CCPR/C/78/D/950/2000

Mr. S. Jegatheeswara Sarma v. Sri Lanka, Communication No. 950/2000,

U.N. Doc. CCPR/C/78/D/950/2000 (2003).

Communication No. 950/2000 : Sri Lanka. 31/07/2003.

CCPR/C/78/D/950/2000. (Jurisprudence)

Convention Abbreviation: CCPR

Human Rights Committee

Seventy-eighth session

14 July - 8 August 2003

Views of the Human Rights Committee under

the Optional Protocol to the International Covenant

on Civil and Political Rights*

- Seventy-eighth session -

Communication No. 950/2000

Submitted by: Mr. S. Jegatheeswara Sarma

Alleged victim: The author, his family and his son, Mr. J. Thevaraja Sarma

State party: Sri Lanka

Date of communication: 25 October 1999 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on

Civil and Political Rights,

Meeting on 16 July 2003,

Having concluded its consideration of communication No. 950/2000, submitted to the Human

Rights Committee by Mr. S. Jegatheeswara Sarma under the Optional Protocol to the

International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the

communication, and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1 The author of the communication, dated 25 October 1999, is Mr. S. Jegatheeswara Sarma,

a Sri Lankan citizen who claims that his son is a victim of a violation by the State party of

articles 6, 7, 9 and 10 of the International Covenant on Civil and Political Rights (the

Covenant) and that he and his family are victims of a violation by the State party of article 7

of the Covenant (1). He is not represented by counsel.

1.2 The Covenant and the Optional Protocol to the Covenant entered into force for the State

party respectively on 11 June 1980 and 3 October 1997. Sri Lanka also made a declaration

according to which "[t]he Government of the Democratic Socialist Republic of Sri Lanka

pursuant to article (1) of the Optional Protocol 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. The Democratic Socialist Republic of Sri

Lanka also proceeds on the understanding that the Committee shall not consider any

communication from individuals unless it has ascertained that the same matter is not being

examined or has not been examined under another procedure of international investigation or

settlement".

1.3 On 23 March 2001, the Committee, acting through its Special Rapporteur for new

communications, decided to separate the examination of the admissibility from the merits of

the case.

The facts as submitted by the author

2.1 The author alleges that, on 23 June 1990, at about 8.30 am, during a military operation,

his son, himself and three others were removed by army members from their family residence

in Anpuvalipuram, in the presence of the author's wife and others. The group was then

handed over to other members of the military, including one Corporal Sarath, at another

location (Ananda Stores Compound Army Camp). The author's son was apparently suspected

of being a member of the LTTE (Liberation Tigers of Tamil Eelam) and was beaten and

tortured. He was thereafter taken into military custody at Kalaimagal School allegedly after

transiting through a number of other locations. There, he was allegedly tortured, hooded and

forced to identify other suspects.

2.2 In the meantime, the author and other persons arrested were also transfered to Kalaimagal

School, where they were forced to parade before the author's hooded son. Later that day, at

about 12.45 pm, the author's son was taken to Plaintain Point Army Camp, while the author

and others were released. The author informed the Police, the International Committee of the

Red Cross (ICRC) and human rights groups of what had happened.

2.3 Arrangements were later made for relatives of missing persons to meet, by groups of 50,

with Brigadier Pieris, to learn about the situation of the missing ones. During one of these

meetings, in May 1991, the author's wife was told that her son was dead.

2.4 The author however claims that, on 9 October 1991 between 1.30 and 2 pm, while he was

working at "City Medicals Pharmacy", a yellow military van with license plate Nr. 35 Sri

1919 stopped in front of the pharmacy. An army officer entered and asked to make some

photocopies. At this moment, the author saw his son in the van looking at him. As the author

tried to talk to him, his son signalled with his head to prevent his father from approaching.

2.5 As the same army officer returned several times to the pharmacy, the author identified

him as star class officer Amarasekara. In January 1993, as the "Presidential Mobile Service"

was held in Trincomalee (2), the author met the then Prime Minister, Mr. D. B. Wijetunghe

and complained about the disappearance of his son. The Prime Minister ordered the release of

the author's son, wherever he was found. In March 1993, the military advised that the author's

son had never been taken into custody.

