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A/HRC/WGAD/2012/38

Opinion No. 34/2012, Sri Lanka

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2012-08-31 · en UN

Opinion; Subjects: SRI LANKA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.12-18342

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-fourth session, 27–31 August 2012

No. 38/2012 (Sri Lanka)

Communication addressed to the Government on 5 April 2012

Concerning Gunasundaram Jayasundaram

The Government replied to the communication on 3 May 2012.

The State is a party to the International Covenant on Civil and Political Rights.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights, which extended and clarified the Working

Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. In accordance with its methods of work (A/HRC/16/47,

annex, and Corr.1), the Working Group transmitted the above-mentioned communication to

the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to the detainee) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

United Nations

A/HRC/WGAD/2012/38

General Assembly

Distr.: General

26 November 2012

Original: English

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(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation; or

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

The case summarized below was reported to the Working Group on Arbitrary

Detention as follows.

4.

Gunasundaram Jayasundaram, 56 years of age, is an Irish citizen who was born in

northern Sri Lanka. Mr. Jayasundaram left for London at the age of 17 to study engineering

and took up permanent residence there. He was arrested on 4 September 2007 in Colombo,

under suspicion of supporting the Liberation Tigers of Tamil Eelam (LTTE).

5.

Mr. Jayasundaram is the subject of three urgent appeals: one by the Special

Rapporteur on the independence of judges and lawyers and the Special Rapporteur on

torture and other cruel, inhuman or degrading treatment or punishment, dated 19 June 2008;

one by the Working Group on Arbitrary Detention and the Special Rapporteur on the

question of torture, dated 14 August 2009; and one by the Working Group on Arbitrary

Detention, the Special Rapporteur on the right of everyone to the enjoyment of the highest

attainable standard of physical and mental health and the Special Rapporteur on the

question of torture, dated 30 August 2011. To date, there have been no responses from the

Government to those urgent appeals.

6.

Mr. Jayasundaram was arrested allegedly without a warrant on 4 September 2007,

on orders of the military authorities under Emergency Regulation No. 19 (2). The

accusations against him were based solely on statements of another person, whom

Mr. Jayasundaram had reportedly never met. Mr. Jayasundaram was arrested and held in

detention without prompt access to a lawyer. He was detained without charge and was not

brought before an independent judicial authority.

7.

On 12 September 2008, the Working Group on Arbitrary Detention adopted its

opinion No. 30/20081 on the case of Mr. Jayasundaram, stating that “the deprivation of

liberty of Mr. Gunasundaram Jayasundaram is arbitrary, being in contravention of articles 9

and 10 of the Universal Declaration of Human Rights and articles 9, 14, and 26 of the

International Covenant on Civil and Political Rights, and falls under categories II and III

applicable to the consideration of cases submitted to the Working Group”.

8.

Despite the adoption of the aforementioned opinion, Mr. Jayasundaram continues to

be in detention. Recent additional information received from the source states that

Mr. Jayasundaram is currently in need of serious medical assistance, as he suffers from

blood pressure problems and a debilitating mosquito-borne viral disease which has caused

pain in his joints. He is asthmatic and has had various respiratory problems, which have

been worsened by regular bouts of the flu. He also suffers from insomnia; acute distress,

anxiety and depression as a result of his detention, which included periods in solitary

1 Available on the Working Group on Arbitrary Detention’s database: www.unwgaddatabase.org/un/.

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confinement. He does not wish to ask for medical assistance from the prison administration,

as the last time he did he was sent to the prison hospital, where he said he seriously feared

for his life as he was exposed to other seriously ill people, some with contagious diseases.

He no longer takes his blood pressure medication as it causes frequent urination and he is

reportedly not allowed out of his cell at night to use the toilet facilities.

9.

Mr. Jayasundaram allegedly suffers from a hernia and his family fears for his

deteriorating health. He urgently requires an operation within a proper medical facility. His

serious state of health required him to undergo his first operation in July 2011 without close

family members being present. He was reportedly handcuffed by the feet to the bed by four

security guards as soon as he returned to the ward following his operation.

Mr. Jayasundaram was ordered to lift his leg so that his ankle could be handcuffed, despite

his pleas that he could not feel anything; the security guards reportedly pushed and pulled

his anesthetized legs into place.

10.

A doctor is reported to have ordered the security guards outside the room and

explained to them that it would take four to six hours for Mr. Jayasundaram to regain any

feeling. Additionally, he recently lost a tooth which had required root canal treatment; he

has had a toothache for over a fortnight but is unable to see a dentist. Mr. Jayasundaram

reportedly requires a second groin hernia operation but his health has been too unstable to

risk another operation in the short term. The current medical service provided to

Mr. Jayasundaram is reportedly inadequate and will not alleviate the various health

problems he is experiencing. Mr. Jayasundaram is reported to be severely depressed and

suicidal, believing that he will not survive the sufferings he has had to endure throughout

his detention.

