The Government has an obligation to investigate, prosecute
and punish every incident of torture and ill-treatment. Full statement issued
by United Nations Special Rapporteur Mr.
Juan E. Mendez
Colombo, 7 May 2016
*This statement should be read in conjunction with the
preliminary observations and recommendations of the Special Rapporteur on the
independence of judges and lawyers.
Introduction
At the invitation of the Government, my colleague, Ms.
Mónica Pinto — the Special Rapporteur on the independence of judges and
lawyers — and I visited Sri Lanka from 29 April to 7 May 2016 to assess the
situation and remaining challenges concerning torture and other cruel, inhuman
or degrading treatment or punishment and the independence of judges and
lawyers. We would like to express our appreciation to the government for
extending an invitation to visit the country, for their full cooperation during
our visit, and for the efforts displayed, in particular by the Ministry of
Foreign Affairs, to facilitate and organize official meetings. In addition, we
would like to thank the United Nations Resident Coordinator and the United
Nations Office in Sri Lanka for supporting the preparations of the visit.
Sri Lanka is at a crucial moment in its history. While the
armed conflict has ended after more than 30 years, much of the structures of a
nation at war remain in place as the fabric of Sri Lankan society has been ravaged.
Sri Lankan citizens continue to live without minimal guarantees against the
power of the State. It is now critical and urgent to replace the legal
framework that allowed serious human rights violations to happen and set up
sound democratic institutions and legal standards that will give effect to and
protect human rights embodied in the constitution of Sri Lanka as well as the
international human rights treaties it has voluntarily ratified.
Officials we spoke to identified as the main threats and challenges
of the country international terrorism and organized crime, as is the case with
most countries in the world today. However, they can never justify the
continuation of repressive practices or a normative framework that contributes
to violations of fundamental rights and civil liberties.
The elections of January and August 2015 brought an opening
in the democratic space and the change in government has led to some promising
reforms, such as the re-instatement of the Constitutional Council. Yet, more reforms
are expected and necessary before the country can be considered to be on a path
to sustainable democratization governed by the rule of law.
There is a need to recover the momentum of reform and
accelerate the process of positive change within a comprehensive and inclusive
framework.
During my visit I had the opportunity to visit detention
facilities and military camps in the Southern Province (Boossa Prison, Boossa
TID detention facility, Galle Fort military camp), Western province (Kalutara
South Senior Superintendent’s Office, Panadura Police Station), North Western
Province (Puttalam and Kalpitiya Police Stations), Northern Province (Joint
Operational Security Force Headquarters in Vavuniya (“Joseph camp”), Vavuniya
Remand Prison, Vavuniya Police Station, Vavuniya TID office, Poonthotam
Rehabilitation Centre in Vavuniya) and Eastern Province (Trincomale Naval
Base). In Colombo I visited the Criminal Investigation Department and Terrorism
Investigation Division facilities (commonly known as the 4th and 6th floor),
the Welikada Prison complex and Borella police station.
I also had the opportunity to exchange views with a number
of high ranking officials, including representatives of the Ministry of Foreign
Affairs, the Ministry of Defence, the Ministry of Law and Order, the Ministry
of Prison Reforms, Rehabilitation, Resettlement and Hindu Religious Affairs,
the Ministry of Woman and Child Affairs, the Ministry of Health, the Attorney
General’s Office, the National Police Commission, the National Human Rights
Commission, the Governor of the Eastern Province, as well as representatives of
the Sri Lankan civil society, international organizations, victims and their
families.
The Special Rapporteur on the Independence of Judges and
Lawyers, during her visit, had the opportunity to engage with a variety of
stakeholders, including judges, lawyers and civil society organizations, the
details of which can be found in her statement.
I will now share some of my preliminary observations and
recommendations. I will further develop my assessment in a written report,
which I will present to the 34th session of the United Nations Human Rights
Council in March 2017.
