A/HRC/WGAD/2020/8

E. 1 The Working Group on Arbitrary Detention was established in resolution 1991/42 of the Commission on Human Rights. In its resolution 1997/50, the Commission extended and clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the Commission. The Council most recently extended the mandate of the Working Group for a three-year period in its resolution 42/22.

E. 2 In accordance with its methods of work (A/HRC/36/38), on 27 December 2019, the Working Group transmitted to the Government of Sri Lanka a communication concerning Shakthika Sathkumara. The Government has not replied to the communication. Sri Lanka is a party to the International Covenant on Civil and Political Rights.

E. 3 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 him or her) (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 Covenant (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); (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 on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings (category V). United Nations A/HRC/WGAD/2020/8 General Assembly Distr.: General 22 May 2020 Original: English A/HRC/WGAD/2020/8 2 Submissions Communication from the source

E. 4 Delankage Sameera Shakthika Sathkumara is a 34-year-old national of Sri Lanka. He is an award-winning writer and poet who has published a number of books and short stories. In addition, he was a civil servant working as an Economic Development Officer in the Polgahawela Divisional Secretariat. He usually resides in the Kurunegala District. a. Arrest and detention

E. 5 On 15 February 2019, Mr. Sathkumara published a short story, entitled “Ardha”, through a publicly viewable post on social media. It reportedly tells the story of a young former monk who has recently left the monastic life and who moves into the boarding house of a friend while pursuing a university degree. The story contains themes of homosexuality and alludes to an instance of possible sexual abuse. It is written in the post- modern literary tradition using a frame story, a literary technique used in creative fiction.

E. 6 On 25 February 2019, a Buddhist organization lodged a complaint concerning the short story before the Inspector-General of Police in Colombo. The organization demanded the withdrawal of the publication and the arrest of Mr. Sathkumara. A representative of the organization alleged that the work was defamatory to Buddhism and that Mr. Sathkumara was in violation of section 291B of the Penal Code of 1885 and section 3 (1) of the International Covenant on Civil and Political Rights Act of Sri Lanka.1

E. 7 On 6 March 2019, a group of Buddhist monks reportedly visited Mr. Sathkumara’s place of work, at the Polgahawela Divisional Secretariat, to deliver a petition against him and his literary work, in particular “Ardha”, alleging that it was defamatory to Buddhism. Mr. Sathkumara explained that the story was not intended to defame or hurt the religious feelings of the community. He clarified that the story was part of a larger tradition in Sinhalese literature, expressing the author’s creative thoughts and views on the world at large. The monks objected to that explanation and stated that Mr. Sathkumara, as a public servant, could not defame Buddhism. He responded that public servants also had freedom of expression. Mr. Sathkumara was subsequently informed that an inquiry would be conducted.

E. 8 On 1 April 2019, Mr. Sathkumara went to the Polgahawela Police Station with his lawyer, where several monks were waiting near the Chief Inspector’s office. The Chief Inspector called the monks into his office and spoke with them for half an hour before calling in Mr. Sathkumara. Mr. Sathkumara and his lawyer had a discussion with the monks, explaining that Mr. Sathkumara was an award-winning author, that his work was not intended to harm anyone and that the social media post had already been removed. They agreed to settle the matter with an apology from Mr. Sathkumara, who was then asked to make a recorded statement. However, the source alleges that, while Mr. Sathkumara was making his statement, the Chief Inspector interrupted and informed him that the issue was a serious matter and that he would not allow it to be settled. After Mr. Sathkumara finished recording his statement, the Chief Inspector informed him that he was under arrest for offences under section 291B of the Penal Code and sections 2 (1) and 3 (1) of the International Covenant on Civil and Political Rights Act.

E. 9 According to the source, following his arrest, in the afternoon on 1 April 2019, Mr. Sathkumara was taken to the Polgahawela Magistrates’ Court. The Polgahawela Police provided the magistrate with a copy of its report and asked that the Court order that Mr. Sathkumara be held in detention until 12 April 2019 while they investigated the matter further. Mr. Sathkumara’s lawyer challenged the police’s request, arguing that his client was the author of several books and that his story was not intended as an insult to Buddhism or any other religious feelings. He explained that Mr. Sathkumara had already 1 Act No. 56 of 2007. As noted in the preamble to the Act, the Act was enacted to give legislative effect to certain provisions of the International Covenant on Civil and Political Rights, to which Sri Lanka acceded on 11 June 1980. A/HRC/WGAD/2020/8 3 apologized to the Buddhist monks who had made the complaint. The magistrate ordered Mr. Sathkumara to be held in pretrial detention until 9 April 2019 and denied the request for his release on bail.

E. 10 The source reports that Mr. Sathkumara was subsequently taken to Kegalle Remand Prison, where he was held in pretrial detention. Reports suggest that the prison is severely overcrowded, with approximately 800 prisoners forced to share limited facilities designed to hold only 200 individuals.

E. 11 Following the decision of the magistrates’ court, Mr. Sathkumara’s lawyers filed a request for his release on bail with the Kurunegala High Court. The case was not heard until 9 July 2019, however, and a decision rendered on 5 August 2019. b. Pretrial proceedings

E. 12 On 9 April 2019, Mr. Sathkumara appeared for his first pretrial hearing before the Polgahawela Magistrates’ Court. During the hearing, the lawyer representing the association of monks argued that Mr. Sathkumara had, through his story, insulted Buddhism, the Buddha Sasana and the clergy. Mr. Sathkumara was again ordered to be held on remand, until 23 April 2019.

E. 13 On 23 April 2019, Mr. Sathkumara appeared for his second pretrial hearing, where he filed a petition arguing that he was wrongfully deprived of his liberty, given that arrests under sections 291A or 291B of the Penal Code required the prior approval of the Attorney- General. The magistrate again ordered that Mr. Sathkumara be held on remand until his next hearing, on 7 May 2019. The presiding judge reportedly denied bail on the grounds that the magistrates’ court did not have the authority to grant bail for a person who was accused or suspected of committing a crime under the International Covenant on Civil and Political Rights Act and that only the high court could grant such bail.

