Sri Lanka

Report on the findings of the investigation with respect to the effective implementation of certain human rights conventions in Sri Lanka


1. Initiation of the investigation

1. The investigation with respect to the effective implementation of certain human rights conventions in Sri Lanka was initiated by the Commission Decision of 14 October 2008 (OJEU L277/34 of 18 October 2008) pursuant to Article 18(2) of Council Regulation (EC) No 980/2005. Article 16(2) of Regulation (EC) 980/2005 provided for the temporary withdrawal of the special incentive arrangement referred to in Section 2 of Chapter II of that Regulation (the "GSP+" treatment), if the national legislation incorporating those conventions referred to in Annex III of the Regulation which had been ratified in fulfilment of the requirements of Article 9(1) and (2) was not effectively implemented.

2. Reports, statements and information of the United Nations (UN) available to the Commission at that time, including the report of the Special Rapporteur on Extrajudicial Executions of 27 March 2006, the statement of the Special Advisor to the Special Representative for Children and Armed Conflict of 13 November 2006 and the statement of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of 29 October 2007, as well as other publicly available reports and information from other relevant sources, including non-governmental organisations, indicated that the national legislation of the Democratic Socialist Republic of Sri Lanka incorporating international human rights conventions, in particular the International Covenant on Civil and Political Rights ("ICCPR"), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") and the Convention on the Rights of the Child ("CRC"), was not being effectively implemented.

3. The Commission examined this information and found that it constituted sufficient grounds for the opening of an investigation with the objective of determining whether the legislation of Sri Lanka incorporating the International Covenant on Civil and Political Rights, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child is effectively implemented.

2. Conduct of the investigation

4. Immediately after adoption of the Decision initiating the investigation the Commission received a Note Verbale from the Government of Sri Lanka (hereinafter "GOSL") dated 17 October 2008 stating that Sri Lanka "will not agree to be subjected to an investigation by the EC". A notice pursuant to Article 19(1) of Council Regulation (EC) No 980/2005 on the initiation of an investigation with respect to the effective implementation of certain human rights conventions in Sri Lanka was published on 18 October 2008 (OJEU C/265/1). By means of this Notice, the Commission invited interested parties to send any relevant information and comments within four months from its date of publication. In a Note Verbale of 20 October 2008, the Commission informed the GOSL of the initiation of the investigation and invited it to co-operate in the investigation. In a further Note Verbale of 9 December 2008 the Commission reiterated its invitation to the GOSL to cooperate in the investigation. Sri Lanka however made no submission in the context of the investigation during the four months submission period indicated in the Notice. GOSL also made no submission in the context of the investigation prior to the conclusion of the investigation, although it provided some materials and information in the context of the ongoing political dialogue between the European Commission and Sri Lanka.

5. All submissions made by interested parties, together with all other information and materials gathered during the investigation and upon which the findings set out in this report are based (see Annex 1 to the report), were entered into the file of the investigation, the nonconfidential version of which has been made available to Sri Lanka for inspection, upon request, as stated in Note Verbale of 28 May 2009. Sri Lanka made no request for access to the file.

6. In the conduct of the investigation the Commission was assisted by three independent external experts (retired Judge L. Sevon, Professor F. Hampson and Professor R. Wieruszewski) who were tasked to provide independent legal advice on the matters at stake in the investigation, and in particular on whether Sri Lanka is effectively implementing its obligations under the ICCPR, CAT and CRC. For this purpose, the three independent external experts were asked to undertake a thorough examination of the legal and factual situation with respect to Sri Lanka's fulfilment of its human rights obligations and commitments under the three UN conventions.

