02 September 2015

Victim & Witness Protection - The need for further reform

Written by

1. Introduction

The Assistance to and Protection of Victims of Crime and Witnesses Act (the Act) was passed by the Sirisena administration in February 2015. On several counts, the Act marks progress. First, it provides for a range of statutory rights that seek to facilitate victims‟ participation in the criminal justice process. Second, for the first time, it establishes a witness protection program. However, a close look at the Act reveals that there are number of shortcomings in the institutional arrangements underpinning the Act. The two bodies created to implement the Act lack adequate independence. The first body, a National Authority for the Protection of Victims and Witnesses (the Authority) largely consists of senior public servants holding office ex-officio. The Authority has significant powers to set normative standards relating to protection issues, as well as to oversee the implementation of the Act. Thus, it is imperative that there be strong leadership with relevant skills and experience, that can establish a strong victim and witness centered approach within the organization. The second body, a Victims of Crime and Witness Assistance and Protection Division (the Division), established by the Inspector General of Police (IGP), is not mandated to be independent from the rest of the police force. This is highly problematic given that historically, the police have been accused of perpetrating threats and reprisals against victims and witnesses.

The first part of this paper examines the institutional arrangements underpinning the Act. Section one examines the composition, mandate and powers of the Authority, as well as the functions of the Division and argues that there are insufficient safeguards to ensure their operational autonomy.

The second part examines the range of victims‟ rights provided under the Act against international standards. The Act facilitates a range of rights for victims, including a right to redress, right be kept informed, right to participation in the criminal justice process and right to compensation. Each of these rights are assessed against international standards, and the practice of comparative jurisdictions.

Additionally, the Act creates a witness protection scheme, largely following international best practice when it comes to the specific protective measures available. However, there is a missing piece, in that it does not specify what criteria should be taken into account when determining whether a witness should be given protection. This problem is made worse by the fact that the Division created within the police force to implement the protection scheme is insufficiently independent.

Finally, the third part of this paper examines the current political context, and argues that significant political will and financial resources are required to implement the Act. Given the historical context where law enforcement authorities have been repeatedly accused of perpetrating abuse, it is essential that the government advance wider institutional reform. Another important consideration is the fact that the government has promised a “credible domestic mechanism”.1 No matter what shape such a mechanism takes, strong victim and witness protection must be a pre-condition to any transitional justice mechanism. Therefore, reforms to the Act, and its implementation must be a priority for the new Government.

2. Background and rationale for Victim and Witness Protection

In addition to the direct physical, mental, and material harm suffered by victims of crime, they can also experience secondary forms of victimization through their participation in the criminal justice process. This type of re-victimization can take place through their interactions with law enforcement officials as well as through their treatment during the investigation and trial process. At times law enforcement officials and judicial officers may prioritize administrative convenience over the interests of the victims. In response, criminal justice systems around the world, have developed standards that seek to promote the best interests of the victim at every stage of the criminal justice process. Similarly, the ability of witnesses to come forward with information and to testify during trial is critical to the success of criminal trials. In response, many countries around the world have adopted protection frameworks to facilitate witness participation in the criminal justice process without fear of intimidation or reprisals.

In Sri Lanka, for many decades, the lack of any witness and victim protection framework has been a key concern undermining the criminal justice system. There have been numerous cases of law enforcement authorities and others intimidating or otherwise pressuring victims, witnesses and their families to either drop human rights cases, or stop them from participating in proceedings.2 One of the most infamous attacks on a witness was the murder of Gerard Perera. In 2004, Gerard Perera, was mistakenly detained and tortured. Upon his release Perera, successfully filed a fundamental rights case. Pursuant to the findings in the fundamental rights case, six police officers were indicted under the Prevention of Torture Act. Perera was the principal witness in the case, and was summoned to provide evidence before the High Court. Tragically, a week before he was due to appear in court he was shot whilst travelling on a bus and later died from his injuries. Subsequently, the same police officers who were accused of torturing Perera, were indicted for having played a role in his death. Similarly, in the well-known case of the death of five students in Trincomalee, Dr. Manoharan, the father of one of the deceased and one of the main witnesses, was repeatedly threatened, and was ultimately forced to leave the country.3 An analysis by one scholar of judgments of the High Court where acquittals were handed down of police officers responsible for extra-judicial executions and enforced disappearances during the 1980s, suggested that one of the main reasons for the acquittals was the inconsistent testimony provided by witnesses.4

The treatment of witnesses and victims before non-judicial commissions of inquiry has also been a serious concern. Successive commissions of inquiry have been accused of failing to treat victims and witnesses with respect and fairness. Most commissions have also been criticized for their failure to adopt strategies to protect victims and witnesses at the outset of their work. The Lessons Learnt and Reconciliation Commission was criticized for its inability to get witnesses to come forward, as witnesses did not have confidence in the work of the commission, owing in part to the lack of a framework to protect victims and witnesses.5 Even the Presidential Commission to Investigate into Complaints Regarding Missing Persons has been questioned by civil society groups over its failure to adopt a victim and witness protection framework.6

Given this background, there has been a long interest in developing a formal victims and witness protection framework. Initiative for drafting a bill came from S. S. Wijeratne of the National Centre for Victims of Crime.7 In 2000, the Law Commission completed an initial draft. In 2005, the process commenced again, this time under the leadership of the then Solicitor General C.R. de Silva. A second draft was completed in 2007, and members of civil society highlighted a number of shortcomings.8 In fact as late as September 2014, when the Rajapaksa administration tabled a revised version of the 2007 draft before Parliament, members of civil society criticized a number of aspects of the bill.9 Despite these long standing objections, the Sirisena administration passed the same bill that was tabled by President Rajapaksa in September 2014.

Part I: Institutional Arrangements

1. The Authority

The Act establishes a National Authority for the Protection of Victims of Crime and Witnesses (the Authority).10 The administration and management of the affairs of the Authority is vested in a Board of Management (the Board).11 The Authority has broad powers to set normative standards in relation to victim and witness protection as well as to oversee the implementation of the Act.

a) Composition

The appointment mechanism for the Board of Management that manages the affairs of the Authority strongly favours the state. The Board of Management is constituted of twelve members, of which seven are „ex officio‟ members from the ministries of Justice, Police, Women‟s Affairs, Children, a member of the Human Rights Commission and one nominee each from the Attorney-General‟s Department and the IGP.12 The remaining five members are to be appointed solely at the discretion of the President from among persons who have experience in criminology, criminal justice system, promotion and protection of human rights or medicine.13 The President is empowered to appoint a Chairman from among members of the Board at his sole discretion. The Chairman of the Board also acts as the Chairman of the Authority.14 Given Sri Lanka‟s history of politicization of the public service, this appointment process could result in a situation where all of the Authority‟s members have close political associations with the Government. Further, the current criteria for becoming a member of the Board of Management does not place sufficient emphasis on practitioners and experts including persons with background in social services from the non- government sector.

The inclusion of persons from the non-government sector is particularly important to ensure the effective functioning of the Authority. To date, the non-government sector, in particular civil society activists, human rights defenders and church leaders have facilitated victims‟ participation in the criminal justice process, as well as protected them from reprisals where necessary. In the past, many victims and witnesses have reached out to members of civil society to seek protection when they have feared reprisals. Thus, these stakeholders who already have a significant body of experience carrying out protection work should be included, and their expertise drawn on when implementing the Act.

As seen below, Board members have significant power to set normative standards relating to protection issues. Thus, a strong Board composed of members with experience and knowledge in protection issues is critical to the proper functioning of the Authority. Additionally, there is a tendency within national institutions, including the Human Rights Commission, to privilege executive convenience and the perceived rights of state functionaries over the rights of citizens. In this context, internalizing a rights based approach with the Authority is of critical importance and will require leadership committed to that approach.

The Act further provides that the Board shall appoint the Director-General of the Authority. The Director-General must be a person professionally qualified and experienced in a “professional activity associated with the criminal justice system or law enforcement”.15 The Director-General is responsible for carrying out all duties necessary for the management and administration of the affairs of the Authority.16 The Board may delegate any functions and powers of the Authority to the Director-General. In particular, the Director-General is responsible for managing the accounts of the Protection Fund, out of which compensation is to be paid to victims.17 In practice, much of the norm setting powers assigned to the Board could be exercised by the Director-General. Therefore, it is imperative that a person of the highest integrity with a strong protection background is appointed to the post.

b) Mandate and powers

The Authority has a mandate to “develop, adopt and implement a scheme for providing assistance and protection to victims of crime and witnesses.”18 It has a broad mandate to promote best practices, develop codes of conduct, develop guidelines and make recommendations to other government departments and agencies.19 This includes a specific mandate to “sensitize public officers” including the police, Prisons Department, government medical officers, and public officers associated with probation and social services.20 The mandate further extends to conducting research into reducing incidences of crime, and ways of minimizing the impact of crime on victims and witnesses.21

Despite these broad powers to make recommendations, they are not binding on other public institutions or officials. In instances where a person or agency receiving the recommendation is unable to give effect to a recommendation, they are only under an obligation to notify the Authority and provide an explanation.22 In contrast, the Authority‟s powers to make orders or recommendations pursuant to an investigation into an alleged infringement of a right or entitlement of a victim or witness are binding.23 This inability to make generally binding recommendations is problematic given that the Division of the police charged with implementing the witness protection scheme is not legally mandated to be an independent branch within the police. Thus, given that the Division is not under a legal obligation to follow general guidelines set by the Authority, the Division is provided a significant degree of discretion in how it chooses to carry outs its functions and can similarly be vulnerable to external political interference in carrying out its work.

