BURMA: UN body rules imprisonment of two men "arbitrary"
(Hong Kong, November 24, 2011) The Asian Human Rights Commission today welcomed a finding from a United Nations body that the imprisonment of two men in Burma is arbitrary, and iterated calls for their immediate release.
In a five-page opinion adopted on August 30, the UN Working Group on Arbitrary Detention found that the imprisonment of Thagyi Maung Zeya and Sithu Zeya is in violation of articles 19 and 20 of the Universal Declaration of Human Rights.
The group requested the government to "take the necessary steps to remedy the situation" and said that "taking into account all the circumstances of the case, the adequate remedy would be to release of Mr. Thagyi Maung Zeya and Mr. Sithu Zeya and accord them an enforceable right to compensation".
The Working Group has forwarded its opinion to the government. Full text of the opinion follows, below.
Thagyi Maung Zeya and Sithu Zeya are a father and son who were arrested after a bombing in 2010. Although the men were initially accused of involvement over the bombing, later the police brought charges against them of having contact with antigovernment groups in Thailand.
The government confirmed in its communications with the Working Group that this was the reason for their imprisonment.
"It is apparent…that the two men were detained and convicted for peaceful exercise their rights to freedom of opinion and expression, and to freedom of peaceful association provided for in Articles 19 and 20 of the Universal Declaration of Human Rights," the group found.
The Asian Human Rights Commission has issued a number of appeals on the cases of the two detainees. See: http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-013-2011
The director of the Hong Kong-based regional group welcomed the opinion of the Working Group and again called for the men's release.
"At a time that the government of Burma is attempting to make good on its commitments to political reforms through the release of political detainees, it is under obligation to take this call from a UN human rights expert body very seriously," Wong Kai Shing said.
"The AHRC iterates its call for the release of these two men, as well as for the release of all persons detained in Burma on grounds of political and social activism, irrespective of the nature of the charges actually brought against them," Wong added.
"Indeed, the Working Group raises another very important issue for the release of unjustly detained persons in Burma that has not yet obtained any public discussion, and that is the question of appropriate legally enforceable compensation for what has oftentimes been years of illegal imprisonment," he commented further.
Wong also supported the UN group's call for Burma to join the International Covenant on Civil and Political Rights.
Presently, Burma is a party to only two human rights treaties, on the rights of women and children.
OPINION No. 25/2011 (REPUBLIC OF THE UNION OF MYANMAR)
Communication addressed to the Government on 23 February 2011
Concerning Mr. Thagyi Maung Zeya and Mr. Sithu Zeya
The State is not a Party to the International Covenant on Civil and Political Rights.
1. The Working Group on Arbitrary Detention was established by resolution1991/42 of the Commission on Human Rights. The mandate of the Working Group was clarified and extended by resolution 1997/50. The Human Rights Council assumed the mandate by its decision 2006/102. The mandate was extended for a further three-year period by resolution 15/18 adopted on 30 September 2010.
2. The Working Group regards deprivation of liberty as arbitrary in the following cases:
I. When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him) (Category I);
II. When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);
III. When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (Category III).
IV. When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (Category IV);
V. When the deprivation of liberty constitutes a violation of the international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; disability or other status, and which aims towards or can result in ignoring the equality of human rights (Category V).
Communication from the Source
3. The source informs that Mr. Thagyi Maung Zeya, 58 years old, is an artist, and Mr. Sithu Zeya, aged 20, son of Mr. Thagyi Maung Zeya, is a university student.
4. The source reports that on 15 April 2010, a series of explosions occurred at the annual water festival in Yangon. According to official numbers, 10 people were killed and 168 injured. At the time of the incident, Mr. Sithu Zeya was taking photographs and video of the festivities and when the blasts occurred he began taking shots of the dead and wounded. The source reports that security forces on the scene stopped Mr. Sithu Zeya at around 3:45 p.m. and took him into custody. Following interrogation, the police allegedly claimed that Mr. Sithu Zeya had intended to send the photographs to the exiled anti-government Democratic Voice of Burma media agency and that his father had also maintained contact with that agency. As a result, his father, Mr. Thagyi Maung Zeya, was detained and charged with the same offence.
5. Cases against Mr. Sithu Zeya were brought in the Yangon Eastern District Court and Mingalar Taung-nyunt Township Court (Case Nos. 466, 467/10, decided on 21 December 2010, Township Judge U Tin Htun Oo, Serial No. Ta/2165 presiding). Mr. Sithu was sentenced to five years of imprisonment on the grounds of violating section 13(1) of the Immigration (Temporary) Act of 1947 and three years of imprisonment for violating section 17(1)(2) of the Unlawful Associations Act of 1908. Similarly, in the pending case at Yangon Eastern District Court, Mr. Sithu Zeya has been charged with violating section 33(1)(a)(b) of the Electronic Transactions Law of 2004 which provides for a minimum sentence of 7 years and a maximum of 15 years in prison.
