An Article by the Asian Human Rights Commission
By Basil Fernando
“Police officer” refers mostly to persons working for the Sri Lanka Police Service. But in the context of custodial torture, it also includes others who at times are called upon to do Police-related duties such as conduct interrogations, similar to the military and other agencies.
Another aspect, relevant to this discourse, generally speaking, concerns persons from low-income earning groups. They are the ones who are tortured. There are rare instances where someone outside that social group may be tortured. They are few in number as compared to the vast majority of the cases where the victim is from a low-income group.
Observations contained herein are made based upon actual case studies, and while one case may be mentioned under each heading, it is only a sample of very many similar cases.
Reasons for torture
Sharing fees with the lawyers
In almost all Police stations in recent decades, there has developed a collaboration between the policemen and some lawyers around the issue of arrest and detention. The Police arrest persons without a proper preliminary inquiry and thereafter, they submit the report, charging the person with offenses for which bail cannot be easily given.
A regular practice has developed. It is sending suspects for two weeks detention in remand prison – even in simple offenses where bail could be given immediately.
Next, the people look for lawyers. The general opinion that is created in the particular courthouse premises is that only certain lawyers practicing in the said regional bar are able to secure a suspect’s bail.
Very often, the reason for this is that these lawyers have established a close relationship with the Police on the basis of sharing their fees with them. When these lawyers make applications for bail, the Police do not object and bail could be obtained.
However, if one of those lawyers in a favorable relationship with the Police does not appear, the objection is taken against their bail request. Often, the Magistrate allows the request, the persons are detained and could be further detained on several occasions.
Even the Supreme Court has at times commented that the Magistrates should not refuse bail purely on the request of the Police. The Magistrate should examine all the circumstances and where bail could be given, it should be given. The principle established in law is to give bail, and that only in certain circumstances should bail be denied.
This special relationship between some lawyers and some Police officers affects not only issues of bail, but also issues pertaining to the filing of charges and the nature of the charges. When such lawyers do not appear at the initial appeal itself, the Police would file serious charges against them.
This might be for possession of drugs above a certain quantity or other offences concerning which the Magistrate cannot offer bail. When that happens, a person has to wait until the proceedings are taken up in the High Court and the matters are examined, and finally a bail order may be made.
The process of disentangling oneself from such charges is extremely difficult. This itself encourages the family when they know that one of their family members has been arrested, very often for no reason. They use the approach to intervene quite early with lawyers so as to ensure that the suspects are not charged with non-bailable offences.
Furthermore, even when people are charged with serious offences initially, the Police may later alter such reports.
Often, the excuse is this: After the inquiry, they found that their initial findings are not accurate, and reduced the charges to enable the Magistrate to grant bail. Again, these kinds of charges occur purely on the basis of the existing relationship: The connection between the Police and the lawyers concerned, with the sharing of monies earned from such clients.
This practice affects those lawyers who do not engage in such practices. The word is spread that the lawyers who object for various reasons to reports filed by the Police get into trouble. On legitimate grounds, when lawyers appear for their clients, carrying out their obligations in a faithful manner, they are treated as hostile persons by the Police. The way such lawyers are treated creates a kind of chatter around the courthouses.
Various messengers engaged in touting, spread the message of risks the clients face from using the services of lawyers who try to honestly defend their clients. This creates an environment within the Magistrate’s Courts. Fair play, on the basis of carrying out professional duties, gets discouraged. Many lawyers who would like to play their role in a more honest and efficient manner get disheartened. They pursue their activities in a manner which they would otherwise not do.
At times, in some Magistrate’s Courts, Magistrates themselves contribute to this atmosphere. They put various restrictions on lawyers who would not adjust easily. These practices include those such as pleading guilty for offenses, purely for the sake of complying with the kind of expectation that gets built up in such restrictive environments.
All these practices have an overall impact of discouraging a fair fight for the protection of the rights of all the suspects, particularly suspects from low-income groups. These groups are expected to be more submissive towards Police pressure, even when they have not committed any crime.
