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1.1 The author of the
communication is Mr. Nallaratnam Singarasa, a Sri Lankan national, and a
member of the Tamil community. He is currently serving a 35 year sentence at
Boosa Prison, Sri Lanka. He claims to be a victim of violations of articles
14, paragraphs 1, 2, 3 (c), (f), (g), and 5, and 7, 26, and 2, paragraphs 1,
and 3, of the International Covenant on Civil and Political Rights. He is
represented by counsel, Mr. V.S. Ganesalingam of Home for Human Rights as
well as Interights.
1.2 The International Covenant on Civil and Political Rights entered into
force for the State party on 11 September 1980 and the first Optional
Protocol on 3 January 1998.
FACTS AS SUBMITTED BY THE AUTHOR
2.1 On 16 July 1993, at about 5a:m, the author was arrested, by Sri Lankan
security forces while sleeping at his home. 150 Tamil men were also arrested
in a "round up" of his village. None of them were informed of the reasons
for their arrest. They were all taken to the Komathurai Army Camp and
accused of supporting the Liberation Tigers of Tamil Eelam (known as "the
LTTE"). During his detention at the camp, the author's hands were tied
together, he was kept hanging from a mango tree, and was allegedly assaulted
by members of the security forces.
2.2 On the evening of 16 July 1993, the author was handed over to the
Counter Subversive Unit of the Batticaloa Police and detained "in the army
detention camp of Batticaloa Prison". He was detained pursuant to an order
by the Minister of Defence under section 9(1) of the Prevention of Terrorism
Act No. 48 of 1979 (as amended by Act No. 10 of 1982 and No. 22 of 1988)
(hereinafter "the PTA"), which provides for detention without charge up to a
period of eighteen months (renewable by order every three months), if the
Minister of Defence "has reason to believe or suspect that any person is
connected with or concerned in any unlawful activity". [FN1] The detention
order was not served on the author and he was not informed of the reasons
for his detention.
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[FN1] Section 9(1) of the PTA provides as follows: "Where the Minister has
reason to believe or suspect that any person is connected with or concerned
in any unlawful activity, the Minister may order that such person be
detained for a period not exceeding three months in the first instance, in
such place and subject to such conditions as may be determined by the
Minister, and any such order may be extended from time to time for a period
not exceeding three months at a time."
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2.3 During the period from 17 July to 30 September 1993, three policemen
including a Police Constable (hereinafter "the PC") of the Criminal
Investigation Department (hereinafter "the CID"), assisted by a former Tamil
militant, interrogated the author. For two days after his arrest, he alleges
that he was subjected to torture and ill-treatment, which included being
pushed into a water tank and held under water, and then blindfolded and laid
face down and assaulted. He was questioned in broken Tamil by the police
officers. He was held in incommunicado detention and was not afforded legal
representation or interpretation facilities; nor was he given any
opportunity to obtain medical assistance. On 30 September 1993, the author
allegedly made a statement to the police.
2.4 Sometime in August 1993, the author was first brought before a
Magistrate, and remanded back into police custody. He remained in remand
pending trial, without any possibility of seeking or obtaining bail,
pursuant to section 15(2) of the PTA. [FN2] The Magistrate did not review
the detention order, pursuant to section 10 of the PTA, which states that a
detention order under section 9 of the PTA is final and shall not be called
in question before any court. [FN3]
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[FN2] Section 15(2) of the PTA (as amended by Act. 10 of 1982) provides as
follows: "Upon the indictment being received in the High Court against any
person in respect of any offence under this Act or any offence to which the
provisions of section 23 shall apply, the Court shall, in every case, order
the remand of such person until the conclusion of the trial." The author
makes no specific claim with respect to this issue.
[FN3] Section 10 of the PTA provides as follows: "An order made under
section 9 shall be final and shall not be called into question in any court
or tribunal by way of writ or otherwise."
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2.5 On 11 December 1993, the author was produced before the Assistant
Superintendent of Police (hereinafter "the ASP") of the CID and the same PC
who had previously interrogated him. He was asked numerous personal
questions about his education, employment and family. As the author could
not speak Sinhalese, the PC interpreted between Tamil and Sinhalese. The
author was then requested to sign a statement, which had been translated and
typed in Sinhalese by the PC. The author refused to sign as he could not
understand it. He alleges that the ASP then forcibly put his thumbprint on
the typed statement. The prosecution later produced this statement as
evidence of the author's alleged confession. The author had neither external
interpretation nor legal representation at this time.