E. 14 On 30 April 2019, Mr. Sathkumara’s lawyers filed a petition with the Supreme Court of Sri Lanka, in Colombo, alleging violations of his rights guaranteed by the Constitution of Sri Lanka. The petition was set to be argued on 30 September 2019, but was subsequently rescheduled to be heard on 28 July 2020, reportedly without explanation.

E. 15 According to the source, over the following three months, the magistrates’ court repeatedly extended Mr. Sathkumara’s detention, despite the fact that the police had made little progress in the investigation or developing the case for trial. On 7 May 2019, Mr. Sathkumara appeared before the magistrates’ court and was again remanded, until 21 May

2019. On 21 May 2019, Mr. Sathkumara’s lawyer argued that the police were unreasonably delaying the case, given that they claimed that they required more time to investigate further into the uploading of the short story. Once again, Mr. Sathkumara was ordered to be held on remand, until 4 June 2019, and then again, until 18 June 2019.

E. 16 On 25 June 2019, the Polgahawela Police reported that their investigation had concluded and that the matter would be referred to the Attorney-General for a decision as to whether charges should be filed. Mr. Sathkumara’s lawyer again requested that he be released on bail, given that he had, at that point, been in custody for 85 days. The bail application was denied, another hearing was set for 4 July 2019 and Mr. Sathkumara’s remand custody was again extended. On 4 July 2019, Mr. Sathkumara’s detention was extended again, until 18 July 2019.

E. 17 On 9 July 2019, the Kurunegala High Court heard Mr. Sathkumara’s request for bail, but the judgment was postponed until 5 August 2019. On 1 August 2019, the Polgahawela Magistrates’ Court again ordered an extension to Mr. Sathkumara’s detention.

E. 18 On 5 August 2019, the High Court finally granted Mr. Sathkumara’s release on bail for two sureties in the amount of 200,000 Sri Lanka rupees each, on the condition that he report to the Polgahawela Police Station every two weeks. According to the source, Mr. Sathkumara was not immediately released following the ruling. He was not released from Kegalle Remand Prison until 8 August 2019, after 127 days in detention.

E. 19 At the time of the submission of the source’s petition to the Working Group, Mr. Sathkumara had not yet been formally indicted and no charges had been filed against him. A/HRC/WGAD/2020/8 4 The Attorney-General is expected to appear in the magistrates’ court with a decision on whether indictments will be filed. There has been no further hearing on the matter at the magistrates’ court since 1 August 2019.

E. 20 The source emphasizes that, although Mr. Sathkumara is currently released on bail, he still faces the threat of arrest and further detention for charges which have yet to be formally brought against him. In addition, Mr. Sathkumara is required to meet unduly harsh bail conditions, including providing two sureties of 200,000 Sri Lanka rupees each and reporting to the Polgahawela Police Station every two weeks.

E. 21 Mr. Sathkumara sought to continue his work as a government employee following his arrest. Although he received a letter of reinstatement from the Government in late October 2019, he has been refused a position by the Irrigation Department in Colombo, where he was reassigned. He had hoped to find a position in the Kurunegala District, where he formerly worked, but such requests have been denied. c. Analysis of violations

E. 22 The source submits that Mr. Sathkumara’s arrest and detention was arbitrary under categories I, II and III. i. Category I

E. 23 Article 11 (2) of the Universal Declaration of Human Rights and article 15 (1) of the Covenant guarantee individuals the right to know the content of the law and what conduct is in violation of it. The Human Rights Committee has indicated that any substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision to avoid overly broad or arbitrary interpretation or application.2 Similarly, the Committee has determined that a law must be formulated with sufficient precision so as to enable an individual to regulate his or her conduct accordingly.3 The source notes that the exact wording of article 15 (1) of the Covenant is also enshrined in article 13 (6) of the Constitution of Sri Lanka.

E. 24 The source argues that Mr. Sathkumara’s arrest is part of a pattern of abusive application of the International Covenant on Civil and Political Rights Act, which serves to suppress a broad range of legitimate forms of individual expression. The source refers to several publicly reported examples, including the attempted arrest of a journalist under the Act for reporting on Buddhist extremist violence against Muslim minority groups in Sri Lanka. In addition, the source refers to an alleged incident involving a Muslim whose shirt had a print on it that was mistaken by the authorities for a Buddhist symbol, who was also arrested under the Act. The source adds that the Government has used the Act to open an investigation into a prominent filmmaker and playwright, after a Buddhist monk complained that a recent radio drama produced by him had used distorted Buddhist terminology.

E. 25 According to the source, those cases illustrate that the application of the International Covenant on Civil and Political Rights Act is vague and overly broad. Almost any form of expression challenging Buddhist power or actions by Buddhists or expressing personal beliefs could be considered a violation of section 3 (1) of the Act, which prohibits propagating religious hatred. As a result, neither the text of the Act nor its application provides sufficient precision for an individual to be able to know what forms of expression will be in violation of the Act.

E. 26 Mr. Sathkumara could not have reasonably known that his work would incur criminal sanctions. His story does not advocate violence or war, nor does it incite discrimination or hostility. There has been no evidence presented that the story has had the effect of incitement to violence, nor has Mr. Sathkumara ever been accused of any form of 2 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para. 22. 3 Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and expression, para. 25. A/HRC/WGAD/2020/8 5 violence or incitement to violence. Accordingly, there were no grounds for Mr. Sathkumara or any other impartial observer to reasonably suspect that the publication of his short story would be criminalized under the International Covenant on Civil and Political Rights Act. The source claims that Mr. Sathkumara’s conduct is punished only because of the practice of applying the law when speech is perceived as challenging Buddhism. Such application cannot be considered precise, as required by article 11 (2) of the Universal Declaration of Human Rights and article 15 (1) of the Covenant. Mr. Sathkumara’s arrest and detention was arbitrary, because the first legal basis for his detention, namely the Act, is both vague and overly broad.

