29 October 2007
The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, issued the following statement today:
“I was invited by the Government of Sri Lanka to undertake a visit to the country from 1 to 8 October 2007. The purpose of my visit was to assess the situation of torture and ill-treatment in the country, and to strengthen a process of sustained cooperation with the Government to assist it in its efforts to improve the administration of justice.
I express my appreciation to the Government for the full cooperation it extended to me. I further express my gratitude to the United Nations Resident Coordinator and his team for the excellent assistance provided throughout the mission.
Meetings and places
I held meetings with Government officials, including the Secretary of Foreign Affairs, the Minister of Disaster Management and Human Rights, the Minister of Justice, the Chief Justice of the Supreme Court, the Attorney General, the Inspector General of Police, the Commissioner General of Prisons, the National Human Rights Commission, the Army’s legal advisor on human rights, and the Secretary General for the Secretariat for Coordinating the Peace Process. During the mission I also met with a broad range of civil society organizations, lawyers, medical professionals, and representatives of international organizations and the diplomatic corps.
I wish to take the opportunity to thank the Inspector General of Police and the Commissioner General of Prisons for opening up the prisons and police detention facilities without restrictions, including the carrying out unannounced visits, and enabling me to conduct private interviews with detainees. In Colombo and vicinity, I visited Welikada Prison, Colombo Remand Prison, the New Magazine Prison (Female Ward), the Criminal Investigation Department (CID), the Terrorist Investigation Department (TID), Mt. Lavinia Police Station, Ratmalana Police Post, and Panandura South Police Station. In Galle, I visited the TID detention facility at Boossa. In Trincomalee and vicinity, I visited Trincomalee Prison, Trincomalee Police Headquarters (including CID), China Bay Police Station, Kantale Police Station, Polonnaruwa Police Station, and Polonnaruwa Prison. In and around Kandy, I visited Bogambara Prison, Katugastota Police Station, and Wattegama Police Station.
Context and challenges in the promotion and protection of human rights
At the outset, I should state that I have full appreciation for the challenges the Government faces from the violent and long-lasting conflict with the Liberation Tigers of Tamil Eelam (LTTE). Notwithstanding the difficult security situation the Government is faced with, Sri Lanka in principle is still able to uphold its democratic principles, ensure activities of civil society organizations and media, and maintain an independent judiciary.
Scope of the visit
I should explain that it was my intention at first to assess the situation of torture and ill-treatment in the entire territory of the country, and to examine not only torture and ill-treatment allegedly committed by the police and other security forces of the Government of Sri Lanka, but also those allegedly committed by or on behalf of other parties to the present conflict, including the LTTE. Indeed the most serious allegations of human rights violations that come to light, including those related to torture and ill-treatment, are in relation to the conflict and are alleged to be committed by both Government and non-State forces, including the LTTE and the TMVP-Karuna group.
However, since the Government insisted that the armed forces no longer kept detainees within their facilities and therefore no identifiable detention facilities existed, and also did not permit me to travel to Kilinochchi in order for me to conduct meetings with the LTTE leadership and visit their detention facilities, I am not in a position to draw conclusions in relation to the practice of torture and ill-treatment in the particular context of the conflict. The primary focus of my findings therefore relate to torture, ill-treatment and conditions of detention in the ordinary context of the criminal justice system, including with respect to the Emergency Regulations.
The practice of torture
Though the Government has disagreed, in my opinion the high number of indictments for torture filed by the Attorney General’s Office, the number of successful fundamental rights cases decided by the Supreme Court of Sri Lanka, as well as the high number of complaints that the National Human Rights Commission continues to receive on an almost daily basis indicates that torture is widely practiced in Sri Lanka. Moreover, I observe that this practice is prone to become routine in the context of counter-terrorism operations, in particular by the TID.
Over the course of my visits to police stations and prisons, I received numerous consistent and credible allegations from detainees who reported that they were ill-treated by the police during inquiries in order to extract confessions, or to obtain information in relation to other criminal offences. Similar allegations were received with respect to the army. Methods reported included beating with various weapons, beating on the soles of the feet (falaqa), blows to the ears (“telephono”), positional abuse when handcuffed or bound, suspension in various positions, including strappado, “butchery”, “reversed butchery”, and “parrot’s perch” (or dharma chakara), burning with metal objects and cigarettes, asphyxiation with plastic bags with chilli pepper or gasoline, and various forms of genital torture. This array of torture finds its fullest manifestation at the TID detention facility in Boossa.
