Memorandum on the compatibility of the practice
of bringing fabricated charges with international
human rights standards, national jurisprudence
and international standards on policing
Prepared by REDRESS
87 Vauxhal l WaJk, London SEll 5HJ
United Kingdom

1. In troduction
This Memo randum has been prepared by REDRESS to provide legal
arguments co support the Asian Human Rights Commission in its litigation
of cases concerning 'fabricated charges: twO of which are described in more
detail b.,low. It has been drafted in response to several cases in Sri Lanka in
which such charges have been used. often in combinarion with torture and
ill-treatment eit her to detain and prosecute a person andlor to deter (the
pursuJt of) complaints of torture. This practice is of uuncst concern because
it constitutes an abuse of power that u nderm ines the rule of law in Sri
Lanka. facilitates the use of rorrure in the course of criminal proceedings and
contributes to impunity.
The Memorandum provides an analysis of the companbiliry of such practices
wit h international human rights srandards and international standards
applying to the conduct of law enforcement officers, It focuses o n violations
inherent in the use of fabricated charges. The Memorandum does not include
an analysis of incidental violations rhar may and ofren do occur in cases
of fabricated charges, such as denial of custodial safeguards, in particular
the right co access a lawyer and the righr to habeas corpus, torture and iJltreatment, and a violation of the righr to be tried within a reasonable time. l
The legal standards pen:aining to these violations, some of which were alleged
in the rwo cases described klo w, and the arguments to be made would need
to be : malysed, in addirion to the issue of 'fabricated charges: raking Into
account rhe cirrumscances of the case at hand.
The term 'fabricated charges' denotes a practice where the police knowingly
bring unfounded charges against an ar rested or detained person, which may
serve one or several of rhe following pu rposes:

•

I

i
I

Recovering the authority l)/

plJ~ic

institutions

(i) justifying th e initial a rrest and/o r continued detention of a person ,

including prev enting that a person is released on baH; and
OJ) securing a conviction against a person.
The case of Dodampe Gamage Asanrha Aravlnda illus rrares this practice.
According to the Asian Human Rights C om m ission:
· Dodam ~ G.mage kantha Aravinda, a young man was rravelmg on a motor
scooter with a frie nd when he was "ruck behind by a truck. In the accident
Ar.tvindra 's friend suffered injuries while Aravind.. was thrown to ,he side of
the road, The truck drivet , who was a businessmen in the area. ran from the
scene and came back with a group of policemen from the Pitabaddara Police
Station, Matara. The group included the Officer_in _Charge of the station. The
policemen arr~ted Ar.vindra and assaulted him severely. When he cried for
hdp and asked for water, i",te.d of water the truck driver offered him a cup
containing acid. When Aravind.. refused to drin k ir, ,he acid was thrown in
his face. The police larer rook Aravindra and his friend to the police station
and held them for several days without medical treatment. Finally due to
the pressure exercised by the families, they wete brought to a hospital when'
the dotto," declared rha< Aravindra had permanenrly lost the use of one ~.
In rhe meantime , the Officer -in-Charge of the station filed charges .gainst
Aravindra for being in possession of a live bomb and Slated in the report to
the Magistra'e rha, some unknown person had thrown acid in Atavindra's
face. Due to the fact that it was dark at the time the acid thrower could not
be identified. As one of rhe fabricated charges filed, the possession of a live
bomb, is a non-bailable offense, the victim who suffered the aci d attack and
lost rhe sight in one eye is now in remand prison while tb e acid thrower
remains at large, Despite of complaints made to the Assistant Superintendent
of Police, Akure...'a, orher senior police autho rities in the area, the Inspector
General of Police, the Human Righrs Commission of Sri Lanka and the
National Polke Commission, abour ,he add attack and the fabrication of
charges, no inquiri~s have been held and nothing ha. been done ro release
Aravindra from the fahricated charge•."

The police m ay also , in addition or separately, fabricate charges aga inst a
p~rson (or rhrearen a person with bri nging such charges) who has complain ed
about torture andlor other forms o f ill-rrearme nr in order to d eter him o r her
from pursuing such complaint further.
This is wh at happened in the case o f Sarath Kum ara Naidos according to the
Asian Hum an Rights C ommission:

"Sararh Kumara Naid", is a yo"ng comtruclion worker. He w.lS arreSled On
Ihe 5th July 2008, at noon .r • pl.ce d"", lO his si,ter, house where he was
residing. From the moment of arresl. members of Mr. Naidos' &roily vi,ited
him ,everallime, each day ar the Moraruwa Polico Station whore he was
being held. The f.mily member. m d other., including two lawyer<, heard
hi, complaint thaI he was being t>e-.lten .severely several time, a day and mat
,he police officer< were demanding rhat he should haud "ver the gold he was
supposed to have 'mIen. PI.., by him and his family that Ihey were "nabl e
to return what they had nOI stolen were of no ava.il. From rhe 5rh {Q rhe 13rh
July he wa, held a, this police nation. The family members made complaints,
including written comp lainrs to me lmp«tor General or Police, the Human
Rights Commi..ion or Sri Lanka an d the Narional Police Commission wirh
regard to illegal detention and lorture and pleadin g th.t Mr. Naida. be
bro ughr before a magimale. Angered by these complaint•. rhe police filed
an added charge when he was fInally produced berore a magiStrate on rhe
13th july, According m Ihi. charge Mr. Naida< was arrested in po,,,,,. .ion of
2,300 milJigra.ms of heroin at 11:30 p,m, on the night of the 12th. As. Mr.
Naid", was in police cU<lady from Ihe )Ih 10 the 13th July it was physically
impossible lor him ro have been fOllnd in thi, manner on me evening of the
12th. The charge of po<se<sion of ",m a quomrity of heroin is a non -bailahle
offense and if proved also carries the de-ath sentence. The complaints made to
Ihe Superintendent of Police, Mor:ltuwa, other local police a"thoritie., and
rhe offices mentioned above have not lead to any inquiries. Despite of lengthy
reprcsc n"'tions with oral and writren evidence io proof of the illegal dc<ention
and torture of Mr. Naidos. nothing has yet been done to release him and take
aClion agains' rhe officers who have fabricated Ihe chargc<. ~
An o bvious challenge [Q using th e concept of ' fabricated charges' is the
difficulty of determining whether charges are genuine, i.e. based on sufficient
p rima facie ev idence, or the resu lr of the delibe rate fram ing of the person
concerned. T h is is essentially an evidentiary matter, the ourcorne of which
depends on the circumstances of the case concerned and the applicable rules
of evidence. The following ccnsiderario ns are based on rhe assumption rhar it
can he shown that me charges were unfounded and the police knew th em to
be unfounded.

