United Nations

CCPR/C/137/D/2406/2014

International Covenant on Civil and Political R ights

Distr.: General

26 May 2023

Original: English

Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2406/2014 * , **

Communication submitted by:V.M. (represented by counsel, Geoffrey Robertson and Toby Collis)

Alleged victim:The author

State party:Sri Lanka

Date of communication:25 March 2014 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 30 May 2014 (not issued in document form)

Date of adoption of Views :14 March 2023

Subject matter:Torture in detention

Procedural issue :Exhaustion of domestic remedies

Substantive issues:Torture; cruel, inhuman or degrading treatment or punishment; right to an effective remedy

Articles of the Covenant :2 (3) and 7

Article of the Optional Protocol:5 (2) (b)

1.The author of the communication is V.M., a Sri Lankan national born in 1973. He claims that the State party has violated his rights under article 7, read alone and in conjunction with article 2 (3), of the Covenant. The Optional Protocol entered into force for the State party on 3 January 1998. The author is represented by counsel.

Facts as submitted by the author

2.1The author states that he is a former member of the Liberation Tigers of Tamil Eelam (LTTE), which he joined in 1990, and where he served as a training instructor. However, he left the group and distanced himself from it in 2000, and took a job transporting goods between Colombo, Jaffna and Vanni.

2.2On 5 January 2009, while in Colombo with his wife and son, he was abducted by unknown persons who called him by his old LTTE name. He was blindfolded, handcuffed, put into a van and taken to the Kotahena police station. There, his blindfold was removed and he was stripped naked and interrogated by a former LTTE member who had become an informant and officers from the Criminal Investigation Department about his activities in Colombo. He told them that he was in Colombo to prepare for a move to Switzerland. While naked and handcuffed, he was beaten repeatedly with cricket wickets. He was told that he should work for the authorities as an LTTE informant, otherwise his family would be harmed; however, he said that he did not want to do that. At around 9 p.m. on the same date, he was put into an overcrowded detention cell with very poor hygienic conditions. Later in the night, he was again blindfolded and handcuffed and taken by police officers to another location, which he later learned was the Foreshore police station. There, he was interrogated by another officer about his activities with LTTE, while a pistol was pointed at his lap. Although he denied having had any contact with LTTE since leaving the organization in 2000, the interrogating officers did not believe him. They proceeded to beat him with a cricket bat and wickets on his hips and shoulders, inserted pins through his nipples, tied a nylon rope around his toes and pulled him upside down, and submerged his head under water up to 10 times. The torture lasted until 4 a.m. the following day. While still blindfolded and handcuffed, he was taken to a detention cell.

2.3From 6 to 23 January 2009, the author was moved to different police stations and interrogated about his role with LTTE. He was beaten daily. On 24 January 2009, he was forced by an officer of the Criminal Investigation Department to sign a statement in Sinhalese, which he could not understand. For the next six days he was kept in a detention cell and beaten by police officers. On 2 February 2009, he was taken to the Criminal Investigation Department office in Dematagoda, where he was interrogated and tortured, including by beatings to his hip and back with pipes, insertion of a sharp object into his anus, forced into a freezer room, subjected to electric shocks, and insertion of a metal rod into his penis. At the end of that interrogation session, he was forced to sign a statement that he did not understand. As a result of the injuries sustained during the interrogations and detention, the author was treated at a military hospital for three to four days; he required 18 stitches to his intestines. He was warned by the doctor not to say that he had been tortured.

2.4On 6 February and 5 March 2009, the author attended court hearings but could not understand the content of the proceedings as he was not provided with a Tamil interpreter. The author remained in detention at Kotahena police station between court hearings. On 3 April 2009, he was released after paying a bribe. However, prior to his release, he was forced to act as an informant and identify new detainees.

2.5In July 2009, the author was granted an entry visa to Switzerland, and subsequently became a permanent resident of Switzerland after applying for and being granted refugee status. He has not returned to Sri Lanka since. In Switzerland, he was diagnosed with post-traumatic stress disorder, erectile dysfunction and incontinence as a result of the torture and rape that he had endured.

