Pathmini Peiris, in her petition stated that no inquiry had been conducted into this murder. The UNHRC after examining all the material before them came to the conclusion in favour of the petitioner, Pathmini Peiris. The Committee held:
The Committee accordingly concludes that the State party is responsible for the arbitrary deprivation of life of the author’s husband, in breach of article 6 of the Covenant.
The full text of the Committee’s finding on this particular issue of the denial of the right to life of Mr. Fernando is as follows:
7.2 Regarding the author’s claim under article 6, the Committee recalls that the right to life is the supreme right, from which no derogation is permitted. It further recalls that States parties have a positive obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not only by its agents, but also by private persons or entities. The Committee observes that according to the uncontested material at its disposal, the author and her family received a number of direct threats from the police, i.e. agents of the State party, including death threats, seeking to unlawfully coerce them into withdrawing complaints filed by them against police officers. On 20 September 2008, it is reported that the author’s husband was shot dead by masked men, three months after two individuals had told the family that they had been instructed by the Negombo police to kill them. After this threat the author and her husband had filed several complaints, including before the Office of the Deputy Inspector General and the police, but no action was undertaken, by the authorities to protect the family. In these circumstances, and taking into account the State party’s lack of cooperation, the Committee is of the view that the facts before it reveal that the death of the author’s husband must be held attributable to the State party itself. The Committee accordingly concludes that the State party is responsible for the arbitrary deprivation of life of the author’s husband, in breach of article 6 of the Covenant.
The UNHRC also held that the government of Sri Lanka has violated article 7 by severely torturing him and his two children and his wife:
As to the claim under article 7, the Committee recalls that the State party has offered no challenge to the evidence submitted by the author that on 12 November 2007, police officers broke into her domicile, beat her husband until he fell on the ground and lost consciousness, hit her with a pistol, punched her 10 year-old son against the wall, hit her daughter with a motorcycle, causing her to fall on the ground, and later sought to undress her. In the circumstances, the Committee concludes that the author, her husband and their two children were subjected to treatment contrary to article 7 of the Covenant
It also held that the failure to investigate into the murder and the torture amount to a denial of an effective remedy to the victims and therefore the government of Sri Lanka has committed a violation under articles 6 & 7 of the Covenant on Civil and Political Rights; the Committee further held that the failure on the part of the government to take reasonable and appropriate measures to protect the author and her family amounted to a denial of the right to security of persons which is a violation of article 9 (1).
The failure on the part of the state party to take action in response to the Committee’s request to adopt interim measures to protect Mr. Fernando and his family is held by the Committee as a violation of article 17 of the Covenant.
The Committee has recommended that the government should undertake to ensure an effective remedy which includes ensuring that the perpetrators are brought to justice; that the author and her two children can return to their domicile in safety, ensure reparation including payment of adequate compensation and apologise to the family.
The UNHRC has requested the government to provide within 180 days information about the measures taken to give effect to the committee’s views. The Committee has further requested the government to publish the Committee’s views.
The full text of the Communication is available at: http://www.alrc.net/PDF/SKASugathNishantaFernando-CommNo1862-2009.pdf