to record statements in both official languages.  Recently, 300 Tamil-speaking youths had been recruited and were now being trained in the police college.  They would be posted in special investigation units in northern and eastern provinces upon completion of their training.
 
A Special Investigation Unit had been established to investigate all complaints of police misconduct, and to facilitate the prosecution; to date, 17 indictments against more than 30 officers had been filed.  The Special Investigation Unit operated throughout the territory without any impediments, and could investigate any police officer irrespective of their rank.
 
With regard to questions raised about visits of the officers of the National Human Rights Commission to prison facilities, the delegation confirmed that the Commission could undertake unannounced visits to places of detention and said that during the period 2010-2016, more than 8,000 visits to police stations had been conducted, as well as more than 300 visits to prisons.  The Commission planned to expand the number of visits to prisons and all other places of detention. 
 
The Commission was of the opinion that currently there was a political space to critique the law, policy and practices and make policy interventions on legislative reforms, including on issues related to torture.  The Commission had issued a directive in 2015 to all arresting officers, which clearly stated that torture, or cruel and inhumane treatment were illegal and punishable by law.  The directive also recalled the safeguards of persons arrested under the Prevention of Terrorism Act.
 
Prosecutions in Sri Lanka were instituted before magistrates and in the High Court at the request of the Attorney-General, said a delegate and went on to explain the prosecution procedure under the common law jurisdiction, saying that in serious crimes, the police sent to the Attorney-General a file containing the notice of investigation and all documents relevant to that investigation.  Depending on the sufficiency of evidence, the Attorney-General would decide whether to send indictment to the High Court. 
 
On the role of the Constitutional Council in the appointment of judges, the delegation said that the Parliament had enacted the 19thAmendment to the Constitution which introduced several safeguards to the appointment of the judiciary, and in particular the appointment of senior judges.  Under the Amendment, the Constitutional Council had been set up, comprising 10 members appointed by the Prime Minister and the opposition, and headed by the Speaker of Parliament.  The Council appointed senior judges and in doing so was required to obtain the views of the Chief Justice.  The Judicial Service Commission appointed, transferred, dismissed and disciplined judicial officers in lower courts.  The judges of the High Court were appointed by the President, and with the agreement of the Judicial Service Commission and Attorney-General.
 
Sri Lanka had set in motion the legal process to incorporate the International Convention for the Protection of All Persons from Enforced Disappearances into domestic law, and to criminalize enforced disappearances.  The Constitution provided procedure towards enactment of legislation, which required the Attorney-General to examine every bill, and that every bill be gazetted 14 days before it was tabled on the Order Paper of Parliament.  Additionally, the Supreme Court was vested with the power to consider petitions on the constitutionality of a bill – no bill could be discussed in Parliament before its constitutionality was determined by the Supreme Court, when its jurisdiction was so invoked.   
 
Sri Lanka was firm in comprehensively dealing with justice and accountability issues.  It had set up the Task Force on Reconciliation Mechanism to seek views from the public,  which had now completed its work and was expected to hand the report to the President and the Prime Minister this month.
 
With regard to the draft counter-terrorism policy and legal framework to replace the Prevention of Terrorism Act, the delegation said that the Committee set up to develop draft documents had intensively deliberated on many of the issues that the Experts had raised, including on the scope of terrorist offenses.  There were divergent views on the key issues, including the time period for producing an arrested person before the magistrate, the question of admissibility of confession, and the access of a suspect to legal representation.  Sri Lanka was confident that those deliberations would ensure a delicate balance on the key issues.
 
Follow-up Questions by the Experts

ALESSIO BRUNI, Committee Expert and Co-Rapporteur for Sri Lanka, raised the issue of rehabilitation programmes, particularly for former combatants who were not in a position to refuse them, and asked about the legal basis for rehabilitation.  Mr. Bruni asked again about the number of cases of torture, the number of prosecutions and sentences issued and what was being done to act on the report by a non-governmental organization which had listed 48 sites of detention in which torture had occurred between 2009-2015.
 
FELICE GAER, Committee Vice-Chairperson and Co-Rapporteur for Sri Lanka, asked how Sri Lanka was tackling the issue of impunity which was hanging like a sword over the entire country and this review.  Expressing concern about continued systematic use of torture by the Criminal Investigation Division and Terrorist Investigation Division, Ms. Gaer asked about the events in the Vavuniya hospital which included torture, sexual violence and abuse, and enforced disappearances of persons interrogated there by the Terrorist Investigation Division.  
 
Other Experts raised the issues of juvenile justice, action taken on documented cases of torture, cases of torture identified through medical screenings and examinations in prisons and places of detention, secret detention places, and the National Human Rights Action Plan.
 