2.6The author claims that he cannot pursue redress in Sri Lanka as remedies for human rights violations raised by former LTTE members are either unavailable or ineffective. The author acknowledges that, in theory, there are three remedial avenues that can be pursued in Sri Lanka for violation of the prohibition of torture. However, he submits that these are all ineffective. He notes that a claimant can file an application before the Supreme Court claiming a breach of any of the fundamental rights enumerated in the Constitution, pursuant to article 126 (1) of the Constitution, and that freedom from torture and cruel, inhuman or degrading treatment or punishment is protected under article 11 of the Constitution. While compensation may, in theory, be awarded by the Supreme Court, the author notes that the application must be filed within one month of the alleged violation, in accordance with article 126 (2) of the Constitution. He notes that, one month after he was tortured and held in detention, he was still recovering from his injuries and it would have been impossible for him to pursue his claim within the prescribed time limit. He claims that the “fundamental rights regime” does not allow oral hearings or testimonial evidence and is not subject to appeal. He argues that the system lacks basic procedural standards to be considered an effective determination of a claimant’s rights. The author also notes that complaints against alleged perpetrators of torture can also be submitted under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994. However, he argues that trying to pursue such a remedy is futile, as evidence has shown that, despite hundreds of complaints filed under this Act since its promulgation, by 2008 there had been only eight acquittals and three convictions. Pursuing a claim takes years, and there have been credible reports of threats made against complainants. The author further notes that indictments under this Act have been limited to low-ranking police officers and that no indictment has been filed on the basis of command responsibility. Lastly, the author notes that this procedure does not provide torture claimants with compensation and therefore does not provide victims of torture with an effective remedy. He states that under the Human Rights Commission of Sri Lanka Act No. 21 of 1996, the Commission is mandated to investigate complaints of human rights allegations. However, he argues that this procedure does not provide an effective remedy for serious violations of human rights because, further to section 15 (2) of the Act, the Commission only has the power to order conciliation and mediation and, further to section 15 (3) and (4) of the Act, the Commission can only make non-binding recommendations or refer the matter to a court; it does not have the power to order compensation.

2.7The author claims that the judiciary lacks independence in the State party. He refers, in this regard, to various reports expressing concern about, inter alia, the politicization of the judiciary and the lack of independence of the legal profession.

2.8The author argues that torture is widespread and tolerated in the State party. He refers to several reports which indicate that torture is ongoing in the country and that the Government is unwilling to investigate or prosecute serious violations of human rights. He claims that, in these circumstances, it would be unreasonable to expect him – a former LTTE member – to approach a court to raise the claims presented in the communication. He states that his claims would be rejected and he would risk arrest and torture. He refers to a report which documented cases of torture against persons who returned voluntarily to Sri Lanka from the United Kingdom of Great Britain and Northern Ireland, particularly those with a perceived association with LTTE. The author notes that he was also featured in a British Broadcasting Corporation documentary which outlined the torture he had endured in Sri Lanka. As a result of the documentary, he has received threats in Switzerland. He highlights the risk that he would face upon return to Sri Lanka.

Complaint

3.1The author claims that he had been subjected to torture, rape and ill-treatment by the State party authorities, in violation of his rights under article 7 of the Covenant. He also claims that the lack of an effective remedy and a competent and independent judiciary to provide him with a remedy amounts to a violation of his rights under article 7, read alone and in conjunction with article 2 (3), of the Covenant.

3.2The author requests that the Committee recommend that the State party fully investigate the circumstances of the torture and ill-treatment to which he was subjected, and based on the results of that investigation, take appropriate measures against those found responsible, and adopt measures to ensure that he is provided with full and adequate compensation for the harm that he has suffered.

State party’s observations on admissibility

4.1On 22 June 2020, the State party submitted its observations on the admissibility of the communication. The State party submits that the communication should be found inadmissible for failure to exhaust domestic remedies.