2. Violations of due process and fair trial rights
2. 1. Viola tion of the right to li berty a n d secun ry of the person
Article 9 (1) ICCI'R requ ires rh at an y a rrest an d/o r de ren rion must be carried
om in accordance with the law and must nor be arbitrary: "Everyone has rhe
tight to lihetty and security of person. N o one shall be subjected to arbi trary

530

Recovering lhe aulhority 0' public institutions

arrest or detention. No one shall be deprived of his lib<:rty n cept on such
grounds and in accordance with such procedure:l.l:lt<' established by law."
(i) Lawful neos: Th e emrencc of reaso na ble suspicio n

There is often no informa tion or facts to warrant an arrest andlor detention.
Su bsequently, the police may plant evidence o r obtain it by unlawful meam,
prior or subs«J.ue rlt to th e arres t, to sho w th at facts and/or in formadon
existed that would have justified the arrcst . An arrest that is no r based on

rho: existence of facts and/or tnformanon according to which the person
concerned may have committed a criminal offence is unlawful.
The European Court of Huma n Rights elaborated on th e meaning of
' r":l.lonablc suspicion' in th e case of Gusinkiy v Russia:
"The Court ",iterates that in ord~r for an arr~$' on r~aMlnabl~ suspicio n to
b~ jU$(i fi~d under Amcle 5 § I (c) lr is not necessary for th~ pol ic~ to have
obuincd suffici~nt ~v i d ~nc~ to bring charges, enher at the point of arrest
Ot while tbe applicant i$ in cu$!Ody ($e~ Brogan and Olhm II. tht Uniu d
Kingdom, judgmenr of 29 November 1988, Series A no. 145·B, pp. 29-30,
§ 53). Neither is it necessary that rhe IKrson d~rai n~d should ulrimately have
ban charged or taken before a ccun. The object of detention fot questioning
is 10 Further a c rim inal inv~.tigarion by con firming or di.,continuing
suspicions which provid~ tbe grounds for dereneion (se.: MIL""a] II. rk UnltfJ
Kingdom. judgment of 28 Onober 1994, S~ri~$ A no. 300-A, p. 27 , § 55).
H ow~v~r, th ~ r~q u i r~m e nt

that th e $lJspicion muU k based on r~a.<tlnabl ~
g ro u n ds fo r ms an us ential par{ o f t he uf~guard ag a; n u arbitrary
arrest a nd d~t~nlion. The fact ,h al a s.. spicion i. held in goud fai th is
in$uffici ~nl. Tb~ wont.. " rc:uo n a b l~ s u.picion ~ mean the ex.ist~nce of faeu
o r info r matio n whi ch wo uJd satisty an obittl.; ~ obs~""'r th at th e perso n
conce rn~d mar have: co mm itted th ~ offenc~ (= Fox, Ozmpbtll and Hanky
II. thr U" iu d Kingdom, judgmen, of 30 August 1990, Series A no. 182, pp.
16-17. § 32). [£m ph,,-' i. added]." 1

" . .. [W hat] may be regard~d as ' rca., o na b lc· will ... dep~nd on all
cit<:um$t:J.nces of C:l1lc"

as held by the Court in the case of FflX, GtmpbfU and Harrky v. thf Uniud
Kingdom. 3

M ost domestic laws that govern the arrest of a perso n suspected of having
committed a criminal offence require an arrear to be based on a reasonable

suspicio n. Th e arrest of a person irrespect ive of any available evidence against
him Or her with a vkw to obtaini ng a conf~~ ionlinfor m a tion by unlawful
means and/or fabricat ing charges (either from the outset or subsequently) in
order to justify p rosecution will be conttary to most if nOI all national laws.
National couns h ave repea tedly found arres ts unlawful where the police had
failed to sho w thar there we re sufficient Iacrual grounds for a ' reaso nable
SuspICIon:

The Tonga Court of Appe al, in the case of Fifira
that:

0- Anor ~ FiJkajiJnUd , hd d

"the respondenr was "or arrested On reasonable grounds of suspicio n of
havin g committed an o ffence bUI ~imp ly beca use rhe police wanted to
inrerroga,e him" and rhar ~assumed facIS do nm provide any grou nds for
suspicion....

The Consritu rional Court of the Seychelles found in Charles v . The Anomer
General rhar:
~ l n rhe case of 'reasonable suspicion' for the burden to be discharged rhe
" "rc's evidcnce must disclose me grou nds for so holding (Talma v Sauzier
1974 SLR 163 applied). However, in rhts case, rhere is only a bare averment
regarding rhe issue in me affidavits of the twO arre<ring police officers which
does not disclose any act done or even me presence of C ar the scene of rhe
lire. In these circum>tances. the burden has nOt bttn discharged... ."

