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Sri Lanka – Committee against Torture (CAT); A glance at the recommendations of the alternative reports

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Recommendations are the most important section of all alternative reports that have been submitted to the CAT.  These recommendations represent a summary the expectations and bench marks for the campaign to stop torture in Sri Lanka.

The four reports submitted by following organisations include comprehensive set of recommendations. the International Commission of Jurists (ICJ), the Amnesty International (AI), a group of Sri Lankan NGOs which included Centre for Human Rights and Development (CHRD), Right to Life – Human Rights Centre, International Movement Against All Forms of Discrimination and Racism (IMADR), Centre for Policy Alternatives (CPA), National Fisheries Solidarity (NAFSO), Families of the Disappeared (FOD), Rights Now Collective for Democracy, Centre for Peoples Dialogue (CPD), and INFORM Documentation Centre  and a group of INGO s which included the Asian Legal Resource Centre (ALRC), Hong Kong, REDRESS Trust London, Rehabilitation and Research Centre for Torture Victims (RCT), Denmark and Action des chrétiens pour l’abolition de la torture (ACAT France). Recommendations of the Tamil Information Centre also included in this categorisation. Reports of Trail (Swiss Association against Impunity), Freedom Form Torture and Lawyers Rights Watch Canada also includes few recommendations.
The report of the Sri Lankan NGOs has a more down to earth and pragmatic approach while the report of the ICJ has more legal and administrative approach.
Report of the Asian Human Rights Commission does not have any recommendations. Global Initiative to End All Corporal Punishment of Children and International Disability Alliance (IDA) has submitted reports on their specific fields of interest.
REDRESS in a separate report deals exclusively on the Report of the Panel of Experts appointed by UNSG. The report includes concluding recommendations:  ”REDRESS..recommends that the Committee against Torture urges the Government of Sri Lanka to acknowledge that there are credible allegations of torture, ill-treatment and other violations, promptly to commence genuine investigations into these allegations in compliance with articles 12 and 13 of the Convention, and to report back to the Committee within six months on what steps it has taken in this regard.

Further, the Committee against Torture should urge the Government of Sri Lanka to consent to the establishment of an independent international mechanism having the mandate proposed by the Panel of Experts, and to report back to the Committee within six months on what steps it has taken in this regard. The Committee should also urge the UN Secretary-General to proceed without further delay with the establishment of such an independent international mechanism.”

Broadly,  recommendations contain in the alternative reports could be categorised as fellows:
  • Law reform including ratifying related international treaties
  • Due process and measures to end impunity
  • Preventive measures including creating public awareness,
  • Investigations in to cases of torture and other cruel, inhuman or degrading treatment or punishment
  • Providing  redress to torture victims
  • Engage with  the UN HR mechanisms positively
Re Law reform including ratifying related international treaties

Amnesty International
• Undertake a comprehensive reform of its criminal justice system. 
• Amend substantially the Prevention of Terrorism Act to bring it in line with international standards.
• Amend its criminal laws to ensure that in all cases where an accused person makes a complaint that they have been tortured or exhibits signs indicating that they may have been ill-treated, the judicial officer(s) presiding over the criminal case must make an order directing the prosecution to investigate the allegation and/or suspicion and inform the court of their findings.
• Amend its criminal laws to ensure that once an allegation has been made that a person was ill-treated during or after arrest and/or detention, the prosecution bears the onus of establishing that the allegations made have no merit.
International commission of Jurists
Articles 1 and 4
1. Amend section 12 of the Convention against Torture Act to include the term ”suffering” within the definition of torture;
2. Incorporate the offence of enforced disappearance within Sri Lankan law as a specific criminal offence, clearly distinguishable from related offences such as abduction and kidnapping, and be punishable by appropriately severe penalties. In that respect, the definition of enforced disappearance should fully incorporate the internationally agreed standard contained in article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance;
3. Apply the legal safeguards contained in Presidential Directives to all cases of detention, including those under the Emergency Regulations and the Prevention of Terrorism Act (PTA);
4. Enact legal safeguards to ensure that all persons arrested or detained are guaranteed the enjoyment of the right to access to legal counsel and to have legal counsel present during the interrogation and that those rights may be effectively exercised in practice;
5. Enact constitutional and legislative measures to guarantee the right to legal counsel and the right to an interpreter during the investigation, as well as the right of families to be informed of arrests;
Articles 12 and 13
9. Enact a Victims and Witness Protection Law without delay, the provisions of which must conform with international standards;
10. Establish a dedicated Protection Division, or other mechanism independent from the Police Department, with a team of competent investigators;
12. Amend the Convention against Torture Act to explicitly prohibit the admission of information as evidence obtained through torture or ill-treatment;
13. Amend Article 16 of the PTA to explicitly prohibit the admission of confessions obtained by torture or other ill-treatment.
Group of INGO s

