Untitled - International Commission of Jurists

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fact, acknowledged. 563 The accused, in his dock statement, had stated that he may have taken the abducted person into custody on the day in question. The judges then asked why, if this was the case, the abducted person was not produced in court thereafter. Discrepancies recorded in the police information book were also held against the accused. This judgment was affirmed in appeal. Importantly, the defence of superior orders relied upon by the accused in appeal was categorically rejected. That cannot be held as a valid defence. If the policeman breaks the law even under the orders of his superiors, he has to suffer the consequences. Even if (the) accused (acted, sic) on the orders of a superior, the burden would be in him to prove it on a balance of probability. 564 A similar affirmation of accountability for the consequences of omissions was reflected in another conviction relevant to a case of enforced disappearance. 565 Here, a further innovative feature was the conviction of the officer-in-charge of the relevant police station on the judicial reasoning that even though he was aware of the unlawful abduction and detention of the three abducted persons at his police station, he took no action. He was therefore culpable in terms of Section 359 of the Code of Criminal Procedure Act in relation to wrongfully concealing or keeping in confinement, a kidnapped or abducted person, read with Section 356 of the Penal Code. Based on credible evidence of witnesses that established his state of knowledge in this regard beyond all reasonable doubt, his guilt was held to have been sufficiently proved. As these decisions are yet in the appeal stage, either at the level of the Court of Appeal or on further appeal to the Supreme Court, there is as yet, no firm legal precedent established. This is an appropriate context perhaps where a Divisional Bench may lay down an unequivocal precedent as to the nature of command responsibility relevant in these cases. 7.4. Sentencing The problem of inadequate sentencing is exemplified in the Embilipitiya Case discussed above. Unlike in the Krishanthi Kumaraswamy Case, in which the serious crimes of rape and murder formed the basis for the convictions, the facts of the Embilipitiya Case gave rise to relatively less serious offences: namely abduction, secret and unjustifiable detention, aiding and abetting such action with common intention or conspire to assist in such an action with a common intention or not, with the purpose of causing the death of the students or putting them into danger. Correspondingly, the sentences liable to imposed ranged from five to ten years rigorous imprisonment (RI). Even so, due to the cluster of offences for which each accused was found guilty, (in some cases, as in the case of the seventh accused who was convicted on thirty-three 563 This rare link may have been occasioned by the fact that the High Court judge in this case had, in fact, been assisting this Commission from the Attorney General’s Department during the hearings. 564 At p. 5 of the Appeal Court judgment, in CA No 83/2000, C.A. Minutes 24.11.2006. 565 H.C. Case No. 1947, High Court Galle, H.C. Minutes 01.08.2003. 157
counts) 566 a cumulatively harsh sentence could have been individually imposed. However, the decision by the High Court, upheld on appeal, that the sentences should run concurrently, thus effectively restricting each sentence to a period of 10 years negated the severity of the sentence to a considerable extent. In addition, the order of the Supreme Court on appeal that the period in which the accused was in custody after conviction pending the appeal should be taken into account as having been served as part of the sentence further aggravated the minimizing of the deterrent impact of the sentence. The Supreme Court remarked in this instance that ‘we have taken into account the fact that the accused-appellants have gone through a protracted trial and have been in custody for a period of nearly three years.’ 567 It was however unfortunate that the gravity of the crimes in question were not weighed in the balance to militate against an application of the judicial discretion to take the years spent in prison after conviction into account when determining the time period of the sentence. It is important to put this point in the context of the applicable criminal law standards. In the Embilipitiya case, as the bodies of the students were never found, no charges of actual murder of the students were brought against the accused, resulting in it being possible only to indict for the lesser offences. This exemplifies the problem in the absence of a crime of enforced disappearances in the criminal law with a commensurate severe sentence. 8. Decisions of International Tribunals As noted previously, decisions of international monitoring bodies in relation to enforced disappearances and extrajudicial executions have been treated cursorily by the government. A classic example is one individual communication submitted to the United Nations Human Rights Committee under the Optional Protocol procedure by a father whose son had ‘disappeared’ in army custody in 1990. 568 The Committee found a violation of the rights to liberty and security and freedom from torture not only of the son but also of his parents who, the Committee concluded, had suffered ‘anguish and stress” by the continuing uncertainty concerning his fate and whereabouts. 566 He was sentenced to five years RI on each count in regard to the first cluster of seventeen counts and to ten years RI on each count in regard to the second cluster of 16 counts. In appeal, his convictions were varied to the extent that he was acquitted on the conspiracy charges in counts 2 and 4. 567 Embilipitiya Case S.C. (Spl) L.A. Nos. 15-20/2002, SCM 14.02.2003, at p. 6, per former Chief Justice Sarath Silva. The period 10.02.1999 - 04.01.2002 was taken into account as having been served as part of the sentence. This meant that the accused would be free from his sentence on 10.02.2009. 568 Jegetheeswaran Sarma v. Sri Lanka, CCPR/C/78/D/950/2000, adoption of views, 31.07.2003. The First Optional Protocol to the ICCPR which allows persons subject to the jurisdiction of the State to bring an individual communication before the United Nations Human Rights Committee (UNHRC) sitting in Geneva, alleging a violation of Covenant rights, entered into force for Sri Lanka on 03.01.1998. In so submitting itself, the State made a declaration that it; “recognises the competence of the Human Rights Committee to receive and consider communications from individuals subject to the jurisdiction of the Democratic Socialist Republic of Sri Lanka, who claim to be victims of a violation of any of the rights set forth in the Covenant which results either from acts, omissions, developments or events occurring after the date on which the Protocol entered into force for the Democratic Socialist Republic of Sri Lanka, or from a decision relating to acts, omissions, developments or events after that date.” 158