Responses by the Delegation
 
In response to questions raised about alleged sexual misconduct of 134 members of the armed forces serving as United Nations peacekeepers in Haiti, the delegation said that Sri Lanka had immediately flown in a group of investigative officers to Haiti to investigate the allegations.  In consultation with the United Nations’ Department of Peacekeeping Operations, it had been decided to fly the entire contingent back to Sri Lanka in order to conduct a comprehensive investigation.  A comprehensive military court of inquiry had been conducted in cooperation with the United Nations.  A stringent vetting process had been put in place to ensure that no soldier tainted with sexual misconduct or human rights violations was placed in peacekeeping troops.
 
Although there was no specific legislative provision to give effect to the principle of non-refoulement, customary law provided for the application of the principle, and Sri Lanka was also bound by its Constitution to endeavour the respect of international law.  The detention of irregular migrants was undertaken in accordance with the rules of immigration and emigration in Sri Lanka and it was not the intention to detain families and children except in some exceptional circumstances.
 
The Prime Minister was one of the 10 members of the Constitutional Council, together with, inter alia, three civil society members nominated by the Prime Minister and the leader of the opposition.  The Supreme Court had sole jurisdiction over constitutional matters and the matter of fundamental rights.
 
Concluding Remarks
 
JAYANTHA JAYASURIYA, PC, Attorney General of Sri Lanka, said that the dialogue was very useful for gaining greater insight into the Committee’s concerns.  Those questions and observations would be fully taken on board, including in the preparation of the National Human Rights Action Plan 2017-2021. 
 
JENS MODVIG, Committee Chairperson, thanked the delegation and said that the Committee hoped for more replies and more answered questions.  The Committee was looking forward to receiving written replies as indicated by the delegation.
 
__________________
For use of the information media; not an official record

Sri Lanka Confirms Existence of Illegal Torture Cells

by Kasun Yapa Karunaratne, ‘Journalists for a Democratic Sri Lanka,’ Europe, November 1, 2016

In a damning report to the UN, Sri Lanka’s top human rights body has confirmed that the country’s police force maintain secret detention centers as exposed by local and international rights activists.

The much feared Terrorist Investigation Department (TID) runs these illegal centers, according to the report submitted to the UN Committee Against Torture (UNCAT) by the Sri Lanka Human Rights Commission (SLHRC).

Several human rights bodies have exposed that the Sri Lankan state maintains secret detention centers, a claim so far denied by the government.

Only three ‘gazetted’

SLHRC has found evidence about the existence of such officially undocumented torture cells around the island in addition to ‘gazetted’  detention centers in Colombo, downsouth Boosa and the Tamil town of Vavunia.

“Upon inquiry it was revealed the places at which persons were held for at least twelve hours were offices of the TID but not gazetted detention centers. The TID has only three gazetted places of detention – Boosa, TID Vavuniya and TID Colombo.”

JDS report to UNCAT

The SLHRC has recognized ‘torture to be of routine nature that is practiced all over the country’ an observation endorsed by JDS in its report to UNCAT.

JDS has provided substantial evidence that highlights the continuation of the repressive torture mechanism under the present Sri Lanka government.

Perpetrators who oversaw torture during the Mahinda Rajapaksa regime continue to hold on to positions of power with impunity following the regime change in January 2015, it has told the UN.

Over 600 cases

SLHRC in its report to UNCAT has documented over 600 complaints of torture by state security received by them since 2015.

While 420 cases of torture has been recorded in 2015, SLHRC has received 208 complaints in the first eight months of 2016.

The report also has also highlights the detention of people for years without access to justice held under the draconian Prevention of Terrorism Act (PTA).

“Based on the statistics at the disposal of the Commission obtained from the Department of Prisons, as at May 2016, of the one hundred and eleven (111) persons who still remain in remand custody under the PTA, twenty-nine have not been indicted. It should be noted this does not take into account those arrested and remanded thereafter when there were a spate of arrests under the PTA. The longest period a person has been on remand without indictment being filed is fifteen years. The longest period a trial has been on-going is since 2002, i.e. fourteen years. Forty-one persons are appealing their sentences under the PTA with the longest period the person has been awaiting a decision being fourteen years.”

The following organisations have already submitted their reports on torture in Sri Lanka to UNCAT, which is expected to discuss them at the review of the fifth periodic report of Sri Lanka in mid November.

Asian Legal Resource Centre, British Tamil Forum, Freedom from Torture, Global Justice Center (GLC) and World Organization Against Torture (OMCT), Sri Lankan NGO Collective against torture & US Tamil Political Action Council.

© JDS