2.6 In September 1994, after over fourteen months in detention, the author
was indicted in the High Court in three separate cases.
a) On 5 September 1994, he was indicted in Case no. 6823/94, together with
several named and un-named persons, of having committed an offence under
sections 2(2)(ii), read together with section 2(1)(f) of the PTA, of having
caused "violent acts to take place, namely, receiving armed combat training
under the LTTE Terrorist Organisation", at Muttur, between 1 January and 31
December 1989.
b) On 28 September 1994, he was indicted in Case no. 6824/94, together with
several other named persons and persons unknown, of having committed an
offence under section 2(1)(a), read together with section 2(2)(i), of the
PTA, of having caused the death of army officers at Arantawala, between 1
and 30 November 1992.
c) On 30 September 1994, he was indicted in Case no. 6825/94, together with
several other named persons and persons unknown, on five counts, the first
under section 23(a)of the State of Emergency (Miscellaneous Provisions and
Powers) Regulations No. 1 of 1989 with the Public Security (Amendment) Act
No. 28 of 1988, of having conspired by unlawful means to overthrow the
lawfully constituted Government of Sri Lanka, and the remaining four under
section 2(2)(ii), read together with section 2(1)(c), of the PTA, of having
attacked four army camps (at Jaffna Fort, Palaly, Kankesanthurai and
Elephant Pass, respectively), with a view to achieving the objective set out
in count one.
2.7 On the date of submission of the communication, the author had not been
tried in Cases nos. 6823/94 and 6824/94.
2.8 On 30 September 1994, the High Court assigned the author State-appointed
counsel. This was the first time the author had access to a legal
representative since his arrest. He later retained private counsel. He had
interpretation facilities throughout the legal proceedings; he pleaded not
guilty to the charges.
2.9 On 12 January 1995, in an application to the High Court, defence counsel
submitted that there were visible marks of assault on the author's body, and
moved for a medical report to be obtained. On the Court's order, a Judicial
Medical Officer then examined him. According to the author, the medical
report stated that the author displayed scars on his back and a serious
injury, in the form of a corneal scar on his left eye, which resulted in
permanent impairment of vision. It also stated that "injuries to the lower
part of the left back of the chest and eye were caused by a blunt weapon
while that to the mid back of the chest was probably due to application of
sharp force".
2.10 On 2 June 1995, the author's alleged confession was the subject of a
voir dire hearing by the High Court, at which the ASP, PC and author gave
evidence, and the medical report was considered. The High Court concluded
that the confession was admissible, pursuant to section 16(1) of the PTA,
which renders admissible any statement made before a police officer not
below the rank of an ASP, provided that it is not found to be irrelevant
under section 24 of the Evidence Ordinance. Section 16(2) of the PTA put the
burden of proof that any such statement is irrelevant on the accused. [FN4]
The Court did not find the confession irrelevant, despite defence counsel's
motion to exclude it on the grounds that it was extracted from the author
under threat.
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[FN4] Section 16 of the PTA provides as follows: "(1) Notwithstanding the
provisions of any other law, where any person is charged with an offence
under this Act, any statement made by such person at any time, whether - (a)
it amounts to a confession or not; (b) made orally or reduced to writing;
(c) such person was or was not in custody or presence of a police officer;
(d) made in the course of an investigation or not; (e) it was or was not
wholly or partly in answer to any question, may be proved as against such
person if such statement is not irrelevant under section 24 of the Evidence
Ordinance: Provided however, that no such statement shall be proved as
against such person if such statement was made to a police officer below the
rank of an Assistant Superintendent."(2) The burden of proving that any
statement referred to in subsection (1) is irrelevant under Section 24 of
the Evidence Ordinance shall be on the person asserting it to be irrelevant.
(3) Any statement admissible under subsection (1) may be proved as against
any other person charged jointly with the person making the statement, if
and only if, such statement is corroborated in material particulars by
evidence other than the statements referred to in subsection (1)."(emphasis
added).
The author notes that section 17 of the PTA further provides that sections
25, 26 and 30 of the Evidence Ordinance, which include additional
restrictions on the admissibility of confessions, are not applicable in any
proceedings under the PTA. Section 24 of the Evidence Ordinance provides as
follows: "A confession made by an accused person is irrelevant in a criminal
proceeding if the making of the confession appears to the court to have been
caused by any inducement, threat or promise having reference to the charge
against the accused person, proceeding from a person in authority or
proceeding from another person in the presence of a person in authority and
with his sanction, and which inducement, threat or promise is sufficient in
the opinion of the court to give the accused person grounds which would
appear to him reasonable for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the
proceedings against him."
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2.11 According to the author, the High Court gave no reasons for rejecting
the medical report despite noting itself that there were "injury scars
presently visible on the [author's] body" and acknowledging that these were
sequels of injuries "inflicted before or after this incident." In holding
that the confession was voluntary, the High Court relied upon the author's
failure to complain to anyone at any time about the beatings, and found that
his failure to inform the Magistrate of the assault indicated that he had
not behaved as a "normal human being." It did not consider the author's
testimony that he had not reported the assault to the Magistrate for fear of
reprisals on his return to police custody.