The Authority has broad powers to conduct investigations into alleged or imminent infringement under the Act.24 For example, it can require persons to appear before the Authority, request documents, inspect premises, as well as make appropriate orders and direct, advice or recommend adoption of such measures for the promotion and protection of the rights of victims and witnesses.25 Where a person or a public official fails to comply, they can be found to be guilty of an offence of contempt of Authority.26 In such cases, the Authority provides a certificate of its findings to the Supreme Court. This certificate may be received in evidence without additional proof by the Supreme Court which is empowered to punish the offender, unless the contrary is proved.27

The Authority has important powers to “appoint, dismiss and exercise disciplinary control over officers, consultants and advisors”.28 Additionally, the Authority is to have its own fund, out of which it could fund its expenses.29 Together these two provisions significantly strengthen the independence of the Authority. However, these provisions that provide for an independent staff are at odds with the leadership of the Authority, which primarily constitutes high-level public servants holding office ex-officio. If the leadership of the Authority is not independent of Government, it is unlikely that the outlook and overall work of the organization would also be independent.

2. The Division

The Act mandates the IGP to establish a “Victims of Crime and Witness Assistance and Protection Division” (the Division). This Division has the authority to design and implement a Victims and Witness Assistance Program, in compliance with guidelines provided by the Authority.30 The Division is to be headed by a Senior Superintendent of Police nominated by the IGP.31 In particular, the Division is under duty to investigate, by itself or with the assistance of any other police officer, complaints relating to threats, reprisals, harassment or a violation committed against victims and witnesses of crime. The Division is also under a duty to investigate any of the offences under the Act.32

However, there are no provisions guaranteeing the autonomy or independence of this Division from the hierarchy of the police. As noted above, the Authority issues recommendations and provides guidelines to other government agencies including the police and the Division on how to discharge their duties. However, given that the Authority‟s general recommendations are not binding the Division has significant discretion in how they carry out their work. Additionally, given the deep politicization of Sri Lanka‟s public institutions, this discretion does little to protect the Division from external interference in carrying out its work.

In some jurisdictions including in Australia, New Zealand and Canada, witness protection is a police function. In others such as Colombia and the Netherlands, witness protection is carried out by an independent unit within the relevant ministry, for example the ministry of justice or the interior. In a third approach, witness protection is charged to a multidisciplinary body comprising representatives from related fields including law enforcement, and the office of the prosecutor. The United Nations Office of Drugs and Crimes (UNODC), which has developed best practices in establishing witness protection, recommends that there must be organizational and administrative autonomy for the unit administering the protection program.33 Especially, where the unit is located within the police it must be operationally isolated from other law enforcement branches conducting investigations and prosecutions.

In the Bribery Commission, police officers are similarly „loaned‟ to the Commission. Throughout their time within the Bribery Commission, the police officers remain part of the police department and report to the IGP. In practice, this has meant that IGP has the power to recall these police officers at any time, potentially undermining any on-going investigations.34

The functions of the Division are such, that police officers within the Division would sometimes be expected to provide protection to victims and witnesses in cases against fellow members of the police or other public officials. In the absence of demonstrable independence, this is highly problematic. Lack of independence in how the Division functions in practice can result in re-victimization of the victim, reduce the willingness of witnesses to testify, and ultimately undermine the success of criminal prosecutions. It may well be that over time, with significant institutional reform and sustained political will, the police force would be modernized and strengthened into a public institution that has the trust and confidence of the public. However, such reform is yet to take place.

If officers of the police force are to constitute this Division, they must be administratively and financially independent from the control of the police hierarchy. For example, there must be provisions to ensure that such officers answer directly to the Director-General and the Board for the duration of their service within the Division. Similarly their salaries should be paid by Authority. Further, disciplinary control over officers serving in the Division must lie with the Authority and not the IGP.

3. Offences

In addition to creating statutory rights for victims, the Act also proscribes certain types of conduct. It is an offence to threaten a victim or witness or “any other in whom such victim or witness has an interest” with the intention of causing alarm, or causing the victim to refrain from lodging a complaint or testifying.35 Thus, the Acts makes it an offence to threaten the relatives, dependants and any other person closely associated with the victim or witness. It is also an offence to voluntarily cause hurt to a victim or witness with the intention of causing them to refrain from lodging a complaint, testifying, or to compel them to withdraw a complaint or in retaliation for a statement made or testimony that has been provided.36 These are important provisions, as in the past, there have many instances where victims have been attacked either in retaliation or with the intention of compelling them to drop a complaint.37 The Act further prohibits causing grievous hurt or wrongfully restraining a victim or witness.38

It is further an offence for an alleged suspect to give “gratification” to any other person with a view to preventing the institution of criminal proceedings.39 It is similarly an offence for a victim or witness to provide false information to the relevant authorities, with the intention of obtaining assistance.40

The provisions setting out offences do not address circumstances where public officials violate the rights of victims and witnesses in the course of their duties. This is a striking omission given the high-profile attacks against victims and witnesses perpetrated by public officials.41 This problem could be remedied by a provision identifying wrongful conduct by public officials as an aggravating factor attracting a higher penalty. Such a provision would send a strong message to public officials as well as victims and witnesses that the Act represents a break from the past and a commitment to ending impunity for official wrongdoing.

Part II: Assessing the protection against international standards

A number of non-binding international legal instruments have laid out standards relating to how victims should be treated at the investigation stage and during the trial process. The main instrument among these is the United Nations Declaration on Basic Principles of Justice for Victims of Crimeand Abuse of Power (the Basic Principles).42 International instruments advocate a number of key principles in the treatment of victims: access to justice and fair treatment; restitution from the offender; where the latter is not available, compensation from the state; and assistance to victims. At its core, these principles call on public officials to treat victims with compassion and in a manner that respects their dignity.

2.1 Rights of Victims

A range of rights of victims – both procedural and substantive – are recognized in the Act. These include the right to be treated with fairness 43; the right to redress;44 the right to be protected from harm45; and the right to be medically treated for any mental or physical harm.46 There are also a range of rights that provide for the victim to be informed and participate at various stages of the criminal justice process including at the investigation, trial and sentencing stages. The Act further provides that it “shall be the duty” of every public officer including members of the armed forces, police officers and every judicial officer to recognize, protect and promote the rights of victims and witnesses identified under the Act.47 By casting victims‟ rights under a framework of statutory rights, the Act opens the door to the enforcement of these rights through the writ of mandamus – a common law remedy available to enforce the performance of a public duty.48

a) Definition of a victim

The Basic Principles defines a victim as any person who individually or collectively, has suffered harm including, physical or mental injury, emotional suffering, economic loss or substantial impairment of fundamental rights, through acts or omissions that are violations of criminal laws operative within a state.49 A person may be considered a victim regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted.50 The definition of victim also includes immediate family, dependants of the direct victim, and persons who have suffered harm in intervening to assist victims in distress.

The Act broadly complies with this definition. A victim is defined as any person who suffers any injury, whether physical, mental, emotional, economic or other loss as a result of “an act or omission which constitutes an alleged offence under any law” or infringement of the fundamental right to be free from arbitrary detention under the constitution.51 Under the Sri Lankan constitution, law is defined only to include “any of Parliament and any law enacted by any legislature at any time prior to the commencement of the Act”.52 Thus, this excludes the victims of international crimes such as war crimes and crimes against humanity which have hitherto not been incorporated in Sri Lankan law. Notably however, as the Act links the definition of a victim to “an alleged offence”, the Act expands the protection under the Act to instances where the perpetrator has not been identified, investigated, prosecuted or convicted.

Under the Act, the definition of victim also includes “any person who suffers harm as a result of intervening to assist a person or to prevent the commission of a crime”. It further extends to the parent or guardian of a child victim, any member of the family and next of kin of a victim, dependents and any other person of significant importance to the victim. 53 The inclusion of “any other person of significant importance” goes beyond the protection afforded in the Basic Principles, and potentially includes for example, the unmarried partner of a victim.54

b) The right to redress

International standards provide that victims are entitled to access “mechanisms of justice” and “prompt redress”, as provided for by domestic legislation.55 Victims should also have access to redress through formal or informal procedures that are “expeditious, fair, inexpensive and accessible”.56 The Act echoes this language and provides that victims have the right to receive “prompt, appropriate and fair redress”57. Most jurisdictions around the world have adopted a similar approach and only permit the state to conduct prosecutions. However, in a small number of jurisdictions the right to redress is applied more broadly to allow for victims to act as a „subsidiary prosecutor‟.58 In such instances, the victim has the right to submit evidence, ask questions during the proceedings, and make observations on evidence submitted in court.59

