Groundviews

Economic Justice and Financial Support for Torture Victims

Ruki Fernando and Shamika Kulasingham

Photo courtesy of The Hindu

Victims of torture can include those who survived torture, those who were killed and also their family members. Survivors of torture suffer from the effects of torture for prolonged periods, often for the rest of their lives, physically, mentally, socially and financially. Many are unable to continue their livelihoods in the same way as before. Education of child victims of torture is negatively affected and in one of the cases mentioned below, the Supreme Court had recognized a permanent lifelong damage to a child’s hearing ability. Families of victims could also be affected for prolonged periods.

Compensation to torture victims based on prosecutions and convictions in High Courts

Sri Lankan High Courts have on and off convicted 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. Earlier this week, the media reported that the Matara High Court had sentenced three policemen to seven years imprisonment and ordered each of them to pay Rs. 500,000 as compensation after they were found guilty of torturing five people in 2003. In another case a policeman was sentenced to two years and ordered to pay Rs. 25,000 as compensation by the Kurunegela High Court. And in another case, 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 seven years imprisonment but no compensation was awarded to the two victims.

Compensation to torture victims based on fundamental rights cases in the Supreme Court

The Supreme Court has played a significant role in ensuring economic justice to some degree for several victims of torture through compensation awarded in fundamental rights cases. Below are eleven cases where the Supreme Court has ordered compensation to victims of torture after ruling that Article 11 of the Constitution prohibiting torture was violated.

  1. In case 328/2002, Rs. 800,000 was awarded to a male victim of torture. The state was ordered to pay Rs. 650,000 and four police officers were ordered to pay Rs. 150,000 (The Officer in Charge was ordered to pay Rs. 70,000, another officer Rs. 40,000 and Rs. 20,000 each by the two other officers). The court also ordered the state to pay for the medical costs at a private hospital, reported to have been more than Rs. 700,000. This judgement was in April 2003 and compensation was to be paid within two months. In November 2014, the victim was killed a few days before he was to give his testimony in the High Court trial of the alleged accused.
  2. In case 471/2000, Rs. 800,000 was awarded to the family of a man tortured and killed in police custody. The state was ordered to pay Rs. 700,000 and two police officers, including the Officer in Charge, were asked to pay Rs. 50,000 each. The judgement was in August 2003 and the compensation was to be paid within four months.
  3. In case 700/2002, Rs. 1,000,000 was awarded to the family of a man tortured and killed in prison. The state was ordered to pay Rs. 925,000 and three prison officials (the Superintendent, an Officer in Charge and the Chief Jailer) were ordered to pay Rs. 25,000 each. The judgement was in July 2004 and the compensation was to be paid within three months.
  4. In case 244/2010, Rs. 1,000,000 was awarded to a male victim of torture. The state was ordered to pay 500,000 plus costs and three police officers and a security assistant were each asked to pay Rs. 125,000. The judgement was in May 2017.
  5. In case 136/2014, Rs. 800,000 was awarded to a British female tourist who was tortured. The state was ordered to pay Rs. 500,000 as compensation and Rs. 200,000 as costs while two police officers, including the acting Officer in Charge, were asked to pay Rs. 50,000 each. The judgement was in November 2017.
  6. In case 577/2010, Rs. 2,075,000 was awarded to the family of a man tortured and killed. The state was ordered to pay Rs. 1,000,000, four police officers were ordered to pay Rs. 250,000 each and three police officers were ordered to pay Rs. 25,000 each. The judgement was in December 2019.
  7. In case 97/2017, Rs. 650,000 was awarded to a child assaulted by a teacher. The state was ordered to pay Rs. 500,000 and the teacher ordered to pay Rs. 150,000. The judgement was in February 2021 and the compensation was to be paid within six months.
  8. In case 449/2017, Rs. 1,000,000 was awarded to the family of a male victim of torture who was killed. The state was ordered to pay Rs. 750,000 and five police officers were ordered to pay Rs. 50,000 each. The judgement was in July 2021 and compensation was to be paid within four months.
  9. In case 107/2011, Rs. 2,100,000 was awarded to a male victim of torture. The state was ordered to pay Rs. 100,000 and four police officers were ordered to pay Rs. 500,000 each. The errant police officers include the present Inspector General of Police (IGP) Deshabandu Tennakoon, who was appointed into office after the judgement. He was the Acting IGP at the time of judgement and Superintendent of Police at the time of the incident. The judgement was in December 2023 and the compensation was to be paid within six months.
  10. In case 160/2014, Rs. 30,000 was awarded to a male victim of torture. Three police officers were ordered to pay Rs. 10,000 each, while the state didn’t have to pay anything. The judgement was in February 2024.
  11. In case 12/2010, Rs. 250,000 was awarded to a man who was assaulted on the mouth and suffered injuries. The state was ordered to pay Rs. 100,000 including costs and the responsible police officer, the Officer in Charge of the police station, had to pay Rs. 150,000. The judgement was in May 2024 and the compensation was to be paid within six months.