2.6 In July 1995, the author gave evidence before the "Presidential Commission of Inquiry

into Involuntary Removals and Disappearances in the Northern and Eastern Provinces" (The

Presidential Commission of Inquiry), without any result. In July 1998, the author again wrote

to the President, and was advised in February 1999 by the Army that no such person had been

taken into military custody. On 30 March 1999, the author petitioned to the President,

seeking a full inquiry and the release of his son.

The Complaint

3. The author contends that the above facts constitute violations by the State party of articles

6, 7, 9, and 10 of the Covenant.

The State party's observations on the admissibility of the communication

4.1 By submission of 26 February 2001, the State party argues that the Optional Protocol

does not apply ratione temporis to the present case. It considers that the alleged incident

involving the involuntary removal of the author's son took place on 23 June 1990 and his

subsequent disappearance in May 1991, and these events occurred before the entry into force

of the Optional Protocol for Sri Lanka.

4.2 The State party argues that the author has not demonstrated that he has exhausted

domestic remedies. It is submitted that the author has failed to resort to the following

remedies:

-A writ of habeas corpus to the Court of Appeal, which gives the possibility for the Court to

force the detaining authority to present the alleged victim before it;

-In cases where the Police refuse or fail to conduct an investigation, article 140 of the State

party's Constitution provides for the possibility of applying to the Court of Appeal to obtain a

writ of mandamus in cases where a public authority fails or refuses to respect a statutory

duty.

-In the absence of an investigation led by the police or if the complainant does not wish to

rely on the findings of the police, such complainant is entitled directly to institute criminal

proceedings in the Magistrate's Court, pursuant to section 136 (1) (a) of the Code of Criminal

Procedure.

4.3 The State party argues that the author has failed to demonstrate that these remedies are or

would be ineffective, or would extend over an unreasonable period of time.

4.4 The State party therefore considers that the communication is inadmissible.

Comments by the author

5.1 On 25 May 2001, the author responded to the State party's observations.

5.2 With regard to the competence of the Committee ratione temporis, the author considers

that he and his family are suffering from a continuing violation of article 7 as, at least to the

present date. he has had no information about his son's whereabouts. The author refers to the

jurisprudence of the Committee in Quinteros v. Uruguay (3) and El Megreisi v. Libyan Arab

Jamahiriya (4) and maintains that this psychological torture is aggravated by the

contradictory replies received from the authorities.

5.3 To demonstrate his continued efforts, the author lists the 39 letters and other requests

filed in respect of to the disappearance of his son. These requests were sent to numerous Sri

Lankan authorities, including the police, the army, the national human rights commission,

several ministries, the president of Sri Lanka and the Presidential Commission of Inquiry.

Despite all these steps, the author has not been given any further information as to the

whereabouts of his son. Moreover, following the submission of the present communication to

the Committee, the Criminal Investigations Department was ordered to record the statements,

in Sinhala, of the author and 9 other witnesses whom the author had cited in previous

complaints, without any tangible outcome to date.

5.4 The author emphasizes that such inaction is unjustifiable in a situation where he had

provided the authorities with the names of the persons responsible for the disappearance, as

well as the names of other witnesses. He submitted the following details to the State party's

authorities:

"1. On 23.06.1990 my son was removed by Army soldier Corporal Sarath in my presence at

Anpuvalipuram. He hails from Girithala, Polanaruwa. He is married to a midwife at 93rd

Mile Post, Kantale. She is working at Kantala Hospital.

2. On 09.10.1991 Mr. Amerasekera (Star Badge) from the army brought my son to City

Medicals Pharmacy by van Nr. 35 Sri 1919.

3. On 23.06.1990 Army personnel who were on duty during the roundup at Anpuvalipuram:

a) Major Patrick

b) Suresh Cassim [lieutenant]

c) Jayasekara […]

d) Ramesh (Abeypura)

4. During this period officers on duty at Plantain Point Army Camp. In addition to names

mentioned in para. 3:

a) Sunil Tennakoon (at present gone on transfer from here)

b) Tikiri Banda (presently working here)

c) Captain Gunawardena

d) Kundas (European)

5. Witnesses

a) My wife

b) Mr. S. Alagiah, 330, Anpuvalipuram, Trincomalee.

c) Mr. P. Markandu, 442, Kanniya Veethi, Barathipuram, Trinco.

d) Mr. P. Nemithasan, 314, Anpuvalipuram, Trincomalee.

e) Mr. S. Mathavan (maniam Shop) Anpuvalipuram, Trincomalee.

f) Janab. A.L. Majeed, City Medical, Dockyard Road, Trincomalee.

g) Mrs. Malkanthi Yatawara, 80A, Walpolla, Rukkuwila, Nittambuwa.

h) Mr. P. S. Ramiah, Pillaiyar Kovilady, Selvanayagapuram, Trinco."