Under the Model Code of Criminal Procedure, victims have the right to request that the Prosecutor pursue a specific investigation, collect certain evidence or take other specific measures.60 The Prosecutor is not required to comply with such requests, but must give them „due consideration‟.61 In some jurisdictions, victims may request that a superior of the prosecutor review the decision not to prosecute. In other countries including France and Israel, the victim may bring a claim to court challenging the prosecutor‟s decision.62 Where the victim is successful, the State is required to initiate prosecutions. In Sri Lanka, the victim‟s right to redress is at times adversely affected by a decision of the Attorney- General not to prosecute.63 In a number of high-profile cases, the Attorney-General has been accused of failing to properly investigate and prosecute criminal conduct, including violations of fundamental rights.64 Under the code of criminal procedure, individuals have the standing to bring a private plaint before the magistrate‟s courts.65 However, there are a number of legal and practical restrictions on the exercise of private plaints. Private plaints cannot be brought against conduct committed by public officials in the course of their duties, and the Attorney-General has the power to take over such plaints.66 A victim may also face significant challenges enlisting the cooperation of other public officials to ensure a successful prosecution. Petitioners attempts to challenge the Attorney-General‟s exercise of discretion, have also met with resistance by the Courts.67

An alternate avenue might be to provide a statutory framework to both challenge and limit the exercise of discretion by the Attorney-General. Legal commentators have recommended that the Attorney-General should be made to give reasons when issuing a nolle prosequi, and where the Attorney-General seeks to exercise discretion in bad faith, the Magistrate should be given power to take appropriate judicial action. Though this solution is not ideal, as bringing claims before courts is time consuming and expensive, if used effectively by interested parties, it could bring significant pressure on the Attorney General to revisit prosecutorial strategies. Overtime, reform within the Attorney-General‟s office must be pursued, with a view to ensuring timely, successful prosecutions.

c) The right to be kept informed

A key component of protection of victims is facilitating their participation in the criminal justice process. To this end, the Basic Principles provides that the State is under an obligation to keep victims informed of their role, as well as the progress of an investigation, a trial, sentencing procedure or any parole hearings.68 Victims must also be allowed to air their views and concerns, be present at appropriate stages of the proceedings, especially where their personal interests are affected.69 Various countries have adopted different models to adopt these standards. France has published a user-friendly book titled “A Guide to Victim‟s Rights”.70 In Australia, Canada and the United States, the police and prosecutors‟ office has assigned staff especially to address the rights of victims.71

The Act provides that the Authority or Division must provide information to victims on civil and criminal remedies that are available to them, including information on any applicable „periods of prescription‟.72 The officer in charge of a relevant police station or any other authority must provide information to the victim of the progress of an investigation.73 Similarly, the officer in charge, the authority conducting the investigation, the Attorney General or the Registrar of the Court must respond to a request from a victim to be kept informed of any dates of the non-summary inquiry, trial, or appeal, as well as the progress of proceedings.74 The relevant authority must respond to a request from the victim to know the dates fixed for the release on bail, discharge of the suspect, institution of criminal proceedings against the accused, as well as the date on which the convict would be released from prison.75 Additionally, where the victim requests such information, the Authority must provide information of any medical or social services or any other assistance that is available to the victim.76 Notably, public institutions are only under an obligation to keep the victim informed, when the latter has requested such information. This may be appropriate in relation to information relating to the criminal investigation and legal proceedings, their dates and progress. Victims may of their own volition decide they do not wish to be kept informed, or take any part in the law enforcement process. However, the state should have a positive duty to provide information to victims on medical and especially other social services available to victims. Given that health care is free in Sri Lanka, victims may naturally seek medical services from the government provider. However, victims may not be equally aware of the availability of other services such as psycho social services to help them recover from psychological trauma, if any.

d) The right to participate in proceedings

International standards provide that victims must have the right to participate in proceedings by being present as well as by making substantive contributions to the investigation and trial process.77 Where necessary, victims are also entitled to assistance, including legal representation in order to fully participate in proceedings.78

The Act facilitates many aspects of the right of participation of a victim during the investigation and trial process. It provides that victims have the right to make a complaint, and to have such a complaint investigated.79 Without prejudice to any on-going investigation, victims also have the right to be legally represented during an investigation and make any „necessary representations‟.80 Victims also have the right to be present at judicial and quasi-judicial proceedings related to the offence, except where the Court, or other relevant authority decides that the victim‟s own evidence would be „materially affected‟ if he hears other evidence or for any other reason justice can only be secured by excluding the presence of the victim during all or part of a hearing.81 Where victims wish to attend the proceedings, they also have the right to receive any assistance required.82 It is unclear what type of assistance this might include. In other jurisdictions, victims are entitled to legal representation as well as practical and emotional support. In India, impecunious victims are entitled to state funded legal aid, if they wish to participate in criminal proceedings.83 In Denmark, Norway and Sweden in addition to legal assistance, victims of sexual assault are entitled to access “support-persons” who provide practical and emotional support when victims participate in proceedings.84

In terms of the Act, victims also have the right to obtain certified copies of Cause of Death Forms, Post Mortem Reports, Medico-Legal Reports, Reports of the Registrar of Finger Prints and any other report of an expert and reports filed in the Magistrates Court by the police.85 However, a Magistrate has the power to refuse such a request, where the release of any of these documents is likely to prejudice an on-going investigation.

The Act also provides victims the right to make written communications or make representations through a legal counsel to the Attorney-General during an on-going investigation as well as judicial proceedings.86 Victims similarly have the right to make written communications or make representations via their legal representative to the investigator conducting the relevant investigation, and to receive a response in return.87 Without prejudice to the prosecution, victims have the right to be legally represented at the non- summary inquiry, trial, appeal, and application in revision stage of the proceedings.88 Where available, victims have the right to be provided with legal assistance for such purposes.89 It is unclear whether this legal assistance is to be provided through counsel from the prosecution‟s office or via a state-funded legal aid mechanism. Given that legal aid in Sri Lanka is already under a significant resource strain, this scheme is likely to limit participation to victims able to afford their own legal representation. It is also notable that the right to make representations is qualified to „written communications‟. This qualifier may further disadvantage many victims who despite being literate may not have the sufficient level of skill to make a meaningful submission to the investigator.

Additionally, the right to make representations is qualified to judicial proceedings, and does not extend to non-judicial inquiries such as commissions of inquiry. Given that victims of crime participate in judicial and non-judicial proceedings, there is no conceivable rational basis for the limitation of the right to judicial proceedings. In this regard, it is notable that commissions of inquiry have been criticized in the past for their cursory and perfunctory treatment of victims and witnesses.90

In terms of providing evidence, a Court or a Commission has powers to take immediate steps to order special measures to protect the rights of a child victim or witness;91 to conduct part or all of the proceedings in camera;92 to adopt necessary measures to prevent the victim being harassed or influenced in any way by seeing the accused at the venue of the proceeding;93 and to prevent the identity of the victim or witness from being disclosed.94

At the sentencing stage, appeal or application in revision stage the victim may make a representation either in person or via legal counsel on the impact the offence has had on them.95 If the convicted person is being considered for the grant of a pardon, or a remission of a sentence, the victim has a right to be informed and make representations via the Authority, on the impact the offence has had on their life.96 In a number of countries around the world, including in Canada, the United States, Australia and Israel, law enforcement authorities make use of a „Victim Impact Statement‟. With the assistance of an investigation officer or the prosecutor, victims fill out a statement detailing how the offence has impacted them physically, mentally or otherwise. This then facilitates the victim‟s perspective to be included in all subsequent proceedings, regardless of whether the victim decides to personally make an intervention.

e) Compensation to a Victim

International standards distinguish between restitution from the offender, and compensation from the state.97 Restitution refers to the offender restoring the victim to the situation he was in before the offence took place. Restitution only addresses financial and other material damage, and cannot for example address situations where there has been a loss of life. Compensation is available both from the State and the offender, to address a broader range of harm suffered by the victim including physical, psychological, economic and other material forms of harm.

The Declaration on Basic Principles provides that, where appropriate, offenders should make fair restitution to victims, their families or dependents.98 Where the offender is not in a position to provide restitution, the State “should endeavor to provide financial compensation” to victims, their families and their dependents.99 This type of compensation is limited to instances where the victim has sustained significant physical or mental injuries.100 The Basic Principles calls on states to encourage the establishment of national funds for compensation of victims.101

The Act provides for a framework of compensation both from the offender and the State. The Authority has a specific mandate to promote the implementation of measures of restitution as a sentencing option in the criminal justice system.102 Upon conviction of a person before a High Court or Magistrate‟s Court, the Court may order the offender to pay compensation to the victim or witness.103 The Act does not specify the relevant grounds of compensation. When assessing the amount, the Court shall consider all relevant information, including a statement from the Government Medical officer to determine the nature and extent of the “damage, loss or harm that victim of crime may have suffered”.104 The court shall also consider submissions from the victim on the impact of the crime on the victim, as well as any compensation that has already been paid to the victim.105 Under the Basic Principles, where a public official in the course of their duties commits an offence, the State is under an obligation to provide compensation to the victim.106 However, a shortcoming of the Act is that it does not contain an analogous provision.