Intimidation of victims by police officers to refrain from making complaints against them was commonly reported, as were allegations of threats of further violence, or threatening to fabricate criminal cases of possession of narcotics or dangerous weapons. Detainees regularly reported that habeas corpus hearings before a magistrate either involved no real opportunity to complain about police torture given that they were often escorted to courts by the very same perpetrators, or that the magistrate did not inquire into whether the suspect was mistreated in custody. Medical examinations were frequently alleged to take place in the presence of the perpetrators, or directed to junior doctors with little experience in documentation of injuries.
Accountability and prevention
In general, I note that Sri Lanka already has many of the elements in place necessary to both prevent torture and combat impunity, such as fundamental rights complaints before the Supreme Court in relation to Art 11 of the Constitution, indictments and prosecutions based on the 1994 Convention against Torture Act, bringing suspects before magistrates within the statutory 24 hour period, formal legal medical examinations by trained forensic experts (Judicial Medical Officers), and investigations and visits by the National Human Rights Commission (NHRC).
The commitment of the Government to prevent torture is also demonstrated by the establishment of mechanisms by the Inspector General of Police and the Attorney General’s Office specifically to investigate allegations of torture (e.g. the Special Investigations Unit and the Prosecution of Torture Perpetrators Unit). Moreover, with respect to my mandate the Government regularly continues to provide clarifications and up-dates with regard to communications related to such violations.
However, a number of shortcomings remain, and most significantly, the absence of an independent and effective preventive mechanism mandated to make regular and unannounced visits to all places of detention throughout the country at any time, to conduct private interviews with detainees, and to subject them to thorough independent medical examinations. It is my conviction that this is the most effective way of preventing torture. In the case of Sri Lanka, I am not satisfied that visits undertaken by existing mechanisms, such as the NHRC, are presently fulfilling this role, or realizing this level of scrutiny.
I appreciate that by enacting the 1994 Torture Act, the Government has implemented its obligation to criminalize torture and bring perpetrators to justice. I am also encouraged by the significant number of indictments filed by the Attorney General under this Act. However, I regret that these indictments have led so far only to three convictions. One of the factors influencing this outcome is reportedly because of the Torture Act’s high mandatory minimum sentence of seven years; it is effectively a disincentive to apply against perpetrators. Other factors are the absence of effective ex-officio investigation mechanisms in accordance with Art 12 CAT, as well as various obstacles detainees face in filing complaints and gaining access to independent medical examinations while still detained.
Given the high standards of proof applied by the Supreme Court in torture related cases, it is regrettable that the facts established do not trigger more convictions by criminal courts.
Conditions of detention
As far as conditions of detention are concerned, the Government provided me with statistics indicating severe overcrowding of prisons. While the total capacity of all prisons amounts to 8,200, the actual prison population reaches 28,000. That poor conditions of detention can amount to inhuman and degrading treatment is well established in the jurisprudence of several international and regional human rights mechanisms. In Sri Lanka the combination of severe overcrowding with antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment in my opinion. The lack of adequate facilities also leads to a situation where convicted prisoners are held together with pre-trial detainees in violation of Sri Lanka’s obligation under Art 10 of the International Covenant on Civil and Political Rights. Although the conditions are definitely better in prisons with more modern facilities, such as Polonnaruwa and the Female Ward of the New Magazine Prison, the prison system as a whole is in need of structural reform.
During my visit of various police stations I observed that detainees are locked up in basic cells, sleeping on the concrete floor and often without natural light and sufficient ventilation. While I am not concerned about such conditions for criminal suspects held in police custody for up to 24 hours, these conditions become inhuman for suspects held in these cells under detention orders pursuant to the Emergency Regulations for periods of several months up to one year. This applies both for smaller police stations, such as at Mt. Lavinia, and especially for the headquarters of the CID and TID in Colombo, where detainees are kept in rooms used as offices during the day-time, and forced to sleep on desks in some cases.
Corporal punishment in prisons and the death penalty
I appreciate the recent abolition of corporal punishment in Sri Lanka, however, in Bogambara Prison I received disturbing complaints of cases of corporal punishment corroborated by medical evidence. I am pleased to report that the Government has initiated an inquiry to look into this matter. On the death penalty, I am encouraged by the policy of Sri Lanka not to carry out death sentences for over thirty years. Nevertheless, courts continue to sentence persons to death, which leads to a considerable number of condemned prisoners living for many years under the strict conditions of death row.
