ADOPTION OF MODERN TECHNOLOGICAL MECHANISMS AND
MEASURES TO MINIMIZE SECONDARY VICTIMIZATION PREVAILING
IN THE CRIMINAL JUSTICE SYSTEM OF SRI LANKA
WITH EMPHASIS ON THE COURT SYSTEM
Udara Karunatilaka*

I. INTRODUCTION
A. An Overview of the Criminal Justice System of Sri Lanka
The criminal justice system of Sri Lanka is based on English Common Law and the adversarial system.
The Sri Lankan Court system is established by the Constitution.1 The Supreme Court of Sri Lanka is theapex court of the country and is the final court of appeal. The Magistrate Court and the High Court/Provincial High Court are the courts of first instance, which exercise criminal jurisdiction. The Court ofAppeal of Sri Lanka is vested with the appellate, revisionary jurisdiction and of judicial review. It is the firstcourt of appeal in respect of the criminal matters tried in the High Court/Provincial High Court. On the otherhand, the Provincial High Court enjoys appellate and revisionary jurisdiction in respect of criminal matters
tried in the Magistrate Court, apart from the normal criminal jurisdiction in relation to graver crimes.
The Code of Criminal Procedure Act2 is the main procedural law in relation to all criminal matters, while
the Penal Code of Sri Lanka sets out all the Common Law Offences,3 their interpretations and punishments.
In addition, there are a number of other statutes which lay down specific offences in relation to various otherareas, inter alia, bribery, narcotics, money-laundering, terrorism and terrorist financing, computer crimes,torture, hate speech4 etc.
B. The Process Which the Victim Encounters
A victim of a crime has to invoke the system by lodging a complaint with the local police. If the victim
has been subjected to either violence or sexual attacks, he/she would be referred to a forensic medical
examiner apart from being treated at a hospital. If the perpetrator is unknown to the victim, he/she has toparticipate in an identification parade held by the magistrate.5 If the necessity arises, the victim will beobserved and taken into custody by the probation services. If the offence is either attempted murder or rape,the victim has to testify before the magistrate in an inquiry to ascertain whether it is a fit case to be triedin the High Court; thereafter, such victim has to testify at trial before a High Court in a case based on anindictment.6* State Counsel, Criminal Division, Attorney General's Department, Democratic Socialist Republic of Sri Lanka.
1
Chapter XV, The Constitution of the Democratic Socialist Republic adopted in 1978 - https://www.lawnet.gov.lk/.
2
Act No 15 of 1979 as amended.
3
https://www.lawnet.gov.lk/.
4
Ibid [3].
5S.124, The Code of Criminal Procedure Act No 15 of 1979.
6
Chapter XV, The Code of Criminal Procedure Act No 15 of 1979; Chapter XVIII, The Code of Criminal Procedure Act No
15 of 1979.

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II. CURRENT STATUS OF INFRASTRUCTURE/SYSTEM
A. Police Station
There are 432 police stations in the country.7 The victims of crime, particularly bodily crimes, have to go
to the local police station to lodge the complaint. However, there are instances where police officers visit avictim who would be admitted to a hospital following such violence.8 The ordinary set up of a local policestation is highly adversarial to a victim of a crime, especially to a female or child victim.
B. The Hospital
Health care in Sri Lanka is fully free, which is a huge relief for victims. In most of the hospitals there areunits of forensic examination with specialists. However, the attitudinal prejudices of the caregivers andconstant and repeated inquiries of the traumatic event have plagued the system. Further, there is a dearthof victim support services including psychological support in the early stages of the process.
C. The Courts
There were 33 High Courts/Provincial High Courts and 200 Magistrate’s Courts in Sri Lanka by the endof 2019.9 There is at least one High Court and 3-5 Magistrate’s Courts per administrative district.10 The
average number of cases pending in a High Court was 760.45 by the end of 2019, Colombo High Court being
top and having 3,674 cases.11 The annual average of new criminal institutions is 589.36, and the annual
average of disposals is 396.60.12 Cases of common violence, child abuse and narcotics are the predominantcrimes that prevail in the High Courts. The average number of cases pending in a Magistrate Court was
7,500 by the end of 2019, Colombo Magistrate’s Court being top and having 29,942 cases.13 The annual
average of new criminal institutions is 12,500 and annual average of disposals is 10,000.14 Non-grievous
violence, illicit liquor, road traffic violations and drug-related crimes being the most common. In a survey
done in 2017, it was found that it takes 10.5 years to conclude a trial in the High Court and another 7 years
to conclude the appeal. It takes 3-5 years for a trial in the Magistrate’s court to conclude.
D. The Building Facilities
The annual budgetary allocation [for 2022] for the Ministry of Justice is Rs 13.9 billion [$ 69.5 million]
which is 3.74 per cent of the total national expenditure.15 This lack of funding has been a major obstacle tothe advancement of the criminal justice system. The result is the court system is saddled with outdated
infrastructure and old systems.