The maximum compensation payable by the offender to the victim is an amount not exceeding one million rupees.107 If the victim receives compensation from the offender, they are not precluded from pursuing a civil claim for damages.108 However, when determining the quantum of compensation, the civil court should take into account the amount that has already been awarded to a victim.109 The possibility of pursuing damages via civil claims is important as it opens the door for victims to pursue damages from parties other than the convict, as well as claim damages for a broader range of losses, for example including future economic loss. The Act is silent on the possibility of joining civil claims with an on-going criminal trial. Commentators as well as actual practice from comparative jurisdictions are divided on this issue, given the potential impact of joining claims on the length of criminal proceedings.110

Separate to court ordered compensation, the victim may also apply to the Authority for compensation.111 The Act provides for the establishment of a “Victims of Crime and Witness Assistance and Protection Fund” (Protection Fund), to be administered by the Board.112 The Fund may receive contributions from Parliament and gifts and donations from other local and foreign sources.113 However, there is no obligation on Parliament to regularly contribute money to the Fund. Additionally courts may deposit fines paid pursuant to convictions into the Protection Fund. Other jurisdictions also rely on mixed sources of funding, including both Government contributions as well as donations from private sources. Some countries such as France have successfully implemented more unorthodox fund raising options such as requiring a mandatory levy from each personal insurance policy.114

The Board has the power to determine the amount of compensation to be paid in instances where victims have suffered for any physical or mental harm or loss or damage to property.115 The Board does not seek to compensate for economic loss; this is in line with the standards articulated in the Basic Principles, which also limits compensation to any physical or mental harm or damage to property.116 The Board may also award compensation to the victim‟s dependent, family members or next of kin, where the victim has died or has been mentally incapacitated.117 Notably, the Act does not limit compensation from the Board to instances where the offender is unable to provide compensation. Further, Board ordered compensation is also not limited to instances where there has been a conviction. Thus, in the event the Board is able to raise funds for the Protection Fund, victims would be able to access a limited amount of compensation in a timely manner.

Additionally, separate to compensation from the Court or the Board, a victim is entitled to receive a sum of money from the Authority in consideration of any expenses incurred as a result of the offence committed, including costs associated with participating in any proceedings. It is unclear what this includes, and for example, whether it would cover at least the partial cost of the victim‟s legal representation. The Act further provides that a victim of crime is entitled to claim from the state any medical services, mental health services and rehabilitation services.118 However, this is subject to “resources being available with the State”.119 Where resources are unavailable with the state, the victim may apply to the Authority for financial assistance.120 This provision is overly vague and could potentially be used arbitrarily by decision makers to deny assistance to certain classes of victims. By framing the issue as one of resource availability, the Act fails to regulate or even address the questions of resource prioritization that are inherent in decisions contemplated by the provisions on financial assistance.

f) Privacy of a Victim

The Basic Principles only provides that judicial and administrative mechanisms should protect the privacy of victims.121 The Act does not set out a specific privacy framework for victims and witnesses. When deciding to grant protection, a court or a commission may order measures to prevent the disclosure of the identity of the victim or the witness. This specifically includes the power to direct media institutions, and other specified persons from publishing or disseminating information relating to the identity of the victim or the witness. Additionally, the Act makes it an offence to release information, other than in good faith, relating to victims and witnesses under protection to third parties who may place the life of such a victim or witness in danger.122

Under this limited framework there are no measures in place to protect the identity of victims at the complaint and investigation stage. In particular, there are also no legal protections to safeguard how information collected during the complaint and investigation stage ought to be handled. In other jurisdictions, issues concerning privacy are covered under separate legislation or through a constitutional framework. Sri Lanka does not have a right to privacy under the constitution, and to date has not enacted a statutory framework that protects the privacy of information collected by government institutions.

2.2 Witness Protection

The Act largely follows international best practice when it comes to the specific protective measures available. However, there is a missing element in the Act, in that it does not specify what criteria should be taken into account when determining whether a witness should be given protective measures. This problem is made worse by the fact that the Division created within the police force to implement the protection scheme lacks independence.

a) The Definition of a witness

The model law prepared by the United Nations Office of Drugs and Crime (UNODC), provides that a witness is anyone who has made a statement or has agreed to give evidence in relation to the commission or possible commission of a serious offence.123 The definition also includes any other person who because of their relationship with the person providing the statement or evidence may require protection.124 The Act has a broad definition of “witness” to include anyone who has provided information, lodged a complaint, made a statement in relation to a violation of a fundamental right or a human right; any person who has provided an affidavit or statement in support of a victim of crime; any person who has provided information or a communication to a commission of inquiry; and any person who has reasonable grounds to believe they would be summoned by a court to make a statement, to testify or produce a document.125 The definition of witness also includes any public official who has investigated into an alleged commission of an offence. The definition further expands to include persons such as parents or guardian of a child witness, a family member or dependent of a witness, or “any other person of significant importance to such person”.126

b) Criteria for offering Protection

The Act also does not spell out the criteria for determining a request for witness protection. Where a Court or Commission decides to adopt protective measures, they must do so on “reasonable grounds”.127 When the Division considers whether to admit a victim or witness into a witness protection program the Act merely states that the Division must conduct a “threat assessment”.128 However, there are no further guidelines on what could be considered “reasonable grounds” or a “threat assessment”. The UNODC‟s Model Witness Protection Law, for example, sets out key criteria to be taken into consideration such as the seriousness of the offence to which the statement of the witness relates; the nature and importance of that statement; and the nature of the perceived danger to the witness.129 Additionally, it might also be relevant to consider the witnesses‟ psychological profile and ability by any restrictions imposed by the witness protection program.130

c) Nature and duration of protection

The Act spells out a number of protective measures which are largely in compliance with international best practice. The specific clauses not included, such as protective measures for those administering a witness protection scheme, are presumably included by virtue of the omnibus clause permitting the Authority, Commission or Division to take “any other measure which is deemed necessary”.131 Similarly, the provisions relating to terminating the grant of protection is largely in accordance with international best practice, except that there is no obligation on the Authority, the Division, Court or a Commission to take reasonable steps to notify a witness.132

d) Testimony through Audio-Visual Linkage

The Act provides for a Commission or a Court, as a protection measure or on the grounds of expediency to receive evidence through audio-visual linkage.133 In such instances the victim or the witness must be in a remote location within Sri Lanka, and be accompanied by a public officer.134 The limitation that an individual must be present within Sri Lanka to provide evidence through audio-visual linkage has important consequences for any future truth telling or accountability mechanism. To date, many survivors, witnesses and victims of the conflict have left Sri Lanka, and evidence available to them could be useful in determining the facts of any potential case. Having access to their testimony could prove highly useful to establish facts surrounding crimes committed during and after the war. Those who have left Sri Lanka may well be unwilling to return for fear of reprisals or re-victimization. If testimony via audio-visual linkage from outside of Sri Lanka is not permissible, then important evidence and testimony could be excluded from a future mechanism.

The Court or Commission shall, on the recommendation of the Attorney General or the secretary of the relevant Minister, apply for financial and other resources from the Authority.135 However, this provision is subject to a number of broad exceptions. First, the Attorney General and the Secretary of the relevant Ministry may object on the grounds that doing so would not be in the “national interest” or that it would not be “feasible”.136 The phrase “national interest” is not defined and there are no criteria provided to assess feasibility. In such instances, the Attorney General may recommend an alternative remote location from where the witness could provide testimony.137 Where the Attorney-General expresses an opinion that receiving testimony via audio-visual linkage is “inappropriate”, the Court or Commission is bound by that opinion and the Authority is not required to provide any financial assistance or other resources.138 In practice, these broad powers given to the Attorney-General to object to testimony via audio-visual linkage essentially leaves the decision in the hands of the Attorney General. These unfettered powers given are particularly problematic given credible concerns regarding the politicization of the Attorney-General‟s office in the past.139

4. Protection of specific categories of persons

Taking special consideration of vulnerable classes of persons is critical to any effective victim and witness protection programme. Women, children, elderly, disabled and impecunious victims and witnesses may need special procedures and measures in order to fully facilitate their participation in the criminal justice process. These classes of victims may also be especially vulnerable to certain types of crimes, for example, child abuse and neglect, domestic violence, and sexual violence. Therefore it is important that the relevant authorities are vested with sufficient powers and held to appropriate standards in the interest of mitigating the impact of crime on these groups. The Act provides at the outset that a victim of crime shall have the right to be “treated with equality, fairness and with respect to the dignity and privacy of such a victim”.140 Beyond this, the Act only provides a few special measures to facilitate the participation of children. Presumably, additional guidance as to special measures for vulnerable classes of persons could be provided through regulations. However, the protection afforded to these vulnerable classes would certainly have been stronger if specific measures were included at the outset in the Act.

a) Children

The Act provides that where the victim is a child, he or she should be treated in the manner which ensures the best interests of the child.141 Specifically when offering protection to a child, a Court or Commission could include special measures to protect the rights of the child and to ensure their best interest.142 In practice, more detailed provisions are required via regulations, as well as the implementation of logistical measures, to effectively protect the rights of child victims and witnesses. For example, international best practice provides that special procedures should be used when cross-examining a child; and separate staff trained to provide tailored psycho-social support to children should be present during all stages of the criminal justice process.143

b) Persons other than victims and witnesses that are entitled to protection

An employee of an organization who provides information about the commission of an offence at his place of employment is entitled to protection against any harassment, intimidation, and any loss or damage to his reputation.144 Such employees are further entitled to protection against any adverse changes to their conditions of employment.145 The provision amounts to a limited form of whistleblower protection, allowing public officials to come clean about any misconduct at their place of employment.

