Untitled - International Commission of Jurists

4. the conduct constituting the act of enforced disappearance is undertaken by a
state agent or persons or group acting with the authorization, support or
acquiescence of the State.
6.4. Non-Identification of Perpetrators
In all of these cases, although the ordinary law requires that an identification parade
be held after arrest, the extraordinary secretive nature of enforced disappearances has
meant that the requirement is not followed, rendering identification extremely
difficult after a lapse of years.
In the Embilipitiya Case, no identification parade was held and the prosecution had to
give an explanation as to why no identification was held. The police never visited the
scene of crime and no investigation was undertaken. After the passage of five years,
investigations were transferred to the Criminal Investigation Division (CID) of the
police and the identification of the perpetrators became more difficult due to the
intervening years.
In acquittals by the High Court in prosecutions emanating from the findings of the
1994/1998 Disappearances Commissions, failure to establish identity of the abductors
was a major factor for the acquittals. 534 The inability to prosecute and the discharging
(in the military court) of the accused in the Kokkadicholai Case also indicates the
overriding problem of identification in cases that are as complex as mass extrajudicial
executions.
6.5. Burden of Proof
The Embilipitiya Case illustrates the difficulties that may arise in a criminal
proceeding in regard to establishing proof of secret detention as borne out by the
rejection by the High Court of evidence relating to the fact that the students were, in
fact, detained at the Sevana army camp. The 1994 Western, Southern and
Sabaragamuwa Disappearances Commission adopted a position which substantially
differed from the judicial findings in the High Court. At the time of its deliberations,
the Court of Appeal had directed the Chief Magistrate, Colombo, to record evidence
and come to a finding in respect of eighteen habeas corpus applications filed before
court. The findings, which had been completed by the Magistrate in all except one
case, were scrutinized in the commission process. The Commissioners found that the
“disappeared” children had been held in long-term detention as alleged. 535 Evidence
of witnesses in the habeas corpus applications is also specifically noted. 536
The High Court of Ratnapura in the Penal Code proceedings referred to above, did not
find evidence of long term detention of the “disappeared” children at the Sevana army
534 H.C. Case No. 94/99, High Court of Hambantota, H.C. Minutes 04.02.2004; H.C. Case No. 14/2001,
High Court of Hambantota, H.C. Minutes 25.08.2003 and H.C. Case No. 24/2002, High Court of
Hambantota, H.C. Minutes 19.06.2003.
535 In support of its position, the Commissioners refer to the Expenses Register of the Sevana Army
Camp supplied to them by the Army Commander which indicated the contrary.
536 These, in particular, include the evidence of one witness who stated that his son’s name figured in
the Food Register of the Sevana Army camp and that he, the father had been required to sign for him
during his period of detention at Sevana and of another who affirmed that Registers of Attendance and
Release etc were maintained at the army camp and that his own name figured in them.
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