11.

Additional information received indicates that the police have reportedly tried to

have Mr. Jayasundaram transferred to Boosa prison, where he had been previously held in

solitary confinement. Allegedly, this application has been unsuccessful.

12.

To date, Mr. Jayasundaram has been detained for almost five years without trial.

Efforts to seek judicial remedies, including a habeas corpus application filed on his behalf

and a fundamental rights application before the Supreme Court have been met with

repeated delays. His case has been reportedly postponed again to September 2012. He

remains in prolonged detention in Welikada remand prison in Colombo and has been

deprived of regular contact with his wife and children, who reside in Europe.

Response from the Government

13.

The Working Group transmitted the above allegations to the Government of Sri

Lanka on 5 April 2012, requesting detailed information about the current situation of

Mr. Jayasundaram.

14.

An interim response was provided to the Working Group on 3 May 2012 which

stated the following:

There is evidence of Mr. Gunasundaram’s involvement in LTTE procurement

activities which involve nine countries and Sri Lanka authorities are seeking the

assistance of Singapore as he is a permanent resident of that country. Further, as per

the communication, a Mutual Legal Assistance was requested from the Attorney

General’s Department of Singapore and response is awaited by them. Once the

Mutual Legal Assistance agreement is authorized and investigations are concluded,

criminal indictment with charges commensurate with the findings would be

considered and filed in the High Court. In the meantime, Mr. Gunasundaram filed a

habeas corpus appeal before the Court of Appeal in Sri Lanka and it was withdrawn

by the Counsel appearing for the applicant. He also filed a Fundamental Rights

application before the Supreme Court of Sri Lanka, challenging his arrest and

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detention. The State has been given time till September 2012 to file an objection.

Thereafter, the applicant will be given time to file a counter objection. Subsequently,

a hearing will be fixed in the Supreme Court.

Further comments from the source

15.

The Government’s response was sent to the source for their comments, which are

presented below.

16.

The source states that these are unsubstantiated claims that have been made by the

Government for almost five years, both to the United Nations and in the Sri Lankan courts.

The source refers to opinion No. 30/2008 of the Working Group, which declares the

detention of Mr. Jayasundaram as arbitrary.

17.

The source further states that their request has always been that Mr. Jayasundaram

be either charged or released. The Government of Sri Lanka in its response has failed to

mention that despite the Supreme Court ordering in October and November 2011 that he be

charged or discharged on 3 February 2012, Mr. Jayasundaram is still detained. The source

claims that even the judge requested the State to either charge or discharge Mr.

Jayasundaram rather than continue its persistent postponements, yet the case was again

postponed to September 2012. The lawyer appearing on behalf of the State had even sought

postponement to November 2012, but the judge refused this request.

18.

The source further reports that the Supreme Court in Sri Lanka does not normally

permit leave to proceed, but in this case the judicial panel was dissatisfied and frustrated

with the State prosecution and leave to proceed was granted in March 2012. The State

prosecution objected to the granting of leave to proceed and the judicial panel gave the

State only two months to give a reason as to why leave to proceed should not be granted.

19.

The source further declares that it is not comprehensible why Singapore would delay

giving the information to the Government of Sri Lanka, which is the excuse used by the

State for over three years. Mr. Jayasundaram had only one registered company and that was

in Singapore; given the tight Singapore laws, Mr. Jayasundaram would undoubtedly have

been caught had he been operating in an illegal manner as the State authorities in Sri Lanka

“suspects”. The source also questions why the Government of Sri Lanka fails to name the

nine countries Mr. Jayasundaram was alleged to have been involved with.

20.

The source adds that regardless of the seriousness of the allegations, Mr.

Jayasundaram needs at the very least to be brought to trial. The poor excuse that Singapore

is dragging its heels demonstrates that the State authorities in Sri Lanka have acted illegally

and arbitrarily in detaining him, and now want to fabricate a reason for this excessively

prolonged arbitrary detention by blaming Singapore. The Sri Lankan authorities have never

provided a reason for his arrest in September 2007. This in itself is a serious violation of the

legal code of Sri Lanka and departs from both domestic and international human rights

standards regarding arrest and detention.

21.