5.5 The author also testified before the Presidential Commission of Inquiry on 29 July 1995

and refers to the following statement of the commission:

Regarding […] the evidence available to establish such alleged removals or disappearances,

[…] there had been large scale corroborative evidence by relatives, neighbours and fellow

human beings [sic], as most of these arrests were done in full public view, often from

Refugee Camps and during cordon and search operations where large numbers of people

witnessed the incidents.

Regarding […] the present whereabouts of the persons alleged to have been so removed or to

have so disappeared, the Commission faced a blank wall in this investigation. On the one

hand the security service personnel denied any involvement in arrests in spite of large scale

corroborative evidence of their culpability. […]

5.6 The author maintains that these facts reveal a violation of article 6, 7, 9 and 10 of the

Covenant. (5)

5.7 The author argues that he has exhausted all effective, available and not unduly prolonged

domestic remedies. Referring to reports of international human rights organizations, the

author submits thatthe remedy of habeas corpus is ineffective in Sri Lanka and unnecessarily

prolonged. The author also refers to the report of the Working Group on Enforced or

Involuntary Disappearances of 28 December 1998, which confirms that even if ordered by

courts, investigations are not carried out.

5.8 The author submits that, during the period 1989-1990, in Trincomalee, the law was non-

existent, the courts were not functioning, people were shot at sight and many were arrested.

Police stations in the "Northern and Eastern Province" were headed by Sinhalese who

arrested and caused the disappearance of hundreds of Tamils. As a result, the author could

not report to the police about the disappearance of his son, for fear of reprisals or for being

suspected of terrorist activities.

Decision on admissibility

6.1 At its 74th session, the Committee considered the admissibility of the communication.

Having ascertained that the same matter was not being examined and had not been examined

under another procedure of international investigation or settlement, the Committee examined

the facts that were submitted to it and considered that the communication raised issues under

article 7 of the Covenant with regard to the author and his family and under articles 6,

paragraph 1, 7, 9, paragraph 1 and 10 of the Covenant with regard to the author's son.

6.2 With respect to the application ratione temporis of the Optional Protocol to the State

party, the Committee noted that, upon acceding to the Optional Protocol, Sri Lanka had

entered a declaration restricting the Committee's competence to events following the entry

into force of the Optional Protocol. However, the Committee considered that although the

alleged removal and subsequent disappearance of the author's son had taken place before the

entry into force of the Optional Protocol for the State party, the alleged violations of the

Covenant, if confirmed on the merits, may have occurred or continued after the entry into

force of the Optional Protocol.

6.3 The Committee also examined the question of exhaustion of domestic remedies and

considered that in the circumstances of the case, the author had used the remedies that were

reasonably available and effective in Sri Lanka. The Committee noted that, in 1995, the

author had instituted a procedure with an ad hoc body (the Presidential Commission of

Inquiry into Involuntary Removals and Disappearances in the Northern and Eastern

Provinces) that had been especially created for cases like this one. Bearing in mind that this

Commission had not, after 7 years, reached a final conclusion about the disappearance of the

author's son, the Committee was of the view that this remedy was unreasonably prolonged.

Accordingly, it declared the communication admissible on 14 March 2002.

State party's submission on the merits

7.1 On 22 April 2002, the State party commented on the merits of the communication.

7.2 On the facts of the case and the steps that have been taken after the alleged disappearance

of the author's son, the State party submits that, on 24 July and 30 October 2000, the Attorney

General of Sri Lanka received two letters from the author seeking "inquiry and release" of his

son from the Army. Further to these requests, the Attorney General's Department inquired

with the Sri Lankan Army as to whether the author's son had been arrested and whether he

was still being detained. Inquiries revealed that neither the Sri Lanka Navy, nor the Sri Lanka

Air Force, nor the Sri Lanka Police had arrested or detained the author's son. The author's

requests were transmitted to the Missing Persons Commission (MPC) Unit of the Attorney

General's Department. On 12 December 2000, the coordinator of the MPC informed the

author that suitable action would be taken and advised the Inspector General of Police (IGP)

to conduct criminal investigation into the alleged disappearance.

