Report of the Working Group on Arbitrary Detention on its isit to Sri Lanka

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UN Working Group on Arbitrary Detention at press conference at the conclusion of official visit in Sri Lanka

by Working Group on Arbitrary Detention, July 23, 2018

http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/39/45/Add.2

[Statement at end of Working Group visit]

VI. Conclusions

73. The Working Group appreciates the willingness of the Government to submit
itself to scrutiny through the visit, and considers that the findings in the present
report offer an opportunity to support the Government in addressing situations of
arbitrary deprivation of liberty.
74. The Working Group was informed of many positive changes that were being
made across Sri Lanka in relation to the deprivation of liberty.
75. The Working Group identified systemic problems within the criminal justice
system which placed defendants at a high risk of arbitrary detention.
76. The Working Group found that while the number of arrests and detention
under the Prevention of Terrorism Act appears to have fallen, the Act contains
numerous severe restrictions on the right to a fair trial.
77. The Working Group is deeply concerned that over 14,000 girls and boys under
the age of 18 are deprived of their liberty in 371 childcare institutions across Sri
Lanka.
78. The Working Group learned that the placement of individuals in hospitals and
treatment facilities on the basis of a psychosocial disability or a mental health
condition, such as schizophrenia, bipolar disorder or depression, is increasingly
common in post-conflict Sri Lanka.
79. The Working Group identified systemic problems with deprivation of liberty
for rehabilitation purposes, including with regard to the rehabilitation of excombatants,
drug users, women and other vulnerable persons.
80. The Working Group learned of several situations in which people were being
deprived of their liberty, or were at high risk of being detained, on discriminatory
grounds.
81. The Working Group observed the ad hoc nature of the arrangements regarding
asylum seekers in Sri Lanka and the dire conditions in the Mirihana immigration
detention facility.

VII. Recommendations

82. The Working Group recommends that the Government of Sri Lanka undertake
the following measures in relation to the national human rights framework:
(a) Continue efforts to establish a permanent government body to
coordinate engagement with international human rights mechanisms, while involving
from the outset all the relevant stakeholders, including the Human Rights
Commission and civil society actors;
(b) Enable the Office of Missing Persons to commence its operations
immediately, with the full involvement and participation of victims and civil society
organizations;
(c) Establish, without delay, a truth and reconciliation commission, a
reparations programme and a special accountability mechanism, as outlined in
Human Rights Council resolution 30/1, with the full involvement and participation of
all relevant stakeholders;
(d) Embark upon implementation of the objectives set out in the national
action plan for the promotion and protection of human rights for the period 2017–
2021 with the full involvement of the Human Rights Commission and civil society;
A/HRC/39/45/Add.2

