On July 26, 2006 the UN Human Rights Committee published the view adopted by the Committee on July 14, regarding the communication filed by Sundara Arachchige Lalith Rajapakse holding that Sri Lanka had violated the rights of Lalith Rajapakse guaranteed under Article 2, paragraph 3 in connection with Article 7, Article 9 paragraph 1, 2, and 3, relating to the circumstances of his arrest and Article 9 paragraph 1 as it relates to the right of security to person.
The Committee stated that Lalith Rajapakse is entitled “…under article 2, paragraph 3(a), of the Covenant, to an effective remedy. The State party is under an obligation to take effective measures to ensure that: (a) the High Court and Supreme Court proceedings are expeditiously completed; (b) the author is protected from threats and/or intimidation with respect to the proceedings; and (c) the author is granted effective reparation. The State party is under an obligation to ensure that similar violations do not occur in the future.” The Committee further stated that “…the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee’s Views.”
In this case S.A. Lalith Rajapakse who was 19 years-of-age at the time of his arrest on April 18, 2002 claimed to be a victim of violations by Sri Lanka, and the right to an effective remedy regarding torture, illegal arrest and detention by some officers of the Kandana Police. Lalith Rajapakse also stated in his complaint that he had made complaints to the police as well as to the Supreme Court by way of a fundamental rights application. As a result of his complaint to the police the state initiated inquiries by a Special Investigation Unit (SIU) which filed criminal charges against one Sub-Inspector from the Kandana Police under the Convention against Torture Act (Act No. 22 of 1994). However, the High Court hearings have been postponed repeatedly and the trial has not yet been concluded. In the fundamental rights applications the Supreme Court made an interim order stating that as there was a High Court trial pending the Supreme Court would hear the case only after the final judgement in the High Court case.
Sri Lanka as the state party objected to the admissibility of this case on the basis that the author has not exhausted local remedies since the cases were pending before the Supreme Court and the Negombo High Court. On this preliminary objection the Committee found that “…the delay in the disposal of the Supreme Court case and the criminal case amounted to an unreasonably prolonged delay within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. On 8 March 2005, the Committee declared this communication admissible.”
Later the state party made a submission to the Committee on the merits of the case urging the Committee to refrain from making any determination on the merits of this case until the conclusion of the High Court trial as the Committee’s views could prejudice either the prosecution or the defence. In the author’s reply it was submitted that the state party’s objection is not justified in that the state party’s reply does not provide an adequate explanation for the failure of the court to address these issues within a reasonable time. The author also submitted that during the whole period awaiting the case he has had to leave his home and remain under the protection of others due to the repercussions that may follow in pursuing his case. The Committee held that the delay in the determination of the case in the High Court as well as the Supreme Court amounted to a prolonged unreasonable delay.
The Committee further stated that “Under article 2, paragraph 3, the State party has an obligation to ensure that remedies are effective. Expedition and effectiveness are particularly important in the adjudication of cases involving torture. The general information provided by the State party on the workload of the domestic courts would appear to indicate that the High Court proceedings and, thus, the author’s Supreme Court fundamental rights case will not be determined for some time. The Committee considers that the State party may not avoid its responsibilities under the Covenant with the argument that the domestic courts are dealing with the matter, when it is clear that the remedies relied upon by the State party have been prolonged and would appear to be ineffective. For these reasons, the Committee finds that the State party has violated article 2, paragraph 3, in connection with 7 of the Covenant.”
The Committee also held that the state party has failed to provide adequate action to ensure that the author was and continued to be protected from threats issued by police officers since he filed his petition in the Supreme Court.
The full text of the case is with the Asian Human Rights Commission and it will be made available at www.alrc.net shortly.