7.3 On 24 January 2001, detectives of the Disappearance Investigations Unit (DIU) met with

a number of persons, including the author and his wife, interviewed them and recorded their

statements. On 25 January 2001, the DIU visited Plaintain Point Army Camp. On the same

day and between 8 and 27 February 2001, a number of other witnesses were interviewed by

the DIU.(6) Between 3 April and 26 June 2001, the DIU proceeded to the interview of 10

Army personnel, including the Officer commanding the Security Forces of the Trincomalee

Division in 1990/91. The DIU completed its investigation on 26 June 2001 and transmitted its

report to the MPC, which, on 22 August 2001, requested further investigation on particular

points. The results of this additional investigation were transmitted to the MPC on 24 October

2001.

7.4 The State party submits that the results of the criminal investigation have revealed that,

on 23 June 1990, Corporal Ratnamala Mudiyanselage Sarath Jayasinghe Perera (hereafter

Corporal Sarath) of the Sri Lankan Army and two other unidentified persons had

"involuntarily removed (abducted)" (7) the author's son. This abduction was independent of

the "cordon and search operation" carried out by the Sri Lankan Army in the village of

Anpuwalipuram in the District of Trincomalee, in order to identify and apprehend terrorist

suspects. During this operation, arrests and detention for investigation did indeed take place

in accordance with the law but the responsible officers were unaware of Corporal Sarath's

conduct and of the author's son's abduction. The investigation failed to prove that the author's

son had been detained at Plaintain Point Army Camp or in any other place of detention, and

the whereabouts of the author's son could not be ascertained.

7.5 Corporal Sarath denied any involvement in the incident and did not provide information

on the author's son, nor any acceptable reasons why witnesses would have falsely implicated

him. The MPC thus decided to proceed on the assumption that he and two unidentified

persons were responsible for the "involuntary removal" of the author's son.

7.6 With regard to the events of 9 October 1991, when the author allegedly saw his son in

company of Lieutenant Amarasekera, the investigation revealed that, during the relevant

period, there was no officer of such name in the District of Trincomalee. The person on duty

in the relevant area in 1990/91 was officer Amarasinghe who died soon thereafter as a result

of a terrorist attack.

7.7 On 18 February 2002, the author sent another letter to the Attorney General stating that

his son had been "removed" by Corporal Sarath, requesting that the matter be expedited and

that his son be handed over without delay. On 28 February 2002, the Attorney General

informed the author that his son had disappeared after his abduction on 23 June 1990, and

that his whereabouts were unknown.

7.8 On 5 March 2002, Corporal Sarath was indicted of having "abducted" the author's son on

23 June 1990 and along with two other unknown perpetrators, an offence punishable under

section 365 of the Sri Lankan Penal Code. The indictment was forwarded to the High Court

of Trincomalee and the author was so informed on 6 March 2002. The State party submits

that Corporal Sarath was indicted for "abduction" because its domestic legislation does not

provide for a distinct criminal offence of "involuntary removal". Moreover, the results of the

investigation did not justify the assumption that Corporal Sarath was responsible for the

murder of the victim, as the latter was seen alive on 9 October 1991. The trial of Corporal

Sarath will commence in late 2002.

7.9 The State party submits that it did not, either directly or through the relevant field

commanders of its Army, cause the disappearance of the author's son. Until the completion of

the investigation referred to above, the conduct of Corporal Sarath was unknown to the State

party and constituted illegal and prohibited activity, as shown by his recent indictment. In the

circumstances, the State party considers that the "disappearance" or the deprivation of liberty

of the author's son cannot be seen as a violation of his human rights.

7.10 The State party reiterates that the alleged "involuntary removal" or the "deprivation of

liberty" of the author's son on 23 June 1990 and his subsequent alleged disappearance on or

about 9 October 1991 occurred prior to the ratification of the Optional Protocol by Sri Lanka,

and that there is no material in the communication that would demonstrate a "continuing

violation".

7.11 The State party therefore contends that the communication is without merits and that it

should, in any event, be declared inadmissible due to the reasons developed in paragraph

7.10.