7. In its Note Verbale of 28 May 2009 the Commission asked the GOSL to agree to a country visit to gather facts and information relevant to the investigation and conduct interviews with a comprehensive spectrum of individuals and organisations, including representatives of the Government of Sri Lanka. The proposed visit was to be carried out by European Commission officials accompanied by the three independent experts. The GOSL replied with Note Verbale of 17 June 2009 reiterating that the GOSL did not agree to be subjected to an investigation by the European Commission and stating that in this context it "does not agree to the proposed visit". In this connection, the European Commission considers that, by applying for the granting of GSP+ treatment under the rules and procedures foreseen in the applicable Council Regulations, the GOSL in 2005 and 2008 has ipso facto accepted the possibility of being subject to an investigation as provided for both in Council Regulation (EC) No 980/2005 and Council Regulation (EC) No 732/2008. In its Note Verbale of 11 August 2009, the Commission thus reminded the GOSL that it was in accordance with the procedures set out in the Regulations under which Sri Lanka had applied for and was benefiting from GSP+ treatment that the European Commission opened and was conducting the investigation.

8. In the context of conducting their assessment, the independent experts met and sought the views of several individuals with a particular knowledge of the issues under investigation, including some representatives of organisations which had made submissions to the Commission in the four-month period referred to above or which had produced important analyses of the issues under investigation. Two briefings sessions were held in Geneva and London on 15-16 June and 24-25 June 2009 respectively. Some participants in these briefings asked that their participation or remarks be kept confidential and hence not divulged due to, inter alia, personal security concerns. As such these elements have not been relied upon in the preparation of the findings. Some participants agreed to a non-confidential treatment of the information they provided and summary statements of their remarks, reviewed by the respective authors, have therefore been included in the non-confidential file of the investigation.

9. With Note Verbale dated 11 August 2009, the Commission submitted to the GOSL for its comments the interim report prepared by the three independent experts referred to above. A deadline of 28 August 2009 was set for the submission of comments. In the same Note Verbale the Commission advised the GOSL that if it wished to submit any comments or information to the investigation, it should do so by 16 September. This deadline was set in the light of the obligation to conclude the investigation within one year from its initiation (as set out in Article 18(6) of Council Regulation (EC) No 732/2008) and in order to ensure that any such information could be duly considered by the Commission in the preparation of the report on the investigation findings. In the same Note Verbale, the Commission also reminded the GOSL (for the second time), that in accordance with the provisions of Article 18(5) of that Regulation, and in the absence of information provided by Sri Lanka, findings may be based on the basis of facts available. The final version of the independent experts report (hereinafter "IER") was made available to Sri Lanka on 8 October 2009.

10. As noted above, the GOSL elected not to make any submission in the specific context of the investigation, despite repeated invitations by the Commission to co-operate in the exercise and thereby present its views on the matters at issue. Accordingly the Commission, consistent with the provisions of Article 18(5) of Regulation 732/2008, has reached its findings, as presented in this report, on the basis of the facts available. In so doing, the Commission has studied the documents submitted in response to the Notice of initiation of the investigation, as well as other documents available from public sources, including reports from UN special Rapporteurs and other documents and reports submitted by Sri Lanka to the UN treaty bodies. In the absence of any formal submission by the Sri Lankan Government to the investigation, these documents have served as a basis for assessment of Sri Lanka's actions as far as implementation of the three conventions is concerned. In evaluating conflicting evidence, the Commission sought to determine to what extent evidence was independently corroborated in other reports.8

11. In addition, while, as described above, the GOSL has expressly refused to be subject to the investigation and elected not to participate in the investigation process, the GOSL and the Commission have maintained an ongoing dialogue, including on human rights matters covered by the investigation.9 The informal discussions held and the information received from the GOSL, while not part of the investigation as such, have nonetheless been taken by the Commission fully into account and have contributed to inform its assessment of the effective implementation of the international Conventions discussed in this report. It should be noted that most of the information received from Sri Lanka in this context concerned publicly available documents or statements of position by Sri Lanka which were already known to the Commission, and as such are referenced in this report. When new information was made available by the GOSL, it is also referenced in the report, as appropriate. Additional factual material gathered in this context is listed in Section C.3 of the evidentiary sources (see Annex 1) and referenced where appropriate in the findings. In addition, in its Notes Verbales the GOSL reiterated its view that Sri Lanka was effectively implementing the three conventions at issue.

12. During the conduct of the investigation and pending its conclusion, pursuant to Article 10(6) of the GSP Regulation, Sri Lanka has continued to benefit from GSP+ preferences.