E. 27 Furthermore, section 291B of the Penal Code, the second legal basis for Mr. Sathkumara’s arrest, is also vague and overly broad. Section 291B prohibits “deliberate and malicious acts intended to outrage religious feelings of any class, by insulting its religion or religious beliefs”. The standards of “outrage religious feelings” and “insulting” are inherently subjective, therefore failing to provide clear guidance to any individual on what speech amounts to a violation. The lack of textual clarity as to the reach of the provision leads to its application in a manner that infringes upon the freedoms of expression and religion under international law. Although Buddhism is the State religion under article 9 of the Constitution of Sri Lanka, freedom of expression and religion are also guaranteed under articles 10 and 14 (1) (a) and (e) of the Constitution.

E. 28 The source claims that perceived insults to Buddhism or the Buddhist establishment often result in arrests, following a complaint from monks. Section 291 of the Penal Code has repeatedly been used to suppress legitimate forms of expression. Given the political influence of the Buddhist clergy and the special constitutional status afforded to Buddhism as the State religion, section 291B effectively provides a mechanism for stifling unorthodox religious views and expression.

E. 29 According to the source, the police used section 291B to arrest Mr. Sathkumara for the legitimate exercise of his freedom of expression. The intent of his story was not to advocate against the Buddhist religion, and, in fact, he considered his story to be part of a tradition of critical Sinhalese literature on Buddhist philosophy. As further evidence of his intent, Mr. Sathkumara removed the story from social media and was prepared to issue a formal apology, as agreed upon in the initial settlement with the monks concerned prior to his arrest.

E. 30 As a result, Mr. Sathkumara’s arrest and detention pending trial was arbitrary under category I, because the legal basis for his detention under section 3 (1) of the Act and section 291B of the Penal Code is both vague and overly broad. ii. Category II

E. 31 The source claims that the Government arbitrarily arrested and detained Mr. Sathkumara on the basis of the exercise of his rights to freedom of expression and freedom of thought, conscience and religion.

E. 32 Article 19 (2) of the Covenant provides that everyone shall have the right to freedom of expression; that right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his or her choice. That right is not limited by form or subject matter and includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, such as cultural and artistic expression, teaching and religious discourse.4 Moreover, all means of expression are covered, including electronic and Internet-based modes of expression.5

E. 33 Mr. Sathkumara was arrested and detained because of his expression, manifested in the short story, “Ardha”. The source alleges that the police cited criminal statutes that place limitations on free expression as the basis for his arrest. Although the right to freedom of expression is not absolute, the State can only impose restrictions under limited conditions. 4 Ibid, para. 11. 5 Ibid, para. 12. A/HRC/WGAD/2020/8 6 Freedom of expression may only be limited when provided by law and necessary for the respect of the rights or reputations of others, protection of national security, public order, health or morals. The Human Rights Committee has held that limitations on the freedom of expression under article 19 (3) of the Covenant must meet a strict test of justification.6

E. 34 Such exceptions to the right to freedom of expression do not apply in the present case. Although the restrictions on expression were written into law, the laws are vague and overly broad. The short story did not infringe upon or in any way threaten the rights or reputations of others, the protection of national security or public order, health or morals. In the context of what may be considered legitimate grounds for restricting freedom of expression, the Human Rights Committee has been clear that prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20 (2) of the Covenant.7

E. 35 The source argues that the Government applies both the International Covenant on Civil and Political Rights Act and section 291B of the Penal Code to criminalize actions that are merely perceived to be offensive or insulting to Buddhists. As a result, the application of those laws does not rise to the level of a legitimate prohibition of hate speech. The source stresses that any interpretation of article 20 of the Covenant in a way that inhibits free expression amounts to a violation of article 5 of the Covenant. Article 5 prohibits interpretations of the Covenant which aim to destroy any of the rights and freedoms recognized therein. Using those laws to harass, detain and potentially punish Mr. Sathkumara cannot qualify as a legitimate exception to the freedom of expression.

E. 36 Moreover, if a legitimate justification had existed, the Government had a duty to specify the manner of the threat posed by Mr. Sathkumara’s story. As set out in the Human Rights Committee’s jurisprudence, the State party must demonstrate in a specific fashion the precise nature of the threat to any of the enumerated purposes.8 The authorities have offered no explanation – beyond the Buddhist clerics’ indignation at the content of the story

– as to why Mr. Sathkumara’s right should be curtailed. No exceptions are applicable to the restrictions of Mr. Sathkumara’s right to freedom of expression, and his detention and continued prosecution therefore amount to a violation of article 19 of the Covenant.

E. 37 The source further alleges that the Sri Lankan authorities have violated Mr. Sathkumara’s right to freedom of thought, conscience and religion. The right to freedom of thought, conscience and religion is an essential tenet of international law, as expressed in article 18 of the Covenant and article 10 of the Constitution of Sri Lanka. The rights contained in article 18 of the Covenant include the freedom to have or to adopt a religion or belief of one’s choice and freedom, either individually or in community with others and in public or private, to manifest one’s religion or belief in worship, observance, practice and teaching. The Human Rights Committee has stated that article 18 encompasses freedom of thought on all matters, personal conviction and the commitment to religion or belief.9 Moreover, freedom of thought and freedom of conscience are protected equally with freedom of religion and belief.10

E. 38 According to the source, Mr. Sathkumara’s arrest and detention stem from the short story that he wrote and posted to his social media account. Mr. Sathkumara’s story dealt primarily with religious themes and Buddhist philosophy, provoking the ire of Buddhist monks, which in turn led to charges of incitement on the basis of religion. The fact that Mr. Sathkumara’s writing and posting of his original short story constitutes the basis of his arrest and detention amounts to a limitation on his right to freedom of religion. 6 Human Rights Committee, Park v. Republic of Korea (CCPR/C/64/D/628/1995), para. 10.3. 7 Human Rights Committee, general comment No. 34, para. 48. 8 Human Rights Committee, Shin v. Republic of Korea (CCPR/C/80/D/926/2000), para. 7.3. 9 Human Rights Committee, general comment No. 22 (1993) on the right to freedom of thought, conscience and religion, para. 1. 10 Ibid. A/HRC/WGAD/2020/8 7

E. 39 According to article 18 (3) of the Covenant, the right to freedom of religion may only be limited when such restrictions are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. The source reiterates that those exceptions do not apply in the present circumstances. As the Human Rights Committee has noted, the fact that a religion is recognized as a State religion or that it is established as official or traditional shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including article 18.11 Given that no exception applies to the Government’s restriction of Mr. Sathkumara’s right to freedom of religion, his detention and continued prosecution amounts to a violation of article 18 of the Covenant. iii. Category III

E. 40 According to article 9 (1) of the Covenant, no one shall be deprived of his or her liberty except on such grounds and in accordance with such procedure as are established by law. Article 13 (1) of the Constitution of Sri Lanka similarly prohibits arrest, except in accordance with legal procedures.

