SRI LANKA: Recommendations of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka

A Statement by the Asian Human Rights Commission (AHRC) on the occasion of International Day in Support of Victims of Torture

On occasion of the International in Support of the Victims of Torture 2017 we think it is appropriate to recall the recommendations made by the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Dr Juan E Mendez in his report.

1. In a spirit of cooperation and partnership, the Special Rapporteur recommends that the Government, with appropriate assistance from the international community, take decisive steps to implement the recommendations outlined below.

2. Regarding the legal framework, the Special Rapporteur recommends that the Government:

(a) Immediately repeal the Prevention of Terrorism Act;

(b) Review any draft legislation to replace the Prevention of Terrorism Act (national security act, state intelligence services act and prevention of organized crimes act) to ensure safeguards against arbitrary arrest and torture or cruel, inhuman or degrading treatment; provisions for access to legal counsel from the moment of deprivation of liberty, strong judicial overview of law enforcement and security agencies and protections for the privacy rights of citizens; and that there is a timely, robust and transparent national debate on the bills that is inclusive of all civil society;

(c) Study and incorporate the recommendations made by the National Human Rights Commission in relation to the drafting of new national security legislation,’ which are based on recommendations outlined by the Special Rapporteur on the promotion and protection of human rights while countering terrorism in his various reports (for example, A/HRC/16/51 and A/HRC/22/52 and Corr.1) regarding procedural safeguards when adopting or amending legislation on national security;

(d) Enact new legislation to provide for command or superior responsibility as a basis for criminal liability;11

(e) Urgently ratify and implement the Optional Protocol to the Convention against Torture, thereby recognizing the competence of the Subcommittee on Prevention of Torture and enable it and other international and national monitoring mechanisms to conduct regular unannounced inspections of all places of detention;

(f) Immediately withdraw the proposed amendment to the Code of Criminal Procedure Act that would deprive a suspect of access to a lawyer until his or her statement has been recorded, and enact legislation that strengthens the right of suspects to prompt and regular access to lawyers from the moment of arrest;

(g) Abolish capital punishment or, as a minimum, commute all death sentences to prison sentences;

(h) Review and amend the Assistance to and Protection of Victims of Crime and Witnesses Act (No. 4 of 2015) to make the National Authority set up under the Act more independent and more accountable and subject to judicial oversight and to ensure that its jurisdiction extends to the protection of all victims, including those who are trafficked (see CRC/C/SLK/5, para. 116) or subjected to torture or sexual violence, owing to the real risk of reprisals;

(i) Amend the Police Act to make the police more accountable, effective and trustworthy;

(j) Implement the National Plan of Action to Address Gender-based Violence in line with its international obligations and with the international protocol on the documentation and investigation of sexual violence in conflict, to tackle impunity for sexual torture and to ensure redress to survivors;

(k) Repeal all relevant legislation so that corporal punishment is explicitly prohibited in all settings;

(l) Ratify the Protocols Additional to the Geneva Conventions of 12 August 1949 and sign, and ratify, the Rome Statute of the International Criminal Court;

(m) Enact implementing legislation for all international treaties Sri Lanka has ratified, including the International Covenant on Civil and Political Rights.

3. Regarding conditions of detention, the Special Rapporteur recommends that the Government:

(a) Urgently repair and upgrade or close old prisons to address the unsafe and inhumane conditions of detention;

(b) Ensure minimum standards of conditions of detention in accordance with the Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules), and ensure that current practices and conditions do not give rise to cruel, inhuman or degrading treatment or punishment, or torture;S

(c) Adopt and implement measures to significantly reduce overcrowding, including:

(i) Overhauling the prison system to reduce the number of detainees and increasing prison capacities in more modern prison facilities;

(ii) Accelerating the judicial process and reviewing sentencing policies by introducing alternatives to incarceration (bail and electronic surveillance for pretrial defendants; non-custodial sentences for non-violent offenders and juveniles; parole and early release for the convicted);

(d) Design a criminal justice system that aims at rehabilitating and reintegrating offenders, including by creating work and education opportunities;

(e) Allocate sufficient budgetary resources to provide adequate health care by employing a sufficient number of qualified professionals and providing infirmaries in detention centres with adequate equipment and medicines;