3. The Context for Implementation

The Act does not specify a time period within which provisions must come into effect. Rather, it leaves the matter entirely at the discretion of the Minister. At the time of writing, more than six months has lapsed since the passing of the Act; yet no steps have been taken to implement the Act. As the government takes steps towards implementation, a number of logistical, financial and structural challenges must be carefully considered. Additionally, as the government has promised to implement a “credible domestic mechanism” to address questions of accountability relating to allegations of serious crimes by both sides during the armed conflict, the existing victim and witness protection framework must be implemented with consideration as to its role in facilitating such a mechanism.

a) Challenges to implementation

First and fundamentally, implementation of the Act requires significant financial resources. The Authority is to have its own Fund, which it could use for its expenditure. Contributions to the Fund are to come from Parliament and also from among donations, gifts from within and outside Sri Lanka. At the commencement of the Authority‟s work, all, if not most of the funds for the Authority would have to likely have to come from Parliament. The Authority is yet to set up its physical infrastructure, as well as the necessary human resources in order to carry out its work. Similarly, the Authority must have the physical reach to ensure that victim and witness protection is carried out uniformly throughout Sri Lanka, and not just in Colombo, where the Authority is likely to be physically situated. Resource constrains faced by other commissions, the Bribery Commission for instance, has demonstrated that a lack of adequate physical infrastructure and human personnel have contributed to the Commission‟s inability to carry out effective investigations.146 The Bribery Commission has complained that its investigators are overburdened, and are forced to deal with up to 80 cases per annum, when in reality each investigator is able to deal effectively with approximately five cases per year.147

The Act also provides for the rights of victims to access medical and other social services, as well as legal representation at the expense of the State. The implementation of these provisions require significant resources, both financial and human, be invested in the existing Legal Aid Commission, as well as state health and social service providers. The Act further calls for a Victims Fund, which at least at the outset of its operation would require significant contributions from Government. Additionally, the Authority is empowered to provide financial compensation to victims in consideration of expenses incurred by victims during their participation in the trial and investigation process. Clearly, the success of the Authority would largely be determined by the adequacy of the funding made available to it.

As noted at the outset, historically, the law enforcement agencies have had a poor record of protecting the rights of victims and witnesses. Over the past three decades, the police and intelligence services have been accused of breaching fundamental rights, including arbitrarily detaining individuals, committing torture, and aiding enforced disappearances and arbitrary killings. As highlighted by the Gerard Perera case, the police have been accused of intimidating, threatening and attacking victims, witnesses and their families during on-going investigations and as well as during trials. The Attorney General‟s department has a mixed record on conducting prosecutions. For example, within the first fourteen years of Sri Lanka‟s anti-torture law, the Attorney General only initiated four prosecutions despite the wide scale prevalence of custodial torture throughout Sri Lanka.148

The creation of a formal legal framework to protect victims and witnesses is a meaningful step signaling an effort to break from the past. However, additional institutional reforms must be implemented in order to restore the trust and confidence of the public in these two institutions. Law enforcement agencies in particular must take serious steps to implement strict discipline and human rights orientated approach in its work. Current public officials, both within the police and the Attorney-General‟s office must be trained to facilitate the rights of victims. This requires a holistic approach, facilitating a service orientated culture within these institutions that always seek to place the interests of victims at the core their work. If the public does not trust law enforcement agencies, and does not perceive them as safe institutions, then it is unlikely that victims and witnesses will come forward to cooperate with the criminal justice system or to seek their protection.

b) Implication for a Transitional Justice Process

To date the Government has indicated an intention to establish a “credible domestic mechanism” to address demands for transitional justice in Sri Lanka. The details of such a mechanism have not yet been made public. No matter what shape a credible mechanism takes, a strong victim and witness protection framework must be a pre-condition to its implementation.

As noted above, the Act does not cover victims of international crimes. Therefore, a truth commission or a prosecutorial authority investigating international crimes would not be able to automatically rely on the existing victim and witness protection framework. In order to remedy this, in addition to the reforms suggested in this paper, Parliament must incorporate the prohibition of international crimes within Sri Lankan domestic law.

The Act does not prohibit a commission, a court, or a prosecutorial authority from establishing its own victims and witnesses protection unit. Many international and internationalized courts have set up such units.149 Similar to victims who come before the regular criminal justice system, victims before a mechanism established to advance transitional justice must be treated with dignity and respect, and arrangements must be in place to facilitate their active participation. A witness protection program would also be necessary to ensure that victims are protected from reprisals. In practice, a transitional justice mechanism is likely to attract a large number of victims, including victims who have suffered a high degree of trauma over an extended period of time. Additionally, the type of crimes investigated or prosecuted are also likely to be highly politically sensitive, requiring carefully considered protection measures for victims, informants and witnesses.

If a transitional justice mechanism is generously funded, it may be possible for a mechanism to look after its own protection needs. Where that is not the case, existing institutions need to be capable of supporting victims who wish to engage with a mechanism. Often, a transitional justice mechanism can only provide a limited form of protection to victims and witnesses. For example, a well-funded mechanism may be able to provide witness protection for a few essential witnesses. However, witnesses who need long-term protection including re-location and change of identity would have to be supported by existing institutions.

Finally, providing a strong victim and witness protection framework should be viewed as a measure of the „guarantee of non-recurrence‟, a key component in any comprehensive transitional justice policy. Guarantees of non-recurrence aim to transform citizens into rights holders, and restore their faith in public institutions. In this regard, operationalizing a statutory victims‟ rights framework, and instituting reforms within the police and the Attorney-General‟s Department to adopt a victim-centered approach in their work, would be an important mark of progress.

Conclusion

If the new Government is serious about victim and witness protection, then further reform must take place to protect victims and witnesses. Even though the Act represents a step in a positive direction, there are significant gaps that must be addressed if there is to be effective protection of victims and witnesses. The institutional arrangements created to implement the Act lack sufficient safeguards to ensure their operational autonomy. This lack of independence in the structures that administer the protection scheme is particularly problematic given Sri Lanka‟s political context and weak rule of law culture. In particular, the Act facilitates a National Authority that is constituted of ex-officio representatives from various ministries and other appointees directly appointed by the President. The Chairman of the Authority is also appointed solely at the discretion of the President. There is insufficient emphasis on selecting individuals with strong human rights backgrounds including from the non-government sector. Given that historically, civil society stakeholders including religious leaders and human rights defenders have done much of the protection work in Sri Lanka, it is imperative that their experience and expertise be drawn upon in the establishment of a National Authority designed to protect victims and witnesses.

Secondly, the Act provides for the establishment of a „separate‟ Division within the police to implement the protection scheme. A Senior Superintendent of the police is to head the Division. However, there are no provisions to ensure this Division‟s operational independence from the rest of the police. Thus, in effect, this “independent” division would continue to answer to the IGP. The experience of other commissions, that can similarly „burrow‟ police officers, illustrate that the IGP could at will, choose to re- assign police officers at any time, undermining any on-going investigations. Additionally, given that historically, the police have been responsible for perpetrating abuses including against victims and witnesses, there could be institutional attitudes as well as personal conflicts of interest that might adversely impact how victims are treated by the Division. Unless immediate reforms are initiated to ensure the administrative and financial independence of the Division from the rest of the police force, it is unlikely to earn the trust and confidence of the public to effectively carry out its mandate.

The Act lays out a number of rights aiming to facilitate victim participation at all stages of the criminal justice process. However, these rights must be further reformed and strengthened if they are to be truly effective. In terms of witness protection, the major failure of the Act is that it currently does not lay out clear criteria for how to assess whether a victim or witness requires protection. This failure to curtail the discretion afforded to Government actors is made worse by the fact that the Authority and the Board created to administer the protection scheme are not sufficiently independent.

If the government is seriously concerned with victim and witness protection, in addition to reforming and strengthening the Act, it should take immediate steps to reform and operationalise the Act. In particular, significant political will is required to provide the Authority the necessary financial and human resources to carry out its broad mandate. The first round of appointments to the Authority is critical to ensure that strong leadership is fostered early on, that avoids the pitfalls of other similar state authorities that too often take a minimalistic view of the rights of citizens. Additionally, strong leadership, and sustained political will is also required to facilitate the high degree of inter-institutional and inter-sectoral coordination that is required to deliver the range of legal, social, and medical services promised under the Act.

Looking to the future, and how this Act might be used in a transitional justice process, further reform must be a pre-condition to any mechanisms initiated within the country. Domestic laws criminalizing international crimes must be enacted so that the definition of victim and witness includes victims and witnesses of international crimes. In particular, as a transitional justice process could potentially involve large numbers of victims and witnesses, it would be important at the outset to develop a comprehensive policy on how to effectively provide the services that victims and witnesses are entitled to under the Act

Recommendations

For the purposes of addressing the challenges identified above the following changes are recommended:

To Government:

  • In consultation with victims, and civil society, amend the Act to give effect to the following considerations:
    • Appointments to the Board should be made by the Constitutional Council. An emphasis should be placed on practitioners and experts rather than persons who merely hold “ex officio” positions within relevant sectors.
    • Specify that the Division is to be financially, administratively and operationally independent from the rest of the police force. Procedures should be in place to insulate the Division from the rest of the police force; to ensure the confidentiality of their work; as well as measures to ensure the safety of those implementing the protection scheme.
    • The Witness Protection Scheme: Identify clear criteria limiting the discretion given to the Authority and the Division when determining whether a victim or witness is entitled to protection.
    • Right to Redress: Amendments should be made to the Code of Criminal Procedure, to require the Attorney-General to provide reasons for issuing nolle prosequis. Additionally the Magistrate should be given power to take appropriate legal action whenever the Attorney- General acts in bad faith.
    • Right to Participate: Provide for the mandatory use of a Victim Impact Statement, to be completed by the victim with the assistance of law enforcement authorities.
    • Compensation: State health care providers should be under an obligation to prioritize victims and witnesses in need of medical services, including mental health services.
    • Victim Protection: Adopt a holistic national policy on addressing the needs of victims that provides guidance to all stakeholders on common standards they should adhere to. Where necessary, a national policy should be adopted specifically relating to vulnerable classes of persons, including women, children, elderly and the disabled.
  • Allocate sufficient funding in the next budget for the effective operationalising of the Act.
  • Make credible appointments to the Board of the Authority from among persons who have strong professional experience in protection work.
  • Initiate broader reforms within law enforcement agencies in order to facilitate trust and confidence among the general public including, in particular, victims and witnesses of crime.

