April 14, 2008
Mr. C.R. De Silva
the Hon. Attorney General
Attorney General’s Department
Colombo 12
SRI LANKA
Fax: +94 11 2 436 421
Dear Mr. De Silva,
Re: Case No. HC326/03 Request for appeal against the acquittal at the Negombo High Court in the judgement denial of right to an adequate remedy under Article
I am writing to you further on the torture case of Gerald Mervyn Perera and the judgement of the Negombo High Court. I am doing so as the Attorney-at-Law for the widow of Mr. Perera, Ms. Padma Wickramaratna. In my earlier letter I set down what appears to be very serious errors of law and facts in the judgment and I also understand that the Law Society and Trust has also written to you requesting an appeal.
On behalf of my client I also wish to draw your attention to the fact that as Sri Lanka is a party to the ICCPR, under Article 2 of the Convention my client is entitled to an adequate remedy for the violations suffered by her husband. The adequate remedy also involves the right of appeal where the judgement of a trial court appears to be wrong in fact and law. In this case it was the Attorney General who, on behalf of the state, prosecuted the accused after inquiries through which the Attorney General’s Department was satisfied that there was a case against the accused. Where there are serious grounds to challenge the judgement it is also a part of the right of my client for adequate remedy that the prosecutor appeals from this judgement. Therefore on that basis I am requesting you, on behalf of my client, to take appropriate action by way of an appeal from this case.
It was consequent to the decision of the Attorney General’s Department to prosecute the accused that Gerald Perera was assassinated. The decision of the department to prosecute cost this torture victim his life and his wife, who is my client, lost her husband and the father of their children. The Attorney General’s Department representing the state has obligations to this family and some responsibilities regarding this tragedy. However, the benefit of the murder has been to those who are charged by the Attorney General’s Department itself to be responsible for the torture and the murder.
We also draw your attention to the Supreme Court case S.C. (F.R.) 328/2002, Sanjeewa vs. Suraweera, where the Supreme Court held that the police officers who were responsible for the arrest of the torture victim were also responsible for the torture which took place during the time of detention at the Wattala Police Station. While the burden of proof in the fundamental rights application is one of a balance of probability as against the reasonable doubt in the High Court trial, the judgement of the High Court trial was not based on any extra matters that would have the impact of arriving at a different conclusion from the judgement of the Supreme Court. In fact there was greater evidence on the issue of the arrest and the custody of the torture victim for the entire period of less than 24 hours detention at the Wattala Police Station at the High Court trial. There was clear evidence at this trial that the arrest was done by a special team directed by an Assistant Superintendent of Police and that this team alone had complete control and the custody of the torture victim throughout the entire period of detention. Therefore, there was no reason to arrive at a different conclusion, nor was there any reasons explained in the High Court judgement as to why the High Court decided to ignore several findings contained in the Supreme Court judgement.
On behalf of my client I urge you not to deny her an adequate remedy under Article . Your kind intervention can prevent my client from having to seek a remedy by recourse to the Human Rights Committee on the basis of the denial of her rights for an adequate remedy.
Thank you.
Yours sincerely,
Basil Fernando
Attorney-at-Law
The High Court judgment may be viewed at http://www.alrc.net/doc/mainfile.php/highcourtcases/494/
The Supreme Court judgement can be viewed at http://www.alrc.net/doc/mainfile.php/supremecourtcases/199/
Grounds for appeal urged on behalf of Gerald s widow may be viewed at http://www.ahrchk.net/statements/mainfile.php/2008statements/1453/
Full details of Geralds case may be viewed at http://www.geraldperera.blog.humanrights.asia/
cc: Deputy Solicitor General, Savindra Fernando
Prof. Manfred Nowak, Special Rapporteur on the Question of Torture