E. 41 Although the police presented the legal justification for Mr. Sathkumara’s arrest at the police station, the source claims that the basis for the charges was not accompanied by any evidence. Despite the fact that Mr. Sathkumara and the complainant monks had already agreed to settle the issue among themselves, the Chief Inspector would not allow the matter to be settled. According to the source, the Chief Inspector stated that Mr. Sathkumara was under arrest pursuant to section 291B of the Penal Code and sections 2 (1) and 3 (1) of the International Covenant on Civil and Political Rights Act, but did not explain on what grounds Mr. Sathkumara’s violations were based. Moreover, the source states that, under the Code of Criminal Procedure, arrests made pursuant to section 291 of the Penal Code require the approval of the Attorney-General. No such approval was sought. In the light of its irregular manner, Mr. Sathkumara’s arrest and detention was arbitrary and in violation of article 9 of the Universal Declaration of Human Rights and article 9 (1) of the Covenant.

E. 42 Furthermore, article 14 (3) (c) of the Covenant guarantees that each individual subject to arrest shall be tried without undue delay. The Human Rights Committee has explained that an important aspect of the fairness of a hearing is its expeditiousness and that, in cases where the accused are denied bail by the court, they must be tried as expeditiously as possible.12

E. 43 Mr. Sathkumara was held without bail for 127 days, and formal charges have yet to be filed. Although he was able to appear before a court during the period of his detention, the courts repeatedly delayed important decisions on his case and extended the period of his detention. The hearing of Mr. Sathkumara’s petition with the Supreme Court, filed on 30 April 2019, was rescheduled for 28 July 2020. Due to the substantial delays in Mr. Sathkumara’s trial and the failure of the detaining authorities to provide legitimate grounds for the length of proceedings, the Government has violated Mr. Sathkumara’s right to be tried without undue delay, contrary to article 14 (3) (c) of the Covenant.

E. 44 In addition, article 9 (3) of the Covenant provides for the right to release pending trial. Under that provision, pretrial detention should be the exception, not the norm, and must be justified based on the circumstances. The Human Rights Committee has found that detention pending trial must be based on an individualized determination that it is reasonable and necessary taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime.13 Pretrial detention should not be mandatory for all defendants charged with a particular crime, without regard to individual circumstances.14 11 Ibid, para. 9. 12 Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, paras. 27 and 35. 13 Human Rights Committee, general comment No. 35, para. 38. 14 Ibid. A/HRC/WGAD/2020/8 8

E. 45 Mr. Sathkumara was held without formal charges or a right to bail. The International Covenant on Civil and Political Rights Act, which provided the grounds for Mr. Sathkumara’s detention, requires that anyone accused of violating the Act be denied bail, by default. Section 3 (4) of the Act states that: “An offence under this section shall be cognizable and non-bailable, and no person suspected or accused of such an offence shall be enlarged on bail, except by the High Court in exceptional circumstances.” The source claims that that provision is in violation of the requirement in article 9 (3) of the Covenant that pretrial custodial detention not be the general rule. According to the source, at the 23 April 2019 hearing before the magistrates’ court, the judge explicitly stated that the reason he could not grant bail was owing to the charges having been alleged under the International Covenant on Civil and Political Rights Act.

E. 46 Moreover, because the denial of bail was based upon section 3 (4) of the International Covenant on Civil and Political Rights Act, rather than an individualized determination regarding Mr. Sathkumara’s case, the magistrates’ court failed to take the totality of the circumstances into account, as required under the Covenant. The courts offered no determination as to whether Mr. Sathkumara represented a flight risk or a threat of repeating the supposed offence. Even if the short story did constitute some form of public threat or offence, the post containing it had been removed from his social media account prior to Mr. Sathkumara’s arrest. There were no circumstances that could reasonably justify the excessive period of detention without trial or formal charges.

E. 47 For the above reasons, Mr. Sathkumara’s arrest and detention violated international law, given that his freedom of expression, through his short story, is protected under applicable provisions of the Covenant, as well as other sources of international and Sri Lankan law. By arresting Mr. Sathkumara and subjecting him to lengthy pretrial detention, the conditions of which violated international law, the Government arbitrarily detained Mr. Sathkumara. Response from the Government

E. 48 On 27 December 2019, the Working Group transmitted the source’s allegations to the Government under its regular communications procedure, requesting the Government to provide detailed information by 25 February 2020 about the current situation of Mr. Sathkumara. The Working Group also requested the Government to clarify the legal provisions justifying his detention, as well as its compatibility with the obligations of Sri Lanka under international human rights law.

E. 49 The Working Group regrets that it did not receive a response from the Government to its communication, nor did the Government request an extension of the time limit for its reply, as provided for in the Working Group’s methods of work. Discussion

E. 50 In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

51.

The Working Group welcomes the release of Mr. Sathkumara from pretrial

detention on 8 August 2019. According to paragraph 17 (a) of its methods of work, the

Working Group reserves the right to render an opinion on whether the deprivation of liberty

was arbitrary, notwithstanding the release of the person concerned. Mr. Sathkumara was

allegedly subjected to serious human rights violations, including being detained for the

exercise of his rights to freedom of religion and expression. Moreover, although Mr.

Sathkumara is currently released on bail, he still faces the threat of arrest and further

detention, because a decision by the Attorney-General is pending on whether indictments

will be filed. For those reasons, the Working Group considers that it is important to render

an opinion in the present case.

52.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of the

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations

A/HRC/WGAD/2020/8

9

(A/HRC/19/57, para. 68). In the present case, the Government has chosen not to challenge

the prima facie credible allegations made by the source.

53.