The Sri Lan kan Su preme Co u rt has found a violation of the fundamental
righr to Iiberry under Article 13 ( I) of the Constitution in several cases where
a reasonable suspicion was lacking, such as in Hewagam K(}ralalag~ M.o;imus
Danny V IP 5iri nimal Silua & Orr:
"T herefo re for rhe petitioner to be hwfuJly charged under rhe Ordinance
rhere mus, have been evidence rhar he had commined an offence under ir.
However, rhere was ndrber a complaim'nor any reasonable swpicion rhal
he had done <0 as he was merely" passive occupanr sr"ying overnighr wirh a
companion. In ,h= circumsrances his arrest was clearly u"J"wful viola<ing
his fundamemal riglllS under Art 13(1).-6

ReaweMng the authority 01 pu blic instituliolls

532

Oi) Arbitrariness
lnrenrio nally b ringing charges that are unfo unded, i.e. nee based o n [acts
and/or information obtained lawfully, as a means of justifYing arrest and/or
continued dete nt io n grossly violates the fundament al tents of d ue process of
law. An arrest and/or the de tention o f a per son based on such cha rges wo uld
be arbitrary.
Even where an arres t may be lawful u nd er applicable domestic law, th e arrest
and detention of a person ffi:ly violate the right (0 liberty and security of the
pmon if it were arbitrary. According to the decision of the Human Rights
Committee in M ultlmg v. Camaoon:
"Arbtnanne.. is nol to be e'l"ated with 'against the law' but must be
intetprew:! rno..., broadly '0 include elemeno of inappro prialcne..., in jllS tice.
lack of prediCtability and due process oft,w.. . rem ~nd in cu.«ody p"rs"am to
I.wful arres, must not only ~ lawful b"r reasonable In the circumstances.. .· ,
T he l n re r-A rn e rtc a n Court of Human Rlghrs ap plied th e notion of
arbitrariness in the case of Ga ngaram Pamk} II. Suriname:
" No one may be subjened 10 arrest or imprisonmem for re>.5ons and using
method. that - although classified a. leg:al _ can ~ considered incompatible
wilh regard for ,he funda.mentaJ righl:5 of rhe individual, b«ausc they ne,
among other mailers. "nreaso nable, unpredictable, Or disproportionare.··
Following the initial arresr an d investigation. any contin ued detentio n musr
be based on specific charges. Moreover, acco rding to th e H uman Rig h ts
Co mmuree in the case of Jr,fu kong II Cameroon:
·remand in custody p"rsuam to lawful arrest musr not only be lawful but
reasonable in all the circumstances," and, "in order lO avoid a characterizarion
of arbi"ari ness, deremion should nOt continue ~yond the period for which
the S,a,e party can provide appropriate justification.· lO
De liberately accu sing someone of a crime tha t he or she has not ccmmirted
an d laying charges to this e nd viola tes fundamen tal pri nc iples o f crim inal
[useicc. in pa rticul ar the p resu mpt io n of innocence. Arrest ing someone
on those gro un d. a nd /o r seeking to re man d o r remmd in g hi m or h er in
cU,\lody o n the ba.5is of charges known to be false for whk h no approp riate
just ifica tio n can be provided (even wh e re there h ad been a reasonable

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1
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susp icion at tile tim e o f arrest) ccnsrirures an appa rem injustice that is clea rly
not reasonable in rhe circumstances.
There is am ple national jurisprudence by courts rhar have applied notions
of 'arbiraeiness' in finding a breach of fund amental righ rs of libe rt y and
security and/or rhe commission o f rhe ton o f ' false irnprisonmenr.' ofren in
combination with rhe tort oftmalicious prosecution.'
The Sri Lankan Supreme COUrT has in several instances fou nd a violation of
tile fundamental right to liberty in cases of fabri cated charges on the grounds
mar conclusions resulting in arresr and derenrion were "wilfully false, perverse
and unrea,onable. ~ ll In additio n, rhe COUrt held rhar arbitrariness may be
inferred where rhe police fails to file a plaint in co n nectio n with a cha rge
within a reasonable time, in particular where other evid ence corrobcrares rhe
arbitrary nature of arrest or derenrion. u
Arrest and detention will also be arbitrary if the public authoriry acted mala
fides, i.e. abused irs power where it canner be established rhar it genuinely
pursued the purposes it avowed !O pu rsue. Th e Court of Appeal in Ma laysia
held in Mohamad Eeam Bin Mohd. Noor & On v lnsprctar Gm ffa! of Palicr
that this was the case where petitioners wete derained fur questioning abou t
their political beliefs rath er than th e purported national secu rity grounds. II
Arrests and detentions rhar are malicious arc by th eir very na ture arbitrary.
As held by the Judicial Committee of the Privy Council in Harraduingh v

A 170m ry Gm~ral ofTriniddd 6' Tobago & Anor.
"If illegal acts are really done for some motive other than an Ilonesr de,ire 10
aeCUre a legal duty and withour an honest belief that they 'lfe done legall y,
e,g. from a desire to injure a person, then the Act i, no defence (dicta of
Scrurron LJ in Scammd and Nephew Ltd v Hurley [1929] I KB 4 19 at page
427 applied).. ..The charging of a person with an offence, which the arresting
officer know, he h", nor com mined, necessarily involve' a lack of hone,r
belief on rhe part of rhe officer, and his motive can only have been improper,
and liability for malicious prosecution in such a ca", is ' in esistible·. I •
2 ,2 , Violatiun of the right to pres u m p tio n of in nocence
Arrest ing and d~taining a person, and even seeking to prosecute him or her
on the basis of charges known to be unfounded , which may be accompanied
by efforts to corroborate such charges by means of coercion, reliance On
false witness srarernents, planting of evidence or other methods designed to