Preliminary findings
Access to places of detention
My team and I were given unrestricted access to all places
of detention and unimpeded access to interview detainees in private. However, I
would like to note with concern that some detainees told us they had been
informed of our visit in advance and in a few cases had even been told not to
speak to us about their treatment while in detention. Some of those interviewed
while in custody where evidently reluctant to share with us the details of the
treatment received.
Prevalence of torture and ill-treatment
Article 11 of the Sri Lankan Constitution states no person
shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. Through the Torture Act passed in 1994, Sri Lanka has made torture
a criminal offense that largely coincides with the international definition in
the UN Convention Against Torture (CAT).
After many interviews conducted by my team and myself at
random throughout my visit with both detainees and those who have been
released, I am persuaded that torture is a common practice carried out in
relation to regular criminal investigations in large majority by the Criminal
Investigation Department (CID) of the police. In cases where there is a real or
perceived threat to national security there is a corresponding increase in acts
of torture and ill-treatment during detention and interrogation in Terrorism
Investigation Division (TID) facilities.
I have interviewed survivors and examined documentation
regarding the practice of torture from previous years as well as its prevalence
today. Fewer cases are reported today than during the conflict period and
perhaps the methods used by the police forces are at times less severe. But
sadly the practice of interrogation under physical and mental coercion still
exists and severe forms of torture, albeit probably in less frequent instances,
continues to be used.
Both old and new cases
continue to be surrounded by total impunity. In addition, procedural norms that
entrust the police with investigative powers over all criminal cases and, in
the case of the Prevention of Terrorism Act, allow for prolonged arbitrary
detention without trial, are still very much in place and open the door
to — almost invite — police investigators to use torture and ill-treatment as a
routine method of work.
I received many testimonies from victims and detainees who took
the risk to speak out, despite concerns either for their own safety or their
families. I was able to conduct thorough interviews and forensic examinations
in a few cases, with the assistance of a forensic expert that accompanied me
during my mission. I found the testimonies truthful and many were substantiated
with physical evidence that is conclusive of torture. The forensic expert
conducted a number of medical examinations that confirmed physical injuries
consistent with the testimonies received. The forensic expert also analysed
photographs taken shortly after the alleged torture and ill-treatment, and
concluded they are diagnostic of severe physical torture.
The nature of the acts of torture consists mainly of
transitory physical injuries caused by blunt instruments (essentially punches,
slapping and, occasionally, blows with objects such as batons or cricket bats)
which heal by themselves without medical treatment and leave no physical scars.
There were also several accounts of brutal methods of torture, including
beatings with sticks or wires on the soles of the feet (falanga); suspension
for hours while being handcuffed, asphyxiation using plastic bags drenched in
kerosene and hanging of the person upside down; application of chili powder to
face and eyes; and sexual violations including mutilation of the genital area
and rubbing of chili paste or onions on the genital area. While these methods
of torture were in some cases of short duration, in other cases torture
occurred over a period of days or even weeks during interrogation.
Prevention of Terrorism Act (PTA)
A special piece of legislation called the Prevention of
Terrorism Act (PTA) applies to investigations into national security-related
offences. It provides for detention without trial for prolonged periods of up
to 18 months, with judicial supervision. A magistrate must periodically review
the detention order. During my interviews with PTA detainees it appeared that a
number of them are transferred around various TID or CID facilities in the country
without lawyers or family being informed.
Under Section 28 of the Human Rights Commission Act the
detention authorities are bound to inform the National Human Rights Commission
(NHRC) within 48 hours of an arrest made under the PTA or other emergency
regulations as well as in case of transfer or change of location. I understand
that nowadays, with the changes at the NHRC, such arrests and detentions are
again communicated, more or less regularly, but this is not the case with
transfers or changes of detention facility.
Under Section 15(a) of the PTA, some detainees continue to
be detained in TID facilities (as opposed to remand prisons) because the
Secretary of Defence considers them a threat to national security. The hearings
held before a magistrate, for the purpose of judicial control of the detention,
do not amount to meaningful safeguards against either arbitrariness or
ill-treatment. The magistrates essentially rubber-stamp detention orders made
by the Executive Branch and do not inquire into either conditions of detention
or potential ill-treatment in interrogation.