As a preliminary matter, the Working Group notes that the High Court granted Mr.

Sathkumara’s release on bail on 5 August 2019, but that he was not actually released from

Kegalle Remand Prison until three days later, on 8 August 2019. The reason for that delay

is not clear.15 The Working Group does not have sufficient information to make a finding

on the matter. However, it takes the opportunity to reiterate that maintaining a person in

detention after release has been ordered by a court competent to exercise control over the

legality of detention is a manifest violation of article 9 of the Universal Declaration of

Human Rights and article 9 of the Covenant and renders the detention arbitrary, because it

lacks legal basis.16

54.

Furthermore, in accordance with article 9 (3) of the Covenant, pretrial detention

should be the exception, and not the rule, and should be ordered for as short a duration as

possible.17 Liberty is recognized under article 9 (3) as a principle, and detention as an

exception thereto, in the interest of justice.18 As noted by the Human Rights Committee in

paragraph 38 of its general comment No. 35 (2014):

It should not be the general practice to subject defendants to pretrial detention.

Detention pending trial must be based on an individualized determination that it is

reasonable and necessary taking into account all the circumstances, for such

purposes as to prevent flight, interference with evidence or the recurrence of crime.

The relevant factors should be specified in law and should not include vague and

expansive standards such as “public security”.

55.

The Working Group notes that the Government has not explained the reasons that

led to the decision to place Mr. Sathkumara in pretrial detention, nor the reasons for the

multiple extensions of the orders remanding him in custody. In addition, the Government

did not explain why those measures were reasonable and necessary. Accordingly, the

Working Group finds that the Government did not establish a legal basis for Mr.

Sathkumara’s pretrial detention in accordance with the requirements of article 9 (3) of the

Covenant.

56.

The Working Group finds that there was no legal basis for Mr. Sathkumara’s arrest

or pretrial detention. His detention was arbitrary under category I.

57.

In addition, the source alleges that Mr. Sathkumara was arbitrarily arrested and

detained on the basis of the peaceful exercise of his rights to freedom of thought,

conscience and religion and freedom of expression. According to the source, the authorities

detained Mr. Sathkumara because of his religious beliefs and expression, as manifested in

the short story, “Ardha”. The Government did not provide any information in response to

those allegations.

58.

The Working Group will examine each of the source’s arguments in turn. The

source alleges that the authorities have violated Mr. Sathkumara’s right to freedom of

thought, conscience and religion under article 18 of the Universal Declaration of Human

Rights and article 18 of the Covenant, by detaining him for writing and posting his short

story on social media. According to the source, Mr. Sathkumara’s short story deals with

Buddhist philosophy and is alleged to have been insulting towards Buddhism, a religion

which is accorded the foremost place and special protection under article 9 of the

15 The delay may have been caused by the need to secure two sureties of 200,000 Sri Lanka rupees each.

During its visit to Sri Lanka in December 2017, the Working Group learned of numerous cases in

which accused persons were granted bail, but remained in custody because they were unable to afford

the bail or provide the requisite sureties (A/HRC/39/45/Add.2, para. 23).

16 Opinions No. 9/2011, para. 38; No. 7/2011, paras. 15–17; No. 3/2011, para. 20; No. 3/2010, para. 6;

No. 21/2007, para. 19; and No. 5/2005, para 19; and decisions No. 45/1995, para. 6; and No. 61/1993,

para. 6. See also Human Rights Committee, general comment No. 35, para. 22.

17 A/HRC/19/57, sect. III.A.

18 Ibid, para. 54.

A/HRC/WGAD/2020/8

10

Constitution of Sri Lanka.19 Mr. Sathkumara was detained for allegedly propagating

religious hatred, under section 3 (1) of the International Covenant on Civil and Political

Rights Act, and for insulting the religion or religious beliefs of a class of persons, under

section 291B of the Penal Code.

59.

The right to freedom of thought, conscience and religion in article 18 (1) of the

Covenant encompasses freedom of thought on all matters, personal conviction and the

commitment to religion or belief, whether manifested individually or in community with

others.20 Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right

not to profess any religion or belief.21 The fact that a religion is recognized as a State

religion or that it is established as official or traditional or that its followers comprise the

majority of the population shall not result in any impairment of the enjoyment of any of the

rights under the Covenant, including article 18.22 Moreover, prohibitions of displays of lack

of respect for a religion or other belief system, including blasphemy laws, are incompatible

with the Covenant, except in the specific circumstances envisaged in article 20 (2) of the

Covenant.23 Accordingly, the Working Group considers that Mr. Sathkumara’s short story

falls clearly within the boundaries of the right to freedom of thought, conscience and

religion protected under article 18 (1) of the Covenant and that his detention resulted from

peacefully exercising that right.

60.

Similarly, the source argues that Mr. Sathkumara was arrested and detained because

he exercised his freedom of expression, by writing and posting a short story online on his

account on a social media platform, in violation of article 19 of the Universal Declaration

of Human Rights and article 19 of the Covenant. According to the source, the authorities

have applied section 3 (1) of the International Covenant on Civil and Political Rights Act

and section 291B of the Penal Code to criminalize expression that is merely perceived to be

offensive or insulting to Buddhists.24 The authorities have offered no explanation, other

than the Buddhist clerics’ indignation at the content of the short story, as to why Mr.

Sathkumara’s right to freedom of expression should be curtailed.

61.

The Working Group considers that Mr. Sathkumara’s short story falls clearly within

the boundaries of the right to freedom of expression protected under article 19 (2) of the

Covenant, given that that right includes cultural and artistic expression and religious

discourse. 25 As the Human Rights Committee has stated, that right also encompasses

expression that may be regarded as deeply offensive.26 The fact that the short story in the

present case contained references to controversial themes of homosexuality and sexual

abuse does not prevent it from falling within the scope of the freedom of expression.27

62.

The Government did not explain the threat posed by Mr. Sathkumara’s conduct to

the legitimate interests that a State might invoke under articles 18 (3) and 19 (3) of the

Covenant, namely, respect for the rights, freedoms or reputations of others, national

security, public safety, public order, public health or morals, or how the arrest and detention

of Mr. Sathkumara was necessary to protect any of those interests. Importantly, there is no

19 The Special Rapporteur on freedom of religion or belief has noted that the provision is almost

equivalent to Buddhism being made the official religion of the State (see A/HRC/43/48/Add.2).

