The Criminal Procedure Code allows police to make an arrest without a warrant for certain offenses such as homicide, theft, robbery, and rape. In other cases, police made arrests pursuant to arrest warrants that judges and magistrates issued based on evidence. By law authorities are required to inform an arrested person of the reason for the arrest and arraign that person before a magistrate within 24 hours for minor crimes, 48 hours for some grave crimes, and 72 hours for crimes covered by the PTA. In practice, however, more time regularly elapsed before detained persons appeared before a magistrate, particularly in PTA cases. For bailable offenses as characterized under the Bail Act, instead of arraignment in court the police can release suspects within 24 hours of detention on a written undertaking and require them to report to the courts on a specified date. Suspects accused of committing bailable offenses are entitled to bail but suspects accused of nonbailable offenses can only be awarded bail based on the magistrate’s discretion. The Bail Act states no person should be held in custody prior to conviction and sentencing for more than 12 months without special exemptions, but detainees under the PTA may be held for up to 18 months without charge. In practice, PTA detainees are often held longer than 18 months without charge. Judges require approval from the Attorney General’s Office to authorize bail for persons detained under the PTA, which the office normally did not grant. In homicide cases, regulations require the magistrate to remand the suspect, and only the High Court may grant bail. In all cases, suspects have the right to legal representation, although there is no legal provision specifically providing the right of a suspect to legal representation during interrogations in police stations and detention centers. The government provided counsel for indigent defendants in criminal cases before the High Court and courts of appeal but not in other cases; the law only required provision of counsel for cases in the High Court and courts of appeal.
On June 19, President Sirisena issued a circular setting procedures for arrests made under the PTA. The circular was developed with suggestions outlined by the HRCSL, called for detainees to be given access to legal counsel, and required detainees’ families be informed of their arrests. It also banned physical harassment, torture, or humiliation of suspects; required that an arresting officer identify himself by name and rank to those arrested, and inform those arrested of the reason for the arrest; provided for access to attorneys representing the suspects; permitted only women to search female detainees; and required security forces to take prompt action to provide medical care, if needed, and adequate basic amenities. There continue to be unconfirmed reports, however, that threats, illegal detentions, torture, and abuse continued and that authorities targeted individuals involved in the transitional justice and reform process.
Arbitrary Arrest: According to human rights groups, the police and its Criminal Investigation and Terrorism Investigation Departments unlawfully detained people in police stations, army camps, and informal detention facilities on allegations of involvement in terrorism-related activities, without bringing charges or arraigning detainees within the timeframe required by law. Detainees were sometimes held incommunicado and lawyers had to apply for permission to meet clients, with police frequently present at such meetings. In some cases, unlawful detentions included interrogations involving mistreatment or torture. There were reports that authorities released detainees with a warning not to reveal information about their arrest or detention, under the threats of rearrest or death.
Dozens of Tamil prisoners across the country, including former LTTE cadres, undertook three hunger strikes as of October, demanding an immediate resolution to their protracted detention. As a majority of these prisoners are held under the PTA without charge, they asked the government to either indict them or provide a pathway for their eventual release.
Pretrial Detention: Pretrial detainees comprised half of the detainee population. The average length of time in pretrial detention was 24 hours. Lengthy legal procedures, large numbers of detainees, judicial inefficiency, and corruption often caused trial delays. Legal advocacy groups asserted it was common for the length of pretrial detention to equal or exceed the sentence for the alleged crime.
Detainee’s Ability to Challenge Lawfulness of Detention Before a Court: Under the law, a person can challenge an arrest or detention and obtain prompt release through the courts. The legal process takes years, however, and the Center for Human Rights Development (CHRD) indicated the perceived lack of judicial independence and minimal compensation has discouraged people from seeking remedies. Under the PTA, the ability to challenge detentions is particularly limited.