General observations on compensation offered by the Supreme Court

In the first case, the judgement was delivered in less than a year. By contrast, the nineth and eleventh cases have taken about 12 and 14 years respectively. Other cases mentioned above have taken about 1 to10 years. In three judgements of 2003 and 2004 above, the compensation was ordered to be paid within 2 to 4 months while compensation was to be paid within six months for three judgements in 2021, 2023 and 2024. Compensation was ordered to be paid within one month in a judgement delivered in 2024.

The highest compensation awarded has been Rs. 2,100,000 in the nineth case above to a survivor of torture in a 2023 judgement while Rs. 2,075,000 was awarded in a 2019 judgement in the sixth case above 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 contrast, in a February 2024 judgement, a case that took about 10 years (case number 10), only 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 Rs. 30,000 in his 10 years of searching for justice through the Supreme Court. On  May 12, 2014, about 10 years before the Supreme Court judgement, the Human Rights Commission of Sri Lanka (HRCSL) found the same three police officers responsible for torture in the same case and recommended compensation of Rs. 1,000,000 to be paid to the victim in relation to the same incident. The Supreme Court judgement indicates the victim didn’t receive this compensation.

In another judgement in May 2024, the Supreme Court did not award 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 petition the Supreme Court.

The percentage of compensation to be paid personally by those held responsible for torture has increased in several cases. 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 first case. In judgements delivered in 2017, 2019, 2021 and 2024, the state was asked to pay 40-77%.  In the nineth case 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” but it didn’t “see it just and equitable to impose upon the taxpayer the burden of compensating for the transgressions of errant officials”. The 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 the nineth case, 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 said “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).

In the first case, 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 the fifth case.

Compensation in fundamental rights cases not involving torture

In case 405/2018, a man who was victimized and arrested by a false complaint was awarded Rs. 3,125,000 with three police officers ordered to pay Rs. 125,000 (Rs. 75,000 by one and Rs. 25,000 each by two others) while the private individual who had made the complaint was ordered to pay Rs. 3,000,000. The state was not ordered to pay any compensation. This is higher than the amounts awarded to victims of torture, including those killed. The Supreme Court had ruled that the rights of the victim guaranteed under articles 12(1) and 13(2) of the constitution were violated. These rights were about equality before the law, equal protection of the law and the right of an arrested person to be produced before a judge. This judgement was in September 2023.

In case 136/2022 about the interdiction and false charges against a police officer and arrest of his wife, the Supreme Court awarded Rs. 2,050,000 in compensation with the state ordered to pay Rs. 50,000 and four police officers ordered to pay Rs. 500,000 each. The officers included an Assistant Superintendent of Police (ASP) and a Chief Inspector. The court had ruled rights guaranteed under articles 12(1),13(1) and 14(1)(g) of the constitution had been violated, involving rights to equality before the law, equal protection of the law, not to be arbitrarily arrested and freedom to engage in any lawful occupation, profession, trade, business or enterprise. This judgement was given in January 2024.

There were 12 fundamental rights cases filed in relation to the 2019 Easter Sunday attacks. These were heard together and Rs. 311,000,000 was awarded to be paid to all the victims, with Rs. 1 million by the state and Rs. 310 million by high level politicians and officials who had been negligent in preventing the attacks. Considering at least 270 persons were killed and more than 500 injured, the average amount each victim may get is around Rs. 400,000. According to the Office of Reparations, as of June 2024, less than Rs. 65,000,000 (about 21%) of the compensation has been paid by those ordered to pay compensation. From this payments have only been made to 214 families of dead and 117 disabled (injured) persons. This indicates about 56 families (about 20%) of some of the dead may not have been paid compensation but this number may be less if families of dead who have received compensation had more than one person killed. The statistics also indicate about 300 (or more than 75%) of the injured have not received any compensation from the case. The payments made till June 2024 are as follows:

Challenges in filing fundamental rights cases

The Supreme Court’s awarding of compensation and increasing trend of asking perpetrators to pay may encourage more victims to file fundamental rights cases and seek redress from the highest court. But it’s 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 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 and family care. By contrast, respondents who are state officials, including those accused of torture, come to courts as part of their duty in official vehicles. Preparing petitions and gathering evidence are 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 people and groups are often overwhelmed.

Importance of economic justice and financial support

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. Financial support is one of the key support mechanisms many victims of torture need. Adequate and meaningful compensation through courts and institutions like HRCSL could help ensure the dignity of victims and help them rebuild their lives. Compensation could also contribute to preventing future incidents when perpetrators are ordered to pay significant amounts out of personal funds. 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 the Supreme Court has paid to victims of torture. We have also briefly looked at compensation awarded by the Supreme Court for other rights violations, mentioned a few examples of compensation for torture victims awarded by High Courts and referred to one example of compensation recommended by the Human Rights Commission of Sri Lanka to a victim of torture. It is to be noted that the Commission receives large numbers of complaints of torture and it has the power to recommend compensation and also award sums of money sufficient to meet expenses incurred in making complaints to the Commission. We hope that this article will inspire more serious, comprehensive studies and advocacy for economic justice and financial support for victims of torture and other human rights violations.

Exit mobile version