Sanjeewa, Attorney-at-Law (on behalf of Gerald Mervin Perera) v. Suraweera, Officer-in-Charge, Police Station and Others

The Petitioner was arrested by the police on the mistaken identity as one “Gerrad” who was suspected of having committed a murder. The first Respondent was the Officer-in-charge of the police station while the others were subordinate officers and the 8^th Respondent was the Inspector-General of Police.

The Petitioner had been taken to the Wattala Police Station where he had been treated brutally and tortured. Subsequently, the Petitioner was released by the first Respondent on the ground that a mistake was made as to the identity of the accused. As a result of the torture, the Petitioner suffered severe physical infirmities. The Petitioner was admitted to an ayurvedic hospital for treatment, but in light of the severity of his injuries,was advised to seek immediate treatment at an allopathic hospital. The Petitioner was admitted to a leading private hospital to receive this treatment.

The Petitioner filed a fundamental rights application under Article 126 of the Constitution of Sri Lanka. He claimed that the unlawful detention violated his fundamental right to be free from arbitrary arrest, detention and punishments under Article 13(1) and Article 13(2) of the Constitution. He also claimed that his right to be free from torture and cruel, inhuman or degrading treatment under Article 11 was violated. In addition, the Petitioner claimed reimbursement of medical expenses incurred in the private hospital he was admitted to due to his injuries. Denying these allegations, the Respondents contended that they had used ‘minimum force’ in terms of Section 23(2) of the Criminal Procedure Code as the Petitioner attempted to escape from police custody.  (This section allows a person making an arrest to use means which are ‘reasonably necessary’ if a suspect attempts to evade the arrest). The Respondent also contended that the Petitioner should have sought treatment in a government hospital instead of a private hospital.

The Court was to decide whether the arrest was made on credible information and if the Petitioner was subjected to torture and degrading treatment. In addition, it was to look at whether the Petitioner should be reimbursed for medical expenses incurred.

As to the veracity of the information, the Court found that the arrest was made on vague information and mistaken identity of the suspect. They questioned the bona fide of the police officers who did not record a statement by the Petitioner and failed to produce him before a magistrate. The Court noted that even if the Respondents did record a statement by the Petitioner, according to the evidence they had waited 10 hours to do so. From the given evidence the Court felt that the police was merely hoping for ‘something to turn up’ and in fact had no substantial grounds to arrest the Petitioner.  Hence, the Court held that the Petitioner’s rights under Article 13(1) have been violated as it was probable that he was not even given reasons for his arrest.

The Court also highlighted the unnecessary delay in producing the Petitioner before a magistrate’s Court and noted that the delay prolonged his detention. The Court commented that in this instance, taking into consideration the Petitioner’s immediate need for medical attention, he should have been taken to a hospital and if further detention was necessary, hospital detention could have been justified.

The Court further held that the failure to release the Petitioner to secure medical treatment amounted to cruel and inhuman treatment. The Court also explored the ambit of Article 4(d) of the Constitution which ensures that fundamental rights, including freedom from torture recognized by the Constitution shall be respected by all organs of government.

With regard to the reimbursement of medical expenses, the Court held that citizens have a right to choose between private and State healthcare in light of Article 12 of the International Covenant on Economic Social and Cultural Rights which recognizes the right of everyone “to the enjoyment of the highest attainable standard of physical and mental health”. Thus the Court held that the State was liable to pay all medical expenses incurred by the Petitioner.

“The Respondents were not entitled to keep the Petitioner in the Station and to delay producing him before a Magistrate. He was entitled to be so produced within a reasonable time, 24 hours being the upper limit for such production. Assuming that there was truly a need to record his statement, that would not have justified a delay of more than an hour or two continued detention at Police Stations creates opportunities for ill-treatment as well as for false allegations of ill-treatment. Prolonging detention until late evening almost automatically results in detention overnight”. S.C.(FR) Application No.328/2002, Pg. 328.

“…However good the standard of treatment in State hospitals may be, there is no doubt that many Sri Lankans do opt for treatment in private hospitals - sometimes in the belief that treatment and care is better, and sometimes because of fears in regard to delays, over-crowding, strikes, shortages of equipment and drugs, etc. 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 -and was probably motivated by nothing other than the desire to save his life. Article 12 of the International Covenant on Economic Social and Cultural Rights recognizes the right of everyone "to the enjoyment of the highest attainable standard of physical and mental health" . S.C. (FR) Application No.328/2002, Pg. 330.