Persons detained under the PTA then go on to be prosecuted
at the High Court for security-related offences, most frequently based on
charges related to aiding or abetting the LTTE insurgency. These cases have
languished in court for years with the defendants remaining in detention. In
random interviews, I found several inmates who have spent ten years in remand
detention under the PTA, or under charges of ordinary offences, without having
been proven guilty of any offence. Some are bailed out by courts, though they
continue to be prosecuted. Others are sent to “rehabilitation” in lieu of
prosecution, which is supposedly voluntary on their part.
While there were around 24 rehabilitation facilities right
after the end of the conflict, rehabilitation now consists of one year in
detention (on occasion extended to 15 months) at Poonthotam Rehabilitation
Centre in Vavuniya, at the end of which the individual is deemed
“rehabilitated” and released. Forty persons (39 male, 1 female) are currently
held in Poonthotam Rehabilitation Centre in Vavuniya. I have been informed that
they will be released in the course of the following months. My team and I
interviewed some of these forty persons, who told us they have been deprived of
liberty since 2009 or earlier.
The head of the Poonthotam
Rehabilitation Centre in Vavuniya told us that 12,146 detainees have been
processed through the PTA system to date. I asked for specific information on
how many persons were prosecuted instead of being rehabilitated, how many were
convicted, how many acquitted or how many are still held in arbitrary detention
under the PTA in remand prisons. I have not yet received these figures. The
NHRC has also not been able to obtain these statistics to which they should
definitely have access.
Living conditions and other benefits are considerably more
humane in rehabilitation than in prison, including the fixed term of detention,
periodic home leave of four days’ duration and vocational training. However,
not all security related prisoners are invited to rehabilitation and it is
unclear what selection criteria are used. Obviously, if after many years of
detention the State does not have sufficient evidence to charge a detainee, the
latter should be released unconditionally. In addition, from persons who have
gone through the rehabilitation process, we have heard credible stories that
they are frequently harassed, followed and threatened with further arrests
after their release. At least in a few cases a new, post-rehabilitation
detention has been documented. Harassment sometimes extends to members of staff
of civil society organizations that provide counselling and other services to
rehabilitated persons.
It is obvious that rehabilitated persons are not immune from
investigation of possible new crimes; but in such cases the authorities should
be very transparent on the reasons and evidence on which a detention order
rests. The very manner of the arrests of rehabilitated persons alleged as
happening recently — by plainclothes agents, after days of being followed and
after asking questions to family members, neighbours and associates — raise
fears in the respective communities and only add to distrust about the motives
for these re-arrests.
Effectiveness against terrorism and organized crime does not
require breaking down the minimum guarantees for the protection of life,
liberty and personal integrity. On the contrary, practices that are contrary to
international principles de-legitimise the State. Perhaps some special measures
need to be taken in exceptional cases but these must without exception be taken
in the context of full respect for international human rights obligations.
The Government should repeal the current PTA. In the context
of any replacing legislation, if at all necessary, a robust and transparent
national debate should take place that provides for full participation of civil
society. We understand that the Government is contemplating statutes on
National Security, surveillance and intelligence services. Under any
circumstance, those pieces of legislation should include protections against
arbitrary arrest, absolute prohibitions on torture or cruel, inhuman or
degrading treatment, provisions for access to legal counsel from the moment of
deprivation of liberty, strong judicial controls over law enforcement or
security agencies, and protections for the privacy rights of citizens. The
Special Rapporteur on Human Rights while Countering Terrorism has produced very
useful guidelines to incorporate in legislation of this sort.
Arbitrary arrest and detention
I have received allegations of recent so-called “white van
abductions” — a reference to practices that in the past led to enforced
disappearance of persons. The situation today cannot be compared to the past,
but the persistent allegations of white van abductions are a reminder that
arrests should be conducted transparently and that senior officers must be
accountable for them. I raised this issue with the authorities who have said
that all arrests are done by police in uniform using officially marked
vehicles. The cases that we looked into seem to have resulted in
acknowledgement of the detention of the person. However, I intend to continue
to look further at the evidence.