To Civil Society:

  • In consultation with victims and witnesses, engage with the Government for further reform and strengthening of the Act.
  • Identify appropriate persons to be appointed to the Board, and lobby the Government for their appointment.
  • Monitor the reform and implementation of the Act.

To the donor community:

  • Monitor the implementation of the Act, and provide contributions to the Protection Fund.

Bibliography

Amnesty International, “Sri Lanka: Urgent need to prosecute security agents involved in torture”51-52(7 November 2011) <https://www.amnesty.org/en/latest/news/2011/11/sri-lanka-urgent-need-prosecute-security-agentsinvolved- torture/> [Accessed 20 August 2015]

Amnesty International, “When Will They Get Justice? Failures of Sri Lanka‟s Lessons Learnt and Reconciliation Commission” (2011) <http://sydney.edu.au/arts/peace_conflict/docs/reports/failures_SL.pdf> [Accessed 31 August 2015]

Asia Report N°172 ,“Sri Lanka‟s Judiciary: Politicised Courts, Compromised Rights” (2009) http://www.crisisgroup.org/~/media/Files/asia/south-asia/srilanka/172_sri_lankas_judiciary politicised_courts compromised_rights.pdf [Accessed 31 August 2015]

Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015<http://www.srilankalaw.lk/gazette/2015_pdf/4%20of%202015.pdf> [Accessed 31 August 2015]

Basil Fernando, “Comprehensive Torture Prevention in Sri Lanka”, ALRC- article 2; vol. 6, no. 2, 2007 - p. 32-40 (2007) <http://www.ruleoflawsrilanka.org/resources/writings-of-basil-fernando/articles-by-basil-fernando-from- article-2/vol.-6-no.-2/comprehensive-torture-prevention-in-sri-lanka> [Accessed 20 August 2015]

Bhavani Fonseka, Groundviews, “Idea for Road Map for Truth and Justice in Sri Lanka” (19 January 2015) <http://groundviews.org/2015/01/19/ideas-for-a-road-map-for-truth-and-justice-in-sri-lanka/> [Accessed 20 August 2015]

Centre for Policy Alternatives, “The need for a strong victim and witness assistance and protection mechanism” (2014) <http://www.cpalanka.org/the-need-for-a-strong-victim-and-witness-assistance-and-protection-mechanism/> [Accessed 17 June 2015]

Code of Criminal Procedure 1979http://www1.umn.edu/humanrts/research/srilanka/statutes/Code_of_Criminal_Procedure_Act.pdf [Accessed 31 August 2015]

Colombo Telegraph, “Committee Against Torture Begins Examination of Report on Sri Lanka” (9 November 2011) <https://www.colombotelegraph.com/index.php/committee-against-torture-begins-examination-of-report-of-sri- lanka/> [Accessed 20 August 2015]

Council of Europe Committee of Ministers, “Recommendations No. R (85) 11 of the committee of ministers to member states on the position of the victim in the framework of the criminal law and procedure” (1995) < http://www.coe.int/t/dghl/standardsetting/victims/recR_85_11e.pdf > [Accessed 20 August 2015]

Council of Europe, „Background Note On “Ways And Means To Promote The Use And Application Of United Nations Standards And Norms Primarily Related To Victim Issues”‟ (2006) <http://www.coe.int/t/dghl/standardsetting/victims/event_2006-11-27_1_background_en.pdf> [Accessed 31 August 2015]

Council of Europe, “European Convention on the Compensation of Victims of Violent Crimes” (1983) <http://conventions.coe.int/Treaty/en/Treaties/Html/116.htm > [Accessed 31 August 2015]

Council of Europe, “Recommendation No. R (85) 11 Of The Committee Of Ministers To Member States On The Position Of The Victim In The Framework Of Criminal Law And Procedure” (1985), <http://ec.europa.eu/civiljustice/comp_crime_victim/docs/council_eur_rec_85_11_en.pdf > [Accessed 31 August 2015]

Daneshi Yatawara, Sunday Observer, “National authority for the protection of roping in the culprits” (29 March 2015) <http://www.sundayobserver.lk/2015/03/29/sec04.asp> [Accessed 24 August 2015]


ECOSOC, “Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime”, Resolution 2005/20 (2005) <http://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf> [Accessed 20 August 2015]


Erandi Tanippuliarachchi, Ceylon Today, “SL needs proper legal system – Witness Protection Act”, (18 May 2015) <https://www.ceylontoday.lk/90-93100-news-detail-sl-needs-proper-legal-system-witness-protectionact.html> [accessed 20 August 2015]


European Commission, DG Justice, “DG Justice Guidance Document related to the transposition and implementation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA” (2013) <http://ec.europa.eu/justice/criminal/files/victims/guidance_victims_rights_directive_en.pdf> [Accessed 31 August 2015]


European Commission, DG Justice, “Directive 2012/29/EU Of The European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA”, OJ L315/57 (2012) <http://eur-lex.europa.eu/legal- content/EN/TXT/?uri=CELEX:32012L0029  > [Accessed 31 August 2015]


Frank De Silva, The Sunday Times, “Victim and Witness Protection Law touches only the fringe of the problem” (26 June 2015) <http://www.sundaytimes.lk/140928/sunday-times-2/victim-and-witness-protection-law-touches-only- the-fringe-of-the-problem-119858.html> [Accessed 20 August 2015]


International Commission of Jurists (ICJ), “Authority without accountability: The Crisis of Impunity in Sri Lanka” (2012) <http://www.refworld.org/pdfid/50ae365b2.pdf > [Accessed 31 August 2015]


Kelum Bandara, Daily Mirror, “Our foreign policy is based on practical realities, not on ideological fantasies” (24 April 2015) <http://www.dailymirror.lk/70191/our-foreign-policy-is-based-on-practical-realities-not-on-ideological- fantasies> [Accessed 31 August 2015]


Kishali Pinto- Jayawardena, “The Rule of Law in Decline: Study on Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka”(Rehabilitation and Research Centre for Torture Victims, 2009)  
Law and Society Trust, “Sri Lanka: Protecting Human Rights or the Government?” <http://www.lawandsocietytrust.org/PDF/resource/ANNI%20-%20Sri%20Lanka%20FINAL%20Report.pdf > [Accessed 31 August 2015]

Model Code of Criminal Procedure < http://www.usip.org/sites/default/files/MC2/MC2-4-Ch1.pdf> [Accessed 20 August 2015]  
Neloufer de Mel, “The Promise of the LLRC: Women‟s Testimony and Justice in Post-War Sri Lanka”, ICES Research Paper No. 4, (2013) <http://www.ices.lk/wp-content/uploads/2013/11/the-Promise-of-the-LLRC.pdf > [Accessed 31 August 2015]

OHCHR, “Draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power” (2010) <http://www.ohchr.org/Documents/HRBodies/CCPR/GConArticle9/Submissions/WorldSocietyOfVictimologyDraft Convention.pdf> [Accessed on 31 August 2015]

Prasanna C Rodrigo, Sunday Times, “Sri Lanka‟s Bribery Commission needs more fire-power”, (28 February 2010) < http://www.sundaytimes.lk/100228/BusinessTimes/bt10.html> [Accessed 20 August 2015]

Presidential Media Unit, The Official Government News Portal of Sri Lanka, “President assures of domestic mechanism to probe alleged human rights violations during conflict” (15 February 2015)<http://www.news.lk/news/politics/item/6194-president-assures-of-domestic-mechanism-to-probe-allegedrights- violations-during-conflict> [Accessed 31 August 2015]

Rhadeena de Alwis, Niran Anketell, “A Hybrid Court Ideas for Sri Lanka” p17-19 (2015) <https://drive.google.com/file/d/0B99W Bl4LrZxIUjNab2F0QW pROVU/view > [Accessed 31 August 2015]

S. Muralidhan, International Environmental Law Research Centre “Rights of Victims in the Indian Criminal Justice System” (2004) <http://www.ielrc.org/content/a0402.pdf> [Accessed 31 August 2015]

Sandun A Jayasekara, Daily Mirror, “Wijedasa: Domestic inquiry will be credible” (17 June 2015) <http://www.dailymirror.lk/76525/wijeyadasa-domestic-inquiry-will-be-credible> [Accessed 31 August 2015]

Sipos Rosalind, “The Draft Bill for the Assistance and Protection of Victims of Crime and Witnesses: Critique and Recommendations” (2007) <http://www.cpalanka.org/the-draft-bill-for-the-assistance-and-protection-of-victims-of- crime-and-witnesses-critique-and-recommendations/> [Accessed 17 June 2015]