•ensuring effective independence of judicial medical officers;
•adopting the requisite legislation and putting in place the institutional mechanisms for the effective protection of victims and witnesses;
• Specifically criminalize enforced disappearances;
• ratify or otherwise become a party to international treaties that enhance protection and accountability for serious human rights violations and international crimes, including in particular the Optional Protocol to the Convention against Torture, the International Convention for the Protection of All Persons from Enforced Disappearance, the Rome Statute of the International Criminal Court, as well as the Additional Protocols to the 1949 Geneva Conventions.
95 UN Doc. CEDAW/C/LKA/CO/7 (4 February 2011),
Sri Lankan NGOs
08. No judge should be given any state assignment, contract or commission for 5 years immediately after retirement in order to prevent any expectations from the government sector and to maintain an independence of their tenure of office.
10. All judges should be instructed to inquire from the suspects whether they were tortured while in custody when produced by the police in courts.
16. The Sri Lanka Police force should come under an independent national commission to improve its esteem and service conditions and de-link from its present state of servitude to the political establishment.
17.The 18th Amendment to the Constitution be abolished and the 17th Amendment reintroduced to ensure the independence of the National Police Commission and Human Rights Commission, and other such Commissions necessary for the promotion of human rights and enhancing of democracy and respect for the rule of law. 
20. The Human Rights Action Plan 2010-2015 should receive earmarked funds in the Annual Budget allocation presented to the Parliament and the progress of the implementation to be reviewed annually during budget debate.
22. The State of Sri Lanka must take immediate steps to repeal the PTA and new regulations gazetted under the PTA and resist any further enactment of similar repressive legislation.
Tamil Information Centre
Amend or repeal provisions of the Prevention of Terrorism Act so that it complies with international law and standards.
Re Due process and measures to end impunity

Amnesty International
• Ensure the prompt and fair investigation of allegations of torture; and the enforcement of administrative and penal sanctions against agents of the government that engage in, or otherwise sanction, torture or other forms of ill-treatment against detainees.
• Ensure that all detainees are guaranteed prompt and unimpeded access to legal counsel in pre-trial detention and while on trial, including having a lawyer present during interrogation by police.
• Issue a public notice in which it provides full information about all places of detention, including their location; and it must cease and outlaw immediately the detention of persons in any place that has not been declared in an official notice as a place of detention.
• Undertake a public and impartial investigation into the existence and use of secret detention sites and acts of torture and other ill treatment that may have taken place with a view to holding state actors accountable for actions and providing effective redress for victims of such violations.
International commission of Jurists

7. Concerning the right of habeas corpus:
b) Statutorily incorporate the principle of institutional or command responsibility to ensure responsibility of army officers or police officers in command control of army camps or police stations at which the arrest of an individual takes place and who is then subject to enforced disappearance;
c) In habeas corpus petitions, impose on the petitioner a burden to establish his or her case by no higher standard than the balance of probabilities;
d) Where counsel for the State submits during habeas corpus proceedings information that the person who is the subject of the petition has been discharged and released, or indicted, or committed for rehabilitation, that such submissions are substantiated by material evidence placed before the court;
e) Allow for awards of compensation to be made in respect of any person found to have been incarcerated without legal justification;
f) When State officials, who are respondents to habeas corpus petitions plead that the detainee has subsequently died after being detained, require that official records and evidence of the circumstances in which the detainee is said to have died be produced before the Court;
Group of INGO s