20 Human Rights Committee, general comment No. 22, para. 1.

21 Ibid, para. 2.

22 Ibid, para. 9.

23 Human Rights Committee, general comment No. 34, para. 48.

24 The Special Rapporteur on freedom of religion or belief, making specific reference to Mr.

Sathkumara’s case, has noted that the International Covenant on Civil and Political Rights Act is

invoked to protect religions or beliefs against criticism or perceived insult, and that the Act has

ironically become a repressive tool used for curtailing freedom of thought or opinion, conscience and

religion or belief (see A/HRC/43/48/Add.2).

25 Human Rights Committee, general comment No. 34, para. 11.

26 Ibid.

27 See opinion No. 33/2019, in which the Working Group found that a fictional story considered

offensive by the authorities, about a female character who burned the Qur’an after watching a film

showing a woman who had been stoned to death for alleged adultery, fell within the protection of

article 19 (2) of the Covenant.

A/HRC/WGAD/2020/8

11

information to suggest that Mr. Sathkumara’s short story advocated violence or war or

incited discrimination or hostility. There has also been no evidence presented that the story

had the effect of incitement, nor has Mr. Sathkumara ever been accused of any form of

violence or incitement to violence that would justify restriction of his activities as religious

hate speech under article 20 of the Covenant.

63.

Moreover, the Working Group is not convinced that detaining Mr. Sathkumara and

possibly prosecuting him for offences that may lead to his imprisonment for up to 12 years

is a proportionate response to his writing and posting a short story online. The short story

has since been removed from the social media site on which it was posted, and Mr.

Sathkumara has offered to provide a formal apology. The Working Group refers the present

case to the Special Rapporteur on freedom of religion or belief and the Special Rapporteur

on the promotion and protection of the right to freedom of opinion and expression.

64.

The Working Group concludes that Mr. Sathkumara’s arrest and detention resulted

from the peaceful exercise of his rights to freedom of thought, conscience and religion and

freedom of expression. His detention was arbitrary under category II.

65.

In addition, the Working Group received credible allegations that Mr. Sathkumara

was held in pretrial detention for 127 days, from 1 April to 8 August 2019,28 without

sufficient legal justification. Mr. Sathkumara’s arrest and detention pending trial was

alleged to be arbitrary, because the legal basis for his detention under section 3 (1) of the

International Covenant on Civil and Political Rights Act and section 291B of the Penal

Code is not defined with sufficient precision. Those provisions are vague and overly broad

and do not allow an individual to know what conduct is in violation of the law.

66.

Section 3 (1) of the International Covenant on Civil and Political Rights Act states

that: “No person shall propagate war or advocate national, racial or religious hatred that

constitutes incitement to discrimination, hostility or violence.”29 According to section 3 (3),

the maximum penalty for that offence is 10 years’ “rigorous imprisonment”. In addition,

section 291B of the Penal Code provides that:

Whoever, with the deliberate and malicious intention of outraging the religious

feelings of any class of persons, by words, either spoken or written, or by visible

representations, insults, or attempts to insult the religion or the religious beliefs of

that class, shall be punished with imprisonment of either description for a term

which may extend to two years, or with [a] fine, or with both.30

67.

The Working Group considers that those provisions are so vague and overly broad in

their content and application that they could, as in the present case, result in charges being

brought against individuals who had merely exercised their rights under international law.

Many forms of legitimate expression and conduct could be considered as amounting to

propagation of religious hatred under section 3 (1) of the International Covenant on Civil

and Political Rights Act, and the standards of “outraging the religious feelings of any class”

and insulting the religion or religious beliefs of that class, as set out in section 291B of the

Penal Code, are inherently subjective. In its assessment of the present case, the Working

Group was particularly mindful of the views of the Special Rapporteur on freedom of

religion or belief, who recently noted the lack of clarity and room for misinterpretation of

those provisions and that revision was required to bring them into line with international

human rights standards.31

28 The period of Mr. Sathkumara’s pretrial detention, from his arrest on 1 April 2019 until his release on

8 August 2019, was 130 days. While the source states that the period was 127 days, that may have

been calculated on the basis of the ruling of the High Court of 5 August 2019 that Mr. Sathkumara be

released on bail. The Working Group considers that Mr. Sathkumara was deprived of his liberty until

his release from prison on 8 August 2019, as discussed above.

29 See www.lawnet.gov.lk/wp-content/uploads/2016/12/INTERNATIONAL-COVENANT-ON-CIVIL-

AND-POLITICAL-RIGHTS-ICCPR-ACT-NO-56-OF-2007.pdf.

30 See www.ilo.org/dyn/natlex/docs/ELECTRONIC/67628/64581/F1856665391/LKA67628.pdf.

31 See A/HRC/43/48/Add.2.

A/HRC/WGAD/2020/8

12

68.

As the Working Group has previously stated, the principle of legality requires that

laws be formulated with sufficient precision so that the individual can access and

understand the law and regulate his or her conduct accordingly.32 In the present case, the

application of vague and overly broad provisions adds weight to the Working Group’s

conclusion that Mr. Sathkumara’s deprivation of liberty falls within category II. Moreover,

the Working Group considers that, in some circumstances, laws may be so vague and

overly broad that it is impossible to invoke a legal basis justifying the deprivation of liberty.

69.

Given its finding that Mr. Sathkumara’s detention was arbitrary under category II,

the Working Group emphasizes that no trial of Mr. Sathkumara should take place in the

future. At present, he is released on bail, and a decision is pending as to whether further

proceedings will be initiated against him. However, the Working Group will consider

whether the information submitted by the source to date discloses violations of the right to a

fair trial.

70.