Regarding the habeas corpus, it was forcibly withdrawn by the counsel as over 12

court hearings over a period of two years failed to produce Mr. Jayasundaram in court or

remedy his situation. A fundamental rights case was lodged instead of the habeas corpus

after that period. By law the habeas corpus must be withdrawn in order to proceed with the

Fundamental Rights application, which is more extensive in that it covers the right to a fair

trial. Although the right to a fair trial is guaranteed as a fundamental human right within the

Constitution of Sri Lanka, State authorities, particularly the police, have shown little respect

for those constitutional provisions. The modus operandi of the Sri Lankan authorities is to

continuously postpone hearings, as is clear in this case, in the hope that the case will be

dropped or that the detainee will be forced to sign a fabricated confession in order to get

reprieve.

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22.

The source calls upon the Government of Sri Lanka to honour the recommendations

of the Working Group on Arbitrary Detention, which are to remedy the situation of Mr.

Jayasundaram and to bring it into conformity with its international human rights obligations

under the International Covenant and Civil and Political Rights. The source also brings to

the attention of the Working Group the report of the Commission of Inquiry on Lessons

Learnt and Reconciliation,2 in particular to the recommendation in paragraphs 9.54, 9.55,

9.56 and 9.57 and paragraph 9.70. The source argues that none of the obligations Sri Lanka

has accepted under applicable international human rights instruments, and in accordance

with the requirements of its national laws, have been adhered to in respect of

Mr. Jayasundaram despite representations made on his behalf during the time the public

was encouraged to communicate with the Commission of Inquiry.

Discussion

23.

Mr. Jayasundaram was the subject of opinion No. 30/2008 of the Working Group

and three urgent appeals. To date, there have been no responses from the Government to

those urgent appeals.

24.

Since the adoption of opinion No. 30/2008, new information has been provided by

the source highlighting the deteriorating physical and psychological health of

Mr. Jayasundaram and the lack of procedural safeguards accorded to him since his

detention in 2007. He has had to undergo surgery while in detention and requires a further

hernia operation, which cannot be undertaken due to his poor health condition. The

detention of Mr. Jayasundaram has a direct bearing on his deteriorating health condition,

which is one of the main factors instigating the present submission. The combination of

civilian and emergency regulations in Sri Lanka has resulted in a worsening environment

for the protection of human rights, a situation that has been noted by national, regional and

international organizations, including the United Nations. The case in hand is one of many

that reveal a lack of respect for human rights that has arisen in reaction to the conflict and

post-conflict situation.

25.

Sri Lanka has been under emergency laws for a very long time; the foundation of the

laws is the Public Security Ordinance of 1947, dating back to British colonial rule. Since

then, these laws have enabled declarations of emergency and emergency regulations in the

country. The second law in this regard is the Prevention of Terrorism (Temporary

Provisions) Act of 1979. Human rights advocates and the international community have

repeatedly called for the repeal or amendment of these laws as they have resulted in the

dissipation of the core of human rights protecting persons deprived of their liberty,

including rules governing detention, due process and the right to a fair trial. Since 2005, the

Public Security Ordinance has been used to enact a total of 20 regulations by the

Government of Sri Lanka, which has undermined the human rights regime in general and

with particular effects on the rights relating to arrest, detention and fair trial.

26.

A number of emergency laws in Sri Lanka allow military personnel to perform the

functions usually carried out by normal law enforcement officials. Regulations 19 and 20 of

the Emergency (Miscellaneous Provisions and Powers) Regulation No. 1 of 2005 give the

armed forces powers of: search and seizure; arrest and detention without warrant; police

powers in dealing with prisoners; the powers of a police officer under any emergency

regulation; and the power to question a person in detention.

27.

Section 19 of the Emergency Regulations 2006, under which Mr. Jayasundaram was

arrested and continues to be detained, provides specific immunity for actions taken under

2 Available from http://slembassyusa.org/downloads/LLRC-REPORT.pdf.

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the Regulations. It provides that “no action or suit shall lie against any Public Servant or

any other person specifically authorized by the Government of Sri Lanka to take action in

terms of these Regulations, provided that such person has acted in good faith and in the

discharge of his official duties”.

28.

Similar immunity provisions are contained in Regulation 73 of the 2005 Emergency

Regulations, the Public Security Ordinance (sects. 9 and 23) and the Prevention of

Terrorism (Temporary Provisions) Act (sect. 26). These provisions seek to severely limit

the accountability of civilian and military authorities exercising emergency powers,

provided that the action of the official took place in the course of discharging official

duties. Further, the overly vague definitions of offences; sweeping powers of the military;

arbitrary grounds for arrest and detention; erosion of fair trial and due process rights; and

curtailing of fundamental freedoms endanger the life, liberty and security of the people. The

Working Group is concerned that the immunity provisions may have far-reaching

implications on those who are deprived of their liberty in that the violations of their human

rights can be carried out with impunity by State authorities. Laws that give immunity to

public functionaries and which are inimical to the human rights protection of those who are

deprived of their liberty should therefore be amended.

