• HRCSL guidelines/recomms. note need for prevention of arbitrary arrests and detentions, and custodial and encounter deaths 

In the processes of arresting and detaining a person, police officers have a responsibility to enforce the law in a manner that does not violate the rights of the arrestee and in accordance with the basic principles and policies governing the law enforcement sector. That is crucial for both the general public and the Police force.

The manner in which police officers should deal with the general public when arresting and detaining a person, and also when conducting preliminary and in-depth investigations, were explained by the Human Rights Commission of Sri Lanka (HRCSL) in a list of guidelines issued for the Police. Titled “General Guidelines and Recommendations to the Sri Lanka Police on Preventing Custodial and Encounter Deaths”, the document extensively discussed the rights of the general public in the context of law enforcement.

Preparing to arrest a suspect 

Regarding the procedure that should be adhered to when preparing to arrest a suspect, police officers should respect the right of every person to be free from arbitrary arrest in terms of Article 13(1) of the Constitution. Arrests should not be carried out in an arbitrary manner, and every police officer who makes an arrest must be able to justify its necessity on the basis of reasonable suspicion that the suspect has committed an offence following a preliminary police investigation. 

“The preliminary investigation must be carried out prior to the arrest. It can either take place at the point of observing a suspect committing an offence or attempting to commit an offence, or at the police station to which any information or intelligence regarding an offence or attempt to commit an offence is received. 

“Police officers should respect the right of every person to be presumed innocent until proven guilty as guaranteed by Article 13(5) of the Constitution. During the preliminary investigations, all suspects should be afforded the right not to self-incriminate. Police officers should respect the right of any suspect to remain silent and not be forced under any circumstance to make any self-incriminating statements. 

“Arrests should not be carried out where a suspect is coerced into making a self-incriminating statement following being summoned to provide a statement to the Police in terms of Section 109 of the Code of Criminal Procedure Act, No. 15 of 1979 during a preliminary investigation. 

“When summoning a person to make a statement, the Police should at all times respect the rights of such person under Section 110(2) of the Code of Criminal Procedure where ‘Such person shall be bound to answer truly all questions relating to such case put to him/her by such officer or inquirer other than questions which would have a tendency to expose him/her to a criminal charge or to a penalty of forfeiture’.”

In addition, the senior police officer in charge of deploying police officers to arrest a suspect must assess the risks and challenges that the Police may encounter in the process of apprehending the suspect, as per the guidelines, which noted that all police officers deployed for the arrest operation must be comprehensively briefed regarding the scope and objective of the operation, their specific roles, and the risks and challenges associated with the operation. 

Arresting a suspect 

In the process of arresting a suspect, all police officers making an arrest must bear accurate, visible, and clear identification on their uniforms at all times. They added that in the event that a special arrest operation requires the officers to be in civilian clothes, they should have their official identity cards in their possession to prove their identity at any given time, and that when making the arrest, the officers in civilian clothes must display their official identity cards and inform the person being arrested of their official identity. 

The report said: “In general, force should not be used when making an arrest. In the event that a person being arrested offers resistance, any use of force to make the arrest must only be to the extent that it is necessary and proportionate, and in a manner that causes minimum harm to the person concerned. 

“At the time of arresting a person, the arresting officers should clearly inform such person of the offence for which they are being arrested. Such communication must be in the language that the person being arrested understands. In the event a person is arrested for a bailable offence, such person must also be informed of their right to be released on bail.”

The importance of police officers making an arrest respecting the dignity of the arrested person during the entire process was also highlighted in the document.

Detaining an arrested suspect 

Paying attention to detentions, the document added that immediately after arrest, the arrested suspect should be safely transferred in an authorised police vehicle to the relevant police station or any other gazetted place.

“Prior to detaining an arrested person, the details of the arrest must be duly recorded, and the arrest charges, and any statements taken from the suspect within that duration, must be read and communicated to the arrested person in a language that such person understands. 

