An open letter to the Attorney General and the Inspector General of Police, Sri Lanka, following the killing of Mr. Nishantha Fernando
REDRESS Is an International human rights organisation with a mandate to assist torture survivors to obtain justice and reparation (www redress org) We have been working closely with counterparts in Sn Lanka to encourage efforts to address torture within the country and to ensure accountability and justice for victims of torture and their families We are writing to you regarding the case of Mr Nishantha
Fernando.
We are shocked, and saddened to learn That, Mr. Fernando was shot dead in Negombo on 20th September 2008 Mr Fernando had lodged complaints of torture and bribery against several police officers to the Inspector General of Police, the Attorney General, the National Police Commission, the Human Rights Commission of Sri Lanka and the Bribery Commission earlier this year. Cases before the Criminal Court and the Supreme Court are pending in this matter. Mr Fernando had been subjected to constant threats of assassination, including by persons believed to be hired by the police. We are extremely concern to learn that two lawyers involved in his case have now been threatened.
According to information received by the Asian Human Rights Commission, his assassination was carried out by unidentified perpetrators after he had returned home following a period of living in hiding. These circumstances give strong reason to belief that Mr Fernando was killed by persons associated with the alleged perpetrators for having lodged complaints and for pursuing his case through various available legal avenues.
The practice of threats, harassment and killings of victims, witnesses and lawyers in torture cases
The murder of Mr. Fernando is not an isolated incident but part of a disturbing pattern of threats, harassment and killings of Victims and witnesses In cases of torture and other serious human rights violations, such as in the widely reported case of Gerard Perera who was ostensibly killed for pursuing remedies in a criminal case against those responsible-for his torture. Indeed, we understand that two of the lawyers Involved in Nishantas case have received death threats, warning them not to be involved in the case. One of the two lawyers, Amitha Arityaratne, made a complaint about this matter and Mr Weliamuna, another lawyer brought the matter to the attention of the Sri Lankan Bar Association, which passed a unanimous resolution condemning such threats and authorising the executive committee of the BA to pursue the matter with the Inspector General of Police and other authorities. On 27 September, at approximately 11 40 pm, two grenades were thrown at the residence of Mr. Weliamuna, damaging the house.
Several International bodies have recently expressed their concern about this practices such as the United. Nations Committee against Torture:
about alleged reprisals, intimidation and threat against persons reporting acts of torture and ill-treatment as well as the lack of effective witness and victim protection mechanisms (art.13)
The Special Rapporteur on Torture, following his visit to Sri Lanka in 2007, noted that:
Intimidation of victims by police officers to cause them to refrain from making complaints was commonly reported as were allegations of threats of further violence or threatening to fabricate criminal cases of possession of narcotics or dangerous drugs.
A number of Sri Lankan human rights lawyers working on torture cases have REDRESS about the deterring impact of this practice on victims willingness to exercise remedies that are theoretically available to them under Sri Lankan, a development which fundamentally undermines the effectiveness of such remedies. Human rights lawyers have also highlighted how the practice of intimidation and harassments reinforces the culture of impunity for torture prevailing in Sri Lanka.
This aspect has been explicitly noted by the Special Rapporteur on extrajudicial, summary or arbitrary executions following his visit to Sri Lanka in 2005.
Investigations are also impeded by the lack of effective witness protection. This makes witnesses especially reluctant to provide evidence on crimes committed by police officers
..inadequate investigations result in evidence insufficient to sustain a conviction.
The rights of victims to an effective remedy, including the right to complain of torture, and to adequate protection under International law
International standards contained in treaties and other sources binding on Sri Lanka recognise the right of victims of torture to an effective remedy and to adequate protection under international law.
Article 13 of the UN Convention against Torture and other Cruet Degrading and Inhuman Treatment or Punishment stipulates that:
Each State Party shall ensure that any individual who allege he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given [emphasis added]
The Committee against Torture, in considering Sri Lankas state party report on its compliance with Its treaty obligations recommended that:
In accordance with article 13, the State party should take effective steps to ensure that all persons reporting acts of torture or ill-treatment are protected from Intimidation and reprisals for making such reports The State party should inquire into all reported cases of intimidation of witnesses and set up programmes for witness and victim protection.
The Human Rights Committee, in its General Comment 31 on the nature of the general legal obligation imposed on states parties to the Covenant took the view:
that the right to an effective remedy may in certain circumstances require States Parties to provide for and implement provisional or interim measures to avoid continuing violations and to endeavour to repair at the earliest possible opportunity any harm that may have been caused by such violations.
The Basic Principles and Guidelines oh the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted in a landmark resolution of the UN General Assembly, recognise that states should:
take measures to minimise the inconvenience to victims and their representatives, protect against unlawful Interference with their privacy as appropriate and ensure their safety from intimidation and retaliation, as well as that of their families and witnesses, before, during and after judicial, administrative or other proceedings that may affect the interests of victims.
As held by the UN Human Rights Committee in the case of Sundara Arachchiga LaIith Rajapakse v. Sri Lanka, the duty to provide adequate protection to victims and witnesses also flows from states parties obligations to ensure the right to security of person guaranteed in article 9 (1) of the International Covenant on Civil and Political Rights.
..The interpretation of article 9 does not allow a State party to ignore threats to the personal security of non-detained persons subject to its jurisdiction In the current case, it would appear that the author has been repeatedly requested to testify alone at a police station and has been harassed and pressurised to withdraw his complaint to such an extent that he has gone into hiding The State party has merely argued that the author is receiving police protection but has not indicated whether there is any Investigation underway with respect to the complaints of harassment nor has it described in any detail how It protected and continues to protect the author from such threats In addition, the Committee notes that the alleged perpetrator Is not in custody In the circumstances, the Committee concludes that the authors right to security of person, under article 9, paragraph 1 of the Covenant has been violated.
The State party is under an obligation to take effective measures to ensure that:
.(b) the author is protected from threats and/or Intimidation with respect to the proceedings. The State party is under an obligation to ensure that similar violations do not occur in the future.
Recommendations
In light of the right of the relatives of Mr Fernando to an effective remedy for his murder, the duty to investigate extra-judicial killings, and considering the corrosive effect of the targeting of victims and witnesses on the rule of law and human rights protection and its contribution to a culture of impunity in Sri Lanka, we urge both of your institutions to do your utmost to ensure that an effective investigation into the killing of Mr Fernando is commenced without undue delay in line with applicable international standards, such investigation should be carried out by an impartial body that has no connection to the Negombo police station. Any officer against whom there is prima facie evidence to believe that he has been implicated In serious violations, such as torture and the crime of murder of Mr Fernando should be suspended immediately.
We also urge both of your Institutions to take the measures necessary to ensure the protection of anyone complaining of torture or other serious human rights violations, including those that are assisting them, such as lawyers and NGOs, including the adoption of legislation that provides for the affective protections of victims and witnesses. We urge you to ensure that the threats made against Amitha Ariyaratne and Mr. Weliamuna are fully investigated, and that all steps are taken to ensure their continued protection so that they can exercise their profession without fear of intimidation.
REDRESS is currently finalising a report on best practices of victims and witnesses protection at the international and national level, Based on our substantial experience in this regard, we would be pleased to provide you with any assistance that would help in devising laws, programmes and measures designed to ensure effective protection for victims and witnesses of serious crimes, in particular torture.
We look forward to your reply.
Yours sincerely
Carla Ferstman,
Director
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
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