29.

It is important to note that the Emergency Regulations are still in operation despite

the fact that on 9 June 2010, the Government of Sri Lanka informed the Human Rights

Committee that: “the recent amendments to the Emergency Regulations that have come into

effect from 2 May 2010 are in keeping with the consistent commitment of Sri Lanka

towards the promotion of human rights and the maintenance of strong judicial safeguards. It

is in this context that the Government of Sri Lanka at the outset wishes to enumerate the

terminations of derogations of the following ICCPR articles [: 9 (2), 12, 14 (3), 17 (1), 19

(2), 21 and 22 (1)]”.3

30.

In a 2011 report, Amnesty International notes: “Detainees are often held arbitrarily

for prolonged periods (sometimes years) without charge. Many are arrested and detained on

suspicion of links to the LTTE pending investigation and interrogation by Sri Lanka’s

intelligence and security forces … People alleged to be involved with the LTTE are rarely

brought to trial. Most of these detainees are eventually released for lack of evidence”.4

31.

The Working Group is also mindful of the serious consequences for those who are

“suspected of links to the LTTE” simply because they are of Tamil origin. The manner in

which Mr. Jayasundaram’s case has been handled, namely the unsubstantiated reasons for

his arrest; his prolonged detention without charge or trial; and the non-observance of his

fundamental human rights, such as the right to a fair trial, lends weight to the concerns that

the reason for his arrest and detention is linked to his ethnicity as a Tamil.

32.

Mr. Jayasundaram was arrested without an arrest warrant on orders of the military

authorities under Emergency Regulation No. 19 (2), which resulted in his prolonged

detention. In its 2008 opinion, the Working Group arrived at the conclusion that the

accusations against Mr. Jayasundaram were based solely on the statements of another

person, with whom he had never met. Moreover, the Working Group found the

Government’s argument that Mr. Jayasundaram was providing monetary and material

support to the LTTE unsubstantiated. Four years on, the Government of Sri Lanka in its

“interim response” of 3 May 2012 regarding the current matter has not progressed beyond

its initial position. It is fairly incomprehensible that in five years the Government has been

unable to frame charges and/or initiate legal proceedings against what they term is a suspect

3 See the United Nations Treaty Collection website at

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en.

4 Amnesty International, “Sri Lanka: Briefing to Committee against Torture”, October 2011, p. 4.

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in their struggle against terrorism. The excessively prolonged period in which

Mr. Jayasundaram has been held in detention coupled with his deteriorating health

condition has therefore rendered it necessary for the Working Group to consider the case at

hand.

33.

The Working Group reminds the Government of Sri Lanka of its duty to comply

with international human rights obligations not to detain arbitrarily, to release persons who

are arbitrarily detained and to provide them with compensation. The duty to comply with

international human rights rests not only on the Government but on all officials, including

judges, police, security officers and prison officers with relevant responsibilities. No person

can contribute to human rights violations. The Working Group also underlines the liability

that can follow from arbitrary detention when it constitutes a crime against humanity under

customary international law.

Disposition

34.

In the light of the foregoing, the Working Group on Arbitrary Detention renders the

following opinion:

The Working Group considers that the deprivation of liberty of Gunasundaram

Jayasundaram continues to be arbitrary, being in contravention of articles 9 and 10

of the Universal Declaration of Human Rights and articles 9, 14 and 26 of the

International Covenant on Civil and Political Rights, falling within categories II, III

and V of the arbitrary detention categories referred to by the Working Group when

considering the cases submitted to it.

35.

Consequent upon the opinion rendered, the Working Group requests the

Government of Sri Lanka to remedy the situation of Mr. Jayasundaram and to bring it into

conformity with its international human rights obligations under the International Covenant

on Civil and Political Rights. The appropriate remedy for the present case would be the

immediate release of Mr. Jayasundaram and his enforceable right to compensation under

article 9, paragraph 5, of the International Covenant on Civil and Political Rights.

36.

In view of the critical health condition of Mr. Jayasundaram, the Working Group

requests the Government to extend to him access to all appropriate medical facilities.

37.

Finally, the Working Group reminds the Government that, according to the

recommendations of the Human Rights Council, national laws and measures aimed at

combating terrorism shall comply with all obligations under international law, in particular

international human rights law.5

[Adopted on 31 August 2012]

5 Human Rights Council resolution 7/7.