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SRI LANKA: Torture victim tortured again and remanded on fabricated charges by the police after lodging a complaint against police

December 3, 2003

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

3 December 2003
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UA-76-2003: SRI LANKA: Torture victim tortured again and remanded on fabricated charges by the police after lodging a complaint against police

SRI LANKA: Torture; Rule of law
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Dear friends

The Asian Human Rights Commission (AHRC) is gravely concerned that torture victim Mahadura Pandula Sri Thaminda was arrested by police officers from the Kandy Police Station on fabricated charges on 10 November 2003, after he refused to withdraw his complaint against the police. According to the victim's family, the victim received threats from the police officers after he filed a fundamental rights application against the police officers, who severely tortured him, to the Supreme Court.

This is another clear example of the difficulties victims have to face to obtain justice in Sri Lanka. In Sri Lanka, the police officers responsible for torture are allowed to hold their positions at the same police station and they have frequently used their power to threaten the victims and cover up the cases. Your urgent action is required to pressure the local authorities to correct this matter immediately.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:

Name of the victim: Mahadura Pandula Sri Thaminda
Perpetrators: Some officers attached to the Kandy Police Station
Date of incident: 10 November 2003

Case details:

At about 5:30pm on 10 November 2003, when Mahadura Pandula Sri Thaminda was at his fruit stall in the Central Market, Kandy, a police officer came to him and threatened him, saying that he would be killed unless he withdraws his complaint against the police officers. Mahadura Pandula Sri Thaminda was arbitrary arrested and severely tortured by the police officers from the Kandy Police Station on 11 August 2003. Since then, a fundamental rights application case against the ten police officers from the Kandy Police Station regarding this incident has been filed at the Supreme Court.

When Mahadura Pandula Sri Thaminda refused to withdraw the case, the police officer started assaulting him brutally. While beating him, the police officer condemned the victim for giving an interview to the Swarnavahini television news programme and for not withdrawing the complaint. Within minutes, a team of police officers attached to the Kandy Police Station came to the scene in a police bus, indicating that the assault was pre-planned. Then they put the victim into the police bus and took him to the police station.

In the mean time, a neighbour fruit seller D.M.I. Kumara informed Mr. Heshan De Alwis, the attorney-at-law of the victim, that the victim was assaulted by the police again and taken to the Kandy police station. Mr. Heshan De Alwis went to the police station right away and requested the police officers not to assault the victim. Despite his request, several police officers assaulted the victim in the presence of Mr. Heshan De Alwis. Even though no weapon or bomb was found from the possession of Mahadura Pandula Sri Thaminda, the police charged the victim of possessing a bomb. At the police station, the same police officer who threatened him together with police officers severely tortured the victim. The police fabricated the case by forcing him to place his fingerprints on a document and to sign a confession statement prepared by the police.

The victim was produced before the learned Magistrate of Kandy on 11 November 2003. In the B-Report bearing number 48380, the police reported to the magistrate that the victim was in possession of a bomb, and assaulted and wounded the police officers who were on duty, while the victim denied these allegations. The Magistrate ordered that the victim be remanded and produced before the Court on 24 November 2003. As possession of a bomb is a charge that is un-bailable, the victim is now in the Remand Prison.

While he was in the Remand Prison, Kandy, on 12 November, the victim started bleeding from his nose and mouth and passing urine with blood as a result of torture. He was admitted to the General Hospital, Kandy and his condition became critical. The victim underwent neurological surgery at the hospital on 15 November 2003. The victim has no criminal record nor any cases pending against him except two false cases filed by the police in the Magistrate¡¦s Court of Kandy. The victim is a father of three children and the youngest child is only four months old. He is the only breadwinner of the family.

According to the victim's wife, around 2 November 2003, the same police officer, who later threatened, assaulted and arrested him on 10 November, came to the victim's fruit stall and threatened him saying that "How dare you file the case against the police? You will be either killed or implicated with a heroin or bomb case so that you have to spend the rest of your life in jail." The victim's wife was there and frightened of this threat. The victim fearing reprisals by the police lodged a complaint to the Human Rights Commission office in Kandy regarding this threat.

BACKGROUND INFORMATION:

Mahadura Pandula Sri Thaminda, a retail fruit seller, has his stall in front of the Central Market in Kandy. At about 9:00pm on 11 August 2003, Mahadura Pandula Sri Thaminda and his friend Hettiyakandage Ruwan Darshana Fernando, who also has a retail fruit stall in the same premises, came in a three wheeler to the Central Market in order to close down their fruit stalls. Hettiyakandage Ruwan Darshana Fernando is a disabled person using crutches, therefore, it took some time to get down from the three-wheeler. The police officers, who were in the Central Market premises on duty, ordered the three-wheeler driver Aruna Shantha Mahalekam to move away the vehicle immediately. When Aruna Shantha Mahalekam explained to the police officers the reason of the delay, the police officers started to assault the three of them and took them to the Kandy Police Station. At the police station, the police severely tortured them and later they were admitted to the General Hospital in Kandy. Especially, Mahadura Pandula Sri Thaminda and Aruna Shantha Mahalekam were treated in the hospital for several days.