Recovefing!he authorily of pubic inslitlJtions
fa.lsdy implicate a. person is fundamentally opposed to the presumption of
mnocence.
The presumption of innocence is a fundamental principle of criminal
proceedings enshrined in an k le 14 (2) o f the ICCPR and recognised in all
regional human righ ts rreades." According [0 the General Comment)2 of
me H uman Rights Committee on article 14:
"lhe presumption of innocence, which ts fundamental <0 the protection of
human rights, impo= o n rhe prosecution the burden of proving the charge,
guarantees that no guilt can be presumed I,ltIril the charge has been proved
beyond reasonable doubt. ensures that the accused has the benefir of the
doubt , and requires that perwn s aa;used of a criminal act must be treated in
accordance with this principle."'"
The presumption o f innocence is so fu nd a mental [0 cr im ina l justice that
there is a high threshold fat the establishment of guilt. The l nrer-Arnerican
Court of Human Rights, fo r example, has emphasised the importance o f the
p resu mp tion of innocence in the case of C alderon v Ecuador , where it made
clear that:
"This Co u rt ha, stated rhar the p rinciple of presumption of innocence
constitutes a foundation for judic ial guarantee" .. . It wou ld constitute a
violation to the Conven tion to keep a person whose criminal "" ponsib ility
has not been eStablished delained for a di, proportionate pertod of time.
This would be tantamoun t ro anticipating a ..nrence. which is at odds with
onive=lly tccognited gener:al principl"" of law." 11
Accordingly, prosecutors and investigators must do their ut most to establish
the facts, identify rhe perpetrators and b ring charges whe re the evidence
warr a nt s it p rovided II has heen obtained in th e course of investigations
complyi ng w ith lnremado nal .Ha nd ards. I ' See king 10 portray a person as
guilry knowing that m ere is no evidence to support such claim. constitutes a
vio latio n his or her right to he presumed innocent and perverts the course of
justice.

3 . Ri ght t o an effec t ive remedy a n d re p a ra t io n
arbitrary arrests and detention

1O

case of

I nte rna tio nal hum an rights treaties, in particular article 2 (3) of the ICCPR,
provides victi ms of viola tio ns with the righ t to an effective reme dy. 111e act of

t

wrongfully arresting and/or detaining a person on the basis of charges known
to he unfounded gives rise ro the right (Q a remedy and ent ails a duty of me
stare aurhoriries 10 investigate those responsihle for rhe violarion, and ro
prosecute and punish them accordingly.
Cessatio n (relea.se) and the d ul)' to in vesti gate violatio ns
Anyon e who has been arrested musr have the possibility to challenge
promptly the lawfulness of derennon and , in regular periodic intervals, the
lawfulness of ccnnnued delemion. '9 The cessation of an ongoing violation,
whim would, in the case of fabricated charges. consist of release from 'usrody
in order to srcp the 'ontinued unlawful detention (or to prosel:ute the person
without undue delay)," constitutes an integral part of me righr to an effective
remedy.
State parries also have a positive obligation to investigate allegations of
violations and to rake appropriate measures, induding sanctions against
the perpetrators, in order to prevent repetirion. These principles have been
recognised by the UN H uman Rights Comminee in irs General Comment
31:
"Article 2, par..graph 3, re'lui= that in ..ddition to effective protection of
CoverlOl.nt rights Swes Panies must ensure that individuals also haveaccessible
and effective remedies ro vindicate those nghc. Such remedies ,hould be
appropriarely adapred so as to take ..aount of the ,pecial vulnerability of
eeru in ollegorics of p<'rson, including in particular children. The Committ<:e
anaches importance to Sures Parnes' establishing appropriare judicial and
adminiSIrarive mechanisms for addressing claims of tighu violations under
domesti c law. .. . A failure by a Sure Parry to investiga' e aHegario n. of
violations could in and of itselfgive rise to a separate hreach of me Covena",.
C=ation of an ongoing violation is an essen ria! clemen' of rhe rigb' ro an
effective remedy: I I
In case of complaints that detention is arbitrary because it is based on
fabricated charges, or where a judicial body order. the release of a detainee
on such grounds, the competent authorities should com mence a prompt,
impanial and effective Investigation with a view to establishing the facts and
to identifYing the persons responsible. Where me latter have acted unlawfully
or have even ccmrnmed a criminal offence, the personfs] concerned should
he subject to disciplinary or criminal proceedings, as appropriate, and should
be given adequate purushments.f

530

Reco~ering

the autholily of public institutions

C e m pe nsa no n
Victims of arbitrary arrests and detention are entitled to compensation and
other forms of repar:nion.

Article 9 (5) of the ICCPR explicitly stipulates a right to compensaocn
for the victims of unlawful arrest or de tention: m Anyone who has been the
victim of unlawful arrest or detention shall have an enforceable right (Q
compensation. "

The Human Rights Commiuee has found in a series of de.:isions that Slates
parties are unde r an obligation to provide adequate compensation in cases of
arbit rary arrest and detention, without, however, specifying the amount of
compensation. 'J

ln case of arbitrary arrest and/or detention base d on f:.lse charges, any
award should reflect the material damages and the mental harm due to the
powerlessness stemming from the knowledge that the law enforcement
authorities deliberately fabricated such charges. According to the Human
Rights Comminee. states parties must make reparation, which comprises
compensation and other appropriate fo rms;
"Artide 2, paragraph 3, require. that State, Partie, make reparation to
individuals whose Cov<;nanl rights have been violated. Withour reparation
to individuals whose Covenant right, have been violated, the obligation
to provide an effective remedy, which is central 10 the eflkacy of article
2, puagraph 3, is nor discharged. In addition to rhe explicit repararion
r~uired by artides 9. paragraph 5. and 14, paragraph 6, the Commime
comiders that the Covenant generally entails appropriate compensation. lhe
Comrntuee notes rhar, where appropriate, reparnton can involve restitution,
rehabilitation and measures of satisfaction, .uch "5 public ap<>logies. public
memorials, guarantees of non-repetition and changes in relevant laws and
practices, as well as bringing to ju,tice the perpetrHors of human rights
violation•." 1.
According to the jurisprudence of regional human rights COUtlS, victims of
violations of their right to liberty are entitled to material d amages, which
n eed to be proved, and to moral damages proportionate to the violation.
Hum an rights courts have awarded moral damages fot arbirrary atresr and
derernion for the distress, an x iety and frustration suffered by rhe victim, for
example the European Court of Human Rights in the case of Raluvich v
Russia;

I

"I he applicant daimed 10,000 eUn:» (EUR) in respeCI of non-p«uniary loss.
She referred 10 the emmional me.... and -anxiety ""used by her deremion io lhe
psychiatric inSlirl"ion. She underlined Ihal she had also feh helpless becau..,
of me manner in which her detention had been effected and ,he inabiliry m
challenge it.