The Asia Foundation, “The Legal Aid Sector in Sri Lanka: Searching for Sustainable Solutions” (2009) <https://asiafoundation.org/resources/pdfs/SriLankaLegalAid.pdf> [Accessed 31 August 2015]

The Asia Foundation, “The Legal Aid Sector in Sri Lanka: Searching for Sustainable Solutions” (2009) http://www.lk.undp.org/content/dam/srilanka/docs/governance/new/Legal%20Aid%20Review%20new%2012.pd f [Accessed 20 August 2015]

The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, <http://www.priu.gov.lk/Cons/1978Constitution/1978ConstitutionWithoutAmendments.pdf> [Accessed 31 August 2015]

UN General Assembly, “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, United Nations, Treaty Series, vol. 1465, p. 85, (10 December 1984)
UN General Assembly, “Convention on the Elimination of All Forms of Discrimination Against Women”, United Nations, Treaty Series, vol. 1249, p. 13 (18 December 1979)  
UN General Assembly, “International Convention on the Elimination of All Forms of Racial Discrimination”, United Nations, Treaty Series, vol. 660, p. 195 (21 December 1965)  
UN General Assembly, “International Covenant on Civil and Political Rights” (16 December 1966) United Nations, Treaty Series, vol. 999, p. 171
UN General Assembly, “Universal Declaration of Human Rights”, 217 A (III) (10 December 1948)
UNICEF, “Children and Truth Commissions” (August 2010) < http://www.unicef- irc.org/publications/pdf/truth_commissions_eng.pdf > [Accessed 31 August 2015]

United Nations, “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, UN Doc. A/RES/40/34 (29 November 1985), <http://www.un.org/documents/ga/res/40/a40r034.htm> [Accessed on 20 August 2015]

United Nations, “Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organized Crime United Nations”, Treaty Series,  vol. 2237, p. 319; Doc. A/55/383 (2000)  
United Nations, International Drug Control Programme, UNDCP Model Witness Protection Bill 2000, (May 2000) <https://www.unodc.org/pdf/lap_witness-protection_2000.pdf> [Accessed on 31 August 2015]

United Nations, Office for Drug Control and Crime Prevention, “Background note on „Ways and Means to Promote the Use and Application of United Nations Standards and Norms Primarily Related to Victim Issues‟” (2006 )<http://www.coe.int/t/dghl/standardsetting/victim s/event_2006-11-27_1_background_en.pdf>  [Accessed on 31 August 2015]

United Nations, Office for Drug Control and Crime Prevention, “Handbook on Justice for Victims on the use and application of the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power” (1999) <https://www.unodc.org/pdf/criminal_justice/UNODC_Handbook_on_Justice_for_victims.pdf> [Accessed on 31 August 2015]

United Nations, Office on Drugs and Crime, “Good practices for the protection of witnesses in criminal proceedings involving organized crime” (2008) <https://www.unodc.org/documents/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_t h e_protection_of_witnesses_in_criminal_proceedings_involving_organized_crime.pdf > [Accessed on 31 August 2015]

United Nations, Office on Drugs and Crime, “Victims and Witnesses: Criminal Justice Assessment Toolkit” (2006) <https://www.unodc.org/documents/justice-and-prison-reform/cjat_eng/CJAT_Toolkit_full_version.pdf> [Accessed on 31 August 2015]

Victor Ivan v Sarath N. Silva ([1998] 1 Sri LR 340)  
Vvienne O‟Connor and Colette Rausch (eds), “Model Codes for Post-Conflict Criminal Justice”, (Volume II: Model Code of Criminal Procedure, USIP 2008)

Endnotes

1 Senior members of the Government including the President, the Foreign Minister and the Minister for Justice have at various points announced that the Government intends to implement a “credible domestic mechanism” to address human rights violations, including war crimes during the last stages of the war. See, Kelum Bandara, Daily Mirror,“Our foreign policy is based on practical realities, not on ideological fantasies” (24 April 2015) <http://www.dailymirror.lk/70191/our-foreign-policy-is-based-on-practical-realities-not-on-ideological-fantasies> [Accessed 31 August 2015]; Sandun A Jayasekara, Daily Mirror, “Wijedasa: Domestic inquiry will be credible”, (17 June 2015) <http://www.dailymirror.lk/76525/wijeyadasa-domestic-inquiry-will-be-credible> accessed 31 August 2015; Presidential Media Unit, The Official Government News Portal of Sri Lanka “President assures of domestic mechanism to probe alleged human rights violations during conflict”, (15 February 2015) <http://www.news.lk/news/politics/item/6194-president-assures-of-domestic-mechanism-to-probe-allegedrights- violations-during-conflict> accessed 31 August 2015

2 Kishali Pinto- Jayawardena, “The Rule of Law in Decline: Study on Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka”(Rehabilitation and Research Centre for Torture Victims, 2009), 140 ; Basil Fernando, “Comprehensive Torture Prevention in Sri Lanka”, ALRC- article 2; vol. 6, no. 2, 2007 - p. 32-40 (2007)< http://www.ruleoflawsrilanka.org/resources/writings-of-basil-fernando/articles-by-basil-fernando-from-article- 2/vol.-6-no.-2/comprehensive-torture-prevention-in-sri-lanka > [Accessed 20 August 2015]

3 International Commission of Jurists (ICJ),“Authority without accountability: The Crisis of Impunity in Sri Lanka” (2012) <http://www.refworld.org/pdfid/50ae365b2.pdf > [Accessed 31 August 2015], 143

4 Kishali Pinto- Jayawardena, (n 2), 142

5 Neloufer de Mel, “The Promise of the LLRC: Women‟s Testimony and Justice in Post-War Sri Lanka”, ICES Research Paper No. 4, (2013) <http://www.ices.lk/wp-content/uploads/2013/11/the-Promise-of-the-LLRC.pdf > [Accessed 31 August 2015]

6 Bhavani Fonseka, Groundviews,“Idea for Road Map for Truth and Justice in Sri Lanka” (19 January 2015) <http://groundviews.org/2015/01/19/ideas-for-a-road-map-for-truth-and-justice-in-sri-lanka/> [Accessed 20 August 2015]

7 Sipos Rosalind, “The Draft Bill for the Assistance and Protection of Victims of Crime and Witnesses: Critique and Recommendations” (2007) <http://www.cpalanka.org/the-draft-bill-for-the-assistance-and-protection-of-victims-of- crime-and-witnesses-critique-and-recommendations/> [Accessed 17 June 2015]

8 ibid

9 Centre for Policy Alternatives, “The need for a strong victim and witness assistance and protection mechanism” (2014) <http://www.cpalanka.org/th e-need-for-a-strong-victim-and-witness-assistance-and-protection- mechanism/>[Accessed 17 June 2015]

10 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 11

11 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 12(1)

12 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 12(1)

13 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 12(b)

14 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 12(2)

15 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s15(1)

16 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 15(3)

17 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 29(5)

18 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015 s 13(q)

19 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015, s 13(1)

20 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 13(k)

21 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 13(m)

22 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 13 (2)(a)(b)

23 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 14(1)(a)(i)-(vii), S14(2)

24 The Protection of Victims of Crime and Witnesses Act, s 14(a)

25 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s14(1)(a)(i)-(vii)

26 The Protection of Victims of Crime and Witnesses Act, s 14(2)

27 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 14(4)-(5)

28 The Protection of Victims of Crime and Witnesses Act, No.4 of 2015, s 14(1)(e)

29 The Protection of Victims of Crime and Witnesses Act, No.4 of 2015, s 18(1)

30 The Protection of Victims of Crime and Witness Act, No.4 of 2015,s 20, s 19(3)

31 The Protection of Victims of Crime and Witnesses Act,No.4 of 2015, s 19(2)

32 The Protection of Victims of Crime and Witnesses Act, No.4 of 2015,s 19 (3)(b)

33 United Nations, Office on Drugs and Crime, “Good practices for the protection of witnesses in criminal proceedings involving organized crime” (2008) <https://www.unodc.org/documents/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_th e_protection_of_witnesses_in_criminal_proceedings_involving_organized_crime.pdf > [Accessed on 31 August 2015], 45

34 Prasanna C Rodrigo, Sunday Times,“Sri Lanka‟s Bribery Commission needs more fire-power”, (28 February 2010) < http://www.sundaytimes.lk/100228/BusinessTimes/bt10.html> [Accessed 20 August 2015]

35The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s8(1)(a)

36 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s8(1)(b)

37 Pinto-Jayawardena, (n 2), 47; Sipos, (n 7),2-3

38 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 8(2)(a),(b)

39 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s 8(6)

40 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s 8(7)

41 Pinto Jayawardena, (n 2), 149-150

42 United Nations, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. UN Doc. A/RES/40/34 (29 November 1985)  http://www.un.org/documents/ga/res/40/a40r034.htm (accessed on 20 August 2015) (Declaration of Basic Principles). See also Council of Europe Committee of Ministers, Recommendation No. R(85)11 of the Committee of Ministers to Member States on the Position of the Victim in the Framework of Criminal Law and Procedure (28 June 1985) <http://www.coe.int/t/dghl/standardsetting/victims/recR_85_11e.pdf> accessed 20 August 2015. (Council of Europe Recommendation)

43 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015,s 3(a)

44 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015,s 3(c)

45 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s(d)

46 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s 3(e)

47 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 7

48 The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, article 143; H.W.R. Wade and C. F. Forsyth, Administrative Law (11th edn.,)(Oxford, 2014), p. 520