After that, the police initiated prosecution against three of them in the Magistrate¡¦s Court of Kandy. In the case bearing No. B. 43286, the police accused the three of them of committing offences punishable under the Penal Code by obstructing the police officers in discharging their duties and causing injuries to P.C. 31461 and causing mischief to the police officers while under the influence of liquor. On 19 August 2003, the learned Magistrate of Kandy enlarged the victim on a personal bail of Rs. 25,000.00. The case is still pending.

Mahadura Pandula Sri Thaminda filed a fundamental rights application (number 463/2003) to the Supreme Court against ten police officers who tortured him, under article 11 of the Constitution. Two other torture victims, Hettiyakandage Ruwan Darshana Fernando and Aruna Shantha Mahalekam also filed separate fundamental rights applications (number 464/2003, 465/2003) to the Supreme Court against the same police officers attached to the Kandy Police Station. The three cases filed by them were supported on 23 September 2003, and leave to proceed was granted by the Supreme Court. In addition, the three of them made complaints to the police headquarters regarding the assault and torture against them by the police officers attached to the Kandy Police Station.

SUGGESTED ACTION:
Please send a letter, fax or email to the local authorities and express your concern of this serious case.

1. Hon. Mr. Ranil Wickremasinghe
Prime Minister
Cambridge Place, Colombo 7
SRI LANKA
Fax: +94 11 2 682905 / 575454
E-mail: secpm@sltnet.lk or bradmanw@slt.lk

2. Hon. Mr. K. C. Kamalasabesan
Attorney General
Attorney General's Department
Colombo 12
SRI LANKA
Fax: +94 11 2 436 421
Email: attorney@sri.lanka.net or counsel@sri.lanka.net

3. Mr. Ranjith Abeysuriya PC
Chairman National Police Commission
69-1 Ward Place, Colombo 7
Sri Lanka
Fax: +94 11 2 669 128 (need to ask to change to fax mode) / 691 926
Fax HOME: +94 11 2 674148

4. Dr. Radhika Coomaraswamy
Director
National Human Rights Commission of Sri Lanka
No. 36, Kynsey Road, Colombo 8
SRI LANKA
Tel: +94 11 2 694 925 / 673 806
Fax: +94 11 2 694 924 / 696 470
E-mail: sechrc@sltnet.lk

5. Mr. Theo C. van Boven
Special Rapporteur on the Question of Torture
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917-9016

6. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Office of the United Nations High Commissioner for Human Rights
Palais Wilson, Rue des Paquis 52, Geneva
SWITZERLAND
Tel: +41 22 9179130
Fax: +41 22 9179006


Suggested Letter:

Dear

Re: Torture victim tortured again and remanded on fabricated charges as retaliation for lodging a complaint against police; ARREST AND PROSECUTE THE PERPETRATORS

Name of the victim: Mahadura Pandula Sri Thaminda
Perpetrators: Some officers attached to the Kandy Police Station
Date of incident: 10 November 2003

I am shocked to learn about this case. The victim, who was severely tortured by the police, was tortured again for making a complaint, and unbelievably charged with false cases fabricated by the police.

The torture in Sri Lanka is beyond belief. The torture at the police stations has been customised in the country for a long time. Even though UN Human Rights Committee had already noted this situation and made strong recommendation to the Sri Lanakan government, the Sri Lankan authorities have taken no significant action to address this serious problem.

Therefore, I request you to investigate this case, and arrest and prosecute the perpetrators as urgently as possible. I also urge you to withdraw all the false charges on the victim and release him. I further urge you to ensure the victim access to full medical and legal assistance.

Lastly, I bring to your notice the following recommendation made by the UN Human Rights Committee on 6 November 2003 (among several other recommendations):

'The State party should adopt legislative and other measures to prevent such violations, in keeping with articles 2, 7 and 9 of the Covenant, and ensure effective enforcement of the legislation. It should ensure in particular that allegations of crimes committed by state security forces, especially allegations of torture, abduction and illegal confinement, are investigated promptly and effectively with a view to prosecuting perpetrators. The National Police Commission complaints procedure should be implemented as soon as possible. The authorities should diligently enquire into all cases of suspected intimidation of witnesses and establish a witness protection program in order to put an end to the climate of fear that plagues the investigation and prosecution of such cases The capacity of the National Human Rights Commission to investigate and prosecute alleged human rights violations should be strengthened.'

Thank you for your attention.



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Thank you.

Kim Soo A
Urgent Appeals Programme
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Case
Document ID :
UA-76-2003
Countries :
Issues :
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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.