Author's comments

8.1 On 2 August 2002, the author commented on the State party's observations on the

merits.(8)

8.2 The author submits that the disappearance of his son took place in a context where

disappearances were systemic. He refers to the "final Report of the Commission of Inquiry

into Involuntary Removal or Disappearance of Persons in the Northern and Eastern

Provinces" of 1997, according to which:

[Y]outh in the North and East disappeared in droves in the latter part of 1989 and during the

latter part of 1990. This large scale disappearances of youth is connected with the military

operations started against the JVP in the latter part of 1989 and against the LTTE during

Eleam War II beginning in June 1990 […] It was obvious that a section of the Army was

carrying out the instructions of its Political Superiors with a zeal worthy of a better cause.

Broad power was given to the Army under the Emergency Regulations which included the

power to dispose of the bodies without post-mortem or inquests and this encouraged a section

of the Army to cross the invisible line between the legitimate Security Operation and large

scale senseless arrests and killings.

8.3 The author emphasizes that one aspect of disappearances in Sri Lanka is the absolute

impunity that officers and other agents of the State enjoy, as illustrated in the Report of the

Working Group on Enforced or Involuntary Disappearances after its third visit to Sri Lanka

in 1999 (9). The author argues that the disappearance of his son is an act committed by State

agents as part of a pattern and policy of enforced disappearances in which all levels of the

State apparatus are implicated.

8.4 The author draws attention to the fact that the State party does not contest that the author's

son has disappeared, even if it claims not to be responsible; that it confirms that the author's

son was abducted on 23 June 1990 by Corporal Sarath and two other unidentified officers,

although in a manner which was "distinctly separate and independent" from the cordon and

search operation that was carried out by the Army in this location at the same time; and that it

submits that officers of the Army had been unaware of Corporal Sarath's conduct and the

author's son abduction.

8.5 The author indicates that enforced disappearances represent a clear breach of various

provisions of the Covenant, including its article 7,(10) and, emphasizing that one of the main

issues of this case is that of imputability, considers that there is little doubt that his son's

disappearance is imputable to the State party because the Sri Lankan Army is indisputably an

organ of that State (11). Where the violation of Covenant rights is carried out by a soldier or

other official who uses his or her position of authority to execute a wrongful act, the violation

is imputable to the State,(12) even where the soldier or the other official is acting beyond his

authority. The author, relying on the judgment of the Inter-American Court of Human Rights

in the Velasquez Rodriguez Case (13) and that of the European Court of Human Rights,

concludes that, even where an official is acting ultra vires, the State will find itself in a

position of responsibility if it provided the means or facilities to accomplish the act. Even if,

and this is not known in this case, the officials acted in direct contravention of the orders

given to them, the State may still be responsible. (14)

8.6 The author maintains that his son was arrested and detained by members of the Army,

including Corporal Sarath and others unidentified, in the course of a military search operation

and that these acts resulted in the disappearance of his son. Pointing to the overwhelming

evidence before the Presidential Committee of Inquiry indicating that many of those in

Trincomalee who were arrested and taken to Plaintain Point Army Camp were not seen again,

the assertion that this disappearance was an isolated act initiated solely by Corporal Sarath,

without the knowledge or complicity of other levels within the military chain of command,

defies credibility.

8.7 The author contends that the State party is responsible for the acts of Corporal Sarath

even if, as it is suggested by the State party, his acts were not part of a broader military

operation because it is undisputed that the acts were carried out by Army personnel. Corporal

Sarath was a in uniform at the relevant time and it is not disputed that he was under the orders

of an officer to conduct a search operation in that area during the period in question. The

State party thus provided the means and facilities to accomplish the imputed act. That

Corporal Sarath was a low ranking officer acting with a wide margin of autonomy and

without orders from superiors does not exempt the State party from its responsibility.

8.8 The author further suggests that even if the acts were not directly attributable to the State

party, its responsibility can arise due to its failure to meet the positive obligations to prevent

and punish certain serious violations such as arbitrary violations of the right to life. This may

arise whether or not the acts are carried out by non-state actors.

8.9 The author argues in this respect that the circumstances of this case must establish, at a

minimum, a presumption of responsibility that the State party has not rebutted. In this case,

referring to the jurisprudence of the Committee,(15) it is indeed the State party, not the

author, that is in a position to access relevant information and therefore the onus must be on

the State to refute the presumption of responsibility. The State party has failed to initiate a

thorough inquiry into the author's allegations in areas within which it alone has access to the

relevant information, and to provide the Committee with relevant information.