2.12 On 29 September 1995, the High Court convicted the author on all five
counts, and on 4 October 1995, sentenced him to 50 years imprisonment. The
conviction was based solely on the alleged confession.
2.13 On 9 October 1995, the author appealed to the Court of Appeal, seeking
to set aside his conviction and sentence. On 6 July 1999, the Court of
Appeal affirmed the conviction but reduced the sentence to a total of 35
years. On 4 August 1999, the author filed a petition for special leave to
appeal in the Supreme Court of Sri Lanka, on the ground that certain matters
of law arising in the Court of Appeal's judgment should be considered by the
Supreme Court. [FN5] On 28 January 2000, the Supreme Court of Sri Lanka
refused special leave to appeal.
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[FN5] Article 128 of the Constitution permits appeal to the Supreme Court
only on matters of law.
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THE COMPLAINT
3.1 The author claims a violation of article 14, paragraph 1, of the
Covenant, as he was convicted by the High Court on the sole basis of his
alleged confession, which is alleged to have been made in circumstances
amounting to a violation of his right to a fair trial. Basic procedural
guarantees that safeguard the reliability of a confession and its
voluntariness were omitted in this case. In particular, the author submits
that his right to a fair trial was breached by the domestic courts' failure
to take into consideration the absence of counsel and the lack of
interpretation while making the alleged confession, and the failure to
record the confession or to employ any other safeguards to ensure that it
was given voluntarily. The author submits that the appellate courts' failure
to consider these issues is inconsistent with the right to a fair trial and
argues that the trial court's failure to consider other exculpatory
evidence, in preference to reliance on the confession, is indicative of its
lack of impartiality and the manifestly arbitrary nature of the decision. He
adds that it was incumbent upon the appellate courts to intervene in this
situation where evidence was simply disregarded.
3.2 The author claims that the delay of four years between his conviction
and denial of leave to appeal to the Supreme Court amounted to a violation
of article 14, paragraph 3(c). He claims a violation of article 14,
paragraph 3(f), as he was not provided with a qualified and external
interpreter when he was questioned by the police. He could neither speak nor
read Sinhalese, and without an interpreter was unable adequately to
understand the questions put to him or the statements, which he was
allegedly forced to sign.
3.3 The author claims that reliance on his confession, in the given
circumstances, and in a situation in which the burden was on him to prove
that the confession was not made voluntarily, rather than on the prosecution
to prove that it was made voluntarily, amounts to a violation of his rights
under article 14, paragraph 3(g). To him, this provision requires that the
prosecution prove their case without resort to evidence "obtained through
coercion or oppression in defiance of the will of the accused," and
prohibits treatment, which violates the rights of detainees to be treated
with respect for the inherent dignity of the human person. [FN6] He invokes
the Committee's General Comment No. 20, which states that "the law must
prohibit the use or admissibility in judicial proceedings of statements or
confessions obtained through torture or other prohibited treatment", and
observes that measures required in this respect would include, inter alia,
provisions against incommunicado detention, and prompt and regular access to
lawyers and doctors. [FN7]
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[FN6] Saunders v UK (1996) 23 EHRR 313, CCPR General Comment No. 13, of 13
April 1984; Kelly v Jamaica, Case no.253 /87, Views adopted on 4 August
1991.
[FN7] CCPR General Comment No. 20, of 10 March 1992.
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3.4 The author claims a violation of article 14, paragraph 2, as, in light
of the existence of the confession, which was considered a voluntary one,
the onus was placed on the author to establish his innocence and therefore
was not treated as innocent until proven guilty as required by this
provision. The author claims that section 16(2) of the PTA shifts the burden
on the accused to prove that any statement, including a confession, was not
made voluntarily and therefore should be excluded as evidence, and as such
is itself incompatible with article 14, paragraph 2. In particular, where
the confession was elicited without safeguards and with complaints of
torture and ill-treatment, the application of section 16(2) of the PTA
amounts to a violation of article 14, paragraph 2. The author claims a
violation of article 14, paragraph 5, because of the decision of the Court
of Appeal to uphold the conviction despite the abovementioned
"irregularities".
3.5 Article 7 is said to have been violated with respect to the treatment
described in paragraphs 2.1 and 2.3 above. On account of ratione temporis
considerations (see para.3.11), the author submits that the torture is
principally relevant to the fair trial issues, addressed above. However, in
addition, it is submitted that there is a continuing violation of the rights
protected by article 7, insofar as Sri Lankan law provides no effective
remedy for the torture and ill-treatment to which the author was already
subjected. The author submits that, both through its law and practice, the
State party condones such violations, contrary to article 7, read together
with the positive duty to ensure the rights protected in article 2,
paragraph 1, of the Covenant.
3.6 The author claims that the decision to admit the confession, obtained
through alleged violations of his rights, and to rely on it as the sole
basis for his conviction, violated his rights under article 2, paragraph 1,
as the State party failed to "ensure" his Covenant rights. It is also
claimed that the application of the PTA itself violated his rights under
articles 14, and 2, paragraph 1.
