Freedom From Torture

A man was arrested for allegedly stealing bananas. He was detained in a Sri Lankan prison. While in custody, he died. The petitioners claimed that he was subjected to assault by prison authorities and died of the injuries incurred. Such treatment, it was argued, was violative of the man’s constitutional rights. The Supreme Court of Sri Lanka agreed, citing a previous UNHRC case in which a prisoner’s rights under the ICCPR were found to have been violated. The Court also cited standards of prisoners’ rights under the UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, as well as the Standard Minimum Rules for the Treatment of Prisoners, adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders. Relying in part on these authorities, the Court ruled that the prisoner’s rights under the Sri Lankan constitution had been violated. The Court then said that the respondent prison officials were under a duty to “take all reasonable steps to ensure that the persons kept in the Prison [we]re treated with kindness and humanity.” The Court then awarded the petitioners 1,000,000 rupees (about $8,900USD).

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Tonga: Fa'aoso v Paongo & Ors,TOSC 37 [11 September 2006]

The applicant (F) claimed damages of $29,000 for being wrongfully assaulted by the police. F, aged 13 years (12 at the time of the incident), was savagely beaten by police officers after being falsely accused of theft. F was detained by the police for 20 hours before being released. F also claimed that he had suffered injuries as a result of the attack. Upon his release, F further claimed that he had been threatened. The police pleaded guilty and accepted that F had been wrongly accused.


F was awarded damages of $10,000, comprising $5,000 for wrongful confinement and $5,000 for exemplary damages. The court referred to the case of Akau'ola v Fungalei [1991] Tonga LR 22, and issued the following admonition to police officers:

A number of police officers still appear to believe that they have the right to exercise discipline over the public … such abuse of authority will not be tolerated, and where it is proved to have occurred it will be stamped on, with increasing severity, until the bully boy in uniform no longer roams our streets.

Police officers had to understand that their role in criminal investigation was exactly that – to investigate cases through interviewing witnesses and, through appropriate use of forensic methods, to gather hard factual evidence that would stand up in a court of law.

In December 1995, Tonga acceded to the CRC. The judge further said that though it still had to be properly ratified, the accession indicated a willingness by the nation to be bound by its terms. Article 37 of the convention sets out the obligations of a state concerning the apprehension and detention of a child (defined as a person under the age of 18 years). The opening words of each paragraph of the article are relevant to the present case. They read:

  • No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment …
  • No child shall be deprived of his or her liberty, unlawfully or arbitrarily …
  • Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age …
  • Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance …

In the present case, all of these obligations were flagrantly abused. However, in the assessment of damages, the fact that some Tongans have no regular source of cash income was taken into account with a view to keeping awards of damages in proportion to the value of money and general conditions in the Kingdom.

A man was allegedly tortured by the police while in their custody. The man died in custody. The man’s widow petitioned the Supreme Court of Sri Lanka on behalf of her deceased husband. The Supreme Court cited the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment and held that the widow not only had the right to file suit on behalf of her deceased husband, but also that there existed in Sri Lanka a constitutionally protected right not to deprive of life, as well as a right to life. The Court said, “The interpretation that the right to compensation accrues to or devolves on the deceased's lawful heirs and/or dependants brings our law into conformity with international obligations and standards, and must be preferred.” The Court then ordered a total compensation of 800,000 rupees to the wife and child of the deceased.

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The petitioner is a cook employed by Colombo Dockyard Ltd. He complains that the 1st to 8th Respondents have infringed his fundamental rights under Article 13 (1) by reason of his unlawful arrest on 3.6.2002, under Article 11 by torture thereafter whilst in Police custody, and under Article 13 (2) by unlawful detention till 4.6.2002. The 1st to 7th Respondents are Police Officers of the Wattala Police. The 1st Respondent is the Officer in Charge, the 2nd Respondent is the Officer-in-Charge Crimes, the 3rd to 5th Respondents are Sub Inspectors, and the 6th and 7th Respondents ate Constables.  The 8th Respondent is the Inspector-General of Police.