There does not seem to be a clear rule in the law that says
that arrests have to be authorized by a judge. In practice the decision to
arrest a person is made by a police officer. For that reason, it is important
that detentions are made transparent, with proper identification of the
arresting officer, and offering reasons based on objective evidence. Otherwise,
distrust of the authorities will persist.
Forced confessions: evidence obtained under torture
While there are many reasons that may lead to the practice
of torture, there are particulars in the Sri Lankan criminal justice system and
investigations practices that somehow may indirectly incentivize its use. The
first is the role of confessions of suspects in criminal investigations, which
currently seems to be the primary tool of investigation for the police. The
need to extract a confession in order to build a case is in itself a powerful
incentive to use torture. A second aspect is the practice of conducting the
investigation while the suspect is in custody, rather than determining the
detention based on preliminary investigations. Authorities have on a regular
basis justified prolonged detention on the ground that the investigation was
complex, or evidence hard to find, ignoring the fact that, outside of
detentions in flagrante delicto, the evidence should be procured before the
arrest. This access to the detainee for continuous questioning can also be an
incentive for torture, aside from other considerations regarding conditions and
legality of detention.
The Attorney-General told my delegation that statements made
to the police do not form part of the criminal record in ordinary crime cases,
though he acknowledged that under PTA statements made to a senior police
officer are fully admissible in court. In both cases, however, police routinely
extract self-incriminatory statements, so the admissibility or not of the
statement does not protect the detainee from possible coercion. In addition,
the PTA provision is in direct contradiction with the obligation under CAT to
exclude all declarations made under torture. Also in both cases, statements are
made before the detainee has access to legal advice or representation.
Supposedly, a confession that is recanted under allegation
of being coerced gives rise to a procedure called voir dire, described as a
“trial within a trial” designed to determine whether coercion was used or not.
This is a cumbersome process and it is rarely used. In practice, therefore, the
law does not allow for a rigorous application of the exclusionary rule mandated
by the Convention, and for the same reason does not reduce the likelihood of
torture as a means to obtain a confession.
I understand that with the voir dire procedure the burden is
on the State (Attorney General) to prove that the statement was not coerced.
That is, of course, the proper standard as regards burden of proof; however, at
the end of the voir dire the admission of confessions as evidence before the
court is at the discretion of the judge. Judicial discretion to admit evidence
tainted by torture, under any standard, is a violation of the exclusionary rule
of CAT, a standard also required by customary law. A better application of the
exclusionary rule, based on its primary object of discouraging torture, would
be to ban altogether statements against interest that are not made before a
judge, after advice of counsel and following a warning regarding the right to
remain silent without adverse consequences to the defendant. At the very least
extrajudicial statements that are recanted by the declarant when he or she
appears before a magistrate must always be excluded. I have been assured by the
authorities that confessions alone are not
sufficient evidence for a conviction, as other corroborating
evidence is needed. In practice, however, 90 per cent of convictions are based
on a confession alone or as the main evidence.
Access to lawyers
The result of these normative gaps in the rights of a
criminal defendant is that the accused provides a statement to the police as a
routine practice and is never informed about the right to a lawyer. This
amounts to inadequate and meaningless legal protection, which fuels the
widespread fear and mistrust of the police system among the population.
It would be important to
establish a clear rule that persons must have access to a lawyer from the
moment of deprivation of liberty. A current proposal to amend the Criminal
Procedure Code that includes access to counsel only after a statement is taken
by the police in the initial 24 hours of detention is not appropriate to
effective assistance of counsel and would, therefore, violate due process.
Role of judiciary and prosecutors
A judiciary that is independent and impartial is essential
to the fulfilment of the most important obligations regarding torture and
cruel, inhuman or degrading treatment or punishment in international law,
including to make ex officio inquiries and order the investigation into
allegations of torture or coercion and to ensure the safeguards are upheld.