8.10 The author argues that according to the jurisprudence of the Committee (16) and that of

the Inter-American Court of Human Rights, the State party had a responsibility to investigate

the disappearance of the author's son in a thorough and effective manner, to bring to justice

those responsible for disappearances, and to provide compensation for the victims'

families.(17)

8.11 In the present case, the State party has failed to investigate effectively its responsibility

and the individual responsibility of those suspected of the direct commission of the offences

and gave no explanation as to why an investigation was commenced some 10 years after the

disappearance was first brought to the attention of the relevant authorities. The investigation

did not provide information on orders that may have been given to Corporal Sarath and others

regarding their role in search operations, nor has it considered the chain of command. It has

not provided information about the systems in place within the military concerning orders,

training, reporting procedures or other process to monitor the activity of soldiers which may

support or undermine the claim that his superiors did not order and were not aware of the

activities of the said Corporal. It did not provide evidence that Corporal Sarath or his

colleagues were acting in a personal capacity without the knowledge of other officers.

8.12 There are also striking omissions in the evidence gathered by the State party. The

records of the ongoing military operations in this area in 1990 have indeed not been accessed

or produced and no detention records or information relating to the cordon and search

operation have been adduced. It also does not appear that the State party has made

investigations into the vehicle bearing registration number 35 SRI 1919 in which the author's

son was last seen. The Attorney General who filed the indictment against Corporal Sarath has

not included key individuals as witnesses for the prosecution, despite the fact that they had

already provided statements to the authorities and may provide crucial testimony material to

this case. These include Poopalapillai Neminathan, who was arrested along with the author's

son and was detained with him at the Plaintain Point Army Camp, Santhiya Croose, who was

also arrested along with the author's son but was released en route to the Plaintain Point

Army Camp, S.P. Ramiah, who witnessed the arrest of the author's son and Shammugam

Algiah from whose house the author's son was arrested. Moreover, there is no indication of

any evidence having been gathered as to the role of those in the higher echelons of the Army

as such officers may themselves be criminally responsible either directly for what they

ordered of instigated or indirectly by dint of their failure to prevent or punish their

subordinates.

8.13 On the admissibility of the communication, the author emphasizes that the Committee

already declared the case admissible on 14 March 2002 and maintains that the events

complained of have continued after the ratification of the Optional Protocol by the State party

to the day of his submission. The author also cites article 17 of the United Nations

Declaration on the Protection of All Persons from Enforced Disappearance. (18)

8.14 The author asks the Committee to hold the State party responsible for the disappearance

of his son and declare that it has violated Articles 2, 6, 7, 9, 10 and 17 of the Covenant. He

further asks that the State party undertake a thorough and effective investigation, along the

lines suggested above; provide him with adequate information resulting from its

investigation; release his son; and pay adequate compensation.

Examination of the merits

9.1 The Human Rights Committee has considered the present communication in the light of

all the information made available to it by the parties, as provided in article 5, paragraph 1 of

the Optional Protocol.

9.2 With regard to the author's claim in respect of the disappearance of his son, the

Committee notes that the State party has not denied that the author's son was abducted by an

officer of the Sri Lankan Army on 23 June 1990 and has remained unaccounted for since

then. The Committee considers that, for purposes of establishing State responsibility, it is

irrelevant in the present case that the officer to whom the disappearance is attributed acted

ultra vires or that superior officers were unaware of the actions taken by that officer (19) .

The Committee therefore concludes that, in the circumstances, the State party is responsible

for the disappearance of the author's son.

9.3 The Committee notes the definition of enforced disappearance contained in article 7,

paragraph 2 (i) of the Rome Statute of the International Criminal Court (20): Enforced

disappearance of persons" means the arrest, detention or abduction of persons by, or with the

authorization, support or acquiescence of, a State or a political organization, followed by a

refusal to acknowledge that deprivation of freedom or to give information on the fate or

whereabouts of those persons, with the intention of removing them from the protection of the

law for a prolonged period of time. Any act of such disappearance constitutes a violation of

many of the rights enshrined in the Covenant, including the right to liberty and security of

person (article 9), the right not to be subjected to torture or to cruel, inhuman or degrading

treatment or punishment (article 7), and the right of all persons deprived of their liberty to be

treated with humanity and with respect for the inherent dignity of the human person (article