The Petitioner's wife and brother also stated that the Petitioner had told them what had happened after arrest; that he had been blindfolded, his hands had been tied, and he had  been hung from a beam; that he had been assaulted by the 1st to 7th Respondents and another officer with iron rods and wooden poles for about an hour, despite crying out in pain; that while being beaten he was questioned regarding a murder, of which he knew nothing; that he had then been laid on the floor and his hands burnt with lighted matches, that no statement had been recorded from him; and that later that day he was taken to the 1st Respondent who had told him that they had made a mistake and he would be released the next morning.

 The Petitioner was admittedly released from Police custody at about 11.30 am, on 4.6.2002 .

Court ruling:


I grant the Petitioner a declaration that his fundamental rights under Article 11, 13 (1) and 13 (2) have been infringed by the 1st , 3rd , 6th and 7th Respondents, and award him a sum of Rs. 800,000 as compensation and costs (excluding medical expenses) , payable on or before 30.06.2003. Of that sum, the 1st Respondent will personally pay Rs. 70,000, the 3rd Respondent Rs. 40,000, the 6th Respondent Rs. 20,000 and the 7th Respondent Rs. 20,000, and the State will pay Rs. 650,000.

The Petitioner also claimed reimbursement of medical expenses incurred at Nawaloka Hospital. Learned Counsel for the 1st , 3rd ,6th and 7th Respondents contended that the Nawaloka charges were exorbitant and that the Petitioner could have sought treatment at a  State hospital. The evidence is that the Petitioner's wife and brother did not rush to Nawaloka in the first instance, but were content to go to the Wickramarachchi Ayurvedic Hospital, and that it was in consequence of medical advice then received that they brought him to Nawaloka. 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 something 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 rights of everyone "to the enjoyment of the highest attainable standard of physical and mental health."

India: Nilabatibehera v State of Orissa, 1993 SCC 746

Petitioner's  son,  aged about 22 years was taken  from  his home  In  police  custody at about 8 a.m.  on 1.12.1987  by respondent  No.6, Assistant Sub-Inspector of Police  of  the Police  Outpost in connection with the investigation  of  an offence of theft.  He was detained at the Police outpost. On 2.12.1987, at about 2 p.m. the petitioner came  to   know that the dead body of her son was found on the railway track. There  were multiple injuries on the body and his death was unnatural, caused by those injuries.

The petitioner alleged in her letter dated 14.9.1988, which was  treated as  a writ petition under Article 32 of  the Constitution,  that it was a case of custodial  death since her son died as a result of the multiple injuries  inflicted to  him   while he was in police custody and  thereafter his dead body was thrown on the railway track.  It was prayed in the petition that award of compensation be made to her, for contravention  of the fundamental right to  life  guaranteed under Article 21 of the Constitution.

This Court directed the District Judge to hold an  inquiry into the matter and to submit a  report. After hearing  the  parties  and  appreciating  the  evidence  the District Judge submitted the Inquiry Report dated  4.9.1991. The  District  Judge  found that petitioner's son  died  on account  of multiple injuries inflicted to him while he  was in police custody at the Police Outpost.

Court ruling:

Award  of  compensation  in  a  proceeding   under Article 32 by this Court or by the High Court under  Article 226 of the Constitution is a remedy available in public law, based  on strict liability for contravention of  fundamental rights to which the principle of sovereign immunity does not apply, even  though  it may be available as a defence  in private  law  in an  action  based  on  tort. This  is  a distinction  between  the two remedies to be borne  in mind which  also  indicates the basis on  which  compensation is awarded in such proceedings.

Enforcement of the constitutional right and  grant of  redress  embraces award of compensation as part  of the legal consequences of its contravention. A  claim  in  public  law  for  compensation  for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of  such rights, and such a claim based on strict liability made  by resorting  to  a  constitutional  remedy  provided  for the enforcement of a fundamental right is distinct from, and  in addition  to, the remedy in private law for damages for  the tort  resulting  from the contravention of  the   fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental  rights,  there  can be no question of  such  a defence being available in the constitutional remedy.  It is this   principle   which   justifies  award  of  monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only  practicable mode of redress available for the contravention made by the State  or  its servants in the purported exercise  of  their powers, and enforcement of the fundamental right is  claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.