They have a dual obligation of prevention and accountability.
In practice, in Sri Lanka, both courts and prosecutors are
static and have a passive role of deciding cases based solely on the evidence
that is brought to their attention by the parties to the litigation; in
criminal cases, that means that they rule almost exclusively on the basis of
what the police provides them as evidence.
A modern accusatory system begins with affording more
guarantees for the defendant. In it the public prosecutor is first and foremost
the guardian of legality. Prosecutors must enforce the law against criminals
but should also actively prevent miscarriages of justice by way of torture and
manipulation of evidence, and intervene early on in the process. The accusatory
system is more conducive than the inquisitorial system for the respect for
human rights; but in its modern form it gives a lot of power but also
heightened responsibility to prosecutors.
It would be important for judges and prosecutors to take it
upon themselves, under a sense of legal obligation to consider bail for lesser
and non-violent offences; to order medical examinations by forensic doctors
properly trained by The Manual on Effective Investigation and Documentation of
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the
Istanbul Protocol) as soon as any suspicion of mistreatment arises; to initiate
prosecutions against whomever may be responsible for torture or mistreatment,
including the superiors who may have tolerated or condoned that act; and more
generally to ensure that all aspects of the chain of criminal justice
(investigations, detentions, interrogation, arrest and conditions of
incarceration) comply with the rule of law.
Forensics
The forensic procedures and quality of the forensic medical
expertise seem quite acceptable in terms of deaths in custody and forensic
autopsies, but there are still some insufficiencies in the clinical forensic
examination of living victims. A specific medical report model for the forensic
examination of survivors of torture and ill-treatment has been put in place by
the official forensic services, but the report model still leaves a large
margin for improvement. Specific training in the forensic medical investigation
and documentation of torture and ill-treatment is needed.
Judicial Medical Officers (JMOs) undertaking medical
examinations need to do so in a timely manner in order for those tests to be
meaningful. They should examine both the physical and psychological trauma.
There is a need to improve the legal framework of JMOs,
including guarantees for their professional and institutional impartiality and
independence in practice. The reports of JMO examinations are not currently
given to the person examined, which violates the standards of the Istanbul
Protocol. Those reports should be made available to the accused as of right and
not place the burden on the accused or his defense counsel to request it
through the courts.
In practice, only about 20 per cent of cases that come
before a Magistrate have a JMO examining the accused. Such exams should be done
routinely at the initial custody hearing, and performed by qualified forensic
doctors.
Forensic capacity in the JMOs is reasonable, except for the
deficiencies mentioned above. Yet there is a need for more training for judges,
prosecutors, lawyers and the police about how to interpret forensic medical
examinations.
Custody hearings are an essential guarantee against mistreatment.
Their object is to ensure that the person has not been arbitrarily detained,
that there are indeed substantial grounds to presume that a crime has been
committed and the person is prima facie responsible, and to ensure that at the
arrest and thereafter there has not been any mistreatment. In practice in Sri
Lanka, judicial oversight of police action is superficial at best.
Conditions of detention
With regard to the treatment of prisoners by staff in
penitentiaries and remand prisons, I note with satisfaction that in conducting
my interviews I did not receive any serious complaints.
I am deeply concerned,
however, about the conditions of life in all prisons, all characterized by very
deficient infrastructure and pronounced overcrowding. As a result, there is an
acute lack of adequate sleeping accommodation, extreme heat and insufficient
ventilation. Overpopulation results as well in limited access to medical
treatment, recreational activities or educational opportunities. These combined
conditions constitute in themselves a form of cruel, inhuman and degrading
treatment.
TID facilities also suffer from excessive heat, absence of
ventilation, limited access to daylight and exercise, prolonged or indefinite
isolation in some cases, and lack of electricity so that some inmates spend
about 12 hours a day in the dark.
