On the 2nd April, 2008 the High Court of Negombo acquitted all the accused in the torture case filed against them for severely torturing Gerald Perera. Ever since many human rights organisations have supported the call of Geralds widow calling for the Attorney General to file an appeal in this case on the basis of serious errors of law and facts. Now 36 lawyers from Bangladesh have also joined in to support this request.
The lawyers who have made this appeal are: Mr. Mohammd Safiqul Islam, Mr. Tanveer Hossain Khan, Mr. Mohammod Hossain, Mr. Barrister Tanveer Parvez, Mr. Amit Das Gupta, Mr. Masud Rana Mohammad Hafiz, Mr. Md. Habibur Rahman, Mr. Mohammad Abdullah Al Mubin, Mr. Md. Feroz Kabir, Mr. Barrister Salman Nabi, Mr. Barrister Mohammad Belayet Hossain, Mr. Md. Shafiqul Islam, Mr. Md. Rafiqul Islam, Mr. Mohammad Alamgir, Mr. Md. Touhidul Karim, Mr. Md. Jahangir Alam, Mr. Md. Ekram Hossain, Mr. Md. Asaduzzaman, Mr. Sk. Serazul Islam, Mr. Kazi Zainal Abedin, Mr. Md. Habibur Rahman, Mr. Mizanur Rahman, Mr. Tapash Kumar Dutt, Mr. Md. Abdur Rahim, Mr. Md. Abu Hanif, Mr. Abdullah Al Mansur, Mr. Abul Kalam Azad, Mr. Aminur Rahman Munshi, Mr. Kutub Uddin Chowdhury, Mr. Jamal Uddin Khandaker, Mr. Abu Bakker Siddik, Mr. Rezaul Karim Abu, Mr. Aminul Islam Tipu, Mr. Kamrul Islam Sikder, Mr. Md. Rezaul Karim, and Mr. Md. Tariqul Islam.
The letter of these lawyers addressed to Mr. C.R. De Silva, Attorney-at-Law is as follows:
Dear Sir,
I have studied the aforementioned matter and am seriously concerned as there seems to be an obvious denial of justice in this case. The facts known to me on this case are as follows:
a. Gerald Perera was an innocent man arrested on mistaken identity. His was arrested by a special team of police, working under an Assistant Superintendent of Police in the midst of a serious criminal investigation into a triple murder. The accused in this case constituted this special team and the 1st Accused was the leader.
b. Gerald Perera was arrested in the morning and was released the following morning, within less than 24 hours. At the time of his release he was suffering very serious injuries which lead to renal failure.
c. The Supreme Court, on a fundamental rights application, held that several officers of the Wattala Police Station had violated his rights against torture, illegal arrest and illegal detention.
d. That the criminal case that was filed in Negombo also related to the same incident and the six accused were charged under the CAT Act of Sri Lanka.
e. After the summons was issued for Gerald Perera to appear in court and give evidence he was killed and now the 1st Accused in the torture case is charged in a separate case for this murder.
On the basis of the above points it becomes clear that a prima facie case has been established by the prosecution in this case; the matters that have been proved by the prosecution are as follows:
a. That the special team consisting of these six accused arrested Gerald Perera.
b. That the injuries were caused during the time Gerald Perera was in police custody.
c. That during the entire period from arrest to the moment he was released this six member special team had the sole custody and authority over Gerald Perera.
Since these elements establish a prima facie case against the accused it is for the accused to give an explanation that is consistent with their innocence if there are not to be found guilty as charged.
The accused have failed to explain their innocence and the High Court judge has proceeded on the basis that the exact torture by the six accused has not been proved by direct or cogent circumstantial evidence. This is a complete misunderstanding of the law as it was the burden of the accused to explain as to how, during the time when they had the sole responsibility over Gerald Perera, he came about these injuries. Your department relied on the Ellenborough principle which is a well established principle that is used regarding all crimes once a prima facie case is established.
Your department represents the state and therefore plays an irreplaceable role in the protection of people. If the police are allowed to torture in secrecy and try to put the burden on the prosecution to prove who did it, this will result in gross injustice and no person will be safe under those circumstances. It is difficult to understand why the High Court judge refused to follow this well-known principle, rightly pointed out by the Deputy Solicitor General the Ellenborough principle – which has been widely used in all courts in south Asia.
We urge you to intervene to prevent this injustice by filing an appeal before the higher courts on this matter.
This letter was signed by the aforementioned lawyers.
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For further information please also see our earlier statements on this issue:
SRI LANKA: Attorney General is urged to appeal from the High Court judgement relating to the torture of Gerald Perera, at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1452/
[AHRC Open Letter] SRI LANKA: Negombo High Court case No.HC326/2003 at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1453/v
SRI LANKA: A comment on the Negombo High Court judgment on Gerald Pereras torture case: When two and two equals five, at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1455/
SRI LANKA: Attorney General is urged to appeal from the High Court judgement relating to the torture of Gerald Perera at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1457/
[AHRC Forwarded Open Letter] SRI LANKA: The Law Society and Trust requests the AG to file appeal on Geralds torture judgement at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1463/
[AHRC Open Letter] SRI LANKA: Case No. HC326/03
. denial of right to an adequate remedy under Article 2 (3) of the ICCPR at: http://www.ahrchk.net/statements/mainfile.php/2008statements/1471/
Please also see: http://geraldperera.blog.humanrights.asia/