10). It also violates or constitutes a grave threat to the right to life (article 6).(21)

9.4 The facts of the present case clearly illustrate the applicability of article 9 of the Covenant

concerning liberty and security of the person. The State party has itself acknowledged that the

arrest of the author's son was illegal and a prohibited activity. Not only was there no legal

basis for his arrest, there evidently was none for the continuing detention. Such a gross

violation of article 9 can never be justified. Clearly, in the present case, in the Committee's

opinion, the facts before it reveal a violation of article 9 in its entirety.

9.5 As to the alleged violation of article 7, the Committee recognizes the degree of suffering

involved in being held indefinitely without any contact with the outside world (22), and

observes that, in the present case, the author appears to have accidentally seen his son some

15 months after the initial detention. He must, accordingly, be considered a victim of a

violation of article 7. Moreover, noting the anguish and stress caused to the author's family by

the disappearance of his son and by the continuing uncertainty concerning his fate and

whereabouts,(23) the Committee considers that the author and his wife are also victims of

violation of article 7 of the Covenant. (24) The Committee is therefore of the opinion that the

facts before it reveal a violation of article 7 of the Covenant both with regard to the author's

son and with regard to the author's family.

9.6 As to the possible violation of article 6 of the Covenant, the Committee notes that the

author has not asked the Committee to conclude that his son is dead. Moreover, while

invoking article 6, the author also asks for the release of his son, indicating that he has not

abandoned hope for his son's reappearance. The Committee considers that, in such

circumstances, it is not for it to appear to presume the death of the author's son. Insofar as the

State party's obligations under paragraph 11 below would be the same with or without such a

finding, the Committee considers it appropriate in the present case not to make any finding in

respect of article 6.

9.7 In the light of the above findings, the Committee does not consider it necessary to address

the author's claims under articles 10 and 17 of the Covenant.

10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional

Protocol, is of the view that the facts before it disclose a violation of articles 7 and 9 of the

International Covenant on Civil and Political Rights with regard to the author's son and

article 7 of the International Covenant on Civil and Political Rights with regard to the author

and his wife.

11. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an

obligation to provide the author and his family with an effective remedy, including a

thorough and effective investigation into the disappearance and fate of the author's son, his

immediate release if he is still alive, adequate information resulting from its investigation,

and adequate compensation for the violations suffered by the author's son, the author and his

family. The Committee considers that the State party is also under an obligation to expedite

the current criminal proceedings and ensure the prompt trial of all persons responsible for the

abduction of the author's son under section 356 of the Sri Lankan Penal Code and to bring to

justice any other person who has been implicated in the disappearance. The State party is also

under an obligation to prevent similar violations in the future.

12. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has

recognized the competence of the Committee to determine whether there has been a violation

of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has

undertaken to ensure to all individuals within its territory or subject to its jurisdiction the

rights recognized in the Covenant and to provide an effective and enforceable remedy in case

a violation has been established, the Committee wishes to receive from the State party, within

ninety days, information about the measures taken to give effect to the Committee's Views.

The State party is also requested to publish the Committee's Views.

__________________________

Adopted in English, French and Spanish, the English text being the original version.

Subsequently to be issued in Arabic, Chinese and Russian as part of the Committee's annual

report to the General Assembly.

** The following members of the Committee participated in the examination of the present

communication: Mr. Abdelfattah Amor, Mr. Prafullachandra Natwarlal Bhagwati, Mr.

Maurice Glèlè Ahanhanzo, Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil, Mr. Rajsoomer

Lallah, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer,

Mr. Hipólito Solari Yrigoyen, Ms. Ruth Wedgwood, Mr. Roman Wieruszewski and Mr.

Maxwell Yalden.

Notes

1. Although the author did not invoke any specific provision of the Covenant in his initial

communication, he did so in his comments of 25 May 2001 on the State party's observations

on admissibility.