(e) Institutionalize the practice of seeking the advice of the Human Rights
Commission on draft legislation, giving it an opportunity to provide comments and
engage in constructive dialogue with it concerning its recommendations;
(f) Ensure that adequate additional resources, in terms of both personnel
and funding, are allocated to the Human Rights Commission so as to enable it to
discharge its functions as the national preventive mechanism effectively and
independently;
(g) Review the legal framework applicable to the fundamental rights
procedure in order to widen the scope of its application and undertake concrete steps
to make this procedure further accessible throughout the country.
83. The Working Group recommends that the Government of Sri Lanka undertake
the following measures in relation to criminal justice:
(a) Adopt measures to address lengthy pretrial detention, such as:
(i) Promoting the use of bail (set at realistic levels) and alternatives to
detention;
(ii) Expediting investigations;
(iii) Expediting court proceedings by ensuring that there are sufficient
prosecutors and judges in the country. Ensure that time spent in pretrial
custody is taken into account when the final custodial sentence is determined;
(b) Ensure that decisions on whether to grant bail are individualized and
that no group of suspects, such as those held under the Prevention of Terrorism Act, is
submitted to a blanket exclusion from bail. Ensure that decisions on whether to grant
bail are not dependent upon the consent of the Attorney General;
(c) Undertake training for the police in investigative skills, dedicate
personnel and infrastructure resources to the Attorney General’s Office and the
courts, review case management policies and issue practice directions in the courts to
put an end to repeated postponements of hearings;
(d) Fully honour the obligations of the State under the Convention against
Torture, including with regard to those held under the Prevention of Terrorism Act,
and ensure that all confessions obtained under duress are deemed inadmissible as
evidence in court, that any confessions are made before a judge who needs to ascertain
that they were made freely and without coercion, and ensure that the burden of proof
rests with the Government in this regard. Ensure that past and present allegations of
torture and ill-treatment are investigated and that those responsible are prosecuted
and punished;
(e) Ensure that persons in detention are informed of their rights, including
their right to challenge the legality of their detention, and that regular, periodic
reviews are individualized and involve an assessment of whether detention is
necessary, reasonable and proportionate;
(f) Ensure that the right to legal assistance is guaranteed by law from the
moment of arrest and before an accused person makes a statement to the police or is
subjected to interrogation;
(g) Ensure that those acquitted, including of charges under the Prevention
of Terrorism Act, receive a public acknowledgement of wrongful imprisonment and
adequate reparations, including compensation and/or guarantees of non-repetition;
(h) Enact legislative criteria for presidential pardons, parole and early
release. Abolish the death penalty and establish a formal moratorium on all pending
executions.
84. The Working Group recommends that the Government of Sri Lanka undertake
the following measures in relation to the Prevention of Terrorism Act:
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(a) Conduct an urgent nationwide audit to determine the exact numbers of
those held under the Prevention of Terrorism Act, how long they have been deprived
of liberty, their status (remand or convicted), and their location. Ensure that those
held under the Act are either tried or released;
(b) Ensure that the National Human Rights Commission is notified of any
arrest carried out under the Prevention of Terrorism Act;
(c) Repeal the Prevention of Terrorism Act without delay. Further to the
national action plan for the protection and promotion of human rights for the period
2017–2021, ensure that any new legislation complies with international human rights
standards and best practice, and guarantees all suspects immediate access to legal
assistance free of charge and provisions for applying for bail that are not subject to
the veto of the Attorney General;
(d) Ensure that the Prevention of Terrorism Act is amended through a
consultative process, including with victims’ rights’ groups, civil society and human
rights lawyers, and that relevant experts assist in drafting the new legislation;
(e) Ensure that those suspected of criminal activity, including involvement
in terrorism, are heard in a language they understand, or provided with appropriate
translation in areas around the country.
85. The Working Group recommends that the Government of Sri Lanka undertake
the following measures in relation to children:
(a) Ensure that the definition of a child under the Convention on the Rights
of the Child is incorporated across Sri Lankan legislation (for example, the Criminal
Code, the Criminal Procedure Code etc.) and that ministries issue information about
this change to relevant locations where children are deprived of their liberty;
(b) Ensure a further increase of the minimum age of criminal responsibility
to at least 14, in line with the Convention on the Rights of the Child;
(c) Enact the children (judicial protection) bill to ensure that there are two
types of facilities for children: those for children in contact with the law and those for
children in need of care, so that children in those two categories are not placed in the
same facility;
(d) Ensure that new legislation defines the legal basis on which the detention
of a child can be ordered (for example, a child aged between 14 and 18 on remand or
convicted of a crime, with both categories to be separated, or a child under 18 with no
family), that detention can only be by court order and must be reviewed periodically,
and that a person can no longer remain in such facilities after the age of 18. Ensure
that the detention of children is the last resort and in the best interest of the child,
with community-based placement and/or care prioritized;
(e) Introduce a code of conduct and legislative oversight of privately run
children’s homes, with mandatory reporting and inspection requirements, education
