Dear friends
The Asian Human Rights Commission (AHRC) has been informed that the High Court of Kalutara in Sri Lanka has acquitted the police officers who assaulted a woman in public. To acquit the accused in the case the court held that any assault by a law enforcement officer, if not connect with extraction of information, cannot be held as torture.
On 22nd October, 2002 A.M. Kusumawathi, (37), a mother of three children was beaten by a Sub Inspector (SI) attached to the Beruwela Police Station. The reason for the assault was that the police were irritated by the expressions of amusement by her and one of her friends, who had seen the failure of the police to catch anyone when they raided a gambling den.
The gamblers fled as the police arrived and the two women who witnessed the event from a neighbouring house were amused by the events. The policemen were irritated and the particular SI beat her with a club four times. She suffered a fractured wrist as a result. The police also stole Rs. 4800.00, (US$ 43) which she had in her possession. Kusumawathi complained about this matter and finally after investigation the Attorney General’s Department filed an indictment in which SI Nishanti Priyadarshana was accused of committing torture, an offense punishable with a minimum term of 7 years rigorous imprisonment, under the Torture Act, (Act No. 22 of 1994).
On the 18th January, 2006, after four years of protracted trial, at the Kalutera High Court, the judge held that, since the assault had not been done for the purpose of extracting a confession, it did not amount to torture and acquitted the policeman.
This judgement trivializes and makes a mockery of the offense of torture. This means that police officers engaged in such official acts as raiding premises, can beat up people and be exonerated for that if they do not try to extract information in the course of such beating. Further, it has taken four years for the High Court to come to the conclusion that the charge was erroneous.
The Asian Human Rights Commission has written to the Attorney General who conducted the prosecution asking for a revision of the application on the basis of a grave error of law causing a miscarriage of justice to a torture victim. The letter written by the AHRC is attached below. This manner of the interpretation of torture will encourage police officers to beat up persons as they wish and at the same time discourage the victims from complaining or seeking legal redress for such acts.
We urge you to write to the Attorney General on this issue requesting that he seeks the revision of this judgement and seeks retrial in this case.
Appended letter
22nd February 2006
The Hon. Mr. K. C. Kamalasabesan
Attorney General
Attorney General’s Department
Colombo 12
Sri Lanka
Fax: +94 11 2 436 421
Dear Mr. Kamalasabesan,
Re: Case No. HC294/3 High Court of Kalutara – AG’s No. AP/T/30/2002 – Request for Revision of the judgment on the basis of Grave Error of Law
In this case the judgement was delivered on the 18th January 2006. It was the case based on the complaint of A. Kusumawathi vs H.P. Nishanti Priyadarshana. The charge was under Section 2 (4) of Act No. 22 of 1994. At the end of the prosecution’s case, the counsel for the defense made an application for the dismissal of the case without calling for defense, and the High Court judge made an order accordingly. The reasoning of this order was that though the beating of the complainant may have taken place as alleged, since, according to the complainant, it had not been for the purpose of obtaining information about a crime, the case did not fall within the torture act and therefore the accused police officer should be acquitted.
The complaint of A. Kusumawathi had been that while she was at the house of a friend some police officers, including the accused officer, came to the neighbourhood to catch some gamblers and who then fled. Seeing the state of the police officers the two women laughed. At that time the accused officer beat the complainant and then arrested her and when she protested the arrest he beat her up again for being too talkative. He then took her to the police station and charged her for participating in gambling.
In filing the indictment the officer from the Attorney General’s Department who drafted the complaint has mentioned in the indictment that the beating was for obtaining some information about the act that she had been suspected of doing. The learned High Court judge held that on the complainant’s evidence itself that the beating was not for the purpose of obtaining a confession, the charge has failed, and that the act alleged to have been done by the police officer does not fall within Act No. 22 of 1994.
We wish to bring to your notice the following considerations:
a. That the interpretation given to torture given a definition under (Act No. 22 of 1994) is a grave error of law. The fact that the beating was not for the purpose of getting information does not make the act fall outside the scope of the Torture (Prevention) Act. Therefore, this being a grave error of the law we urge that the Attorney General will appeal on this matter in this case, thereby avoiding a great miscarriage of torture towards the complainant.
b. Secondly the mention of the orders, ‘for the purpose of obtaining information’ would not have mislead the accused in any way as far as answering the charge was concerned. Thus, mentioning of these words in the indictment would not have caused grave prejudice to the accused in this trial.Thus, mentioning of these words in the indictment would not have caused grave prejudice to the accuse din this trial, the essential ingredient of the charge was
- That the complainant was beaten by the accused.
- That the accused in this trial is a public officer.
- The beating by a public officer under the circumstances given in this case amounts to punishment. It is for one of the elements that falls within the section which includes punishment. A punishment for whatever reason falls within the scope of the Act.
This error in interpreting the law is of such gravity that it trivialises the purpose of the legislation itself. In this case the court apparently failed to understand the purpose of the legislature in drafting such a law, which in fact is simple applied commonsense. If the police officers in Sri Lanka begin to beat up people for reasons other than getting information, then this interpretation will help them to escape from the scope of the Torture (Prevention) Act. The judgment, by its implied meaning also justifies these acts which is a dangerous trend.
The judgment is also completely opposed to the letter and the spirit of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, based upon which the Act, Act No. 22 of 1994 was drafted in Sri Lanka. We therefore request you to apply for a review of the judgment in this case, which was delivered on 18th January 2006 and to take action to appeal from this order on the grounds of grave error of law causing a miscarriage of justice.
There are other matters relating to the filing of this indictment which we wish to take up subsequently. Mr. Rienzie Arsakularatne PC, appeared for the defense.
Thank you.
Yours sincerely,
J.S. Sloan
Programme Officer
Interventions
Suggested letter:
The Hon. Mr. K. C. Kamalasabesan
Attorney General
Attorney General’s Department
Colombo 12
Sri Lanka
Fax: +94 11 2 436 421
Dear Mr. Kamalasabesan,
Re: Case No. HC294/3 High Court of Kalutara – AG’s No. AP/T/30/2002 – Request for Revision of the judgment on the basis of Grave Error of Law
I am writing to express my shock and dismay at the interpretation given by the court about torture in this case. Obviously, the court is not informed by the development of international law regarding the most heinous crime of torture and has also failed in appreciating the legislative intend behind Act number 22 of 1994.
To take up the view that the police assault on innocent persons do not fall within the term of torture if it was not done for the purpose of extracting information is to take a trivial and careless view of the heinous crime of torture, which is an act of causing pain by persons in authority upon persons by direct or indirect means. In this case it was a direct attack on a citizen. The investigators into the allegation were satisfied that there was sufficient evidence to prove the charge of torture and the Attorney General’s department after due consideration filed the indictment.
I request you, as the office responsible for filing the indictment, to defend this indictment and also protect people form torture by seeking a revision of this judgement.
Thank you.
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PLEASE SEND YOUR LETTERS TO:
Mr. K. C. Kamalasabesan
Attorney General
Attorney General’s Department
Colombo 12
SRI LANKA
Fax: +94 11 2 436421
PLEASE SEND COPIES TO
1. Prof. Manfred Nowak
Special Rapporteur on the Question of Torture
Attn: Mr. Safir Syed
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9230
Fax: +41 22 917 9016 (general)
E-mail: ssyed@ohchr.org
Thank you.
Urgent Appeals Programme (ua@ahrchk.org)
Asian Human Rights Commission (ahrchk@ahrchk.org)
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