3.7 The author claims a violation of article 2, paragraph 3, read together
with articles 7 and 14, as the constitutional bar to challenging sections 16
(1) and (2) of the PTA effectively denies the author an effective remedy for
the torture to which he was subjected and his unfair trial. The PTA provides
for the admissibility of extra-judicial confessions obtained in police
custody and in the absence of counsel, and places the burden of proving that
such a confession was made "under threat" on the accused. [FN8] In this way,
the law itself has created a situation where rights under article 7 may be
violated without any remedy available. The State must enforce the
prohibition on torture and ill-treatment, which includes taking "effective
legislative, administrative, judicial and other measures to prevent torture
in any territory under its jurisdiction". [FN9] Thus, if in practice
legislation encourages or facilitates violations, then at a minimum this
falls foul of the positive duty to take all necessary measures to prevent
torture and inhuman punishment. The author claims a separate violation of
article 2, paragraph 3, alone, as the explicit ban under Sri Lankan law on
constitutional challenges to enacted legislation prevented the author from
challenging the operation of the PTA.
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[FN8] In this respect, the author notes that the recent report of the United
Nations Special Rapporteur on Summary and Extra Judicial Executions refers
to repeated allegations of confessions being extracted under torture from
persons accused of offences under the PTA Report by Special Rapporteur, Mr.
Bacre Waly Ndiaye, Addendum, submitted pursuant to Commission on Human
Rights resolution 1997/61, E/CN.4/1998/68/Add.2, 12 March 1998.
[FN9] Article 2, paragraph 1, of the Convention against Torture.
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3.8 The author claims that the trial and appellate courts' failure to
exclude the author's alleged confession, despite its having been made in the
absence of a qualified and independent interpreter, amounted to a breach of
his right not to be discriminated against under article 2, paragraph 1, read
together with article 26. He claims that the application of the PTA resulted
in, and continues to cause, indirect discrimination against members of the
Tamil minority, including himself.
3.9 The author claims a violation of article 14, paragraph 3(c), in relation
to cases nos. 6823/94 and 6824/94, as he was detained pending trial for over
seven years since his initial indictments (eight since his arrest), and had
not been tried on the date of submission of his communication.
3.10 The author submits that he has exhausted domestic remedies, as he was
denied leave to appeal to the Supreme Court. As regards constitutional
remedies, he notes that the Sri Lankan Constitution (article 126(1)) only
permits judicial review of executive or administrative action , it
explicitly prohibits any constitutional challenge to legislation already
enacted (article 16, article 80(3) and article 126(1)). [FN10] The courts
have similarly held that judicial review of judicial action is not
permissible. [FN11] Thus, he was unable to seek judicial review of any of
the judicial orders applicable to his case, or to challenge the
constitutionality of the provisions of the PTA, which authorized his
detention pending trial (in respect of Cases nos. 6823/94 and 6824/94), the
admissibility of his alleged confession, and the shifted burden of proof
regarding the admissibility of the confession.
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[FN10] Article 126(1), Constitution of Sri Lanka provides as follows: "The
Supreme Court shall have sole and exclusive jurisdiction to hear and
determine any question relating to the infringement or imminent infringement
by executive or administrative action of any fundamental right." (emphasis
added). Article 16 (1) of the Constitution provides: "All existing written
and unwritten law shall be valid and operative notwithstanding any
inconsistency with the preceding provisions of this Chapter [Chapter III on
Fundamental Rights]." Further, Article 80(3) Constitution of Sri Lanka
provides: "No court or tribunal shall inquire into, pronounce upon or in any
manner call in question, the validity of [any Act of Parliament] on any
ground whatsoever."As a former Chief Justice of Sri Lanka, Justice S.
Sharvananda, has commented (see Justice S. Sharvananda, Fundamental Rights
in Sri Lanka, (Sri Lanka: 1993) at p. 140): "Article 80(3) vests enacted law
with finality in the sense that the validity of an Act of Parliament cannot
be called in question in any court or tribunal. In this Constitutional
scheme, there is no room for the introduction of the concept of 'due process
of law' or notions of reasonableness of the law and natural justice as has
been done by the Supreme Court of India in Maneka Gandhi's case A.I.R.
(1978) SC 597 at 691-692. As stated earlier, in Sri Lanka, it is not open to
a court to invalidate a law on the ground that it seeks to deprive a person
of his liberty contrary to the court's notions of justice or due process."
[FN11] Velmurugu v AG (1981) 1 SLR 406; Saman v Leeladasa SC Appl. No. 4/88
SC Minutes 12 December 1988.
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3.11 The author argues that the communication is admissible ratione temporis.