Th e Court observes Ihal some forms of non-pecuniary damage, including
emc nonal dislress, by rheir very namre (Oillno< always be the object of conCrete
proof (see Abdulatit, Cabales amI Balkandali v. the United Kingdom.
judgmem of 28 May 19115, Series A no. 94, ~ 96}, This does nOI preve'" the
C OU f! from making an award if ir comide.. rhar il is reasonable 10 a>Sume
lhal an applicant has suffered prejudice requiring financial compensation. In
,he presem (a.." il is fC<lSonabl" to assume thaI Ihe appliu nt suffered distress,
Oillxiery and frusllarion becau.<e her derennon, for many days, was not basccl
On a judicial decision.
Dedding on an equilable ba.sis, rhe Court awards the applicam EUR 3,000
under this head" 1\
Th ere is ample national jurisprudence according ro which anyone wh o
knowingly a rrests andlor det ains so meon e wirhcue lawful ground.> or
arb irrarily incurs liability for the tort of false imprisonment. In ad dition,
bringing a prosecution on the basis of fabricated charges gives rise to liability
for the torr of malicious prosecution. Fo r example, in the case of Thompson v
Commissioner of Polia ofthe Muropo/is; HSU v Com missioner of Polia ofthe
Mnropolis , the police were found by the jut)' to have deliberately fabricated
a case of assault on police officers against both of the plaintiffs ro cover
up th eir previuu.s wrongdoing, l.e. in once case physical assaults and racial
16
ab use befo re arresl. Th<: Court awarded aggravated and exemplary damages
to borh pla intiffs for several violations, incl uding wrongful a rrest , false
im prisonment and mal icious prosecu tion.
The Supreme Court of the Bahamas held in TJ'l(s v. Barr, tha t, whilst "special
damages must be srrictly proven~, "damages fo r the torr of assaul t, banery
and malicio us ptosecution were at large. ~ Ai; such, th ere is no limit to the
amou nt of dam ages, wh ich:
",bould include. n amounr for lhe humiliation, i.e, the injury rho pl.inritt
had endured rc his dignily and pride; meatal suffering (as Ibe plainriff
suffered from clalLS trophobia); and loss of reputation." l 7

538

RecoYelirog the authority of public institutions

T he Nigerian Supr eme Court held
Federation & 0'1 that:

In

Odugu v. Attornry-Gmual of the

"Compensuion in ca,e, meh as Ihi, ,hould reflect nor only rhe :lelUal
pecuniary loss of the victim bur 01", rhe ..bhormlCe of society and the law for
, uch gros.s violation< of human rights. This is especially .\0 for cases involving

.. breach of personal liberty. which is a com modity of an inherently high
value. An un witting u ivialiution of a serious matter by an inordinately low
aw.ud ,hould ~ avoided." 10

Awards in tort cases frequently include exemplary damages for 'oppressive,
arbi tr ary or unconstitutional action.'

>'1

Courts have frequently awa rded compensanon for a breach of the right to
liberty in fun d ame ntal rights cases. In So uth Asia, the Indian Supreme Court
hall awarded damages for a n umbe r of perti nent fundamental righ ts violatio ns
since its judgment in the case o f RuduIShah v. Stim ofBihar in 1984 , which
concerned unla wful detention. justice Anand specified. in the case of Nilaban
Behera v Stau ofOri>Ia, that in fund amental rights cases:

"rhe cornpensanon is in the nature of 'exemplary d..mages' aw..rded against
the wrongd=r for the b re..ch of its public law duty [of not protecting the
fundamental rights of irs citizens] and is tndependenc of the rtglus ava;jahle ro
rile aggrieved party to claim COmpcll'alion under the printe l..w in an actioo
based on tort, through a suit instirured in a court of COlllpe tent jurisdiction
orland prosecure rhe olf"nder under the penallaw."~
"The q uantum of compensation will depend upon the peculiar facts of each
case... [and is] awarded by the court (and paid by the sta te) to redress the
wrong d one. ,.," as held by the Indian Supre me Court in the O.K. Basu case.
The High Co un: of Sind, Karachi , Pakista n, held In Mazhartl.ddin v Stare, a
case of unlawful arrest where the re was no "rnarerial whatsoever before the
coure to show that M's arrest was legal or that there we re reason able grou nds
for helieving that M W:.lS involved in an alleg ed o ffence (Government of
Sind h & O rs v Raeesa Farocq & O rs 1994 SC M R 1283 (Pak SC) followed)n
that:
"No credit whatsoever could be .>ttached to hi' starement, which had been
fa[,eJy m:.lde to cover up the illegaJity of his action."... ~The right to recover
compensa,ion, provided for under the erc, is now illlernarionally recognised

in Art 9(5) of the !nt~rIlational Cov~nant on Civil and Political Righ".
Such compemation is payabl~ by way of a public law duty of !h~ >!at~ and
its officers and is ind~p"nd~m of Ih~ priva'e righlS that a citizen may hav~ [0
claim damages in tor! Ihrough ordinary proc~~dings ... Th~ amOunr of such
comp~nsa [ion should b~ de[~rmin~d by ,he COUrt in i" di.cr~rion, keeping
in vi~w ,h~ principles applied in awarding g~neral damages in cases of fa ls~
imprisonm~nI and exemplary wmages in cases of mala fide conduct of pllblic
officers under [he law (dicu of Kaikaus J in Nawab Din v Muhammad ¥ollSuf
PLD 1957 Lahore 283 (Pa Lah HC) followed}. Sp~cial damages 'USG,ined
by a vicrim of unlawful Impnsonrnem, however, can only be proved [hrough
ordinary civil suil. C:>mpcnsatioo ougbt to be substantial and no! nominal,,,}'
The Sri Lankan Supreme Court has also awarded compensation in
several cases of unlawful arrest and detention constituting a breach of th e
fundamental right (Q liberty, such as in WUTI1WI1IlM /.I. Atrornry-GmfTl1f (f,-