4.2The State party argues that the author has not made any attempt to exhaust domestic remedies. It notes that, under article 126 (1) of the Constitution, the Supreme Court has 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 recognized in the Constitution. The State party notes that the right to freedom from torture is recognized under article 11 of the Constitution. It also notes the author’s claim that, under article 126 (2) of the Constitution, a claimant must submit an application to the Supreme Court within one month of the alleged infringement. However, it claims that the Court has time and time again dispensed with the one-month limit where the petitioner is able to justify any delay. The State party notes that, in the case of Wijesekera and others v. Minister of Sports and Public Recreation and others, the Court has held, in relation to non-compliance with article 126 (2), that, where the violation is of a serious nature, affecting material rights which are pertinent and critical to the petitioner, where mala fides, bias or caprice can be established and if it is a continuing violation, the Supreme Court would not dismiss the case in limine, without at least considering the grievance of the petitioner. The State party also notes that, under rule 44 (7) of the Supreme Court Rules, a lawyer from the Legal Aid Commission may be appointed if the petitioner is unable to access legal assistance to pursue a fundamental rights application. It further notes that these rules provide for comprehensive oral and written submissions to be made before a minimum two-judge bench of the Court. The State party notes that a fundamental rights application before the Court does not require the petitioner to be physically present in Court during proceedings, provided that a legal counsel is present on the petitioner’s behalf. It argues that the author would not have needed to return to Sri Lanka to pursue a remedy before the Supreme Court. The State party argues that the Supreme Court has found violations of article 11 of the Constitution in respect of torture in many cases submitted to it by or on behalf of petitioners claiming that they had been subjected to torture. The State party also argues that, in the light of such jurisprudence, the author’s assertion that proceedings before the Supreme Court are ineffective is unsubstantiated.

4.3The State party argues that the author could have submitted a complaint to the Human Rights Commission alleging a violation of article 11 of the Constitution. It notes that the Commission is mandated to inquire into and investigate any complaint claiming a fundamental human rights violation, and to grant suitable redress, including compensation. It submits that a complaint before the Commission was an available and effective remedy for the author and one that could have provided him with redress.

4.4The State party submits that, under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act No. 22 of 1994, torture is punishable by imprisonment for a term of not less than 7 years and not exceeding 10 years upon conviction, following a trial in the High Court.

4.5The State party also submits that the author could have filed a complaint with the National Police Commission, whose mandate is to investigate allegations against police officers, including claims of torture.

Author’s comments on the State party’s observations on admissibility

5.1On 6 March 2021, the author submitted his comments on the State party’s observations. He maintains that the communication is admissible.

5.2The author notes that it took the State party until June 2020 to submit its observations on the communication, and that it has not provided any excuse or explanation for the inordinate delay in responding. He argues that his claims are well substantiated, with medical evidence confirming his torture, and he notes that the State party has not provided any response to those claims.

5.3The author also notes the State party’s claim that several domestic remedies were available to him. However, he notes that he left Sri Lanka in 2009 and that he had to go into hiding for several months before he could escape from the country. He argues that he could not reasonably have sought a remedy during this period as any attempt to do so would have resulted in retaliation. He insists that he was not in position to submit his complaint to the Committee in 2009 as he was still recovering from his injuries, was suffering from post-traumatic stress and trying to establish a new life in Switzerland, including going through asylum proceedings, learning a new language and finding employment. He argues that attempting to obtain redress from abroad would have been futile and he notes that the State party has not made any reference to any similar case being decided in favour of a former LTTE torture victim during this period. The author also argues that it is unreasonable for the State party to refer to remedies that may have become available in later years, without showing that these remedies would have been available to him prior to March 2014. He further argues that the State party has also failed to establish that domestic remedies are in fact currently available in the State party. He refers to a 2021 report of the United Nations High Commissioner for Human Rights, in which it is stated that “nearly 12 years since the end of the war, domestic initiatives for accountability and reconciliation have repeatedly failed to produce results, more deeply entrenching impunity and exacerbating victims’ distrust of the system. Sri Lanka remains in a state of denial about the past, with truth-seeking efforts aborted and State officials at the highest levels refusing to acknowledge past crimes”. Furthermore, the 2015 reforms that offered more checks and balances on executive power have been rolled back, further eroding the independence of the judiciary and other key institutions. The author notes that this report also hints at the lack of independence of the National Police Commission and the Human Rights Commission, noting that “the current Government has proactively obstructed or sought to stop ongoing investigations and criminal trials to prevent accountability for past crimes”. He also notes that the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment found that a culture of torture still persisted in Sri Lanka and that coercion was used against suspects detained under the Prevention of Terrorism Act. The Special Rapporteur on torture also noted that the filing of fundamental rights applications before the Supreme Court involved costly, complex litigation and was therefore not accessible to all victims. He further noted that the Chief Justice had mentioned that there was a backlog of approximately 3,000 fundamental rights cases before the Supreme Court. Regarding the State party’s argument that the one-month time limit to submit an application could be extended in certain cases, such as when there is a continuing infringement justifying an extension of the time limit, the author notes that the Supreme Court has held that “such executive or administrative decisions cannot be challenged after the expiry of one month simply because they have a continuing effect. Instead, what is relevant when determining the start date of the one-month period specified in Article 126 (2) is the occurrence of the infringement and not its effect. An infringement can be constituted by a single, distinct and ‘one-off’ act, decision, refusal or omission. However, some other infringements can be constituted by a series of acts, decisions, refusals or omissions which continue over a period of time. It is only the second type of infringement which can be correctly identified as a continuing infringement.” The author argues that his claims do not fall within the definition of a continuing infringement as interpreted by the Supreme Court and that, consequently, the one-month time limit would have been considered as applicable to his case by the Court.