In respect of Case no. 6825/94, the Court of Appeal's judgment of 6 July
1999, which upheld the author's conviction, and the Supreme Court of Sri
Lanka's denial of leave to appeal, on 28 January 2000 refusing leave to
appeal, were both given after the First Optional Protocol came into force
for Sri Lanka. He submits that the right to a fair trial comprises all
stages of the criminal process, including appeal, and the due process
guarantees in article 14 apply to the process as a whole. The alleged
violations of the rights protected under article 14, by the Court of Appeal,
are the primary basis for this communication. His claims are said to be
admissible ratione temporis inasmuch as they relate to continuing violations
of his rights under the Covenant. He argues that the denial of a right to a
remedy in relation to the claims under article 2, paragraph 3, read together
with articles 7 and 14 (para. 3.7), continues. As to his claims under
article 14, the author remains incarcerated without prospect of release or
retrial, which amounts to a continuing violation of his right not to be
subjected to prolonged detention without a fair trial. With respect to Case
nos. 6823/94 and 6824/94, the author submits that he has remained
incarcerated pending trial for a total of eight years at the time of
submission of his communication, three of which were after the entry into
force of the Optional Protocol.
3.12 Regarding a remedy, the author submits that release is the most
appropriate remedy for a finding of the violations alleged herein, as well
as the provision of compensation, pursuant to article 14, paragraph 6, of
the Covenant.
THE STATE PARTY'S SUBMISSIONS ON ADMISSIBILITY AND MERITS
4.1 By submission of 4 April 2002, the State party argues that the
communication is inadmissible ratione personae. It submits that it did not
receive a copy of the power of attorney and if it were to receive same it
would have to check its "validity and applicability". Even if the
authorisation were presented to the State party, it submits that an author
must personally submit a communication unless he can be prove that he is
unable to do so. The author provided no reason to demonstrate that he is
unable to present such an application himself.
4.2 The State party argues that the author did not exhaust domestic
remedies. Firstly, he could have requested the President for a pardon, to
grant any respite of the execution of sentence, or to substitute a less
severe form of punishment, as he is empowered to do under article 34(1) of
the Constitution. Secondly, he could also have applied to the Supreme Court
under article 11 of the Constitution, which prevents torture or other cruel,
inhuman or degrading treatment or punishment, about his allegations of
torture by army personnel and police officers. Such action would constitute
"executive action" in terms of articles 17 and 26 of the Constitution.
[FN12] If the Supreme Court had found that the author was subjected to
torture, it could have made a declaration that his rights under article 11
had been violated, ordered payment of compensation by the State, payment of
costs of the legal proceedings and, if warranted, ordered the immediate
release of the author.
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[FN12] Article 17 provides that, "every person shall be entitled to apply to
the Supreme Court, as provided by article 126, in respect of the
infringement or imminent infringement, by executive or administrative
action, of a fundamental right to which such person is entitled under the
provisions of this chapter". Article 26 provides that, "the Supreme Court
shall have sole and exclusive jurisdiction to hear and determine any
question relating to the infringement or imminent infringement by the
executive or administrative action of any fundamental right or language
right declared and recognized by Chapter III or Chapter IV."
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4.3 Thirdly, the State party submits that the author could have complained
to the police, alleging that he was subjected to torture as defined by
section 2, read together with section 12, of the Convention against Torture.
Criminal proceedings could then have been instituted in the High Court by
the Attorney General. Fourthly, he could have instituted criminal
proceedings directly against the perpetrators of the alleged torture in the
Magistrates Court, pursuant to section 136(1) (a) of the Code of Criminal
Procedure Act (No. 15 of 1979). If the Supreme Court had found that the
author was subjected to torture or if criminal proceedings had been
instituted against the alleged perpetrators, he would either not have been
indicted or criminal proceedings, already instituted, would have been
terminated.
4.4 With respect to the complaint that his rights under article 14,
paragraph 3(c), were violated as he was detained pending trial in Cases Nos.
6823 and 6825, both of which have not yet come to trial, the State party
submits that the author could have petitioned the Supreme Court, and
complained of a violation, by "executive action" of his "fundamental
rights", guaranteed by articles 13 (3), and/or (4), of the Constitution.
Such a finding by the Supreme Court could have led to the indictments being
quashed or the author's release.
4.5 In its merits submission of 20 November 2002, the State party denies
that any of the author's rights under the Covenant were violated or that any
provisions of the State of Emergency (Miscellaneous Provisions and Powers)
Regulations No. 1 of 1989 (which are promulgated under the Public Security
Ordinance) or the PTA violate the Covenant. With respect to the claims under
article 14, it submits that the author received a fair and public hearing
before a competent, independent and impartial tribunal established by law;
he was afforded the presumption of innocence, which is secured under
domestic law and recognised as a constitutional right.