Or" Hfwagam Korawwgr Maxim'" Denny v If Si,inim(J,( Silv(J,
F,#z v. Att/Jrnty-Gnural (} Orr. 32

o- Drs ilnd

4. Violuion of t he righ t to c o m pla in of tortu r e and t h e d u ty t o
investigate ~egations o f torture prompd y, impartiall y and effectively
Bringing ch arges known to be false as a means of deterring (the pursuit 00
complaints about torture constitutes a violation of the right to complain of
torture and the state's dury to investigate allegarions of torture promptly,
impartially and effectively.
Ankle 13 of the UN Convention against Torture and other cruel, inhuman
or degrading treatmen t or punishment snpulares a right to complain about
torture and to have the complaint Invesrtgared promptly, impartially and
effectively. States have a corresponding obligation under inremarional human
rights treaties, such as amcle 12 of the UNCAT and article 7 of the ICCPR,
to conduct such invesdgations follOWing a complaint or rx officio.
Article 13 of the UNCAT expressly requires stares to we steps:
ensure that th~ complainan' and witnesses are protected against all illrrea'meru or iruimiwtion as a consequence of his complaint or any ""idence

"to

Article 33 (4) of the Bo d y of Principles for th e Protection of All Persons
under Any Form of Detention or Im prisonment provides that:

Rewvermg the authority of public instrtulions

540

"Neit her the dcuined or imprisoned person nor ~ny complainant ,.. ,hall
.ulfer prejudi"" for mak ing a ,equest Of complain••"

The Basic Petnctples and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of Irnernaric nal Human Righ ts
Law and Serious Violations o f International Humaniranan Law recognise
that states should:
... . ensure rheir [victims and their representatives] ,:ili,ty from intimidation
""d retaliation. as well '" that of their families and wimesses. before, during
and after judicial, administrative. or other proceedings that affect the interests

of victims:

H

A person who complains about torture or ill-treatment may subsequently be
charged with an offence related to the allege d torture, for example having
resisted police officers (and incurred injuries in th e process). or any other
offence, which may relate to the initial arrest or a separ.ne incident.
Bringing such charges will constitute a viulation of the right ro complain
about torture if the charge is unfounded and the state authorities take
such aCtion in response to the complaint and in order to deter the person
from pursuing the complaint further. The obstruction of an investigation
intended by such conduct will also constitute a violation of the state's dury
to investigate a complaint promptly. impartially and effectivdy. T he same
reasoning applies to unfounded charges being brought against any person in
anticipation of any complaint if it is clear that its purpose is to deter him or
her from pursuing a complaint.
The Committee against Torture, in its conclusions and recommendations on
Germany's state parry report, expressed its concern abou t:
"SOm., allegations that criminal charge, have been brough,. for puni, ive or
dissuasive purposes, by law enforcemenr aurhoruies against pc=ns who have
brought charges of il!·trra tment against law enforcement author ities." J~
Fabricated charges brought against the relatives of the complainant or his
or her lawyer also constitute a violation of the right to complain if they
are aim.,d at deterring the complainant him or husdf from pursuing the
complaint.

In rhe case of Kurt v. Turluy, rhe applicant 's SOn had been forcibly
disappeared by suldiers and village guards. Subsequent fO rhe applicant filing
a petition to the men European Commission On Human Rights, the Turkish
Government charged rhe applicant's lawyer with aiding and abetting th e
PKK, which was considered a InroriSI organisarion in Turkey ar rhe time.
The Courr held that me bringing of charges consrirured an interference wirh
the applicant's right to pennon the Commission:
"The Commission conduded that lhe aUlhorities had nol directly coaced lhe
appliunr. Neverrhde$S, and wilh particular regard rc the circumSlances of
the applicant', rwo visits (0 the notary in Bismil. they had applied improper
indirea pressure in ropee' of her complainr ro the Convenrion insrilmions.
Funhermore, the ,hrea,ened crimin al proceedings against the apphcam's
lawyer also gave ri,e to a seriollS interference with the exercise of the right of
individual petition.

I

I

As to lhe threat of criminal proceedings invoked againS[ lh e applicanr's
lawyer, the Coun does nO[ agree wi,h rhe Government's =llion thar ,hese
were unrelated to the applicalion lodged with the Commission (see paragraph
157 above). The threat of prosecution concerned the .Ilegarion.< which Mr
Sahr made agains< the Stare in the application which he lodged on Mrs
Kurt', behalf. While ir is true that rhe statement of complainr which w...
suhmirred 10 the Commission contained allegarions which were found to be
raJse and which M" Kurt herself repudiared, ir mllSr he stressed that the rask
of examining me suhstance of particular complaints falls to the Commission
in the context of its fact.finding powe" and having regard to lhe procedures
which rhe Convention offers rhe respondenr Stare ro challenge ,he merits
of the .ccusariom levelled ar it. It is ncr for the authorities to interfere with
rhat process Ihrough the threo>.r of criminal me...ures .gainsr an applic.anr's
representanve.
For rhe above reasons, lhe move. made by the authorities 10 insritule
criminal procudings against the appJicanr's lawyer, even lhough they were
nor followed up, rnusr be col15idered an interferen"" with the exercise of lhe
applicant's righl of individual petirion :rnd incomparibJe with the respondenr
Stale's obligarion under Arricle 25" H