49 The Basic Principles, Annex, para 1

50 The Basic Principles, Annex, para 2

51 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 46

52 The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, article 170

53 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 46

54 See for example s 2(1)(a)(b) of Directive 2012/29/EU of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/HA (25 October 2012).<file:///C:/Users/HP/Documents/Witness%20Protection%20Bill/Victiim%20and%20Witness%20Protection% 20Model%20Law%20Europe.pdf> accessed 20 August 2015

55 The Basic Principles, Annex, para 4. The right to remedy is also included in a number of international human rights standards that Sri Lanka is a party to. See for example, UN General Assembly, “Universal Declaration of Human Rights”,217 A (III)(10 December 1948), Article 8; UN General Assembly, “International Covenant on Civil and Political Rights”(16 December 1966) United Nations, Treaty Series, vol. 999, p. 171, Article 2(3); UN General Assembly, “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, United Nations, Treaty Series, vol. 1465, p. 85, (10 December 1984), Article 13; UN General Assembly, “International Convention on the Elimination of All Forms of Racial Discrimination”, United Nations, Treaty Series, vol. 660, p. 195 (21 December 1965), Article 6; UN General Assembly, “Convention on the Elimination of All Forms of Discrimination Against Women”, United Nations, Treaty Series, vol. 1249, p. 13 (18 December 1979), Article 2(c)

56 The Basic Principles, Annex, para 5

57 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 3(c)

58 See the Council of Europe Recommendation, para 7, which recommends that where the state decides not to proceed with a prosecution, the victim should have the right to proceed with a private prosecution

59 United Nations, Office for Drug Control and Crime Prevention, “Handbook on Justice for Victims on the use and application of the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power” (1999) <https://www.unodc.org/pdf/criminal_justice/UNODC_Handbook_on_Justice_for_victims.pdf> [Accessed on 31 August 2015], 38-9. (Handbook on Justice for Victims)

60 Vvienne O‟Connor and Colette Rausch (eds), Model Codes for Post-Conflict Criminal Justice, Volume II: Model Code of Criminal Procedure (USIP 2008) Page 133

61 ibid

62 Handbook on Justice for Victims (n 59), 40

63 International Commission of Jurists, (n 3), 5. The report discusses at length how the exercise of other discretionary powers by the Attorney-General including the power to withdraw prosecutions and transfer cases can also adversely impact on the right of redress of victims

64 For example in the case of Gerard Perera, the Attorney-General decided to withdraw the indictment against the officer in charge of the police station, at the time of Perera‟s torture. Even the High Court when it delivered its final verdict, noted its surprise at the Attorney-General‟s decision.  Similarly in the case of the extra-judicial killing of Richard de Zoysa, a well-known journalist, the Attorney-General was criticized for failing to take action against a police officer, who had been identified as one of the persons that abducted the deceased. See International Commission of Jurists, (n 3), 125, 13

65 Code of Criminal Procedure, article 136(1)(a)

66 Code of Criminal Procedure, Article 191(2). In a recent case, where a private plaint was brought against a Superintendent of Police for having struck the complainant, the Attorney-General intervened, and took over the prosecution, attracting much criticism. See Asian Human Rights Commission, “A man is tortured by a senior police officer and the Attorney General is taking over a private plaint filed by the victim in order to protect the police officer” (16 February 2012) <https://www.ammado.com/nonprofit/108433/articles/54741 > accessed 31 August 2015

67 See for example, Victor Ivan v Sarath N. Silva, Attorney General [1998] 1 Sri LR 340. The court held that a decision of the Attorney General to prosecute or to file an indictment could be reviewed, in a range of circumstances including “where the evidence was plainly insufficient, or there was no investigation and where the decision was based on constitutionally impermissible factors and so on”. See Kishali Pinto Jayawardena, (n 2), 100

68 The Basic Principles, Annex, para 6(a)

69 The Basic Principles, Annex, para 6(b). See also the Council of Europe Recommendation, A(1)-(3)

70 The Handbook on Justice for Victims, (n59), 37

71 Ibid

72 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 3f(i)

73 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(f)(ii)

74 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(f)(iii), (m)

75 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(f)(iv)

76 The Protection of Victims of Crime and Witness Act, No. 4 of 2015, s 3(f)(v)

77 The Basic Principles, Annex, para 6(b), (c); See also Council of Europe Recommendation,1ID para 9

78 Ibid

79 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(g)

80 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(h)

81 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s3 (l)

82 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(m)

83 Handbook on Justice for Victims, (n59), 38

84 Handbook on Justice for Victims, (n59), 38

85 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(i)

86 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 3(j)

87 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, 3(k)

88 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s3(n)

89 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s3(n)

90 Amnesty International, “When Will They Get Justice? Failures of Sri Lanka‟s Lessons Learnt and Reconciliation Commission” (2011) <http://sydney.edu.au/arts/peace_conflict/docs/reports/failures_SL.pdf>[Accessed 31 August 2015], 51-52

91 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(a)

92 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(b)

93 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(c)

94 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(d),(e)

95 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s3(o), (n), (p)

96 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s3(q)

97 The Basic Principles, Annex, para 8, 12

98 The Basic Principles, Annex, para 8

99 The Basic Principles, Annex, para 12(a)

100 The Basic Principles, Annex, para 12(a); see also, Council of Europe, European Convention on the Compensation of Victims of Violent Crimes (1983) <http://conventions.coe.int/Treaty/en/Treaties/Html/116.htm > accessed 31 August 2015, article 1. (European Convention on the Compensation of Victims of Violent Crimes)

101 The Basic Principles, Annex, para 13; see also, European Convention on the Compensation of Victims of Violent Crimes, article 1

102 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 13(o)

103 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(1)

104 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 28(2)(a)

105 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(2)(b)-(c)

106 The Basic Principles, Annex, para 11

107 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(1)(a)

108 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(5)

109 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 28(5)

110 The Handbook on Justice for Victims, (n59), 38

111 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 30(1)

112 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s29 (1)

113 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 29(3)

114 The Handbook on Justice for Victims, (n59), 49

115 The Protection of Victims of Crimes and Witnesses Act, No. 4 of 2015, s 29 (4)(a)

116 The protection of Victims Crime and Witnesses Act, No. 4 of 2015, s 29(4)

117 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 29(4)(b)

118 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 4 (2)

119 Ibid

120 The Protection of Victims of Crimes and Witnesses Act, No. 4 of 2015, s 4(3)

121 The Basic Principles, Annex, para 16; Council of Europe Declaration, para 15-16

122 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s 8(8)

123 United Nations, International Drug Control Programme, UNDCP Model Witness Protection Bill 2000, (May 2000) <https://www.unodc.org/pdf/lap_witness-protection_2000.pdf> [Accessed on 31 August 2015], s 2(c)(i). (Model Witness Protection Bill)

124 Model Witness Protection Bill, s2(c)(ii)

125 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 46

126 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s 46

127 The Protection of Victims of Crime and Witness Act, No 4 of 2015,s 25(1)

128 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015, s20(3),(4)

129 Model Witness Protection Bill 2000, s 5(a),(b),(c)

130 United Nations, Office on Drugs and Crime, “Good practices for the protection of witnesses in criminal proceedings involving organized crime” (2008) <https://www.unodc.org/documents/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_th e_protection_of_witnesses_in_criminal_proceedings_involving_organized_crime.pdf > [Accessed on 31 August 2015], 8

131 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s 22(1)(f)

132 The Model Witness Protection Bill 2000, s (6) (2)

133 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 31(1)(a)-(b)

134 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 31(1), (2)

135 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 31(3)

136 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 32(1)(a)(i)-(ii)

137 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 32(1)(b)

138 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 32(2)(a)

139 The Centre for Policy Alternatives, (n 9)

140 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015, s 3(a)

141 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s3(b)

142 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 25(3)(a)

143 ECOSOC, “Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime”, Resolution 2005/20 (2005) <http://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf> [Accessed 20 August 2015]

144 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 6

145 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 6(b)

146 Rodrigo, (n 34)

147 Ibid

148 Amnesty International, “Sri Lanka: Urgent need to prosecute security agents involved in torture”51-52(7 November 2011) <https://www.amnesty.org/en/latest/news/2011/11/sri-lanka-urgent-need-prosecute-security- agents-involved-torture/> [Accessed 20 August 2015]

149 Rhadeena de Alwis, Niran Anketell, “A Hybrid Court Ideas for Sri Lanka” p17-19 (2015) <https://drive.google.com/file/d/0B99W Bl4LrZxIUjNab2F0QW pROVU/view > [Accessed 31 August 2015], 17-19

Aruni Jayakody

Aruni holds a Master of Arts in Law and Diplomacy from The Fletcher School at Tufts University (2013). Aruni obtained her Bachelor of Laws and Bachelor of Arts from the University of Queensland (2008). She was admitted to practice as a lawyer in Australia in 2009. Prior to joining SACLS, Aruni was based in Kabul, and worked on rule of law and governance issues at the Afghanistan Research and Evaluation Unit. She has also researched United Nations monitoring, reporting and fact-finding mechanisms at the Harvard Program on Humanitarian Policy and Conflict Research. In 2010-11 she researched constitutional reform and freedom of expression issues as a researcher at the Legal and Constitutional Unit of the Centre for Policy Alternatives.

Aruni’s states interests outside work are Biryani and Beyonce.

Contents