4.6 On the issue of access to an interpreter, the State party submits that a
person conversant in both Tamil and Sinhalese was present when the author's
confession was recorded. This translator was called by the prosecution as a
witness during the trial, during which the author had the opportunity to
cross-examine him and also to test his knowledge and competency. The State
party submits that it was only after this evidence was recorded, during the
voir dire hearing, that the Court accepted the confession as part of the
evidence in the trial. It adds that the author had the free assistance of an
interpreter conversant in Tamil during the trial and was also represented by
a lawyer of his choice, who was also conversant in Tamil.
4.7 The State party submits that the author had the right to remain silent,
or to make an unsworn statement from the dock or to give sworn evidence from
the witness stand which could be cross-examined. It denies that he was
compelled to testify at trial, to testify against himself or to confess
guilt. Rather he elected to give evidence and on doing so the Court was
entitled to consider such evidence in arriving at its verdict. The State
party explains that under the Sri Lankan Evidence Ordinance, a statement
made to a police officer is inadmissible, but under the PTA, a confession
made to a police officer not below the rank of ASP is admissible, provided
that such statement is not irrelevant under section 24 of the Evidence
Ordinance. [FN13] The voluntariness of such a statement or confession,
before admission, may be challenged. Although the burden of proving its
case, beyond a reasonable doubt, rests with the prosecution, the burden of
proving that a confession was not made voluntarily lies with the person
claiming it. According to the State party, this is consistent with "the
universally accepted principle of law, namely, he who asserts must prove"
and, the reliance on confessions does not amount to a violation of article
14, paragraph 3(g), of the Covenant, and is permissible under the
Constitution. It argues that the burden on an accused to prove that a
confession was made under duress is not beyond reasonable doubt but in fact
is "placed very low", and requires the accused to "show only a mere
possibility of involuntariness."
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[FN13] Section 28 provides that, "The provisions of this Act (Prevention of
Terrorism Act) shall have effect not withstanding anything contained in any
other written law and accordingly in the event of any conflict or
inconsistency between the provisions of this Act and such other written law
the provisions of this Act shall prevail".
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4.8 On the claim of torture, the State party submits that the trial court
and the Court of Appeal made clear and unequivocal findings that these
allegations were inconsistent with the medical report adduced in evidence,
and that the author had failed to make such allegations to the Magistrate or
to the police, prior to the trial.
4.9 On the claim of alleged discrimination with regard to the manner in
which the confession made by the author was recorded and considered by the
Court, the State party reiterates its arguments raised on the circumstances
surrounding his confession, in paragraph 4.6 above. On the issue of a
violation of article 14, paragraph 5, it notes that the author was afforded
every opportunity to have his conviction and sentence reviewed by a tribunal
according to law, and that he merely seeks to question the findings of fact
made by the domestic courts before the Committee. Finally, the State party
informs the Committee that, following the author's conviction in Case no.
6825/94, the charges in Case nos. 6823/94 and 6824/94 were withdrawn.
THE AUTHOR'S COMMENTS
5.1 Regarding the State party's argument that the communication is
inadmissible ratione personae, the author submits that the power of attorney
was included in the submission, and notes that his imprisonment prevented
him from submitting the communication personally. He adds that it is common
practice for the Committee to accept communications from third parties,
acting in respect of individuals incarcerated in prison.
5.2 On the issue of exhaustion of domestic remedies, the author submits that
the obligation to exhaust all available domestic remedies does not extend to
non-judicial remedies and a Presidential pardon which, as an extraordinary
remedy, is based upon executive discretion and thus does not amount to an
effective remedy, for the purposes of the Optional Protocol.
5.3 The author reaffirms he was unable to seek constitutional remedies in
respect of any of the judicial orders or relevant legislation relating to
the admissibility of the alleged confession, or detention pending trial,
given that the Sri Lankan Constitution does not permit judicial review of
judicial action, or of enacted legislation. Thus, he could not pursue
constitutional remedies in respect of the decision of the domestic courts to
admit the alleged confession, or domestic legislation which renders
admissible statements made before the police and places the burden of proof
regarding the irrelevance of such statements on the accused.
5.4 On whether the author could have sought to have the perpetrators of the
alleged torture prosecuted, he submits that the obligation to exhaust
domestic remedies does not extend to remedies which are inaccessible,
ineffective in practice, or likely to be unduly prolonged. He recalls that
the applicable laws do not conform to international standards and in
particular to the requirements of article 7 of the Covenant. Consequently,
remedies against torture are ineffective. The author did not file a criminal
complaint that the alleged confession was extracted from him under torture,
given his fear of repercussions while he remained in custody. He notes than
when he placed these allegations on record, during the voir dire hearing
before the High Court, no investigations were initiated.
5.5 On the issue of exhaustion of domestic remedies, in relation to the
author's detention pending trial and the delay in trial, the author submits
that only "available remedies" must be exhausted. There is no specific right
to a speedy trial under the Constitution, and, to date, the courts have not
interpreted the right to a fair trial as including the right to an
expeditious trial. Furthermore, the Constitution explicitly provides for the
possibility of detention pending trial and, in any event, stipulates that
constitutional remedies are not applicable to judicial decisions, for
example when a court decides to grant frequent adjournments at the request
of the prosecution, leading to trial delays.