On the basis of my preliminary findings I recommend, inter alia, that the Government:
· Design and implement comprehensive structural reform of the prison system aimed at reducing the number of detainees, increasing prison capacities and modernising the prison facilities;
· Remove non-violent offenders from confinement in pre-trial detention facilities, and subject them to non-custodial measures (i.e. guarantees to appear for trial, at any other stage of the judicial proceedings and, should occasion arise, for execution of the judgment);
· Ensure separation of remand and convicted prisoners;
· Ensure separation of juvenile and adult detainees, and ensure the deprivation of liberty of children to an absolute minimum as required by Art 37 (b) CRC;
· Reduce the period of police custody under the Emergency Regulations;
· Establish appropriate detention facilities for persons kept in prolonged custody under the Emergency Regulations;
· Investigate corporal punishment cases at Bogambara Prison as well as torture allegations against the TID, mainly in Boossa, aimed at bringing the perpetrators to justice;
· Abolish capital punishment or, at a minimum, commute death sentences into prison sentences;
· Develop proper mechanisms for the protection of torture victims and witnesses;
· Establish centres for the rehabilitation of torture victims;
· Ensure that magistrates routinely ask persons brought from police custody how they have been treated and, even in the absence of a formal complaint from the defendant, order an independent medical examination in accordance with the Istanbul Protocol;
· Ratify the Optional Protocol to the Convention against Torture, and establish a truly independent monitoring mechanism to visit all places where persons are deprived of their liberty throughout the country, and carry out private interviews;
· Expedite criminal procedures relating to torture cases by, e.g., establishing special courts dealing with torture and ill-treatment;
· Allow judges to be able to exercise more discretion in sentencing perpetrators of torture under the 1994 Torture Act;
· Ensure that all allegations of torture and ill-treatment are promptly and thoroughly investigated by an independent authority with no connection to the authority investigating or prosecuting the case against the alleged victim;
· Ensure all public officials, in particular prison doctors, prison officials and magistrates who have reasons to suspect an act of torture or ill-treatment, to report ex officio to the relevant authorities for proper investigation in accordance with Art 12 CAT;
· Ensure that confessions made by persons in custody without the presence of a lawyer and that are not confirmed before a judge shall not be admissible as evidence against the persons who made the confession;
· Establish an effective and independent complaints system in prisons for torture and abuse leading to criminal investigations;
· Ensure security personnel shall undergo extensive and thorough training using a curriculum that incorporates human rights education throughout and that includes training in effective interrogation techniques and the proper use of policing equipment, and that existing personnel receive continuing education; and
· Establish a field presence of the Office of the UN High Commissioner for Human Rights with a mandate of both monitoring the human rights situation in the country, including the right of unimpeded access to all places of detention, and providing technical assistance particularly in the field of judicial, police and prison reform.
I encourage the international community to assist the Government of Sri Lanka to follow-up on these recommendations.”
The Special Rapporteur shared his preliminary findings with the Government at the close of his mission, to which the Government responded with constructive comments. He is pleased to report that the Government will appoint a high-level task force to study his recommendations, consisting of public sector stakeholders and members representing judicial and civil society sectors. The Special Rapporteur will submit a comprehensive written report on the visit to the United Nations Human Rights Council.
Mr. Nowak was appointed Special Rapporteur on 1 December 2004 by the United Nations Commission on Human Rights. As Special Rapporteur, he is independent from any government and serves in his individual capacity. The Commission first decided to appoint a special rapporteur to examine questions relevant to torture in 1985. The mandate, since assumed by the Human Rights Council, covers all countries, whether or not they have ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Mr. Nowak has previously served as member of the Working Group on Enforced and Involuntary Disappearances; the UN expert on missing persons in the former Yugoslavia; the UN expert on legal questions on enforced disappearances; and as a judge at the Human Rights Chamber for Bosnia and Herzegovina. He is Professor of Constitutional Law and Human Rights at the University of Vienna, and Director of the Ludwig Boltzmann Institute of Human Rights.
For further information on the mandate of the Special Rapporteur, please visit the website: http://www.ohchr.org/english/issues/torture/rapporteur/index.htm