CCPR/C/120/D/2209/2012
2.6
The report concluded that the victim’s injuries had been caused by blunt trauma and
the injury pattern was consistent with “a back fall hitting the right side of the head on a hard
surface”. It also stated that there was “no evidence of injuries of intentional violence”. A
toxicology report, issued by a forensic laboratory and included in the post-mortem report,
stated that the blood sample taken from the victim did not contain any alcohol. 5
2.7
On 18 August 2010, inquest proceedings were initiated before the Magistrate’s
Court of Pugoda. The magistrate records in his sworn statement to the Court of Appeal that
on that day several witnesses gave evidence that was inconsistent with that of the police
officers on a number of aspects, including the place of the alleged arrest of the author’s
brother and the manner in which he had received his fatal injuries.
2.8
On the basis of the “compelling evidence” that he had heard, the magistrate made an
order to remand in custody the two police officers involved in the assault of the author’s
brother. He stated that his decision was bona fide, both in the light of the duty of the police
to prosecute its own officers and having regard to the concerns and fears expressed by
witnesses during the inquest proceeding of the possibility of their being victimized by the
police for identifying the offenders.
2.9
On 23 August 2010, the Kirindiwela police filed a further report to the magistrate
highlighting the statements made by the Colombo Judicial Medical Officer and the Medical
Officer at the Radawana Hospital that there had been no indications on the body of the
author’s brother of any assault using any weapon. The magistrate noted in his sworn
statement to the Court of Appeal that the emphasis on this point in the medical officers’
statements was “somewhat unusual”. On the same day, the magistrate refused an
application for bail made by the two police officers. The order was appealed to the High
Court of Gampaha twice, and two new applications for bail were made to the High Court.
All of the applications were rejected following a hearing of the facts and despite the
Attorney General not opposing bail.
2.10 On 9 September 2010, the post-mortem report was submitted to the magistrate, who
considered “rather unorthodox” the fact that the judicial medical officer had stated in the
cause of death section of the report that the injury patterns were “suggestive of a back fall
hitting the right side of the head on a hard surface” and that there was no evidence of
injuries of intentional violence. In addition, he considered that the external injuries on the
victim’s body listed in the post-mortem report and the confirmation that there had been no
alcohol in the victim’s system at the time of death were not consistent with the police
officer’s version of events. The judicial medical officer was called to give evidence before
the magistrate, but did not present himself, supposedly on medical grounds. After a number
of failed attempts to secure his presence, the Court was compelled to rely on an affidavit
submitted by him in lieu of oral testimony.
2.11 On 22 December 2010, the magistrate, in the light of what he described as the
“background of compelling and direct eyewitness testimony as well as medical evidence
which at its best was inconclusive”, concluded that the evidence was suggestive of a
homicide and ordered the commencement of a non-summary inquiry against the two police
officers, and their continued remand in custody.
2.12 On 7 February 2011, charge sheets were filed by the Kirindiwela police against the
two police officers. On 28 February 2011, the Solicitor General, on behalf of the Attorney
General, wrote to the magistrate, through the officer-in-charge of the local police station, to
inform him that he intended not to proceed with the criminal prosecution of the police
officers allegedly involved in the ill-treatment of the author’s brother.6
5
6
The author provides the toxicology report No. TRA/179/2010, dated 27 August 2010, performed by
the Institute of Legal Medicine and Toxicology (Colombo), which was included in the post-mortem
report No. 993/08/2010.
The author explains that the Solicitor General of Sri Lanka assists the Attorney General. The author
refers to the Record of Proceedings and Order, dated 3 March 2011, which states that “[t]he
magistrate must be informed that no further legal action is intended [to be] taken against the following
accused and that they could be discharged. The steps taken by the magistrate’s Court after reporting
on this to the Court should be informed to me within 14 days from the receipt of this letter in the
3