5. Standards for law enforcement officials and prosecutors
and abuse of power
The practice of fabricating charges in order to justiIY arresr and/or derermon
and/or to dissuade persons from pursuing complai nts about police

•

542

misconduct, in particular torture, constitutes an abuse of power that violates
internationally recogni~d standards of policing.
lnrernaricnal standards on policing are based on rhe principle that law
enforcement officials mus t adhere striuly to the law :md re;pect national and
international human rights sta ndards. Article 1 of the UN Cod e of Cond uct
for Law Enforcement Oflidalslo6 stipulates mar :
" Law enforcemmr officials shall at all rimes fulfil the dury impose d upon
them by law, by .erving the oommunity and by prot=ing:oll perSOIU agairut

illegal aCU, consistent with the high degree of r~p<Jnslbil i ty required by their
prof=ion :

According to Anic le 2 of the Cod e of Conduct;
"I n lhe per formana. of their duty, law enforcement oflici:ols ,hall "'specr .."d

protect h uman d ignity and maint ain and uphold the hum an rights of all
p"fSOns.

Any abuse of power, including by means of fabriCiting charges, with which
the police has been vested for the public good is fundamentally incompatibk
with these principles. J !
The European Code of Police Ethics adopted by the Council of Europe"
sp ecifies police duti es in th e co u rse o f the exercise of their fu nctio n s, in
particula r crim inal investigations, such as that:
"Police must always verilY the lawfulness of their intended actions"... "Poli""
investigalions shall, as a mini mum . be based upo n reasonable suspicion of
an actual or possible offence of cr ime" and · Police investigation s shall be
objective and fait ... • Moreover, " Public authori ties ,hall ensure effective and
impan ial procedur"" for complaints against the police."
It is evident that th e bringing of fabricated charges , be it as a means of
justifying arrest and/or detention and/or to secure a co nvictio n or as a means
of deterring complainan ts, violates the fu ndam ent;!1 principles laid clown in
the Eu ro pea n Code of Eth ics.
The principle of respecting the rule of law and human tights also applies to
prosecutors. The Guidelines on the Role of Prosecuro rs'" stipulate that

"Prosc~urors

shall nOt init ia'e or cominue prosccutinn, or shall malu: every
effort 10 stay proa:cdings, when an impartial investigation shows the charge
ro be unlouncled.•
This imposes a speci fic duty on prmecutors to aCI where they become aware
that chatges may have beell the resul e of fabrication . If a prosecutor finds
rhis ro be me case, he or she should also seck to establish the methods used
ro obtain evidence against suspects and other fo rm s of misconduct, and
shall investigarc and prosecute those responsible accordingly, as sripulared in
paragraphs 15 and 16 of the Guidelines:
"Prosecurors ,hall give due anemion ro rhe prosecution of crimes ccmmmed
by public officials, particularly corruption, abuse: of power, grave violations
of human rights and ather crimes recognized by imernatiOlul bw and, where
authorized by law or consistent with loa] practice, rhe mvesnganon of such
offences.
'When prosecutors come into possession of evidence against SU<pecIS lhal rhey
know or believe on reasonable grounds was Oblained through recourse to
unlawful method" which rons,i,ure a grave violarion of rhe mspea', human
rights, especially involving torture or cruel. inhuman or degrading rrearmenr
or punishmem, or orher abus,", of hum.... rights, they ,hall refwe ro use such
evidence against anyone other than those who used mch methods, Or inform
rbe Court accordingly, and ,hall rake aU necessary ""ps to enSUfC' thaI rhose
responsible for using such methods are brought to justice."

I. These rights arc guannrced ill pank"ular in anides 7 . nd 9 of rhe lnrcrn>tiom.l Clven.nt

nn Civil and Polirical Righ" (lCCPR).
2. Gu,;",IN) ". R....u., (Applicu ion no. 70276/0 \, 19 May2004), p.... ,53.
3. F(JX, C1mpb~1I and Hart/q ". <h. Uniud Kingdom (Application no, 12244/86, 12245/86;
12383186, 30 Augu" 19'J'll), p....32.
4. Fifiu &-Ano." Fakafamu, [20001 I lRC 733.
5. Chad"" Aftom'] Gmm.t, Con"itu,ionaJ cc, No 5 of 1998, unreported; (2002) 3
CHRLD 316,
6.

Hrwagam Koro"''''gr M""imu, Dann) ,,11' Sinni",'" Sit"" &- On SC (Applic>tian) No.
488/98. unreported; (2000) J CHRLO 210.

7.

M~ *ong

". Ca",,,.on, Communioa'ion No, 4581 1991, U.N, Doc. CCPRfC I511
0/45811991 (1994), f><',".9.8.

8.

Ca" of Gangaram Panda, ". Surinam', (Merits, ,epar.tions, .nd 00''''), Judgmenr of
Janu"')' 21, 1994, Series C No. 16, pan. 47.

•
ROOO'IeriJlllIl1e autr.ority of PU~K: instillJtioos

'"

9. Mukong v, c..",,,,,,,~> ,up" n, 7. para.9. S.
10. M., C" AIlS"41i". Ccmmanicarlcn 90011999, UN Doc. CCPRJ761DI9001999, 28
October 2002. para. 8.1, -As '0 !he cl.im~ rd ..<;ng '''. Ih.' ~"t period of detention. in
,.,m, of artide 9, paragf1ph \, ,he Co",m"'C<c rttall. ,u Iu"'prudence <hat. in ord" to
avoid a .h.UCfcri""ion of .r!:>i".rincs. "«cnnon ,hou td no' con,inu. heyond ,he pcri<><l
fur ""hieh ,h. SfO," parry can pr<Widc appropriate jl1.!t ific>tion:
II. Wm-a"",~... v_ Attorng-&>.0'tI/4..J at!¢" [1000]1 LRC 407, (2000) 3 CHRLD 211.