7

https://www.police.lk/index.php/police-history.
S.122, The Code of Criminal Procedure Act No 15 of 1979.
9
Statistics-Reports and Data-Ministry of Justice – Sri Lanka-https://www.moj.gov.l.
10
There are 25 Administrative Districts and 9 Provinces in Sri Lanka.
11
Ibid [10].
12Ibid [10].
13
Ibid [10].
14
Ibid [10].
15
www.treasury.gov.lk › documents › budget.
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The layout of an ordinary courthouse is shown in picture 1.
Picture 1

A. Court House
1.
2.
3.
4.
4a.
5.
6.
7.
8.
9.
10.
11.
12.
13.

Judge’s ChamberState Prosecutor’s Chamber
Judges Bench
Interpreter of the Court
Stenographer
State Prosecutor’s Desk
Bar Table
State Witnesses
Public Officials
Witness’s StandAccused’s Dock
Lock Up for the Remanded Accused
Public Gallery
Court of the Office

B. Probation Office
C. Community Corrections Office
Following Pictures of several Court Houses across Sri Lanka,
Old Buildings and newly built Court Complexes.

Picture 2
Magistrate’s Court,
Panadura, [Old building][Western Province],

Picture 4
Magistrate’s Court, .
Ampara [Eastern Province] [Old building]

Picture 3
Magistrate’s Court, .
Kaduwela [Colombo Suburb], [Old building]

Picture 5
Magistrate’s Court, .
Ampara [Eastern Province] [Old building]73

RESOURCE MATERIAL SERIES No. 113

Picture 6
High Court, .
Ampara [Eastern Province] [Old building]

Picture 7
High Court, .
Kandy [Central Province] [Newly built complex]

Picture 8
High Court, Homagama [Colombo Suburb] .
[Newly built Court complex]

Picture 9
High Court, Homagama [Colombo Suburb] .
[Newly built Court complex]

Picture 10
Magistrate’s Court, Kandy [Central Province][Newly built Court Complex]

Picture 11
Magistrate’s Court, Kandy [Central Province][Newly built Court Complex]

