19 August 2024 12:54 am Views - 676
In several cases, senior police officers were found responsible and asked to pay compensation personally by needs articulated by victims met as a preliminary attempt to look at the compensation paid by the High Courts and the Supreme Court to victims of torture
The Supreme Court of Sri Lanka has played a significant role in ensuring economic justice to some degree for several victims of torture (violations of Article 11 of the constitution) through compensation
awarded in fundamental rights cases
In a judgement in May 2024, the Supreme Court had not awarded any compensation to a victim, despite ruling that he had been tortured and denied equal protection of the law; he is likely to have spent a significant amount of money and effort to seek justice through the Supreme Court for about 10 years
Last month, media reported that the Matara High Court had sentenced three policemen to 7 years imprisonment and ordered each of them to pay Rs. 500,000 as compensation, after they were found guilty of torturing 5 persons
in 2003
Compensation and convictions from the High Courts
Sri Lankan High Courts have convicted several individuals, mostly policemen, for torture based on the ‘Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Act No. 22 of 1994)’. Some were also ordered to pay compensation. Last month, media reported that the Matara High Court had sentenced three policemen to 7 years imprisonment and ordered each of them to pay Rs. 500,000 as compensation, after they were found guilty of torturing 5 persons in 2003. In a case before the Kurunegela High Court, a policeman was sentenced to two years and ordered to pay Rs. 25,000 as compensation and in a case before the Panadura High Court, a policeman was ordered to pay Rs. 100,000 as compensation by the Panadura High Court, though his two-year sentence was suspended. In yet another case, two police officers were sentenced to 7 years imprisonment, but no compensation was awarded to the two victims.
Criminal accountability for incidents of torture, along with other legal, policy and institutional measures are essential to prevent torture; justice for victims of torture must include economic justice, many victims of torture desperately need financial support, the Supreme Court’s awarding of adequate and meaningful compensation, and increasing trend of asking perpetrators to pay, is likely to encourage more victims to file fundamental rights cases and seek redress from the highest court
Compensation from the Supreme Court
The Supreme Court of Sri Lanka has played a significant role in ensuring economic justice to some degree for several victims of torture (violations of Article 11 of the constitution) through compensation awarded in fundamental rights cases.
High and low compensations
The highest compensation awarded in cases known to us has been Rs. 2,100,000 to a survivor of torture in a 2023 judgement while Rs. 2,075,000 was awarded in a 2019 judgement to the family of a torture victim who was killed. Rs. 1 million was awarded to two families of torture victims killed in judgements given in 2004 and 2021 and Rs. 800,000 in a 2003 judgement to the family of a torture victim killed.
In a judgement in May 2024, the Supreme Court had not awarded any compensation to the victim, despite ruling that he had been tortured and denied equal protection of the law. He is likely to have spent a significant amount of money and effort to seek justice through the Supreme Court for about 10 years. In a February 2024 judgement, in a case that also took about 10 years, Rs. 30,000 was awarded to a victim of torture, with three policemen being ordered to pay Rs. 10,000 each. Most probably, the victim would have spent much more than 30,000 in his 10 years of searching for justice through the Supreme Court and prior to that, through the Human Rights Commission of Sri Lanka (HRCSL).
Compensation by the state and responsible individuals
In the first three cases cited above, with judgements in 2003-2004, the state had to pay between 81% - 91% of the compensation. The state was also ordered to pay for medical costs in the 1st case mentioned above. In judgements delivered in 2017, 2019, 2021 and 2024, the state was asked to pay 40-77%. In one case mentioned above in 2023, more than 95% of the compensation had to be paid by those found responsible for torture. In this case, the court noted that “where the violations are grave, while the State must absolutely take responsibility, (the court) didn’t see it just and equitable to impose upon the taxpayer the burden of compensating for the transgressions of errant officials”. Court also questioned “Having borne the burden of their earnings over the years, must the taxpayer compensate for their misdeeds as well?”
In several cases, senior police officers were found responsible and asked to pay compensation personally. These included a Superintendent of Police (now the IGP), three Officers in Charge and one Acting Officer in Charge. In the case involving torture at a prison, the Superintendent of the prison, the Officer in Charge and the Chief Jailor were held responsible and ordered to pay compensation.