2. The author does not explain what this means.

3. Case No. 107/1981, Views adopted on 21 July 1983.

4. Case No. 440/1990, Views adopted on 24 March 1994.

5. The author does not specify who is the alleged victim of each of these alleged violations.

6. The State party mentions the names of the following persons: Alagaiyah Rajeswari,

Sanmugan Alagaijah, Ponnam Marakandu, Puwalupullai Nemidasan, Senarajasingham

Muralidaran, Ratnam Arukwachelwam, Nagalingam Jayakanthan, Allapitchchei

Abidulamjeed, Sakkaya Crush Prinsh Rajasekeran, Segarajasingham Muralidaran, Periyasim

Selvaray Raamaiah, Ajith Rasakin and Madawanpullai Krishnapillai.

7. Note to the members of the WG: The State party does not explains what it means by

"involuntary removal".

8. For the purpose of these comments, the author was assisted by Mr. Velupillai Sittampalam

Ganesalingam, Legal Director of Home for Human Rights, and Interights.

9. E/CN.4/2000/64/Add.1, paras 34 & 35.

10. Celis Laureano v. Peru, Case No. 540/1993, Views adopted on 25 March 1996.

11. Velasquez Rodriguez Case (1989), Inter-American Court of Human Rights, Judgment of

29 July 1998, (Ser. C) No. 4 (1988).

12. See Caballero Delgado and Santana Case, Inter-American Court of Human Rights,

Judgment of 8 December 1995 (Annual Report of the Inter-American Court of Human Rights

1995 OAS/Ser.L/V III.33 Doc.4); Garrido and Baigorria Case, Judgment on the merits, 2

February 1996, Inter-American Court of Human Rights)

13. Velasquez Rodriguez Case (1989), Judgment of 29 July 1998, Inter-American Court of

Human Rights, (Ser. C) No. 4 (1988), para. 169 - 170.

14. Timurtas v. Turkey, European Court of Human Rights, Application no. 23531/94,

Judgment of 13 June 2000; Ertak v. Turkey, European Court of Human Rights, Application

no. 20764/92, Judgment of 9 May 2000.

15. See Bleier v. Uruguay, Case No. 30/1978, adopted on 24 March 1980, para 13.3 ("With

regard to the burden of proof, this cannot rest alone on the author of the communication,

especially considering that the author and the State party do not always have equal access to

the evidence and that frequently the State party alone has access to relevant information. It is

implicit in article 4 (2) of the Optional Protocol that the State party has the duty to investigate

in good faith all allegations of violation of the Covenant made against it and its authorities

[…]")

16. Sanjuan Arevalo v. Colombia, Case No. 181/1984, Views adopted on 3 November 1989;

Avellanal v. Peru, Case No. 202/1986, Views adopted on 28 October 1988; Mabaka Nsusu v.

Congo, Case No. 157/1983, Views adopted on 26 March 1986; and Vicente et al. v.

Colombia, Case No. 612/1995, Views adopted on 29 July 1997; see also General Comment

No. 6, HRI/GEN/1/Rev.1 (1994), para. 6.

17. Concluding observations of the Human Rights Committee on the third periodic report of

Senegal, 28 December 1992, CCPR/C/79/Add.10; see also Baboeram v. Surinam, Case No.

146/1983, Views adopted on 4 April 1985 and Hugo Dermit v. Uruguay, Case No. 84/1981,

Views adopted on 21 October 1982.

18. Enforced disappearances "shall be considered a continuing offence as long as the

perpetrators continue to conceal the fate and whereabouts of persons who have disappeared

and these facts remain unclarified" Similarly, article 3 of the Inter-American Convention on

the Forced Disappearance of Persons states that the offence of forced disappearance « shall

be deemed continuous or permanent as long as the fate or whereabouts of the victim has not

been determined ».

19. See article 7 of the Draft articles on Responsibility of States for internationally wrongful

acts adopted by the International Law Commission at its fifty-third session 2001) and article

2, paragraph 3 of the Covenant.

20. Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and

corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May

2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002.

21. See article 1, paragraph 2 of the Declaration on the Protection of All Persons from

Enforced Disappearances, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N.

Doc. A/47/49 (1992). Adopted by General Assembly resolution 47/133 of 18 December

1992.

22. See El Megreisi v. Libyan Arab Jamahiriya, Case No. 440/1990, Views adopted on 23

March 1994.

23. Quinteros v. Uruguay, Case No. 107/1981, Views adopted on 21 July 1983.

24. Note to the WG : In Quinteros, the Committee considered that the family of the

disappeared were also victims of all the violations suffered by the disappeared, including

articles 9 and 10 (1)