• ensuring effective access to a lawyer of one’s choice, independent medical examination, next-of-kin and, where necessary, translators to all arrested and detained persons;
• ensuring effective independent oversight of places of detention;
• establishing an independent body to investigate all allegations of torture, cruel, inhuman and degrading treatment committed by representatives of the law enforcement agencies, including police officers;
• ensuring effective independence of judicial medical officers;
Sri Lankan NGOs
8. NHRC should use it’s powers to set up Provincial committees to visit detention centres and prisons. Such committees should include lawyers, religious leaders and HRDs with a track record of assisting victims of torture victims and families of those disappeared.
11. State of Sri Lanka must publish and make available online information a list of all detention centres and detainees.
12. A direction to be issued to all JMOs to clearly indicate comprehensive details of torture in the medico-legal reports.
13. The National Human Rights Commission must call for reports from JMOs regularly related to torture cases and proactively be involved in combating torture.
17.The National Human Rights Commission should undertake a special study in relation to women in detention during the period 2007 to 2010 provide gender disaggregated data within a period of one year.
Tamil Information Centre
·                     Eliminate the practice of preventative detention and introduce statutory, regulatory and administrative reform to ensure that powers of arrest and detention are exercised lawfully.
·                     Put effective witness protection schemes in place to protect individuals who wish to speak up in Court or public spheres. This may involve the enactment of witness and victim protection legislation.
·                     Guarantee the right to legal representation and access to a lawyer of the detainee’s choice at all stages, guarantee family and medical visits to detainees and ensure full access by the International Committee of the Red Cross to all places of detention, including where LTTE suspects or the surrendered are held.
·                     Release those who have been arrested under anti-terrorism laws or charge them with recognisable criminal offences and have custody determined by an ordinary court.
·                     Publish or make available to concerned parties a complete list of the former LTTE cadres being held by the state for rehabilitation purposes and all other persons detained under the PTA. The state must take concrete steps towards trial or release of these individuals.
Re Preventive measures including creating public awareness
Amnesty International
• Undertake immediately a nation-wide and public anti-torture awareness raising programme targeting both security agents and the public at large confirming its zero-tolerance to torture and other forms of ill-treatment of detainees.
• Enforce all laws, regulations and directives aimed at preventing torture and abuse of detainees.
• Implement a clear plan to ensure that all officers are aware of and understand anti-torture laws, regulations and directives, that those individuals who breach them are appropriately disciplined, and that those who have committed crimes are brought to justice in fair trials.
Group of INGO s
• take effective measures aimed at ending the practice of torture and ill-treatment in custodial situations, including the repeal of the Prevention of Terrorism Act and putting in place effective custodial safeguards by means of legislative and institutional changes. The Government of Sri Lanka should provide for effective monitoring of all detention facilities through national bodies, such as an impartial and credible national human rights commission. In addition, it should disclose the location of camps and other detention facilities set up in the context of the conflict, and permit immediate access to any remaining facilities; it should also give an undertaking not to hinder access by monitoring bodies such as the ICRC to any detention facilities in future;
Sri Lankan NGOs