(f) Ensure the daily presence of truly independent and qualified medical health staff, including psychiatric and dental specialists, in all places of deprivation of liberty, in cooperation with the public health services, to perform a medical entrance examination for all detainees, conduct regular check-ups and provide medical assistance as necessary;

(g) Monitor the quantity and quality of food and water and ensure adequate sanitary and hygienic conditions, satisfactory ventilation and adequate access to exercise, sunlight and recreational activities;

(h) Authorize more frequent family visits and facilitate them by providing transportation and other support for indigent families;

(i) Purchase and use body and parcel scanners, as promised by the Ministry of Prison Reforms, Rehabilitation, Resettlement and Hindu Religious Affairs, to address the indignity of invasive body searches of family members visiting detainees;

(j) Install telephones or computers for inmates so that they are able to communicate with their families.

4. Regarding safeguards and prevention, the Special Rapporteur recommends that the Government:

(a) Immediately shut down any unofficial detention facilities that may still be in existence;

(b) Ensure prompt and official registration of all persons deprived of their liberty and periodically inspect records at police and prison facilities to ensure that they are maintained in accordance with the established procedures; failure to do so would entail investigating senior officers and holding them accountable;

(c) Digitize all registrations and records of all persons deprived of their liberty and make them accessible to the National Human Rights Commission;

(d) Guarantee that access to lawyers through the Legal Aid Commission or bar association or other service is granted, in law and in practice, from the moment of deprivation of liberty and throughout all stages of criminal proceedings;

(e) End the practice of incommunicado detention during the initial hours at unofficial detention locations;

(f) Ensure that statements or confessions made by a person deprived of liberty other than those made in the presence of a judge and with the assistance of legal counsel have no probative value in proceedings against that person;

(g) Ensure that all arrests are transparent, with the arresting officer showing proper identification, and based on objective evidence;

(h) Ensure that all detainees can challenge the lawfulness of detention before an independent court, i.e., through habeas corpus proceedings;

(i) Ensure that security sector officials (military, intelligence and police) undergo a rigorous reform programme that includes human rights education and training in effective interrogation techniques and proper use of force;

(j) Ensure that national security and policing procedures are compliant with international standards and that the Tamil population is adequately represented in the police corps at all ranks in the North and East so that law enforcement forces are able to communicate with and serve the population residing there (see CERD/C/LKA/10-17, para. 24);

(k) Introduce independent, effective and accessible complaint mechanisms at all places of deprivation of liberty by installing emergency telephone hotlines or confidential complaint boxes that are operational, and ensure that complainants are not subject to reprisals;

(l) Provide more specialized training in forensic medical investigation and documentation of torture and ill-treatment in accordance with the Istanbul and Minnesota Protocols;

(m) Authorize and facilitate regular, effective and independent monitoring of places of deprivation of liberty by international and national bodies, including the National Human Rights Commission and civil society organizations;

(n) Raise the age for criminal responsibility of juveniles to one that is internationally acceptable;

(o) Ensure the separation of juvenile and adult detainees and that children are held in detention only as a last resort and for as short a time as possible.

5. Regarding institutional reform, the Special Rapporteur recommends that the Government:

(a) Establish an effective torture prevention programme by undertaking comprehensive institutional reforms and a vetting process at the higher and lower ranks in the security sector — the army, the intelligence agency and the police — to overhaul these institutions, which continue to function with impunity;

(b) Rebuild the national institutions of the security sector so they are trustworthy and effective in protecting citizens without violating human rights, and establish independent oversight authorities to monitor the national security agencies;

(c) Provide directives to the security sector to ensure that all officers are informed and given clear and unequivocal instructions that all acts of torture, including rape and other forms of sexual violence, and ill-treatment are prohibited and that those responsible, either directly or as commander or superior, will be investigated, prosecuted and punished (see CAT/C/LKA/5, paras. 10-11);

(d) Support the National Human Rights Commission so that it complies with the principles on the status of national institutions for the promotion and protection of human rights (the Paris Principles) and can be designated as the national preventive mechanism, as contemplated by the Optional Protocol to the Convention against Torture, to undertake scheduled and unannounced prison visits to effectively monitor the legal status of detainees and conditions of detention of all detainees at all locations where persons are deprived of their liberty;

