International Convention for the Protection of All Persons from Enforced Disappearance Act 2018

This Act may be cited as the International Convention for the Protection of All Persons from Enforced

Disappearance Act, No. 5 of 2018 and shall come into force on the date of Certification in terms of Article 79 of the

Constitution.

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International Convention for the Protection of

All Persons from Enforced Disappearance

Act, No. 5 of 2018

The Minister may, by Order published in the Gazette, certify the States which are parties to the Convention. A

State in respect of which an Order is made under this section, is hereinafter referred to as “a Convention State”.

Any person who, being a public officer or acting in an official capacity, or any person acting with the authorization, support or acquiescence of the State -

Any person who -

A superior who –

In this section “wrongful confinement”, “kidnapping”

Any person who aids or abets the commission of any offence set out in section 3, or conspires or attempts to commit any offence set out in section 3, shall be guilty of an offence under this Act, and shall after conviction after trial on indictment by the High Court, be punished with imprisonment for a term not exceeding twenty years, and also be liable to pay a fine not exceeding one million rupees and shall further be liable to pay compensation not less than five hundred thousand rupees to a victim.

In this section “abet” and “conspiracy” have the same meaning as in sections 100, 101 and 113A respectively, of the Penal Code.

Every offence under this Act shall be a cognizable offence and a non-bailable offence, within the meaning, and for the purposes of the Code of Criminal Procedure Act,

No. 15 of 1979.

The High Court of Sri Lanka holden in Colombo, or the High Court established under Article 154P of the

Where an act constituting an offence under this Act is committed outside Sri Lanka, the High Court referred to in subsection (1), shall have the jurisdiction to try such offence as if it were committed within Sri Lanka, if -

Where a person who is not a citizen of Sri Lanka is arrested for an offence under this Act, such person shall be entitled -

to communicate without delay, with the nearest appropriate representative of the State of which he is a national or which is otherwise entitled to protect his rights, or if he is a stateless person, with the nearest appropriate representative of the State in the territory of which he was habitually resident;

to be visited by a representative of that State; and

be informed of his rights under paragraphs (a)

Where a request is made to the Government of

Sri Lanka, by or on behalf of the Government of a Convention

State for the extradition of any person accused or convicted of an offence under sections 3 or 4, the Minister shall, on behalf of the Government of Sri Lanka, forthwith notify the

Government of the requesting State of the measures which the

Government of Sri Lanka has taken, or proposes to take, for the prosecution or extradition of that person for that offence.

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International Convention for the Protection of

All Persons from Enforced Disappearance

Act, No. 5 of 2018

The provisions of the Mutual Assistance in

In the case of a country which is neither a

The grant of assistance to a Convention country may be made subject to such terms and conditions as the Minister thinks fit.

Where there is an extradition arrangement made by the Government of Sri Lanka with any Convention State in force on the date on which this Act comes into operation, such arrangement shall be deemed for the purposes of the

Extradition Law, No. 8 of 1977, to include provision for the extradition in respect of the offences under this Act.

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International Convention for the Protection of

All Persons from Enforced Disappearance

Act, No. 5 of 2018

Where there is no extradition arrangement made by the Government of Sri Lanka with any Convention State, the Minister may by Order published in the Gazette, treat the Convention, for the purposes of the Extradition Law,

No. 8 of 1977 as an extradition arrangement, made by the

Government of Sri Lanka with the Convention State providing for extradition in respect of the offences under this Act.

The Extradition Law, No. 8 of 1977 is hereby amended in the Schedule to that Law, by the addition immediately after item 37 of the items appearing immediately before Part B of that Schedule, of the following item:–

“(37A) An offence within the scope of the Convention for the Protection of All Persons from Enforced

Disappearance Act, No. 5 of 2018.”.

Notwithstanding anything in the Extradition Law,

No. 8 of 1977, an offence specified in the Schedule to that

Law or an offence under this Act, shall for the purposes of that Law be deemed not to be an offence of a political character or an offence connected with a political offence or an offence inspired by political motives, for the purposes only of the extradition of any person accused or convicted of any such offence, as between the Government of Sri Lanka and any Convention State, or of affording assistance to a

Convention State under section 9 of this Act.

Every victim and relative of a victim shall have the right to know the truth regarding the circumstances of an enforced disappearance, the progress and results of the investigation as are carried out by the law enforcement authorities, and the fate of the disappeared person.

Every victim and relative of a victim shall, subject to restrictions placed by law, have the right to form and freely participate in organizations and associations concerned with attempting to establish the circumstances of offences

Where there are reasonable grounds for believing that a person has been subjected to an offence under section 3, law enforcement authorities shall undertake an investigation, even if there has been no formal complaint.

Law enforcement authorities shall take all appropriate measures to search for and locate the disappeared person, and in the case of a person held in secret detention, procure the release of such person, and in the event of death, to locate, respect and return the remains of such person.