7. An action plan and budgetary allocation for prevention torture and providing adequate redress to torture victims to be made public.
14. Supreme Court of Sri Lanka to publish an annual report and put online all fundamental rights cases disposed, including judgments and statistical data, for that year as a best practice action. 
21. The National Human Rights Commission together with the Police Department should launch a mass campaign to combat torture and thereby raising social awareness of the issue.
Re Investigations in to cases of torture and other cruel, inhuman or degrading treatment or punishment
Group of INGO s
• include consideration of discrimination as a reason for torture and ill-treatment as part of any investigation and review undertaken, and to put in place guarantees of non-repetition. This includes a wholesale review of measures taken by the Government of Sri Lanka in the North-East during and following the conflict that may have a discriminatory impact on Tamils and may have lowered the threshold for violations (known as ‘dehumanisation’).
• undertake a thorough investigation into allegations of torture in custody, as well as torture and ill-treatment prior to executions and enforced disappearances, in line with its obligations under articles 12 and 13 of the Convention. This should include considering the recommendations by the Committee on the Elimination of Discrimination against Women95 and the Committee on the Rights of the Child96 allegations of specific incidents of rape and sexual violence, as well as the killing of children, respectively. It should also comprise various forms of ill-treatment arising out of the conduct of warfare and the denial of humanitarian assistance. The Government of Sri Lanka should provide the families of victims with all of the relevant factual information that it holds about the violations, including the location of bodies where applicable, acknowledge its responsibility and provide reparation in conformity with its obligations under article 14 of the Convention
Sri Lankan NGOs
4. Credible national mechanisms adhering to international standards with international independent experts to be appointed to investigate the FTZ incident, Navanthurai and Puttalam incidents of brutality by police and army.
Re providing redress to torture victims
Amnesty International
• Ensure that victims of torture and other forms of ill-treatment have full access to redress, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Group of INGO s
• ensuring that amounts of compensation ordered are consistent and fully paid;
• ensuring that rehabilitation services are made available to torture survivors and members of their families.
• ensure that any ‘transitional justice’ measures taken following the conflict are in full conformity with Sri Lanka’s obligations under the Convention and do not detract from the rights of victims. This comprises the right to an effective remedy and adequate reparation, including, in particular, acknowledgment and truth, in addition to restitution, compensation and rehabilitation;
Sri Lankan NGOs
15. The Ministry of Justice should create a trust fund for payment of compensation to victims of torture and appoint a committee in collaboration with members of the legal profession and other stakeholders to determine guidelines for appropriate compensation and reparation in cases of torture and enforced disappearances.
Re Engage with the UN HR mechanisms positively
Group of INGO s
In relation to the findings of the Panel of Experts’ Report the Committee is requested to urge the Government of Sri Lanka to:
• acknowledge that there are credible allegations of torture, ill-treatment and other violations, to promptly commence genuine investigations into these allegations in compliance with articles 12 and 13 of the Convention, and to report back to the Committee within six months on what steps it has taken in this regard;
• consent to the establishment of an independent international mechanism having the mandate proposed by the Panel of Experts, and to report back to the Committee within six months on what steps it has taken in this regard. The Committee should also urge the UN Secretary-General to proceed without further delay with the establishment of such an independent international mechanism;
Sri Lankan NGOs
1. State of Sri Lanka to extend an invitation for follow up visit to the UN Special Rapporteur for Torture and respond positively to all other pending requests for country visits by UN Special Rapporteurs
2. State of Sri Lanka must sign the optional protocol to Convention Against Torture and must take steps to remove reservations to Articles 21 and 22
3. State of Sri Lanka must ratify the UN Convention against Enforced Disappearances
5. The Government of Sri Lanka to be invited to give reasons for the failure to implement recommendations made in the Report submitted to the HRC in 2009 on Sri Lanka by Mr. Manfred Nowak, UN Special Rapporteur on Torture and further give time framework for its implementation.
6.  State of Sri Lanka should respond positively to the request for an invitation for a country visit by the UN Working Group on Enforced and Involuntary Disappearances by June 2012
19. The Sri Lanka Government be invited to share details regarding the mechanisms to be established for effective implementation of the Human Rights Action plan 2010-2015 including at the CAT session and the UPR second cycle in June 2012.

Tamil Information Centre
Extend initiations to the following UN representatives who have requested visits to Sri Lanka: The UN Working Group on Enforced Disappearances; the UN Special Rapporteur on Torture; the UN Special Rapporteur on Freedom of Expression; and the UN Special Rapporteur on the Independence of Judges and Lawyers.
 
(taken from the Recommendations included in the  by alternatives reports  to the Committee against Torture prior to its consideration of Sri Lanka’s combined third and fourth periodic reports on its implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.)
compiled by Sunanda Deshapriya
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