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Picture 12
Magistrate’s Court, Homagama [Colombo Suburb][Newly built Court complex]
Since the courthouses, as depicted, are single buildings, they only house the structures shown in the layout. Thus, there are no separate waiting rooms for a victim to stay. There is hardly any space or facilities totake a matter in camera, and the judge has to oust the general public from the courthouse to take such
evidence of a victim. However, the lawyers and the court officers still remain inside, such victim would
anyway have to undergo the stigma again and again when the proceedings happen even in camera. Most of
the courthouses need urgent reconstruction at least to have basic amenities for the people who come tocourt, including the victims.
E. The Procedural Systems in Place
The criminal justice system of the country is still paper based and is not digitalized. Not even is there an
integrated system linking all the police stations in the country. When it comes to the courts of the country,
there is a lack of facilities for a victim who has to participate in an identification parade at the early stage ofthe process. Though the law provides for such identification from a hidden place,16 there is no such facility
anywhere in the country. The victim has to face inquiries of personal intimacies in relation to the crime byan acting magistrate [mostly a counsel who regularly appears in the same court] in front of possible suspects
and a number of outsiders who would stand in the parade. There is no facility for identification via video link
as there is no comprehensive law which governs the use of digital means in the procedure. When it comesto the pre-trial procedure of cases of rape or attempted murder, the victim has to tender preliminarytestimony. In trial before a High Court, the victim has to testify again and be subjected to cross-examination.
There are no shorthand-typing machines in courts, and the task is done by a stenographer who has to typethe proceedings which she has recorded manually.17 This process has become cumbersome and contributed
hugely to the inordinate delay. There is no procedure or facilities to video record the testimony in court
proceedings which resulted in the victim facing continues secondary victimization when the victim is recalled
to testify due to various reasons. Child victims, too, have to undergo the same distressful court procedure,
which is normally an adverse milieu. There is no witness support service or person who would guide andfamiliarize such a witness with the court and its procedure. Further, there are no set procedures or facilities
to obtain such evidence from a remote location. In addition, a victim faces a great difficulty in obtaining freelegal representation.
F. The Effects of Secondary Victimization and Its Effects on the Criminal Justice System
The effect of incessant secondary victimization is that the victims are extremely reluctant to participate
in the criminal justice system, which has led the people to resort to extra judicial methods like burning
vehicles after road traffic accidents. Due to the extreme delays of the proceedings, the victims have lostinterest in tendering testimony and, more often than not, do not want to testify in view of the fact that it
might jeopardize his/her present life. The reluctance on the part of victims of organized crimes has plagued
the system due to non-availability of an effective witness protection scheme, which resulted in the State’s16Ibid [5].
As shown in picture 10, still the proceedings are typed using old typewriters in most of Magistrate’s Courts across thecountry.
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failure to curb organized crimes.18

III. ATTEMPTS TO REFORM
Sri Lanka has made several attempts to address the issue of secondary victimization by introducing newlegislation. The law was amended to introduce video recording of a child victim’s statement to be used in thecourt proceedings.19 However, lack of facilities has made the provision almost obsolete. Further, the childvictim still has to undergo cross-examination by the accused’s counsel. Introduction of Assistance to andProtection of Victims and Witnesses Act No. 4 of 201520 has provided for the establishment of a National
Authority to provide for a witness protection scheme and financial assistance to victims.
However, still there is no effective mechanism even by the Authority to reach the majority of the victims.
A victim support service is not established even under the Act, which is a main setback. Sri Lanka hasrecognized the victims’ rights including the right to legal representation under the Act. However, there areno schemes put in place to effectively implement such rights. Legal provisions for compensation of the victim
have been introduced to the country with a focus on developing a system of restorative justice. However,
the archaic attitudes of the judges of the High Court and Magistrates, inter alia, that their courts are mainlyfor punitive purposes and not for restorative purposes and that for restoration, a victim has to initiate civil
litigation, have defeated the very purpose of such schemes of restorative justice.21

IV. THE SYSTEMS ADOPTED BY OTHER COUNTRIES
A. Australia
Australia has developed a comprehensive victim support system which is based on state legislation,
among other things, to minimize revictimization.22 Obtaining testimonies via video link, obtaining childvictim’s evidence from a remote place where the child is familiarized with the court proceedings, without
being subjected to adverse surroundings of the well of the court23 have been in existence. Development ofthe office of the Victim Liaison Officer and the office of the Sexual Assault Officer have clearly led to thestrengthening of victims. The duration of a trial before a Magistrate of Australia is 13 to 52 weeks, and same
duration would apply to the 80% of cases in Higher Courts.24
B. JapanFrom 2000, with the introduction of the Victims’ Statement of Opinion to the Japanese Code of Criminal
Procedure,25 following the Kobe Murder in 1997,26 Japan has started focusing more on victim participation in
the criminal justice system. The Basic Act on Crime Victims of 200527 has provided for a legal regime forthe new victim participatory scheme. Since the system is mainly based on examination of testimony withoutleading evidence with cross-examination, the criminal trials are concluded in 2.7 to 9.2 months.28 Secondary
victimization is minimized since the victim is not subjected to cross-examination.

