FOR IMMEDIATE RELEASE
AS-295-2006
November 30, 2006
A Statement by the Asian Human Rights Commission
SRI LANKA: SC decision on the case of D.A. Nimal Silva Gunaratna vs. ASP Ranmal Kodituwakku requires a response from the Attorney General and IGP
On November 16, 2006 the Supreme Court decided the case of Dalkadura Arachige Nimal Silva Gunaratna (the Virtual Complainant the case was in fact filed by an Attorney-at-Law on his behalf) vs. ASP Ranmal Kodituwakku and eight others.
The Supreme Court held that all the violations complained of by the virtual complainant, that is: illegal arrest violating article 13(1), illegal detention, (article 13(2)) and torture, (article 11), of the Constitution, have taken place while he was in custody at Panadura Police Station. The court ordered Rs. 50,000 to be paid by the Inspector General of Police (IGP) as compensation, Rs. 5,000 by Sub Inspector Laksman of the Panadura ASP’s office for causing torture leading to the loss of an eye, and a further Rs. 20,000 to be paid by the IGP as costs. The court held that:
I am satisfied on the material placed before court that the arrest of the virtual petitioner by the Panadura police was unlawful and that the injuries complained of by the virtual petitioner were sustained while in the custody of the Panadura police. The conduct of the 2nd, 3rd, 4th and 6th respondents therefore cannot be ignored.
This conclusion would amount to a declaration of violations of rights made under article 126 of the Constitution, although the judgement does expressly state this. The court exonerated the 1st respondent who was the Officer-in-Charge of the Quick Response Unit (QRU) which made the arrest and had custody of the virtual complainant throughout the period of his detention, during which time the torture took place, on the basis that the ASP had satisfied the court that on the day of the arrest he was engaged in other duties.
This case was filed in 2000 after an incident which the petitioner alleged had started with his arrest on June 19, and which continued while he was in detention at the ASP’s office where he was held incommunicado for a period of three days. During this initial period he was handcuffed to a bed and denied food, water and toilet facilities. He was thereafter held in custody for around three months. The respondents denied the date of arrest. However, the court held that the date of arrest had been proved by the virtual complainant with adequate evidence. The court rejected the respondent’s version of the arrest, detention and torture. The respondents claim that the injury to the eye of the virtual complainant was caused due to a fall when he tried to escape the arrest and fell while running. However, this version was rejected by the court.
The case raises several important issues, of which some of the more salient ones are the command responsibility of an officer in charge of a special unit, which in this case was the QRU. The acts of arresting, detaining and torturing a suspect that occur by the actions of any unit are at all times the responsibility of the Officer-in-Charge. Also, the issue of compensation for a permanent injury such as the loss of an eye due to torture intended or otherwise, is also relevant and important.
While the judgement deals with the possibility that the 1st respondent, the ASP was not present at the time of arrest on June 19, it does not reject the evidence of the virtual complainant that he was kept in detention by the orders of this respondent and in his own office. The question of knowledge on the part of the 1st respondent about the arrest, detention and torture has not been rejected by court. Therefore on the basis of a series of judgments of the Supreme Court, the liability of the 1st respondent, both as the commanding officer responsible for the orders for arrest, detention and whatever occurred following the period of detention cannot be separated from the finding of the court on the date of arrest, the duration of the illegal detention and the fact of torture having taken place. Besides his responsibility as the commanding officer, his knowledge of the prolonged detention and torture make him complicit in the violations of these rights.
From the point of view of compensation the loss of an eye is a grave injury and would naturally lead to consequences of incapacities for employment by the very fact of this loss of a natural capacity. Whether such a person had knowledge about the commission of crimes (none of which were proven in this case) is not a relevant factor in considering the impact of the injury caused for future employment and earning.
The further question is the impact of this judgement on the criminal prosecution for causing torture on the petitioner. This case had been investigated by a Special Investigating Unit (SIU) and representatives for the Attorney General’s Department have assured the virtual complainant and his family about such inquiries being made. However, no prosecution has yet been filed even though six years have now lapsed from the time of the incident. One would hope that the Attorney General will take action even at this late date to prosecute this case. In doing so the prosecutor must look into all the evidence that is before him to see whether it is only the 4th respondent who is responsible for the torture and should particularly examine the evidence of direct knowledge and connivance on the part of the 1st respondent as the Officer-in-Charge of the QRU regarding the allegation of torture.
The Supreme Court decision has no direct bearing on the exoneration of the 1st respondent on criminal charges if the available evidence shows that the 1st respondent was aware of, and was in fact involved in, giving directions and personally being involved in the arrest, detention and the torture of the victim. It should also be noted that the injury caused to the victim is not the sole ground on which the allegation of torture is based. Other forms of harassment such as deprivation of food, water and toilet facilities and other forms of assault are sufficient grounds to establish a charge of torture.
The Attorney General’s Department, in filing charges under Act No. 22 of 1994 relating to this incident should take all relevant materials to a charge for torture or cruel and other inhuman treatment as required by law. It is to be noted that not being careful about the framing of charges in the proper manner under Act No. 22 of 1994 has lead to some confusion in previous trials.
A further obligation on the part of the Inspector General of Police, who had to pay the compensation on behalf of his subordinates for causing illegal arrest, detention and torture, is to take disciplinary action against everyone who is responsible for such acts. It would be contradictory to his duties for the Inspector General of Police to have to pay compensation for the acts of his subordinates whilst at the same time allowing them to continue at their posts as if nothing has happened. Further, the Inspector General of Police in dealing with this case should look into the totality of the evidence available, including the evidence discovered by the Special Investigating Unit. If such evidence leads to the conclusion that the 1st respondent bears responsibility, either directly through his personal involvement or indirectly as the OIC, for the violations of rights of the virtual complainant, then the IGP is under obligation to take appropriate legal action accordingly.
The Asian Human Rights Commission urges the Attorney General and the Inspector General of Police to look into the allegations of Dalkadura Arachige Nimal Silva Gunaratna and to take appropriate legal action.
