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By Manfred Nowak

Recently, I undertook a visit to Sri Lanka from 1 to 8 October 2007.

I express my appreciation to the Government for the full cooperation it extended to me. In addition to detention facilities in Colombo, and the south east of the country, including in Galle, I also visited police stations and prison facilities between Trincomalee and Kandy, in the eastern and central parts of the country, respectively.

I have full appreciation for the challenges the Government faces from the violent and long-lasting conflict with the Liberation Tigers of Tamil Eelam (LTTE). Notwithstanding the difficult security situation the Government is faced with, Sri Lanka in principle is still able to uphold its democratic principles, ensure activities of civil society organizations and media, and maintain an independent judiciary.

The primary focus of my visit related to torture, ill-treatment and conditions of detention in the ordinary context of the criminal justice system.

The high number of indictments for torture filed by the Attorney General’s Office, the number of successful fundamental rights cases decided by the Supreme Court of Sri Lanka, as well as the high number of complaints that the National Human Rights Commission continues to receive on an almost daily basis indicates that torture is widely practiced in Sri Lanka.

Moreover, I observe that this practice is prone to become routine in the context of counter-terrorism operations, in particular by the Terrorist Investigation Department.

Over the course of my visits to police stations and prisons, I received numerous consistent and credible allegations from detainees who reported that they were ill-treated by the police during inquiries in order to extract confessions, or to obtain information in relation to other criminal offences.

Similar allegations were received with respect to the army. I note that Sri Lanka already has many of the elements in place necessary to both prevent torture and combat impunity.

The 1994 Torture Act criminalizes torture and the Attorney General has filed a significant number of indictments under it, though only three convictions have resulted within last 13 years.

A number of shortcomings remain, inter alia: despite the high standards of proof applied by the Supreme Court in torture-related fundamental rights cases, the facts established therein do not trigger more convictions by criminal courts; reportedly because of the Torture Act’s high mandatory minimum sentence of seven years, it is effectively a disincentive to apply against perpetrators; the absence of effective ex-officio investigation mechanisms in accordance with Art 12 CAT; and the various obstacles detainees face in filing complaints and gaining access to independent medical examinations while still detained.

As far as conditions of detention are concerned, the combination of severe overcrowding with antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amount to degrading treatment.

Although the conditions are definitely better in prisons with more modern facilities, the prison system as a whole is in need of structural reform. Conditions become inhuman for suspects held in police lock-ups under detention orders pursuant to the Emergency Regulations for periods of several months up to one year, such as in CID or TID detention facilities.

I appreciate the recent abolition of corporal punishment in Sri Lanka, however, I still received disturbing complaints of cases of corporal punishment in prisons, which were corroborated by medical evidence.

Accordingly, on the basis of my findings I recommended to the Government a number of measures to prevent and combat torture and ill-treatment.

* Design and implement comprehensive structural reform of the prison system aimed at reducing the number of detainees, increasing prison capacities and modernising the prison facilities;

* Remove non-violent offenders from confinement in pre-trial detention facilities, and subject them to non-custodial measures (i.e. guarantees to appear for trial, at any other stage of the judicial proceedings and, should occasion arise, for execution of the judgment);

* Ensure separation of remand and convicted prisoners; * Ensure separation of juvenile and adult detainees, and ensure the deprivation of liberty of children to an absolute minimum as required by Art 37 (b) CRC;

* Reduce the period of police custody under the Emergency Regulations;

* Establish appropriate detention facilities for persons kept in prolonged custody under the Emergency Regulations;

* Investigate corporal punishment cases at Bogambara Prison as well as torture allegations against the TID, mainly in Boossa, aimed at bringing the perpetrators to justice;

* Abolish capital punishment or, at a minimum, commute death sentences into prison sentences; * Develop proper mechanisms for the protection of torture victims and witnesses;

* Establish centres for the rehabilitation of torture victims;

* Ensure that magistrates routinely ask persons brought from police custody how they have been treated and, even in the absence of a formal complaint from the defendant, order an independent medical examination in accordance with the Istanbul Protocol;

* Ratify the Optional Protocol to the Convention against Torture, and establish a truly independent monitoring mechanism to visit all places where persons are deprived of their liberty throughout the country, and carry out private interviews;

* Expedite criminal procedures relating to torture cases by, e.g., establishing special courts dealing with torture and ill-treatment;

* Allow judges to be able to exercise more discretion in sentencing perpetrators of torture under the 1994 Torture Act;

* Ensure that all allegations of torture and ill-treatment are promptly and thoroughly investigated by an independent authority with no connection to the authority investigating or prosecuting the case against the alleged victim;

* Ensure all public officials, in particular prison doctors, prison officials and magistrates who have reasons to suspect an act of torture or ill-treatment, to report ex officio to the relevant authorities for proper investigation in accordance with Art 12 CAT;

* Ensure that confessions made by persons in custody without the presence of a lawyer and that are not confirmed before a judge shall not be admissible as evidence against the persons who made the confession;

* Establish an effective and independent complaints system in prisons for torture and abuse leading to criminal investigations;

* Ensure security personnel shall undergo extensive and thorough training using a curriculum that incorporates human rights education throughout and that includes training in effective interrogation techniques and the proper use of policing equipment, and that existing personnel receive continuing education;

* Establish a field presence of the Office of the UN High Commissioner for Human Rights with a mandate of both monitoring the human rights situation in the country, including the right of unimpeded access to all places of detention, and providing technical assistance particularly in the field of judicial, police and prison reform. I encourage the international community to assist the Government of Sri Lanka to follow-up on these recommendations.

This article is excerpted from the report presented by UN Special Rapporteur on Torture, Manfred Nowak.