18

Author’s experience of 15 years as the prosecutor in 20 districts including the capital city of the country.
S.163A, Evidence Ordinance of Sri Lanka.
20
https://www.lawnet.gov.lk/
21
Ibid [18].
22https://victimsupport.org.au
23
Author’s experience gathered during training programme conducted in Melbourne County Court-Complex; https://mypolice.qld.gov.au/news/2021/10/21/sexual-violence-liaison-officers-to-be-established-state-wide & https://police.act.gov.au/
sites/default/files/PDF/Victims-of-crime-booklet-September-2013.pdf
24https://www.aic.gov.au/sites/default/files/2020-05/rpp074.pdf
25
http://www.japaneselawtranslation.go.jp/law/detail/?id=3364&vm=02&re=02 & https://www.cairn.info/revue-   internationale-de-droit-penal-2011-1-page-245.htm
26
https://repository.uchastings.edu/cgi/viewcontent.cgi?article=2215&context=faculty_scholarship27
https://www.justice.gov.za/vc/docs/international/2005_JAPAN.pdf28
https://www.moj.go.jp/EN/hisho/kouhou/20200120enQandA.html
1976PARTICIPANTS’ PAPERSC. United Kingdom
The Victim support system in the United Kingdom is governed by the Victims Code.29 The National
Crime Agency30 provides many complex services to victims like Witness Care Officers, victim supporting
teams which would provide the required support and protection to the victims that in turn empowers him/
her to stand against injustice. Her Majesty’s Court and Tribunal Service [HMCTS–Digital Platform]31 hasbrought the court services closer to the public, and victims, too, have benefitted. Kinly Cloud Video Platform(CVP)32 has taken the trial proceedings to a new level from mere video linkage. Speaking to Witnesses atCourt guidance,33 The Citizens' Advice Court Based Witness Service,34 Independent Sexual Violence Advisors(ISVA)35 and Independent Domestic Violence Advisors (IDVA)36 are some of the other victim support services
available in the United Kingdom.

V. HOW TO APPLY THE SYSTEMS IN SRI LANKA
Development hitherto had happened without a role model in an ad hoc manner which resulted in creating
the same old structures without any changes. This is evident by the pictures No 7-12, which show the newly
built courthouses in Kandy and Homagama containing the same old structures akin to the rest of thecourthouses built 50-75 years ago. The dire economic situation of the country is a major challenge.
Lack of awareness among the policymakers as to the goals which need to be achieved and the means ofachieving them is another challenge. Hence, the development of a role model, based on the United Nations
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power37 is essential. The
infrastructure and the system development must be implemented after creating a role model. Introductionof new architectural designs for courthouses with designated infrastructure to reduce the encounters
between the victim and the perpetrator, with facilities to basic amenities and sanitation, with witness waiting
rooms and support staff, based on such role model, is important. Introducing comprehensive procedural
legislation for the use of digital and electronic methods in procedure is crucial as a start. Digitalization ofproceedings, obtaining evidence of victims from remote location via a video link has to be developed basedon such legal regime. Development of victim support services with victim support officers and victim liaison
officers is another essential step. Shifting from a punitive justice system to a restorative justice system wherea victim can obtain adequate compensation without a need to resort to civil litigation is another major goal
which will minimize secondary victimization. Orienting towards local and foreign grants, as well as technicaland advisory assistance, is critical since Sri Lanka lacks such knowledge and capital.
With such developments, the purpose of minimizing secondary victimization can be achieved since such
efforts would reduce the litigation time and the victim’s encounter with the rigours of the criminal justicesystem.

29

https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crime
https://nationalcrimeagency.gov.uk/
31
HM Courts & Tribunals Service -GOV.UK- https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service
32 https://www.kinly.com/solutions/digital-workplace/kinly-cloud, .
https://www.governmentcomputing.com/criminal-justice/news/hmcts-kinly-cloud-video-platform/
33
https://www.criminalbar.com/files/download.php?m=documents&f=160627063558- SpeakingtoWitnessesatCourtguidanceM
ar16.pdf
34
https://www.citizensadvice.org.uk/about-us/about-us1/citizens-advice-witness-service/about-the-citizens- advice-witness35
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/647112/The_Role_of_
the_Independent_Sexual_Violence_Adviser_-_Essential_Elements_September_2017_Final.pdf
36
https://saferfutures.org.uk/our-programmes/idva/
37
https://www.ohchr.org/en/professionalinterest/pages/victimsofcrimeandabuseofpower.aspx
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