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In exploring what constitutes a ver
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3
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ABBREVIATIONS AC AG AHRC AI A-L ALR
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TAB TELO TUF TULF TYL UN UNHRC UNP
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government agencies may be unable o
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appointed under the Commissions of
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communities. Krishanthi Kumaraswamy
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investigative function that could m
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measures recommended in regard to r
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and Bandaranaike became the prime m
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assembly and association of trade u
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majority pro-Sinhala political lead
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The violence reached a crescendo in
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enforced disappearances were report
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The Court of Appeal dismissed petit
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process and commissions of inquiry
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Declaration on Upholding Human Righ
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terms, 66 and clear guidelines laid
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Though the drafters of second Repub
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• Perera v. AG 89 and Wickremeban
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was also spared the distinction of
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The Court’s reasoning at times ap
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however, linked the habeas corpus a
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The ineffectiveness of the writ rem
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The Court of Appeal when sending th
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anything. We have received informat
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the findings of guilt against the a
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The Embilipitiya case is unique in
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police did not carry out the arrest
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sexual intercourse […].” 177 He
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accused even though the relevant do
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confession made to the military pol
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Chapter Three - Commissions of Inqu
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excesses that had preceded the acti
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property of Sinhalese persons domic
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appear before the Commission was al
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Notwithstanding these consideration
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The Commission’s recommendation t
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Date of Publication of Report: not
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(f) the measures necessary to preve
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were SLFPers. I was told, that area
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The 1994 Western, Southern and Saba
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focused on allowing within its purv
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3.1.3. Reflections on the Procedure
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However, the weak process of re-ref
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ouster) clause ruling out judicial
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(g) The relief if any that should b
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Interdiction from service of allege
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The Batalanda Commission recommende
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3.3.3. The Bindunuwewa Commission D
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ecommendation to this effect by the
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As of 31 December 2000, according t
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much affected by the awareness that
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Page 110 and 111: pattern of harms, to recommend meas
Page 112 and 113: justified and spelled out in the ma
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Page 116 and 117: analysis, these pillars of the judi
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Page 124 and 125: 6.4. Affording alleged perpetrators
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Page 128 and 129: to the attention of the Court in an
Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
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Page 140 and 141: y the byzantine and unfair burdens
Page 142 and 143: […] while those in authority hold
Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 146 and 147: enforced disappearance; (ii) Exerci
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Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
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Page 156 and 157: have been adjourned by the relevant
Page 160 and 161: The Human Rights Committee affirmed
Page 162 and 163: Thavaneethan v. Dissanayake [2003]
Page 164 and 165: Dias v. Abeywardene [1966] 68 NLR 4
Page 166 and 167: Vadivel Sathasivam and Parathesi Sa
Page 168 and 169: Criminal Courts Commission, Session
Page 170 and 171: Keenan, Alan, ‘Making Sense of Bi
Page 172 and 173: Principles on the Effective Prevent
Page 174 and 175: United Nations Human Rights Committ
Page 176: Pinto-Jayawardena, Kishali, ‘Furt
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