12. Fttiz: vAlWrn'Y,em"ai & 0", [1996] I CHRLD 79.

13, M.hamsui EU'm Rin M.lid. No• • d- 0" " In'p<<ro ' Grn""I.! Poliu. Court
M,,/d.~';4. (2mm 4 MLJ 449: (2003) 4 CHRLD 9L
14. ArtomfJ Gmm{ ofTrinid4d & robago cfAn"", [2004 llJKPC 3,

.f AN"'/'

1" Arud. 6 (11 or the Euro?=, Convenrion Iln Human Right>. Article 8 (2) of ,h. "'lTmican
C"n",n,i"n on Human Right>, and Af<iele 7 (I) (b) of <he Afrian Ch.rter on Hum.n
ond P=plcs' Right>.
16. Hum.n Righ" Commi"c<, General Commen' 32, Artiele 14: Righ, ro equaljry before
court> .nd "ibun.l, .nd ,,, • fair tri.1. UN Doc. CCPRlCIGC/32, 23 Augus' 2007,
par•.30,
17. C= ofAm'" ~~ ~. ~,(Merit>, Repara'ions ",,<I Co,t», Judgment of24 June
2005, Serie C. No.129, rv-. III.
18. Set: .],0 Guidelines on ,he Role ofP""';;u,o,,. discrwM in mo,"" dm,il below at (5),
I'). Set: in p.rticul ...rtidc ') (4) of ,he ICePR.

20. Catas ~.l'h;/;ppi~". Communica 'ion N0. 788/1997, UN Doc. CCPRlCl731D1788/1997,
Z3 Ocrober 200\, para.'),
21. Hum.n Right< Com mi"c<, Gener.1 Com ment 31. The N"ure of ,he Gcoe.. 1 Leg.1
Oblig.tioo Imp"""d on State, Ponies ,0 ,he Coven.nt, UN Doc CCPRlCl21IRcv.lI
Add.13.p.n.15.
22. Daun,'" '" Arc"""" v GJiD",hid. C..omn,unication No. 56311993, UN nee. CCPRlCl551
0156311993, pota,a.6,
23. Sec, for eumple. h",a~d" ", Sri uo"". Communie..ion No.1 18912003. UN Doc
CCPRlCl83ID/118'J12003, 10 M.y !OO5. p''''' 9.2 .nd II; R.u" " TI" Phil,pp;o",
Commun;ca,ion N". 108912002, UN Do<: CC?RlCl84fDI108912002, 5 Augus' 1005,
por",. 7.7, .nd 9, .nd M,,,,,,,,,~. AoJ"/4., Communica'ion No. 111812001, UN nee.
CC?RlCl83IDII12812002. 18 April 2005, par"". 6.1- 6.6 .nd 8.
24, Hum.n Right! Committee, ("..,ne..1Comment 31, .up.. n. 21, para.16.
25 , &""'ich
;U;,

~ Rut,;" {App li""ion nO, 58913/ oo• 28 (k,ober 2o(3), p.=.50, 52 .nd 53.

ThfJ"'P'''IJ ~ 0>",,,,;,,i.,," .f Polier of tht Metra!",liJ; HSU ~ C."''''i"ionn ofPoli" .f rhe
Mm.!"!;" [1997J 2 All ER 762; (1997) 2 CHRLD 161.

27 , Ty"",

v.

&"" (19')2) 45 Will 7; (I996J I CHRLO 117.

28. (}dugu~. Auomry---Gmcral of th< F"i""tio"
3 CHRLD 432; [200012 HRiJ\ 82.

c- 0 ..., [19% J 6 NW'LR (IT 456) 508; [1996]

29. Set! for e~.mrle Sa"'u,1s ~ Th< AI",r~'! Grn""I, Judgmen' of ,h. l.m.icon Supreme
Coun, [1996) I CHRLD 120.

I

30,

Nl"' b~ti

lkhml v S", ,, ofOrino (1993) 2 SCC 746 (In<! sq.

31. Modlorouidin vS'ot<, P C, LJ 1998 1035; (1998) 2 CHlRD 305 ,
32. W",o""",,,,,, u. AIIDrnry-Gmmt/ '" Ott, , up" n .11. Hnwgtml Ko'o /':lagt Mox;m w Dol/"7
u lP S;rl" imdl SU"" <7 0", . u pro n .6 and Fou: •. I!nom')'"G"'tr"/ 6- 0,." .up.. n.12 .

33,

Ba> i~ Prin~i pleo and Guideline< on ,he Righ' <0 a Remedy and Repan'ion for Vic,im,
of Gro.. Viola,;o,,, of Inr ern "ional Human Righ" Law and Seriou. Viola rioni of
Intern. rional H uma ni.., ;. n Law, Gene,al Assem bly re'olu'ion 601147, 16 December
2005, Pr;n~iplc 12 (b).

34, Condwion' and .ecommenda<ioni o(,he Commi".e .gain" Tonure; Germany, UN
Doc. CAT/ClCRl3217, II Ju ne 2004, par.A (b).
35. Kurt" TII"uJ, (l51 19'.l7n99/1002. 25 M .y 19')8), paras,158. 164 and 16S.
36, UN C<.de of C<.nduc' for Law Enforcemen' Offici. ls, Adop 'ed by General A.s,.mbly
,,,,,, Iu'ion 34/169 of 17 December 1979.
37. Sec, for = p le• ...,mmem.ry
Official"

'0 amcle 7 of the Code of C<.nduc< fur Law Enforcemenr

38. The European Code of Police: E<hic., Re~omme nda ,io n Rec(200 ll 10 . dopred by ,he
Com mnree of Ministe" of ,he c<'uncil of Europe on 19 September 200 I . nd •• pl.natory
memorand um,
39. Guidelines on the Rol. of ProsecutOlS, Adopted by the fjghth United Nation. C<. ngr=
on ,he Prevenrioll "f Clime and the Trea,men, o(Olfenders, Havana, Cuba, 27 Augu" fO
7 September 1990.