“Police officers who search an arrested person should conduct such search in a manner that respects such person’s dignity and privacy. A search of a female person who is arrested must be conducted only by a female police officer and in a manner that respects such person’s dignity and privacy.”

Communicating with the family 

The document also covered the communication-related aspects pertaining to an arrest, where it was explained that an arrested person should be immediately afforded the opportunity to communicate with their family or a friend of their choice regarding the arrest, and that such right is guaranteed by Section 15(2) of the International Convention for the Protection of All Persons from Enforced Disappearance Act, No. 5 of 2018. An arrested person should also be provided the opportunity to be visited by their family or a friend of their choice without delay.

“In the event that the arrested person is moved to another location from the initial place of detention, the relevant family member or friend must be informed of the change of place of detention, including the reason for the change of location. The change of location may include another police station, hospital, or place of investigation, provided that it is a lawful and duly authorised place of detention. 

“Police officers in charge of the custody of an arrested person should provide complete and accurate information regarding the arrested person to the relevant family member or the friend of such person. Such information should be provided promptly, courteously, and without unreasonable delay.”

Access to legal representation 

An arrested person’s access to legal representation was also noted in the HRCSL document.

It noted that the police officer making an arrest should inform the arrested person of their right to legal representation, and that the arrested person should be given the opportunity to communicate with an attorney-at-law (AAL) of their choice without any delay or interference. Such right is guaranteed by Section 15(2) of the International Convention for the Protection of All Persons from Enforced Disappearance Act. 

The AAL representing an arrested person should be permitted access to such a person at the place of detention without delay or interference, the guidelines read, adding that such an AAL should be given adequate time and privacy to communicate with their client and that police officers should not be present during such consultations.

General principles on the use of force

With regard to the use of force, the document said: “Police officers, in discharging their duties, should exhaust all non-violent means before resorting to the use of force. Non-violent means may be considered exhausted only where such means become ineffective in legitimately discharging such duties. 

“A police officer should resort to the use of force, including the use of firearms, only to achieve a legitimate objective associated with discharging their duties, and in a manner that is prescribed by the law. In the event that a police officer is required to use force, such force must strictly adhere to the principles of necessity, reasonableness, and proportionality.”

Any order by a senior police officer authorising the use of force, the document noted, should set out clear parameters for the use of force in compliance with the law. Such a senior police officer should take full responsibility for any unnecessary, unreasonable, or disproportionate use of force taken in terms of such orders. 

Where the use of force is lawfully required, all deployed police officers must make every effort within their capacity to avoid the loss of life and to minimise damage and injury to any person, including a person being arrested or an arrested person or detainee who is being transferred. The document further explained that such efforts include providing medical aid to any injured or affected persons as a consequence of the use of force by the Police.

Recommendations 

With regard to the full implementation of the above guidelines, the HRCSL report encouraged the Police to implement several recommendations.

Noting the importance of conducting training for all police officers on implementing these guidelines, the report said that such training should be conducted in a routine manner with the support of either internal resource persons or external resource persons, and should be integrated into the standard training curriculum of the Police. Providing all police officers with the basic knowledge and training on first aid, and equipping  them with knowledge and skills on the swift removal of ligatures of a person who may attempt to commit suicide, were also recommended.

The report added: “Provide all police officers with adequate psychosocial support, including, where required, counselling, in order to enable them to discharge their duties diligently. Take measures to install closed circuit television (CCTV) camera surveillance systems to record everything that takes place in the reception area, cells, corridors, and other locations of police stations and other authorised places of detention. When installing such CCTV cameras, an arrested person’s or detainee’s rights to privacy and dignity, and confidential communication with their AAL or medical professional should be respected.”

In addition, the HRCSL document provided a number of guidelines with regard to the provision of adequate medical attention and fulfilling the basic needs to arrestees, conducting preliminary investigations, transferring suspects, means of restraint that can/should be used, record keeping processes, and conducting an independent investigation into custodial deaths.