Lack of cooperation by the State party and additional submission

6.1On 15 November 2018, 2 July 2019 and 5 February 2020, the Committee sent reminders to the State party requesting it to provide observations on the admissibility and merits of the communication. Following the State party’s submission of its observations on admissibility on 22 June 2020, additional reminders were sent to the State party requesting it to provide its observations on the merits of the communication. The Committee regrets the failure of the State party to respond to these requests in a timely manner and to provide any information with regard to the merits of the author’s claims. The Committee recalls that article 4 (2) of the Optional Protocol implicitly obliges States parties to examine in good faith all allegations brought against them and to make available to the Committee all the information at their disposal. In the absence of a reply from the State party, due weight must be given to the author’s allegations, to the extent that they are substantiated.

6.2On 25 April 2022, the State party submitted additional information relating to the communication. The State party recalls that, in the period from March 2006 to January 2016, it did not respond to any petitions submitted under the Optional Protocol. It notes that this position was communicated to the Committee in 2006. It also notes that, pursuant to a policy decision taken in 2016, it resumed responding to the Committee with regard to individual complaints submitted to it and that this decision was also communicated to the Committee at the time.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claims contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

7.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3The Committee notes the State party’s submission that the communication is inadmissible for failure to exhaust available domestic remedies as the author could have: (a) filed an application before the Supreme Court alleging a breach of his fundamental rights under the Constitution; (b) filed a complaint under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No. 22 (1994); (c) filed a complaint with the National Human Rights Commission; or (d) filed a complaint with the National Police Commission.

7.4The Committee also notes the author’s claim that domestic remedies were not available to him at the time of his departure from Sri Lanka or at the time that he filed the complaint before the Committee or at present. It further notes his argument that an application before the Supreme Court claiming a breach of any of the fundamental rights enumerated in the Constitution must be filed within one month of the alleged rights violation, in accordance with article 126 (2) of the Constitution. It notes his argument that, one month after his torture and detention, he was still recovering from his injuries and that it was therefore impossible for him to pursue his claim within the prescribed time limit. The Committee notes the author’s claim that the “fundamental rights regime” does not allow oral hearings or testimonial evidence and is not subject to appeal, and that it lacks basic procedural standards to be considered an effective determination of a claimant’s rights. It also notes the State party’s argument that the time limit of one month for submitting a complaint before the Supreme Court, as stipulated in article 126 (2) of the Constitution, may be extended if the Court finds the violation to be continuing and if it finds that the applicant has provided adequate justification for the delay. However, the Committee notes that the State party has not provided any information or examples of other cases of torture in which the time limit has been extended in practice. It also notes the author’s argument that, based on the jurisprudence of the Supreme Court, an extension of the one-month time limit would not be possible in his case as his claims do not fall within the definition of a “continuing infringement”, as established by the Court, for which an extension of the time limit may be granted. It further notes that the State party has not provided any information refuting the author’s assertion in this regard. The Committee recalls that impediments to the establishment of legal responsibility, such as unreasonably short periods of statutory limitation, should be removed. It also recalls its jurisprudence that such a short statutory limit as one month from the event of torture or the date of release for bringing a claim relating to acts of torture before the domestic authorities is in itself flagrantly inconsistent with the gravity of the crime and cannot be considered an available and effective remedy.