5.6 On the merits, the author reiterates the arguments in his initial
communication. With respect to the information provided by the State party
on Case Nos. 6823/94 and 6824/94, the author confirms that the charges
relating to the former case have been withdrawn and therefore "provides no
further submissions in respect of these proceedings". However, no
information is available on whether the charges in the latter case have been
dropped, and the author submits that he may still be brought to trial on
this charge.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in the communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant. The Committee has ascertained, as required under article 5,
paragraph 2 (a), of the Optional Protocol, that the matter is not being
examined under another procedure of international investigation or
settlement.
6.2 As to the question of standing and the State party's argument that
author's counsel had no authorisation to represent him, the Committee notes
that it has received written evidence of the representative's authority to
act on the author's behalf and refers to Rule 90 (b) of its Rules of
Procedure, which provides for this possibility. Thus, the Committee finds
that the author's representative does have standing to act on the author's
behalf and the communication is not considered inadmissible for this reason.
6.3 Although the State party has not argued that the communication is
inadmissible ratione temporis, the Committee notes that the violations
alleged by the author occurred prior to the entry into force of the Optional
Protocol. The Committee refers to its prior jurisprudence and reiterates
that it is precluded from considering a communication if the alleged
violations occurred before the entry into force of the Optional Protocol,
unless the alleged violations continue or have continuing effects which in
themselves constitute a violation of the Covenant. A continuing violation is
to be interpreted as an affirmation, after the entry into force of the
Optional Protocol, by act or by clear implication, of previous violations of
the State party. [FN14] The Committee observes that although the author was
convicted at first instance on 29 September 1995, i.e. before the entry into
force of the Optional Protocol for the State party, the judgement of the
Court of Appeal upholding the author's conviction, and the Supreme Court's
order refusing leave to appeal were both rendered on 6 July 1999 and 28
January 2000, respectively, after the Optional Protocol came into force. The
Committee considers the appeal courts decision, which confirmed the trial
courts conviction, as an affirmation of the conduct of the trial. In the
circumstances, the Committee concludes that it is not precluded ratione
temporis from considering this communication. However, as to the author's
claims under article 26, article 2, paragraph 1 alone and read together with
article 14, and his claim under article 9, paragraph 3, relating to his
automatic remand in detention without bail, the Committee finds these claims
inadmissible ratione temporis.
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[FN14] E. and A. K. v. Hungary, Case no. 520/1992, Decision of 7 April 1994,
and K. V. and C. V. v. Germany, Case no. 568/1993, Decision of 8 April 1994,
Holland v. Ireland, Case no. 593/1994, Decision of 26 October 1996.
-------------------------------------------------------------------------------------------------------------------------------
6.4 With respect to the State party's argument that the author did not
exhaust domestic remedies in failing to request a Presidential pardon, the
Committee reiterates its previous jurisprudence that such pardons constitute
an extraordinary remedy and as such are not an effective remedy for the
purposes of article 5, paragraph 2 (b), of the Optional Protocol.
6.5 Having regard to the author's claim of a violation of article 7 and
considering it as limited to torture raising fair trial issues, the
Committee notes that this issue was considered by the Appellate Courts and
dismissed for lack of merit. On this basis, and considering that the author
was refused leave to appeal to the Supreme Court, the Committee finds that
the author has exhausted domestic remedies.
6.6 As to the claim of a violation of article 14, paragraph 5, as the Court
of Appeal upheld the author's conviction, despite alleged "irregularities"
during the trial, the Committee notes that this provision provides for the
right to have a conviction and sentence reviewed by a higher tribunal. As it
is uncontested that the author's conviction and sentence were reviewed by
the Court of Appeal, the fact that the author disagrees with the outcome of
the court's decision is not sufficient to bring the issue within the scope
of article 14, paragraph 5. Consequently, the Committee finds that this
claim is inadmissible ratione materiae, under article 3 of the Optional
Protocol.
6.7 The Committee therefore proceeds to the consideration of the merits of
the communication regarding the claims of torture as limited in paragraph
6.4 above and unfair trial - article 14 alone and read with article 7.
CONSIDERATION OF THE MERITS
7.1 The Committee has examined the communication in light of all the
information made available to it by the parties, as provided for in article
5, paragraph 1, of the Optional Protocol.
7.2 As to the claim of a violation of article 14, paragraph 3 (f), due to
the absence of an external interpreter during the author's alleged
confession, the Committee notes that this provision provides for the right
to an interpreter during the court hearing only, a right which was granted
to the author. [FN15] However, as clearly appears from the court
proceedings, the confession took place in the sole presence of the two
investigating officers - the Assistant Superintendent of Police and the
Police Constable; the latter typed the statement and provided interpretation
between Tamil and Sinhalese. The Committee concludes that the author was
denied a fair trial in accordance with article 14, paragraph 1, of the
Covenant by solely relying on a confession obtained in such circumstances.
