SRI LANKA: A man is tortured by a senior police officer and the Attorney General is taking over a private plaint filed by the victim in order to protect the officer 

Dear friends,

M. Nishantha Fernando Jayawardena of Panadura in Kalutara district was assaulted by the Superintendent of Police (SP) for Panadura, Lesly Hamilton Gregory Cooray on 4 June, 2010 when he went to answer a query. For no reason at all the SP grabbed Nishantha’s shirt collar and struck him on his chest and face. When Nishantha’s wife tried to intervene the SP pushed her out of the way. The victim has now filed a private plaint at the Magistrate’s Court of Panadura and this is likely to be sabotaged by the Attorney General’s Department who had announced that it is taking over the prosecution.

CASE NARRATIVE:

M. Nishantha Fernando Jayawardena of Panadura in Kalutara district was assaulted by the Superintendent of Police (SP) for Panadura, Lesly Hamilton Gregory Cooray. On 3 June, 2010, the Panadura Police left a massage with Nishantha’s Father-in-Law to be present in the office of the Officer-In-Charge (OIC) of the Special Crime Investigation Bureau of the Panadura police, at 9.00am the following day. This, he was told, was to answer an inquiry on a complaint made by Shiromi Devika Peiris regarding a financial transaction. The message was conveyed to Nishantha on the same day itself.

Accordingly, the following day (4 June) Nishantha went to the Panadura Police Station with his wife and met the OIC of the Special Crimes Investigations Bureau (SCIB). When Nishantha entered the OIC’s office he saw that Devika was also present.

When the OIC was about to commence the inquiry, another officer came in and informed that the “SP–1” wanted to see the OIC in his office. The OIC left but returned shortly and told Nishantha and his wife that that the inquiry would be held by the SP–1 at his office. The OIC then took both parties to the said SP–1’s office.

The SP–1 showed a document to Nishantha and queried as to whether he admitted that the signature contained in the said document was his. Nishantha explained as to why he signed the document and immediately the SP shouted at him using filthy language. He then proceeded to assault Nishantha. The SP grabbed Nishantha’s shirt collar and struck him on his chest and face. When Nishantha’s wife tried to intervene the SP pushed her out of the way.

Following this assault the SP called a policeman and ordered him to arrest Nishantha and lock him up.

Accordingly, Nishantha was placed in a cell and later a statement was recorded from him.

While the statement being recorded Nishantha informed the recording officer of the assault by the SP–1. However, the recording officer refused to include the fact that the SP-1 had assaulted Nishantha, but he issued a Medico Legal Examination Form (MLEF) and took him to the Panadura Base Hospital.

Nishantha then informed the doctor who examined him of the assault. According to the Medico Legal Report the injuries sustained by Nishantha are compatible with the history/the report of the assault given by him.

The same day the Panadura police produced Nishantha before the Magistrate of Panadura with a report bearing No.91879, accusing him of obtaining Rs. 2.5 million from Devika, thereby committed the offences of criminal misappropriation (Sec.386 PC) and criminal breach of trust, (Sec.389 PC) and cheating (Sec.400 of PC) and moved that Nishantha be remanded.

When Nishantha was produced in court he informed that the Magistrate that he had been assaulted by SP-1 Cooray and the Magistrate promptly recorded the complaint in open Court.

The Court granted Nishantha bail and further referred him to the Consultant Judicial Medical Officer of the Kalubowila Teaching Hospital and called for a Medico Legal Report.

Nishantha was subsequently discharge from this case.

Nishathan subsequently filed a Private Plaint bearing No, 92368 filed in the Magistrate’s Court of Panadura and the Asian Human Rights Commission has now learned of the decision of the Attorney General’s Department to take over the prosecution upon an application and representations made by and on behalf of the accused SP.

The decision of the Attorney General was communicated to court by the Senior State Counsel, who appeared in court on 15 December, 2011. The complainant’s counsel objected to the Attorney General’s decision on the grounds that if the Magistrate permits the Attorney General to take over the prosecution, the illegal act of assault committed by the SP would be interpreted as a matter connected with or related to the discharge of the official duties of the SP. The greatest fear however, was that after taking over the prosecution the Attorney General could arrive at the decision of nolle proseque in respect of this case. And finally, that if the decision of the Attorney General is implemented it would open the flood gates for any police officer to freely use force, assault and even to torture not only a person who attends a police station for an inquiry but also a person taken into custody.

The Asian Human Rights Commission condemns the use of the Attorney General’s Department for the sabotage of justice. In recent times the Attorney General’s Department has been used to help criminals by withdrawing criminal charges against some of them and even withdrawing charges after indictments have been filed in the High Courts. This has come under public criticism. However, the AG’s ignores such public criticism when acting to help corrupt politicians or powerful police officers who are charges with serious offenses. Besides this the Attorney General’s Department has now acquired a reputation for filing fabricated charges under the direction of the executive and the ruling party.

ADDITIONAL COMMENTS:

The Asian Human Rights Commission has reported innumerable cases of crimes where the perpetrators of those crimes continuously enjoyed impunity which are illegal under international and local law which have taken place at different Police Station in the country over the past few years.

The State of Sri Lanka sign and ratified the ICCPR and its first Protocol. Following state obligations state of Sri Lanka is obliged to implement the rights enshrined in ICCPR by implementing the measures of legislative, administrative and judicial means. The Inspector General of Police and his department is obliged to investigate all the crimes without any delay and bring the suspects before the court of law. The Attorney General of Sri Lanka is suppose to file indictments in the case where credible evidence were found on serious crimes people by state officers.

SUGGESTED ACTION:

Please send a letter to the authorities listed below expressing your concern about this case and requesting an immediate investigation into the allegations of torture and interfere of court works to protect the perpetrator by state officers and police officers and the prosecution of those proven to be responsible under the criminal law of the country. The police officers involved must also be subjected to internal investigations for the breach of the department orders as issued by the police department. Further, please also request the NPC and the IGP to have a special investigation into the malpractices of the police officers for abusing the state officers’ powers.

Please note that the AHRC has also written a separate letter to the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and Special Rapporteur on independence of judges and lawyers asking for their intervention on this regard.

To support this appeal, please click here:

 

 

To support this case, please click here: SEND APPEAL LETTER