and counselling requirements and training requirements, and clear child protection
policies for staff with regard to appropriate disciplinary methods, in line with the
national child protection policy;
(f) Ensure that the National Child Protection Authority receives the
necessary staffing and financial resources to regularly monitor all centres where
children are deprived of their liberty, including those operated by non-government
entities, and that reintegration plans are put in place for children after they leave
those centres;
(g) Ensure that the courts take a proactive role in considering the necessity
of detaining children and seek alternatives whenever possible. Ensure that a child
protection policy and guidelines are in place for every institution at which children
are deprived of their liberty, in line with the national child protection policy.
86. The Working Group recommends that the Government of Sri Lanka undertake
the following measures in relation to disability or mental health condition:
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(a) Enact legislation to ensure that the admission of persons to mental health
facilities in criminal matters is in accordance with criminal procedure and is kept
under review by a court which can order discharge in appropriate cases;
(b) Review and amend the Mental Disease Ordinance 1873 and the Mental
Disease Act 1956 to clarify how and under what circumstances individuals are
admitted to and remain in the custody of mental health facilities;
(c) Ensure that personal and financial resources are allocated to allow for
community-based support to individuals whenever possible, including persons with
intellectual disabilities, so that they can live in the community as an alternative to
detention in mental health facilities.
87. The Working Group recommends that the Government of Sri Lanka undertake
the following measures in relation to the rehabilitation of ex-combatants:
(a) Release the eight detainees at the Poonthottam Rehabilitation Centre
immediately and unconditionally, and close the Centre as soon as possible, as it lacks a
legal basis and, in the case of the current eight detainees, was the result of grave
violations of the right to a fair trial;
(b) Ensure that those who are currently detained and have previously been
detained at the centre receive public acknowledgement of wrongful imprisonment and
compensation and/or guarantees of non-repetition, including the immediate cessation
of harassment and surveillance by the authorities of the detainees and their families.
88. The Working Group recommends that the Government of Sri Lanka undertake
the following measures in relation to rehabilitation programmes for drug users:
(a) Ensure that the consumption of drugs is decriminalized in Sri Lanka, in
order to avoid arbitrary detention;
(b) Eradicate, in law and in practice, the involuntary confinement of those
who use or are suspected of using or possessing drugs for personal consumption;
(c) Ensure that the prohibition of arbitrary arrest and the right to a fair
trial are protected in accordance with international norms, including in respect of
persons who are arrested, detained or charged for drug-related offences other than
for use or possession for consumption.
89. The Working Group recommends that the Government of Sri Lanka undertake
the following measures in relation to the rehabilitation of women:
(a) Urgently repeal the Vagrants Ordinance 1841 and the House of
Detention Ordinance 1907. Acts of vagrancy are strongly associated with poverty,
which is a social problem best addressed through the provision of community support
services that allow impoverished women to live in dignity and self-sufficiency;
(b) Enact legislation and allocate sufficient funds to ensure that the
Methsevana State House of Detention can serve as an open house, providing care and
formal education and/or vocational training to women who have no family support
structure, rather than as a place of detention, and preferably in more modern
premises;
(c) Introduce legislation to outlaw the removal of young children from their
mothers at Methsevena State House of Detention, as being contrary to the best
interests of the child;
(d) Ensure that the 2014 cabinet decision which seeks
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(a) Put an end to the detention of homeless and street people and those
defined as vagrants under the Vagrants Ordinance (such as female prostitutes, elderly
people and individuals with psychosocial impairments or alcohol addiction) at the
detention centres in Ambalantota and Weerawila;
(b) Investigate allegations concerning Tamils who have been arrested and
detained when returning to Sri Lanka after seeking asylum in another country or
working abroad and punish those responsible for any torture or ill-treatment. If such
individuals are still in detention, immediately and unconditionally release them, and
ensure that they receive public acknowledgement of wrongful imprisonment and
compensation and/or guarantees of non-repetition. Cease intimidation, harassment
and threats to civil society organizations, journalists, lawyers, activists and human
rights defenders who attempt to protect the rights of Tamils;
(c) Find affordable alternatives to detention for the most vulnerable
members of society, including social services to alleviate poverty.
91. The Working Group recommends that the Government of Sri Lanka undertake
the following measures in relation to asylum seekers, refugees, stateless persons and
migrants:
(a) Ratify the 1951 Convention Relating to the Status of Refugees and its
1967 Protocol and develop a national legal framework in relation to asylum seekers
and refugees that reflects international standards;
(b) Enact legislation that would specify that any detention in the course of
migration proceedings must be exceptional, ordered by a judicial authority only in
cases when specifically prescribed by law and assessed as necessary and proportionate
in individual cases;
(c) Ensure that a dedicated process is put in place which allows for the
identification of stateless persons;
(d) Ensure that alternatives to detention in the context of migration, which
are accessible and realistic, are deployed;
(e) Cease holding migrants in Mirihana immigration detention facility
immediately as it is entirely inappropriate for such purposes.

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