I visited the underground detention cells located inside the
Trincomale Naval Base, which were discovered in 2015. These cells were
presumably used to hold persons who are now counted among the disappeared and
are currently under seal as a crime scene. I understand that CID is heading an
investigation that has not yet resulted in indictments. Needless to say, the
conditions must have been horrific.
Overcrowding
During my visit I observed levels of population exceeding
capacity by well over 200 or 300 per cent. Vavuniya Remand Prison offered a
striking example of such overcrowding. One of its halls hosted 170 prisoners in
what my team and I estimated to measure less than 100 square meters, providing less
than 0.6 metres per person. In the same building, other prisoners were forced
to sleep on the staircase for lack of space in the detention areas. In
addition, we saw cells designed for one person occupied by four or five
inmates. The larger prisons in Colombo were built in the mid-19th century and
walls, roofs and staircases are literally crumbling on the prisoners. The
Government has indicated that Welikada prison will be closed and a new prison
will be built in Tangelle, but we understand the latter is not even in the
planning stages yet. While replacement of old prisons is a good idea, in the
meantime it is urgent to conduct maintenance and repair the unsafe conditions
that amount to cruel, inhuman and degrading treatment or punishment.
An aggravating factor is that the congested prisons are a
direct result of lengthy sentences for non-violent and drug related offences.
Suspects are subjected to lengthy remand periods with many being detained for
years and some even up to ten to 15 years. We understand that the average delay
for State Counsel to bring a criminal case before the High Court after remand
ranges from 5 to 7 years. This is a serious violation of due process and the
presumption of innocence, and results in what is commonly known as an “anticipated
penalty” without trial. It also violates the principle that provisional
detention should be the exception and not the rule. I urge Sri Lanka to
consider measures to make more non-violent offenses bailable and to experiment
with alternatives to incarceration.
Family visits
Family visits take place once a month for convicted, and
once a week for remand inmates, but in reality many relatives live far away and
therefore visit infrequently. The prison authorities should install phones so
that inmates can communicate with their families. Even when longer visit time
is officially granted (i.e. one hour) the bureaucratic and security
requirements of the visit (body search, security screening, documentation and
registry of the visit, etc.) are counted within that allocated period, reducing
the actual visit time to a few minutes. For some cases (PTA) extra burden is
put on visitors including undressing for highly intrusive and demeaning body
searches.
Remedies for torture and CIDT
The Torture Act depends on the discretion of the
Attorney-General to file charges under it. Since 1994 there have been only five
or six prosecutions, but not a single conviction yet under the Torture Act.
In the prison system there is no formal complaint mechanism
available to inmates. With respect to the police, the recently installed Police
Commission is a venue for complaints of police misconduct, but the process is
still incipient. In practice, the only effective avenues for complaints are
through the NHRC, and the possibility of filing a “fundamental rights” case
before the Supreme Court.
Fundamental rights applications involve complex litigation
and are thus not accessible to all. They are subject also to a 30-day term to
file from the occurrence of the violation. In addition, even if successful,
they result in compensation as the only remedy. The application is not
available, for example, to vacate a court order that has been based on a forced
confession, as it does not lie against judicial decisions.
The National Human Rights Commission has been resurrected
with a credible composition of its members in 2015, but it needs to be further
strengthened and afforded more resources to deal with serious violations and to
monitor the conduct of official agencies. Proceedings before the NHRC hold some
promise for the victims but they do not seem capable of solving the problem of
impunity for serious human rights violations, including disappearances of the
past and torture of the past or present. Until serious prosecutions for torture
take place, the public will continue to think impunity reigns.
Impunity and lack of accountability
Acts of torture that occurred in the past have been well
documented. The Government has an obligation to investigate, prosecute and
punish every incident of torture and ill-treatment, even if it happened in the
past, because under international law prosecution of torture should not be time
barred. The State also has the obligation to prevent such occurrences in the
present, and the most obvious preventive measure is forceful prosecution of
cases reliably reported.
Sri Lanka has a Victim and Witness Protection Act but
potential beneficiaries complain that protection is ultimately entrusted to the
police which, in most cases, is the agency that they distrust. The Government
should consider amending the Act in order to make it more effective and
trustworthy.