The source alleges that the authorities violated Mr. Sathkumara’s right not to be

subjected to arbitrary arrest under article 9 (1) of the Covenant, which provides that no one

shall be deprived of liberty except on such grounds and in accordance with such procedure

as are established by law. According to the source, although the police presented the legal

justification for Mr. Sathkumara’s arrest at the police station, the basis for the charges was

not accompanied by any evidence. Although Mr. Sathkumara and the complainant monks

had already agreed to settle the issue, the Chief Inspector would not allow the matter to be

settled. Moreover, the Chief Inspector stated that Mr. Sathkumara was under arrest pursuant

to section 291B of the Penal Code and sections 2 (1) and 3 (1) of the International Covenant

on Civil and Political Rights Act, but did not explain on what grounds the alleged violations

were based. In addition, the source states that arrests made pursuant to section 291 of the

Penal Code require the approval of the Attorney-General, but no such approval was sought

in the present case.

71.

The Working Group considers itself competent to determine whether the facts

demonstrate a failure to afford an individual a fair trial under applicable international

standards, but has consistently refrained from taking the place of the national judicial

authorities or substituting itself for a domestic appellate tribunal.33 The Working Group is

therefore not able to evaluate whether the charges against Mr. Sathkumara were

accompanied by sufficient evidence.34 It is for the Sri Lankan authorities to determine

whether the settlement of the matter between Mr. Sathkumara and the monks has removed

the evidentiary basis for charges under sections 2 (1) and 3 (1) of the International

Covenant on Civil and Political Rights Act and section 291B of the Penal Code. The source

acknowledges that the police presented the legal justification for Mr. Sathkumara’s arrest,

which appears to have included the reasons for the arrest and notification of the provisions

under which Mr. Sathkumara was being arrested and charged.

72.

It is not clear to the Working Group how the Chief Inspector failed, as the source

claims, to explain the grounds on which the alleged violations of the Penal Code and the

International Covenant on Civil and Political Rights Act were based. The alleged

misconduct by Mr. Sathkumara, namely, the publication of a short story that defamed

Buddhism, was discussed at the meeting on 1 April 2019 in the presence of his lawyer, who

later that afternoon had sufficient information about the alleged offences to argue before the

Polgahawela Magistrates’ Court that Mr. Sathkumara should not be remanded. In addition,

although the source noted that Mr. Sathkumara filed a petition arguing that he was

wrongfully arrested, given that arrests under sections 291A or 291B of the Penal Code

require the prior approval of the Attorney-General, no provision to demonstrate that such

approval was required or that a violation of arrest procedures had therefore occurred was

32 Opinion No. 41/2017, paras. 98–101. See also opinion No. 62/2018, paras. 57–59; and Human Rights

Committee, general comment No. 35, para. 22; and general comment No. 34, para. 25.

33 Opinions No. 64/2019, para. 89; No. 63/2017, para. 45; No. 59/2016, para. 60; No. 33/2015, para. 89;

No. 12/2007, para. 18; No. 40/2005, para. 22; and No. 10/2002, para. 18.

34 Opinions No. 75/2018, para. 73; No. 53/2018, para. 79; No. 57/2016, para. 115 and No. 10/2000,

para. 9.

A/HRC/WGAD/2020/8

13

cited. Given those circumstances, the Working Group is unable to conclude that article 9 of

the Covenant was violated.

73.

The source argues that Mr. Sathkumara was not afforded his right to be tried without

undue delay, given that he was held for 130 days in pretrial detention, and in reportedly

overcrowded conditions, following his arrest. The reasonableness of any delay in bringing a

case to trial must be assessed in the circumstances of each case, taking into account the

complexity of the case, the conduct of the accused and the manner in which the matter was

dealt with by the authorities.35

74.

Mr. Sathkumara’s pretrial detention was extended by the Polgahawela Magistrates’

Court on at least nine occasions before he was released.36 In such a relatively

uncomplicated case involving a publication uploaded to social media by an individual who

admitted to doing so, with the contents of the publication being known to the authorities

and the community, it is unclear therefore why the police required further time to

investigate and why the Attorney-General has not yet determined whether to file

indictments that could potentially result in Mr. Sathkumara’s imprisonment for up to 12

years. The Government offered no justification for the delay.

75.

In addition, although Mr. Sathkumara’s petition to the Supreme Court was filed on

30 April 2019, the hearing thereon was rescheduled for over a year later, to 28 July 2020,

without explanation. Under those circumstances, the Working Group considers that the

delay in bringing Mr. Sathkumara’s case to trial has been, and continues to be,

unacceptably long, in violation of articles 9 (3) and 14 (3) (c) of the Covenant. The delay is

exacerbated by the fact that Mr. Sathkumara was detained solely for the exercise of his

rights under international human rights law.37 As the Working Group noted during its visit

to Sri Lanka in December 2017, lengthy pretrial detention and undue delays in trials are

serious problems that may lead to arbitrary detention in many cases.38 There is a pressing

need for non-custodial measures, such as bail and sureties set at realistic levels, to be

implemented.39

76.

Furthermore, the source alleges that Mr. Sathkumara was held without formal

charges or a right to bail. The International Covenant on Civil and Political Rights Act,

which provided the grounds for Mr. Sathkumara’s detention, requires that anyone accused

of violating the Act be denied bail. Section 3 (4) of the Act states that: “An offence under

this section shall be cognizable and non-bailable, and no person suspected or accused of

such an offence shall be enlarged on bail, except by the High Court in exceptional

circumstances.” According to the source, at the 23 April 2019 hearing before the

Polgahawela Magistrates’ Court, the magistrate explicitly stated that a magistrates’ court

could not grant bail, owing to the allegations against Mr. Sathkumara having been made

under the International Covenant on Civil and Political Rights Act. The Government did

not challenge the source’s claims.

77.

In its jurisprudence, the Working Group has repeatedly confirmed that mandatory

pretrial detention – in the present case, a “non-bailable” offence under section 3 (4) of the

International Covenant on Civil and Political Rights Act – is in violation of a State’s

obligations under international human rights law.40 In particular, non-bailable offences are

in violation of the requirement under article 9 (3) of the Covenant that pretrial detention be

an exceptional measure rather than the rule. Such non-bailable offences are also in violation

of the requirement that pretrial detention be based on an individualized determination that it

35 Human Rights Committee, general comment No. 35, para. 37; and general comment No. 32, para. 35.

36 The extensions reportedly took place on 9 April, 23 April, 7 May, 21 May, 4 June, 18 June, 25 June, 4

July and 1 August 2019.