(e) Strengthen the powers of the National Human Rights Commission to ensure its independence and impartiality, and provide it with a robust mandate and sufficient financial resources to serve as an additional channel for complaints of torture and ill-treatment (while not replacing the responsibilities of prosecutors and judges);
(f) Implement the detailed recommendations of the Working Group on Enforced or Involuntary Disappearances regarding the functioning of the Office on Missing Persons (see A/HRC/33/51/Add.2, paras. 79-80);

(g) Shut down the Poonthotam rehabilitation centre programme and release unconditionally those who remain in the centre or any other rehabilitation centre;
(h) Charge detainees whose cases remain pending under the Prevention of Terrorism Act or, in the absence of sufficient evidence, release them immediately;

(i) Prioritize demilitarization and dismantle the structures that are still in place to conduct surveillance, and build up trust in the community as a step towards reconciliation;

(j) Strengthen the Assistance to and Protection of Victims of Crime and Witnesses Act No. 4 of 2015 to make the National Authority set up under the Act an independent and accountable agency not managed only by the police but subject to judicial oversight, and ensure that its jurisdiction extends to the protection of victims of trafficking who, like victims of torture and sexual violence, also have a real fear of reprisals.

6. Regarding the judiciary, the Special Rapporteur recommends that the Government:

(a) Reform the judiciary by referring to the mission report of the Special Rapporteur on the independence of judges and lawyers 12 to address deficient procedures that continue to undermine any effective monitoring and documentation of and accountability for torture and ill-treatment through prompt, thorough and impartial investigations;

(b) Uphold its obligation to genuinely investigate, prosecute and punish the numerous acts of torture that occurred in the past that are well documented, as there is no statute of limitations for such crimes under international law;

(c) Ensure that investigations into recent cases are launched ex officio without any need for formal complaints by prosecutors whenever there are reasonable grounds to suspect torture or ill-treatment;

(d) Ensure that allegations of torture and ill-treatment are admitted at all stages of judicial proceedings;

(e) Hold perpetrators, including superiors who may have tolerated or condoned the act, criminally responsible for torture or other ill-treatment and impose adequate disciplinary measures;

(f) Ensure that the exclusionary rule with regard to evidence obtained under torture is fully implemented by the courts and that confessions in criminal proceedings are not admitted in the absence of any corroborating evidence;

(g) Ensure that victims of torture and ill-treatment receive adequate compensation, including their full rehabilitation, and that they are not subject to reprisals;

(h) Order independent medical examinations by forensic doctors properly trained on the Istanbul Protocol as soon as any suspicion of mistreatment arises;

(i) Ensure that all aspects of the chain of criminal justice (investigation, detention, interrogation, arrest and conditions of incarceration) comply with the rule of law.

7. Regarding accountability and transitional justice, the Special Rapporteur recommends that the Government:

(a) Implement Human Rights Council resolution 30/1 and build a consensus to regain the confidence of all citizens and, in particular, torture survivors;

(b) Refer to international standards that require that societies approach national reconciliation by conducting truth-seeking and disclosure, justice through criminal prosecutions of perpetrators of serious crimes, reparation to victims and meaningful reform of institutions. The mechanisms by which these four steps are accomplished should be decided following extensive consultations with all stakeholders in a transparent and broadly participatory exercise that is just and earns the trust of all Sri Lankans, including those who live outside the country;

(c) Implement the recommendations made by OHCHR following its comprehensive investigation on Sri Lanka (A/HRC/30/61), in particular those related to torture and accountability;

(d) Establish an office to investigate and prosecute allegations of torture independent of the Office of the Attorney-General to ensure a break from the past culture of impunity, and make operational an effective and safe witness protection programme that excludes authorities who were part of the national security forces;

(e) Refer to the work of the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence, who has stressed the need for a comprehensive transitional justice strategy that takes into account the links between these different mechanisms;13

(f) Implement the recommendations contained in the report of the Working Group on Enforced or Involuntary Disappearances;

(g) Implement the recommendations of the mission report of the Special Rapporteur on the independence of judges and lawyers.

8. The Special Rapporteur recommends that the international community:

(a) Support the timely implementation of the various recommendations
made by United Nations mechanisms;

(b) Ensure that the principle of non-refoulement is upheld by not returning
to Sri Lanka persons, in particular Tamils, who may be at risk of torture or ill-treatment, in accordance with article 3 of the Convention against Torture.