In one case above, a civil person who had been involved together with the police officers in torture was ordered to pay compensation, with the court ruling that “whether an act is executive and/or administrative is not conclusively dependent upon the colour of the actor’s office. In appropriate cases, even the acts of a private individual may amount to executive and administrative action”. In making this ruling, the court had relied on a previous position articulated as “the act of a private individual would render him liable, if in the circumstances that act is ‘executive or administrative’. The act of a private individual would be executive if such act is done with the authority of the executive;” (Faiz v. Attorney-General and Others [1995] 1 Sri L.R. 372).
Costs awarded
In the first case mentioned above, the court had ordered the state to pay the medical costs of the victim at a private hospital. In the face of the accused saying private hospital costs were exorbitant and the victim could have sought treatment at a state hospital, the court stated that “Citizens have the right to choose between State and private medical care, and in the circumstances the Petitioner’s wife’s choice of the latter was not unreasonable”. In three other cases, the compensation included costs, including an explicit amount of Rs. 200,000 as costs in one of the cases mentioned above.
Time taken for judgements
In one case, the judgement was delivered in less than a year and five cases had taken about 2 - 4 years. One case had taken about 14 years, another about 12 years, two had taken about 10 years, one about 9 years and one about 7 years. In three judgements of 2003 and 2004 above, the compensation was ordered to be paid within 2-4 months, while compensation was to be paid within 6 months for three judgements in 2021, 2023 and 2024. Compensation was ordered to be paid within one month in a judgement delivered in 2024.
Challenges in filing fundamental rights cases
Some were also ordered to pay compensation. Last month, media reported that the Matara High Court had sentenced three policemen to 7 years imprisonment and ordered each of them to pay Rs. 500,000 as compensation, after they were found guilty of torturing 5 persons in 2003 its very difficult for ordinary persons to file fundamental rights cases. Cases have to be filed within 30 days of the violations and have to be in English. Those from distant areas may have to come to Colombo, unless their lawyers are willing to meet them outside Colombo and come to Colombo to file the cases. Finding committed lawyers is not easy and lawyer’s costs can be unaffordable for most victims. Even when lawyers offer to appear free or at reduced rates, there are other costs such as documentation which the petitioner must bear. If the petitioners want to observe the hearings of the case they filed, they will have to come to Colombo, cover their own expenses and take leave from their employment or livelihoods, domestic work, family care etc. By contrast, respondents who are state officials, including those accused of torture, often come to courts as part of their duty in official vehicles. Preparing petitions and gathering evidence are often difficult, time consuming and expensive tasks. Witnesses whose testimonies may support victims are often reluctant to come forward due to fear of reprisals and inconveniences. Victims also fear reprisals from perpetrators and this makes some reluctant to file cases. Another reason for victims to not file fundamental rights cases is the discouragement of family members, who fear further harm and don’t have confidence in adequate redress being granted and justice being served in all its dimensions. Some victims have benefited from support offered by a few committed lawyers, activists and civil society groups, but these few persons and groups are often overwhelmed.
Below are eleven examples of cases in which compensation was awarded and one in which compensation was not awarded despite the court declaring that the right not to be tortured was violated.
Importance of Compensation and Economic Justice
Criminal accountability for incidents of torture, along with other legal, policy and institutional measures are essential to prevent torture. At the same time, justice for victims of torture must include economic justice. Many victims of torture desperately need financial support. The Supreme Court’s awarding of adequate and meaningful compensation, and increasing trend of asking perpetrators to pay, is likely to encourage more victims to file fundamental rights cases and seek redress from the highest court. It will help ensure the dignity of victims and rebuild their lives. Compensation through the High Courts will encourage victims to lodge complaints and support prosecutions. On the other hand, not awarding compensation or inadequacy of the compensation, and long years for judgements, may discourage victims from filing fundamental rights cases and supporting cases at the high court.
Compensation could also contribute to preventing future incidents, when perpetrators are ordered to pay significant amounts out of personal funds, as in some of the cases mentioned above. In case 107/2011, the Supreme Court stated that “the amount of compensation awarded must sufficiently reflect the gravity of the offences as well as the audacity of the offenders. Especially where violations of Article 11 (torture) are to be found, it is necessary to award compensation in such amounts adequate to deter such degenerates”.
This article, inspired and challenged by needs articulated by victims we have met, is a preliminary attempt to look at the compensation paid by the High Courts and the Supreme Court to victims of torture. We hope that this article will inspire more serious, comprehensive studies and advocacy for just and adequate compensation and economic justice for victims of torture and other human rights violations.
(A revised version of article by the authors published on 29th June 2024 at https://groundviews.org/2024/06/29/economic-justice-and-financial-support-for-torture-victims/)