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SRI LANKA: Innocent man denied justice for eight years

October 25, 2011

ASIAN HUMAN RIGHTS COMMISSION-URGENT APPEAL PROGRAMME

Urgent Appeal Case: AHRC-UAC-220-2011



25 October 2011
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SRI LANKA: Innocent man denied justice for eight years

ISSUES: Illegal arrest; arbitrary detention; torture; fabricating chargers; impunity; rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information that Mr. Pathrage Don Jayathilaka (56) of Molkava, Baduraliya in Kalutara District was illegally arrested and severely tortured by the police officers attached to the Baduraliya Police Station on 21 October 2003. Then the police officers forced him to accepted crime of possession of illicit liquor which he vehemently denied. The police then filed fabricated charge against him in Matugama Magistrate Court. Jayathilaka, a single farmer, determined to fight for justice and plead innocent before the Magistrate. Due to the absence of the police officers in court and delays in submitting Government's Analyst Reports the case was delayed for 8 years. Finally on 19 August 2011 Jayathilaka was acquitted by the Magistrate. Jayathilaka has made several complaints seeking justice against the illegal actions of the police officers but none of the authorities contacted have initiated an investigation into the matter. This case is yet another illustration of the exceptional collapse of the rule of law in the country.

CASE NARRATIVE:

According to the information the Asian Human Rights Commission has received Mr. Pathrage Don Jayathilaka (56) of Molkava, Baduraliya in Kalutara District. Jayathilaka is a farmer and is single. He has been residing in the same village since his childhood.

On several occasions police officers attached to Baduraliya Police Station came to arrest Jayathilaka's brother, P.D. Sunil for producing illicit liquor and when they failed to locate and arrest the brother they arrested Jayathilaka in his place. This happened despite the fact that the police were well aware that Jayathilaka did not consume alcohol and was not involved with its production or distribution of illicit liquor.

AHRC-UAC-220-2011-01.jpgJayathilaka had to pay bribes to the arresting police officers to avoid further harassment by being produced before a court of law. Jayathilaka paid these bribes on more than ten occasions as he had no relatives that could come and rescue him from the court proceedings.

On 21 October 2003, group of police officers attached to the Baduralaiya Police came in search of his brother and once again when they could not find him they arrested Jayathilaka. Jayathilaka clearly identified one policeman as officer Leelarathna as he had been involved in arresting him and taking bribes from him on several occasions in the past. There were other two police officers as well. Then he was brought to the police station.

At the police station police officer Leelarathna tried to force Jaythilaka to sign a document prepared by him and which was not explained to him. When Jayathilaka refused to sign the documents he was at first threatened and then beaten and kicked.

On 22 October 2003, the police officers brought Jayathilaka to the Magistrate's Court of Matugama and produced him with fabricated charge of the possession of 8 drams of illicit liquor. Jayathilaka from the very beginning vehemently denied the charge and pleaded not guilty before the Magistrate.

Considering the facts submitted by Jayathilaka himself before the Magistrate he was granted bail with the condition of Rs.5000.00 as surety. However, there was no body to fulfill the bail condition and so he was not released at that time. Then again on 28 October his case was taken up before the same Magistrate and his sister provided the money after pawning her jewelry. Jayathilaka was finally released on bail and later learned that his case number was 60954.

After his release Jayathilaka complained to the Human Rights Commission of Sri Lanka (HRCSL) and the National Police Commission (NPC) about the illegal arrest, detention, torture and filing of fabrication of fabricated charges. There has never been any response by any of these agencies regarding the violation of his rights.

Jayathilaka decided to fight for justice against the routine malpractice of the police officers. He had to wait another two years to face the trial, because of the absence of the police in court. Then again his case was delayed for a further two years due to the delay by the government analyst in submitting their report to the court.

Finally after eight years of continuous delays on 19 August 2011, the case was taken up for trial and Jayathilaka was able to prove his innocence before the Magistrate against the fabricated charges filed by the police officers. The Magistrate acquitted Jayathilaka from all the charges filed against him.

At the end Jayathilaka complained to the Magistrate against about the police officers for their procedural delay in the court process. He further explained that police officers involved in filling the charges and arresting him intentionally used their official capacities to harass him. He clearly further submitted the fact that the malicious conduct of the police officers could be prosecuted beyond reasonable doubt.

After he was released Jayathilaka from the charges he again complained to the authorities including Inspector General of Police (IGP), Human Rights Commission and National Police Commission seeking justice. But, despite several reminders, no action has been taken against the culprit police officers.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission has reported innumerable cases of torturing innocent by the Sri Lankan police which are illegal under international and local law which have taken place at different Police Station in the country over the past few years.

The State of Sri Lanka sign and ratified the CAT on 3 January 1994. Following state obligations Sri Lanka adopted Act number 22 of 1994 the law adopted by the Sri Lankan parliament making torture a crime that can be punishable for minimum seven years and not less than ten years on being proven guilty. The Attorney General of Sri Lanka is suppose to file indictments in the case where credible evidence were found on torturing people by state officers.