37 See opinion No. 46/2019, para. 63, in which the Working Group was not convinced that there had

been a category II violation and was unable to find that a 16-month delay before the trial was

unreasonable.

38 A/HRC/39/45/Add.2, paras. 21–22 and 24. See also CCPR/C/LKA/CO/5, paras. 17–18.

39 A/HRC/39/45/Add.2, paras. 23 and 83 (a)–(c).

40 Opinions No. 64/2019, No. 14/2019, No. 75/2018, No. 61/2018, No. 53/2018, No. 16/2018, No.

24/2015 and No. 57/2014; A/HRC/42/39/Add.1, paras. 36–38; and A/HRC/19/57, paras. 48–58.

A/HRC/WGAD/2020/8

14

is reasonable and necessary in the circumstances, for such purposes as to prevent flight,

interference with evidence or the recurrence of crime.41 As the Human Rights Committee

has stated, pretrial detention should not be mandatory for all defendants charged with a

particular crime, without regard to individual circumstances.42

78.

The Working Group considers that non-bailable offences also deprive a detainee of

the right to seek alternatives to detention, such as bail, in violation of the right to be

presumed innocent under article 11 (1) of the Universal Declaration of Human Rights and

article 14 (2) of the Covenant. The imposition of mandatory pretrial detention for certain

offences reverses the presumption of innocence, so that those subject to ongoing criminal

proceedings are automatically detained without a balanced consideration of non-custodial

alternatives to detention. Moreover, mandatory pretrial detention deprives judicial

authorities of one of their essential functions as members of an independent and impartial

tribunal, namely, assessing the necessity and proportionality of detention in each case.43

79.

While section 3 (4) of the International Covenant on Civil and Political Rights Act

allows for the High Court to grant bail “in exceptional circumstances”, that was not

sufficient to remedy the violation of Mr. Sathkumara’s right to an individualized

assessment of his case under article 9 (3) of the Covenant. The Working Group takes note

that it took 127 days before the High Court granted bail to Mr. Sathkumara, on 5 August

2019.

80.

The Working Group concludes that those violations of the right to a fair trial were of

such gravity as to give Mr. Sathkumara’s pretrial detention an arbitrary character under

category III.

81.

The Working Group has previously determined that provisions that permit

mandatory pretrial detention create two categories of defendants: those who are subject to

criminal proceedings that do not require automatic detention and can benefit from

alternative measures, such as bail; and those who, as in the case of Mr. Sathkumara, are

alleged to have committed criminal acts that do not allow for such alternatives – or, in the

present case, only in exceptional circumstances, under the International Covenant on Civil

and Political Rights Act. The Working Group reiterates that that distinction is

discriminatory against certain categories of criminal defendants, in a manner which ignores

the equality of human beings, based on their “other” status, i.e., being accused of a crime

that does not allow for alternative measures to detention, a prohibited ground of

discrimination under articles 2 and 7 of the Universal Declaration of Human Rights and

articles 2 (1) and 26 of the Covenant.44 Although Mr. Sathkumara was released on 8 August

2019, after 130 days of pretrial detention, he was detained on a discriminatory basis until

that point. Accordingly, the Working Group considers that the facts in the present case

disclose a violation under category V.

82.

Although the Working Group visited Sri Lanka in December 2017, it would

welcome the opportunity to conduct a follow-up visit to assist the Government with the

implementation of the recommendations made during the initial visit. The Working Group

notes that Sri Lanka has maintained a standing invitation to all thematic special procedures

mandate holders since 17 December 2015.

Disposition

83.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Delankage Sameera Shakthika Sathkumara, being in

contravention of articles 2, 7, 9–11, 18 and 19 of the Universal Declaration of

Human Rights and articles 2 (1), 9, 14, 18, 19 and 26 of the International Covenant

41 Human Rights Committee, general comment No. 35, para. 38.

42 Ibid.

43 This applies to the initial judicial review of detention, and it limits the ability of judges to undertake

ongoing periodic reviews of the necessity and proportionality of detention.

44 See opinions No. 64/2019, No. 14/2019, No. 75/2018 and No. 1/2018.

A/HRC/WGAD/2020/8

15

on Civil and Political Rights, was arbitrary and falls within categories I, II, III and

V.

84.

The Working Group requests the Government of Sri Lanka to take the steps

necessary to remedy the situation of Mr. Sathkumara without delay and bring it into

conformity with the relevant international norms, including those set out in the Universal

Declaration of Human Rights and the International Covenant on Civil and Political Rights.

85.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to accord Mr. Sathkumara an enforceable right to

compensation and other reparations, including reinstatement of his employment,45in

accordance with international law.

86.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary detention of Mr. Sathkumara,

and to take appropriate measures against those responsible for the violation of his rights.

87.

The Working Group requests the Government to bring its laws, in particular section

3 (1) and (4) of the International Covenant on Civil and Political Rights Act and section

291B of the Penal Code, into conformity with the recommendations made in the present

opinion and with the commitments made by Sri Lanka under international human rights

law.

88.

In accordance with paragraph 33 (a) of its methods of work, the Working Group

refers the present case to the Special Rapporteur on freedom of religion or belief and the

Special Rapporteur on the promotion and protection of the right to freedom of opinion and

expression, for appropriate action.

89.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

90.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether compensation or other reparations have been made to Mr.

Sathkumara;

(b)

Whether an investigation has been conducted into the violation of Mr.

Sathkumara’s rights and, if so, the outcome of the investigation;

(c)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of Sri Lanka with its international obligations in line

with the present opinion;

(d)

Whether any other action has been taken to implement the present opinion.

91.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

92.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

45 Opinion No. 83/2017, para. 94, in which the Working Group called for the reinstatement of

employment of the detainee’s relatives.

A/HRC/WGAD/2020/8

16

93.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and has requested them to take account of its

views and, where necessary, to take appropriate steps to remedy the situation of persons

arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have

taken.46

[Adopted on 1 May 2020]

46 Human Rights Council resolution 42/22, paras. 3 and 7.