Monitoring of places of detention
The Government must ratify and implement the Optional
Protocol to the Convention Against Torture (OPCAT) as a matter of national
urgency. Among other things, this will allow a national system of regular
prison monitoring by independent experts.
Currently prisons and detention centres are visited by the
International Committee of the Red Cross, a Visiting Committee and NHRC, as
well as by some very credible non-governmental organizations. But a national
preventive mechanism as contemplated in OPCAT would
provide for scheduled and unannounced visits by a national
authority as well as by the Subcommittee on the Prevention of Torture (SPT), a
very credible and professional international treaty body.
Women and Gender
We are encouraged to see that an Action Plan for Gender
Based Violence is moving forward and scheduled to be presented to Parliament.
However, underreporting of gender based violence remains a serious issue.
Relative to the conditions of detention for men, the female
wards of Welikada prison and Vavuniya Remand Prison showed conditions that were
better and more humane.
Transitional justice process
Sri Lanka and the international community have agreed to a
process to reckon with the legacy of human rights violations left by the long
and cruel armed conflict that ended in 2009 (see Human Rights Council
resolution 30/1). International standards 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.
My colleague Pablo de Greiff, Special Rapporteur on Truth,
Justice, Reparations and Guarantees of Non Recurrence, has explained these
steps in conversations with the Sri Lankan authorities and civil society,
stressing the need for a comprehensive transitional justice strategy that takes
into account the links between the different mechanisms. Similar
recommendations were made by the Working Group on Enforced and Involuntary
Disappearances in their preliminary observations at the end of their visit in
2015.
Transitional justice mechanisms are an important aspect of
my mandate because, if implemented in good faith, they can fulfil the State’s
obligations under the CAT, specifically those related to investigation,
prosecution and punishment of torture, to provide reparations and to prevent
torture in the future.
The mechanisms by which these four steps are accomplished
are left, of course, to decisions made by the Sri Lankans themselves. As
everywhere else, those decisions should be adopted following consultations with
all stakeholders in a transparent and broadly participatory exercise that is
just and earns the trust of the population.
A transitional justice agenda needs to be trusted by victims
and other stakeholders in order to be effective. Stopping torture altogether
will not be enough, but it is a step that is absolutely indispensable. The
necessary confidence in the transitional justice system will otherwise not be
there.
Lack of accountability regarding investigations into
disappearances
We heard estimates ranging
from 16,000 to 22,000 pending cases of missing persons from the time of the
conflict and its immediate aftermath. Disappearances need to be resolved.
Experience shows that disappearances are almost always the
occasion for torture of the most horrifying kind, and the prolongation of
uncertainty about the fate and whereabouts of the disappeared constitutes
cruel, inhuman and degrading treatment for their next of kin. That is why we
hope to see an operative Office of Missing Persons soon that will conduct
serious and profound investigations into each case.
I join my colleagues of the Working Group in encouraging
ratification by Sri Lanka of the 2008 Convention on Enforced Disappearances.
Concluding remarks
The current legal framework and the lack of reform within
the structures of the armed forces, police, Attorney-General’s Office and
judiciary perpetuate the real risk that the practice of torture will continue.
Sri Lanka needs urgent measures adopted in a comprehensive manner to ensure
structural reform in the country’s key institutions. A piecemeal approach will
not be compatible with the soon-to-be-launched transitional justice process and
could undermine it before it really begins.
In closing, I would like to again thank the Government for
the invitation and extend my gratitude to the high ranking officials with whom
I met. I would also again like to express my sincere gratitude to the
representatives of the Sri Lankan civil society, international organizations,
victims and their families for sharing their information and insight with me.
–
Official joint visit to Sri Lanka — 29 April to 7 May
2016
Preliminary observations and recommendations of the
Special Rapporteur on torture and other cruel, inhuman and degrading treatment
or punishment, Mr. Juan E. Mendez