No person shall be held in secret detention.

Any person deprived of liberty shall have the right to communicate with and be visited by his relatives, attorney-at-law or any other person of his choice, subject only to the conditions established by written law.

Law enforcement authorities, and the Human Rights

Law enforcement authorities shall assure the compilation and maintenance of up-to-date official registers or records of persons deprived of liberty, which shall be promptly made available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law, and shall contain -

Any relative of a person deprived of liberty, the representative of a person deprived of liberty or an attorney-at-law of a person deprived of liberty shall have the right to access the following information:-

Any person referred to in subsection (1) of this section, as well as persons participating in the investigation, shall be protected from any ill-treatment, intimidation or sanction as a result of the search for information concerning a person deprived of liberty.

Without prejudice to consideration of the lawfulness of the deprivation of a person’s liberty, any person referred to in subsection (1) shall have the right to a prompt and effective judicial remedy as a means of obtaining without delay the information referred to in subsection (1) of this section, and such right to a remedy shall not be suspended or restricted in any circumstances.

any person, including a person suspected of having committed an offence under sections 3 or 4 of this

A person guilty of an offence under subsection (1)

No extradition where there is a possibility of such person being subjected to enforced disappearance

No person shall be expelled, returned, surrendered or extradited to another State where there are substantial grounds for believing that such person would be in danger of being subjected to enforced disappearance.

For the purpose of determining whether there are such grounds referred to in subsection (1) of this section, all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law shall be taken into account.

The Minister may make regulations prescribing the criteria upon which a person may be expelled, returned, surrendered or extradited to another State.

Without prejudice to the use of information in criminal proceedings relating to an offence committed under this Act, or the exercise of the right to obtain reparations,

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International Convention for the Protection of

All Persons from Enforced Disappearance

Act, No. 5 of 2018

personal information, including medical and genetic data, which is collected or transmitted within the framework of the search for a disappeared person, shall not be used or made available for purposes other than the search for the disappeared person, and shall not be collected, processed, used or stored in a manner that infringes or has the effect of infringing the fundamental rights and freedoms or dignity of a person.

Without prejudice to any judicial or other remedy provided for by or under any written law, any person with a legitimate interest shall be entitled to apply by way of petition addressed to the High Court seeking the enforcement of sections 7, 14, 15, 16 or 19 of this Act and to plead for such relief or redress as shall be prayed for in such petition.

The jurisdiction of the High Court may be invoked under subsection (1) of this section by any person with a legitimate interest, by himself or through any other person on his behalf, within three months of the date on which the non-enforcement of sections 7, 14, 15, 16 or 19 of this Act becomes known to such person, as the case may be.

Notwithstanding anything to the contrary in any other law, the High Court may, where it considers it appropriate at any stage of the proceeding relating to a petition made to it under subsection (1) of this section, refer such matter to the

The High Court shall have the power to grant the relief prayed for in a petition made to it under subsection (1)

Any person aggrieved by an order made by the High

The Minister may from time to time issue guidelines or such general or special directions as may be required for the effective implementation of the principles and provisions of the Convention to such extent as is necessary to give full effect to Sri Lanka’s international obligations under the

Convention.

Without prejudice to any provision in this Act, the Minister may make regulations for the purpose of giving effect to the principles and provisions of this Act or any matter which is prescribed or in respect of which regulations are required or authorized under this Act to be made.

Every regulation made by the Minister shall be published in the Gazette and shall come into operation on the date of such publication or on such later date as may be specified in such regulation.

Every regulation made by the Minister, shall as soon as convenient after its publication in the Gazette, be brought before Parliament for approval. Any regulation which is not so approved, shall be deemed to be rescinded as from the date of such disapproval, but without prejudice to anything previously done thereunder.

The provisions of this Act shall have effect notwithstanding anything to the contrary in any other written law and accordingly in the event of any inconsistency or conflict between the provisions of this Act and such other written law, the provisions of this Act shall prevail.

In the event of any inconsistency between the

Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.

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International Convention for the Protection of

All Persons from Enforced Disappearance

Act, No. 5 of 2018

In this Act, unless the context otherwise requires -

“effective authority and control” means the power to issue orders to subordinates and the capacity to ensure compliance with such orders;

“deprivation of liberty” means the confinement of a person to a particular place, where such person does not consent to that confinement;

“Human Rights Commission of Sri Lanka”

means the Human Rights Commission of

Sri Lanka, established by the Human Rights

Commission of Sri Lanka Act, No. 21 of 1996;

“law enforcement authority” means a police officer or any other person or institution authorized by or under any written law to investigate into the commission of an offence;

“secret detention” means circumstances in which a person is held in a place that is not a place of detention authorized by or under any written law, and where the whereabouts or fate of the person are not known to his relatives or others;

“victim” means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance.

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International Convention for the Protection of

All Persons from Enforced Disappearance

Act, No. 5 of 2018