The tortured innocent

There are several instances of torture of suspects of crime in the custody of police, during the course of an investigation, although these are persons only suspected and not convicted of a crime. Article 13 (5) of the Constitution of the Democratic Socialistic Republic of Sri Lanka provides that everyone is presumed innocent until proven guilty. However, it is alleged that the partiality of the police and society towards crime control rather than due process and the insufficient use of proper methods of interrogation by the police lead to the torture of the innocent who are presumed to be guilty. Prevalence of torture Janasansadaya or the People’s Forum has played an important role in creating awareness of the prevalence of torture in Sri Lanka with the object of eradication of torture in the country. In the alternate report submitted by Janasansadaya to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and Special Rapporteur on Independence of Judges and Lawyers it was stated that “torturous, cruel, inhuman, degrading treatments and punishments” were institutionalised’.  There was also a reference to S.C. Application No.433/93 where there is ‘judicial condemnation’ of torture but reflection on the fact that torture is still allowed to continue by the relevant authorities. Prevention of torture Torture is defined in several international and domestic instruments including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act No.29 of 1994. Article 5 of the Universal Declaration of Human Rights provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” , Article 7 of the International Covenant on Civil and Political Rights provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” and Article 3 of the European Convention on Human Rights provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. Article 10 of the Convention places on States Parties the obligation to ensure that ‘education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials”. Article 11 of the Constitution of the Democratic Socialist Republic of Sri Lanka provides that “No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment”. The Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment or Punishment Act No.22 of 1994 provides that “any person who tortures any other person shall be guilty of an offence under this Act” and also provides that attempts to commit, aiding and abetting in committing and conspiring to commit torture will also be seen as an offence”.  A maximum term of imprisonment of ten years and a minimum term of imprisonment of seven years and a fine of a minimum amount of Rs. 10,000 and a maximum amount of Rs. 50,000 may be imposed. Right to be presumed innocent until proven guilty Article 11 (1) Universal Declaration of Human Rights provides that,

“Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”

Article 14 (2) of the International Covenant on Civil and Political Rights (ICCPR) provides that,

“Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to the law”

Innocent until proven guilty or suspicious and thus tortured? In Senthilnayagam v Seneviratne it was said that ‘even Persons whose reports are not particularly meritorious” should irrespective of such records enjoy the constitutional guarantee of personal liberty.  This judgement highlighted that suspects of crime detained by law enforcement officials are as entitled to their Constitutional right to freedom from torture as any average law-abiding citizen of the country. It appears that the Constitutional guarantee of presumption of innocence, particularly for those in the custody of the police during an investigation, is not relied on by law enforcement or demanded for by the public. Suspects of crime are rather viewed as suspicious and potentially guilty by both the police and the public. Accordingly, this leads to the use of violence and inhumane treatment against those suspected of crime and held in police custody. It must be noted that there may be a difference between the concept of a person who is innocent but accused of committing a crime and a person who is suspected to have committed a crime. This subtle distinction could be a factor that influences the mindset of perpetrators of torture.  This in effect means that the perception of “innocent until proven guilty” by police officers is as that of the suspect as suspicious and so not entirely innocent rather than as that of the suspect as innocent and merely accused of an illegal act.

Amal Sudath Silva v Kodituwakku Inspector of Police and Others (1987) 2 SLR 119

Athukorale J “every person in this country, he be a criminal or not, is entitled to this right to the fullest content of its guarantee….Nothing shocks the conscience of a man so much as the cowardly act of a delinquent Police Officer who subjects a helpless suspect in his charge to depraved and barbarous methods of treatment within the confines of the very premises in which he is held in custody…the Petitioner may be a hard-core Criminal whose tribe deserves no sympathy, but if constitutional guarantees are to have any meaning or value in our democratic set up, it is essential that he be not denied the protection guaranteed by our Constitution”.

Reliance on various methods of interrogation rather than torture There are different methods of interrogation used by law enforcement around the world. Police officers in the United Kingdom, United States of America and other countries rely on different methods during interrogation of suspects in order to obtain confessions and other information. There are coercive accusatorial techniques and non-coercive conversational techniques which are used when investigating a crime. Some of these methods include the Reid Technique of Interviewing and Interrogation, Preparation and Planning, Engage and Explain, Account, Closure and Evaluate (PEACE) and Kinesic Interview.  The Reid Technique is focused on three components which are factual analysis, interviewing and interrogation. It has been noted around the world that where interrogation of suspects took place in the context of creating conversations and building relationships this led to suspects disclosing more information and at an earlier time. Where interrogation of suspects took place in a coercive atmosphere, suspects were less truthful and less helpful in disclosing information. Where the interrogator successfully built up a relationship with the suspect in custody this led to the suspect disclosing more information quicker. Where a suspect is in placed in custody in normal and not substandard physical settings and the interrogator treats the suspect with respect it seems that the suspect is likely to provide more information to the interrogator. The physical, financial and technological constraints on law enforcement to provide a proper setting for interrogation of suspects and to train police officers in different methods of interrogation have been established and documented over the years. Nevertheless, the state of Sri Lanka and law enforcement officers owe an obligation to the citizens of this country to overcome these constraints and investigate crime and interrogate suspects without resorting to torture and violence.

Conclusion

The prevention of torture of suspects in police custody rests upon the commitment of law enforcement towards upholding the constitutional guarantee of innocence until proven guilty, for every suspect being investigated of a crime, and the reliance on the use of various methods of interrogation rather than resorting to torture.