CCPR/C/120/D/2256/2013
2.8
In addition to the immediate physical harm and trauma caused by the rape, the
author has suffered continuing negative psychological consequences. From 2001 onward,
the author and her family have been harassed by the perpetrators, who attempted to
intimidate her into withdrawing the complaint she had submitted to the police, forcing her
to leave her family and miss school to hide in a safe house.6 The author also faced strong
stigmatization as a rape victim, and she was forced to leave three jobs, where she was
perceived as either a prostitute or an “easy” woman. As a result, she was unemployed at the
time of submission of her initial communication. The stigmatization she faced also had an
impact on her personal life, and she struggled to find a husband; she ultimately did marry.
However, the author refrained from having children, out of shame.
2.9
The author claims that she has exhausted all effective domestic remedies insofar as
11 years have passed since her application for a remedy, 7 which constitutes an
“unreasonably prolonged delay”.8
The complaint
3.1
The author alleges that she suffered severe physical and mental pain due to being
raped. Her suffering was further exacerbated because she was a minor,9 a girl and a member
of the Indian Tamil minority, making the act of rape severe enough to constitute torture
under article 7 of the Covenant. The author contends that, pursuant to the Committee’s
general comment No. 20 (1992) on the prohibition of torture or other cruel, inhuman or
degrading treatment or punishment, States parties have the obligation to provide protection
and legal remedies in cases of rape committed by private persons. The author further claims
that the consequences of a rape are not dependent on the status of the perpetrator, and that
according to the jurisprudence of international and regional courts and human rights bodies,
a State is responsible for a violation of its obligations in relation to the prohibition of torture
or other ill-treatment where it has failed to protect against or adequately respond to rape and
other forms of violence against women.
3.2
The author argues that she has been waiting more than 11 years for an effective
remedy. Such delays are unjustified, as the alleged offenders have been identified, and the
case does not involve any complex legal or factual issues. The author does not have any
domestic recourse to expedite the criminal or civil proceedings and, considering that both
cases were still at first instance at the time of submission of her complaint, proceedings
before the superior courts are likely to bring further delays. The author claims that the State
party therefore failed in its positive obligations to protect her, to effectively investigate her
claim and to prosecute the offenders, thereby violating her rights under article 2 (3), read in
conjunction with article 7, of the Covenant.
3.3
The author moreover contends that the State party’s authorities failed to carry out a
child-sensitive and effective approach during the investigation and court proceedings, and
to provide her with effective remedies, thereby breaching article 2 (3), read in conjunction
with article 24 (1), of the Covenant.
3.4
Finally, the author contends that the failure of the State party to take effective action
following her rape breached articles 2 (1), 3 and 26 of the Covenant, due to the
discriminatory treatment that she has been subjected to by the Sri Lankan authorities, which
failed to afford protection to the author as a Tamil woman. She submits that her allegations
in that regard should be considered in the context of the long-standing and widespread
discrimination against women and Indian Tamils in the State party. She submits that her
gender and ethnicity made her an easy target for rape, which is to be considered as an act of
discrimination in itself. The author also submits that she was denied the right to make a
complaint in her own language, despite legal provisions allowing her to do so. She
considers that the general attitude of State officials in the justice system, including the
6
7
8
9
The shelter (safe house) was provided by the Human Rights Office of Kandy, a civil society
organization.
At the time of submission.
For the jurisprudence on “unreasonably prolonged delay”, see, for example, communication
No. 1432/2005, Gunaratna v. Sri Lanka, Views adopted on 17 March 2009, para. 7.5.
The victim was allegedly raped on 12 August 2001, i.e., two weeks before she turned 18.
3