7.5The Committee notes the author’s argument that pursuing a remedy under the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act No. 22 (1994) would be futile, since, despite hundreds of complaints having been filed under the Act, there have been only three convictions. It also notes the author’s claim that the complaints procedure before the National Human Rights Commission is not an effective remedy for serious violations of human rights as the Commission only has the power to order conciliation and mediation, make non-binding recommendations or refer matters to a court; it is not empowered to order compensation. It further notes that the State party has not provided any specific information refuting the author’s assertions in this regard, nor any other specific argument as to the effectiveness of said remedies. Lastly, the Committee notes the State party’s argument that the author could have filed a complaint with the National Police Commission, which has a mandate to investigate allegations against police officers, including claims of torture. However, the Committee also notes that the State party has not provided any further information on this procedure and whether such a procedure would provide the author with redress, including the right to compensation. In the light of the foregoing, the Committee considers that it is not precluded from considering the present communication under article 5 (2) (b) of the Optional Protocol.

7.6The Committee takes note of the author’s claims under article 7, read alone and in conjunction with article 2 (3) of the Covenant, and considers that the author has sufficiently substantiated these claims for the purposes of admissibility. It therefore declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

8.1 The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

8.2The Committee notes the author’s allegations that he was subjected to severe torture, rape, ill-treatment and threats by State agents while in detention. The Committee also notes his claims – which were not contested by the State party – that he was detained from 6 January to 3 April 2009, during which time he was repeatedly subjected to torture and ill-treatment, including being beaten with cricket bats and wickets and pipes, having pins inserted through his nipples, having a nylon rope tied around his toes and being pulled upside down, having his head submerged under water, having a sharp object inserted into his anus, being forced into a freezer room, being subjected to electric shocks and having a metal rod inserted into his penis. It further notes that the author was only released after paying a bribe. The Committee notes the author’s claim that, as a result of the injuries sustained during the interrogations and detention, he was treated at a military hospital for three to four days and required 18 stitches to his intestines. The Committee also notes that, according to medical reports submitted by the author, in Switzerland, he was diagnosed with post-traumatic stress disorder, erectile dysfunction and incontinence as a result of the torture and rape that he endured while in detention.It further notes the author’s claim that the lack of an effective remedy and investigation into his claims by a competent and independent judicial body amounts to a violation of his rights under article 7, read in conjunction with article 2 (3), of the Covenant.

8.3The Committee recalls that,under article 4 (2) of the Optional Protocol, the State party has the implicit duty to investigate in good faith all allegations of violations of the Covenant made against it and its representatives and to provide the Committee with any information available to it. In cases where the allegations are corroborated by credible evidence submitted by the author and where further clarification depends on information that is solely in the hands of the State party, the Committee may consider the author’s allegations as substantiated in the absence of satisfactory evidence or explanations to the contrary by the State party. In the present case, the Committee notes that the State party has not submitted any observations on the merits of the present communication or refuted any of the author’s claims. In the absence of a response from the State party in that regard, the Committee gives due weight to the author’s claims and finds that the facts described, according to which he was subjected to severe torture, rape and ill-treatment, reveal a violation of his rights under article 7, read alone and in conjunction with article 2 (3), of the Covenant.

9.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of article 7, read alone and in conjunction with article 2 (3), of the Covenant.

10.Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to take appropriate steps to: (a) conduct a thorough, impartial, independent and effective investigation into the facts submitted by the author; (b) prosecute, try and punish those responsible for torturing the author, and make those measures public; and (c) provide adequate compensation and take appropriate measures of satisfaction to the author for the violations suffered. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In that connection, the Committee notes that it has dealt with similar cases concerning the State party in a number of earlier communications, and recommends that the State party amend the relevant legislation and statutes of limitations in accordance with international standards and prescribe sanctions and remedies for the offence of torture commensurate with the gravity of the crime and consistent with its obligations under article 2 (2) of the Covenant.

11. Bearing in mind that, by becoming a 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 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 and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.