Torture for obtaining a ransom
Two sons of a relatively well-off family from a remote area are arrested by the Police. It is alleged that they have stolen two buffalos. Both of them are assaulted by the Police in civilian clothing at the Police station. Having heard about this treatment, the family intervenes on behalf of the two boys.
The Officer-In-Charge (OIC) of the Police station makes a demand on the family to this effect. Since the father of the two boys has enough money, they should ask him to give Rs. 1 million to the OIC, and that on that condition, the boys will be released and no charges will be filed against them.
That is a very recent incident that took place within the last two months.
A few years back, 11 young persons were abducted by unknown persons. They were all from relatively affluent families. After abduction, a request for ransom was made. However, in each of the cases, due to various obstacles, the attempts to collect the ransoms failed. Later, due to a number of pressures, an inquiry was initiated.
It was discovered that the boys were held inside a Navy camp, and that certain high ranking officers were involved in the crime. As the ransom demands were not met on time, the boys were killed. The parents made complaints about their disappearance despite clear evidence of abduction and detention. The case has been dragging on for several years now.
Both these reported incidents point to a quite frequent practice of the use of law enforcement powers to obtain ransom. There have also been complaints from persons of Tamil origin. They complained of being exposed to such ransom attempts under the threat that, if they fail to comply, they will be charged under the terrorism laws. Some of these persons returned from abroad. It seems to have been assumed that they or their loved ones would have money to pay a ransom.
Nearly all of these complaints have been examined by international forensic experts. So far, not a single law enforcement officer has been successfully prosecuted for such offences.
For unjust enrichment
A young man, around the age of 20, was charged with eight to 10 car robberies. After investigation, the suspect has been identified and kept in the custody of a certain Police station.
In the beginning, he is beaten by the Police in civilian clothes. He reveals some details about a few stolen cars. With that admission, the treatment of the subject softens. The OIC of the Police station makes inquiries on the basis of information given by the suspect. As a result, the OIC was able to trace some of the cars and their original owners.
Then, the OIC started negotiations with the car owners on the terms based on which they would return the vehicles. The owners agreed to pay some substantial amounts to the OIC and so the cars were returned to them. Gradually, as more information was obtained from the suspect, all the cars were recovered.
The OIC followed a method of obtaining money for returning the cars to the original owners. Although a B-report was filed against the suspect, initially, no charges were subsequently filed against him. The OIC was able to convince the car owners that if the suspect was charged, the cars, as stolen goods, would have to be kept on the court premises until the end of the case. In the end, the car owners got their cars, the OIC collected money for himself and the suspect was freed.
The use of a criminal complaint, for finding ways for unjust enrichment of some law enforcement officers, is a frequent practice. This is particularly seen in cases where the value of the goods involved is relatively large.
A man was arrested on suspicion of some offence and produced before a Magistrate’s Court. In the case of the inquiry, the Police discovered that he was the owner of some jewellery and some gold items which he had inherited from his family. After getting an order for his detention, the Police kept on filing further applications for detention, for several months.
During this time, they were able to acquire for themselves the value of the jewellery and the gold items which were in his possession. In doing that, the Police also had the co-operation of the lawyer who appeared for the suspect.
A Deputy Inspector General of Police (DIG) lost some gold items. They were stolen from his house by a burglar. Despite all inquiries, it was not possible to find the burglar or the gold items. Some months later, the same burglar was caught in a different Province while engaged in a robbery.
Once the Inspector at the Headquarters (HQI) of that particular District found that this burglar had many things in his possession, he took over the case. By using torture, he was able to get the location of the different places from which things were stolen. This included reference to the burglary at the DIG’s house.
The HQI kept all the gold for himself and did not file any charges against the thief. However, the story of what had taken place leaked out. The DIG came to know that the HQI had kept his gold items together with the other loot. The HQI was later suspended from his post.
The use of complaints made at Police stations, as a means of enriching themselves, is widespread and frequently practiced.
(To be continued)