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[FN15] B.d.B. v. Netherlands, Case no. 273/1988, Decision of 30 March 1989,
and Yves Cadoret v. France, Case no. 221/1987, Decision of 11 April 1991 and
Herve Le Bihan v. France, Case no. 323/ 1988, Decision of 9 November 1989.
-------------------------------------------------------------------------------------------------------------------------------
7.3 As to the delay between conviction and the final dismissal of the
author's appeal by the Supreme Court (29 September 1995 to 28 January 2000)
in Case no. 6825/1994, which has remained unexplained by the State party,
the Committee notes with reference to its ratione temporis decision in
paragraph 6.3 above, that more than two years of this period, from 3 January
1998 to 28 January 2000, relate to the time after the entry into force of
the Optional Protocol. The Committee recalls its jurisprudence that the
rights contained in article 14, paragraphs 3(c), and 5, read together,
confer a right to review of a decision at trial without delay. [FN16] In the
circumstances, the Committee considers that the delay in the instant case
violates the author's right to review without delay and consequently finds a
violation of article 14, paragraphs 3(c), and 5 of the Covenant.
-------------------------------------------------------------------------------------------------------------------------------
[FN16] Lubuto v. Zambia, Case no. 390/1990, Views adopted on 31 October
1995; Neptune v. Trinidad and Tobago, Case no. 523/1992, Views Adopted on 16
July 1996; Sam Thomas v Jamaica, Case no. 614/95, Views adopted on 31 March
1999; Clifford McLawrence v Jamaica, Case no.702/96, Views adopted on 18
July 1997;Johnson v. Jamaica, Case no. 588/1994, Views adopted on 22 March
1996.
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7.4 On the claim of a violation of the author's rights under article 14,
paragraph 3 (g), in that he was forced to sign a confession and subsequently
had to assume the burden of proof that it was extracted under duress and was
not voluntary, the Committee must consider the principles underlying the
right protected in this provision. It refers to its previous jurisprudence
that the wording, in article 14, paragraph 3 (g), that no one shall "be
compelled to testify against himself or confess guilt", must be understood
in terms of the absence of any direct or indirect physical or psychological
coercion from the investigating authorities on the accused with a view to
obtaining a confession of guilt. [FN17] The Committee considers that it is
implicit in this principle that the prosecution prove that the confession
was made without duress. It further notes that pursuant to section 24 of the
Sri Lankan Evidence Ordinance, confessions extracted by "inducement, threat
or promise" are inadmissible and that in the instant case both the High
Court and the Court of Appeal considered evidence that the author had been
assaulted several days prior to the alleged confession. However, the
Committee also notes that the burden of proving whether the confession was
voluntary was on the accused. This is undisputed by the State party since it
is so provided in Section 16 of the PTA. Even if, as argued by the State
party, the threshold of proof is "placed very low" and "a mere possibility
of involuntariness" would suffice to sway the court in favour of the
accused, it remains that the burden was on the author. The Committee notes
in this respect that the willingness of the courts at all stages to dismiss
the complaints of torture and ill-treatment on the basis of the
inconclusiveness of the medical certificate (especially one obtained over a
year after the interrogation and ensuing confession) suggests that this
threshold was not complied with. Further, insofar as the courts were
prepared to infer that the author's allegations lacked credibility by virtue
of his failing to complain of ill-treatment before its Magistrate, the
Committee finds that inference to be manifestly unsustainable in the light
of his expected return to police detention. Nor did this treatment of the
complaint by its courts satisfactorily discharge the State party's
obligation to investigate effectively complaints of violations of article 7.
The Committee concludes that by placing the burden of proof that his
confession was made under duress on the author, the State party violated
article 14, paragraphs 2, and 3(g), read together with article 2, paragraph
3, and 7 of the Covenant.
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[FN17] Berry v. Jamaica, Case no. 330/1988, Views adopted on 4 July 1994.
-------------------------------------------------------------------------------------------------------------------------------
7.5 The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose violations of
articles 14, paragraphs 1, 2, 3, (c), and 14, paragraph (g), read together
with articles 2, paragraph 3, and 7 of the Covenant.
7.6 In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
and appropriate remedy, including release or retrial and compensation. The
State party is under an obligation to avoid similar violations in the future
and should ensure that the impugned sections of the PTA are made compatible
with the provisions of the Covenant.
7.7 Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party has recognized the competence of the Committee to
determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2 of the Covenant, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant, the Committee wishes to
receive from the State party, within 90 days, information about the measures
taken to give effect to its Views. The State party is also requested to
publish the Committee's Views.
__________________________________
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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