SUGGESTED ACTION:
Please send a letter to the authorities listed below expressing your concern about this case and requesting an immediate investigation into the allegations of illegal arrest, illegal detention, torturing by the police perpetrators, and the prosecution of those proven to be responsible under the criminal law of the country for misusing powers of a state. The officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department. Further, please also request the NPC and the IGP to have a special investigation into the malpractices of the police officers for abusing the state officers' powers.

Please note that the AHRC has also written a separate letter to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on this regard.

To support this appeal please click here:

SAMPLE LETTER:

Dear ________,

SRI LANKA: Innocent man denied justice for eight years

Name of the victim: Mr. Pathrage Don Jayathilaka (56) of Molkava, Baduraliya in Kalutara District
Alleged perpetrators:
1. Mr. Leelarathna, a police office
2. Unidentified police officers attached to the Baduraliya Police Station
Date of incident: 21 October 2003
Place of incident: Baduraliya Police Station

I am writing to express my serious concern over the case of Mr. Pathrage Don Jayathilaka (56) of Molkava, Baduraliya in Kalutara District. Jayathilaka is a farmer and is single. He has been residing in the same village since his childhood.

On several occasions police officers attached to Baduraliya Police Station came to arrest Jayathilaka's brother, P.D. Sunil for producing illicit liquor and when they failed to locate and arrest the brother they arrested Jayathilaka in his place. This happened despite the fact that the police were well aware that Jayathilaka did not consume alcohol and was not involved with its production or distribution of illicit liquor.

Jayathilaka had to pay bribes to the arresting police officers to avoid further harassment by being produced before a court of law. Jayathilaka paid these bribes on more than ten occasions as he had no relatives that could come and rescue him from the court proceedings.

On 21 October 2003, group of police officers attached to the Baduralaiya Police came in search of his brother and once again when they could not find him they arrested Jayathilaka. Jayathilaka clearly identified one policeman as officer Leelarathna as he had been involved in arresting him and taking bribes from him on several occasions in the past. There were other two police officers as well. Then he was brought to the police station.

At the police station police officer Leelarathna tried to force Jaythilaka to sign a document prepared by him and which was not explained to him. When Jayathilaka refused to sign the documents he was at first threatened and then beaten and kicked.

On 22 October 2003, the police officers brought Jayathilaka to the Magistrate's Court of Matugama and produced him with fabricated charge of the possession of 8 drams of illicit liquor. Jayathilaka from the very beginning vehemently denied the charge and pleaded not guilty before the Magistrate.

Considering the facts submitted by Jayathilaka himself before the Magistrate he was granted bail with the condition of Rs.5000.00 as surety. However, there was no body to fulfill the bail condition and so he was not released at that time. Then again on 28 October his case was taken up before the same Magistrate and his sister provided the money after pawning her jewelry. Jayathilaka was finally released on bail and later learned that his case number was 60954.

After his release Jayathilaka complained to the Human Rights Commission of Sri Lanka (HRCSL) and the National Police Commission (NPC) about the illegal arrest, detention, torture and filing of fabrication of fabricated charges. There has never been any response by any of these agencies regarding the violation of his rights.

Jayathilaka decided to fight for justice against the routine malpractice of the police officers. He had to wait another two years to face the trial, because of the absence of the police in court. Then again his case was delayed for a further two years due to the delay by the government analyst in submitting their report to the court.

Finally after eight years of continuous delays on 19 August 2011, the case was taken up for trial and Jayathilaka was able to prove his innocence before the Magistrate against the fabricated charges filed by the police officers. The Magistrate acquitted Jayathilaka from all the charges filed against him.

At the end Jayathilaka complained to the Magistrate against about the police officers for their procedural delay in the court process. He further explained that police officers involved in filling the charges and arresting him intentionally used their official capacities to harass him. He clearly further submitted the fact that the malicious conduct of the police officers could be prosecuted beyond reasonable doubt.

After he was released Jayathilaka from the charges he again complained to the authorities including Inspector General of Police (IGP), Human Rights Commission and National Police Commission seeking justice. But, despite several reminders, no action has been taken against the culprit police officers. --

I request your urgent intervention to ensure that the authorities listed below instigate an immediate investigation into the allegations of illegal arrest, illegal detention and torture by the police perpetrators, and the prosecution of those proven to be responsible under the criminal law of the country for misusing powers of state officers and for wrongful prosecution. The officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Mr. N K Illangakoon
Inspector General of Police
New Secretariat
Colombo 1
SRI LANKA
Fax: +94 11 2 440440 / 327877
E-mail: igp@police.lk

2. Ms. Eva Wanasundara
Attorney General
Attorney General's Department
Colombo 12
SRI LANKA
Fax: +94 11 2 436421
E-mail: ag@attorneygeneral.gov.lk

3. Secretary
National Police Commission
3rd Floor, Rotunda Towers
109 Galle Road
Colombo 03
SRI LANKA
Tel: +94 11 2 395310
Fax: +94 11 2 395867
E-mail: npcgen@sltnet.lk or polcom@sltnet.lk

4. Secretary
Sri Lanka Human Rights Commission
No. 108
Barnes Place
Colombo 07
SRI LANKA
Tel: +9411 2694925, +9411 2685980, +9411 2685981
Fax: +9411 2694924 (General) +94112696470 (Chairman)
E-mail: sechrc@sltnet.lk


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-220-2011
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.