6. According to the source, although Mr. Sithu Zeya was arrested on 15 April 2010, the authorities did not open the case against him until 4 May 2010 and they failed to bring the case before a court until 14 June 2010. The source maintains that, in accordance with domestic law, the police were required to make a First Information Report and only thereafter could they arrest Mr. Sithu Zeya. The source argues that for 19 days Mr. Sithu Zeya was illegally detained. Reportedly, he was also detained at the Yangon Division Police Headquarters rather than at the township police station which had jurisdiction over the area where he had been arrested. Mr. Sithu Zeya was not charged in court within 30 days as prescribed by section 167 of the Criminal Procedure Code.
7. The source further reports that Mr. Sithu Zeya was allegedly tortured for four days while in detention and that a confession forcibly extracted from him was used to bring the charges against him and his father. The alleged acts of torture included being hit on the soles of the feet, forced to crouch and stand in stress positions for extended periods, being hanged upside down, and being denied food. The police allegedly threatened Mr. Sithu Zeya that if he did not confess, they would also arrest and charge his mother. It is reported that after approximately a month in detention, an immigration department official allegedly came to the prison and threatened Mr. Sithu Zeya with further acts of torture.
8. Regarding the detention of Mr. Thagyi Maung Zeya, the source reports that he was drugged during interrogation. Reportedly, as a result, he experienced strange physical sensations throughout 20 days in custody for interrogation, including a lack of hunger or drowsiness, infrequent urination, and a willingness to agree with everything that the police put to him. However, when he made the allegations in court, they were not put on the official record.
9. The source contends that the only reason justifying Mr. Thagyi Maung Zeya and Mr. Sithu Zeya’s detention is the fact that they were taking photographs. The source contends that there is no material evidence against Mr. Thagyi Maung Zeya and Mr. Sithu Zeya to convict them, and the police cases were exclusively based on confessions extracted through alleged use of torture and drugging. According to the source, the investigating police repeatedly admitted in court that they do not have evidence but that the facts reproachable to Mr. Thagyi Maung Zeya and Mr. Sithu Zeya emerged during investigation.
10. The source contends that, apart from the fact that charges brought against Mr. Thagyi Maung Zeya and Mr. Sithu Zeya were formulated on the basis of forcibly extracted confessions, para. 612(10) of the Courts Manual in Myanmar provides that, following a confession before the judge, the person should be sent to a separate remand section of the prison to await trial and sentencing. However, Mr. Sithu Zeya was sent back to the Yangon Police Headquarters for further interrogation and alleged acts of torture. The source also argues that the police case against Mr. Thagyi Maung Zeya and Mr. Sithu Zeya consisted of photocopied documents and incorrectly or incompletely filled out records, which the courts should have declined to accept as evidence. Although this argument was raised in court by Mr. Sithu Zeya’s lawyer, it was rejected on the basis that there was sufficient information in the required documentation.
11. In the light of the foregoing, the source submits that Mr. Thagyi Maung Zeya and Mr. Sithu Zeya’s deprivation of liberty are arbitrary on the grounds that the legal basis justifying their detention relies on confessions extracted by means of alleged acts of torture and drugging. Moreover, the source submits that the trials of Mr. Thagyi Maung Zeya and Mr. Sithu Zeya are in total or partial non-observance of domestic and international norms related to the right to a fair trial.
Response from the Government
12. In its reply of 4 April 2011, the Government stated that Mr. Sithu Zeya was detained for interrogation on 15 May 2010 when he was taking photographs of the bomb blasts event including taking the photographs of security forces.
13. After the interrogation, the officials have found that Mr. Sithu Zeya had illegally visited Mae Sot City, Thailand in October 2009 and underwent media trainings at Democratic Voice of Burma (DVB) media agency and went back to Myanmar illegally.
14. The officials also found that he had sent information relating to the domestic matters through e-mail to National Coalition Government of the Union of Burma (NCGUB) which has been announced by the government as unlawful and terrorist organization, DVB media and other exiled groups in March 2010. While sending the information he had exaggerated it in order to undermine public order and stability. He received financial support from the exiled anti-government groups and sent information to DVB media via his father Mr. Thagyi Maung Zeya.
15. Based on his confessions, his father Mr. Thagyi Maung Zeya was detained for interrogation on 16 March 2010. The officials have found that Mr. Thagyi Maung Zeya visited Mae Sot City illegally in September 2008, January, May, and September 2009 respectively and went back to Myanmar illegally. During the visits he met with the representatives from NCGUB, DVB media and other exiled groups and sent information which undermined the maintenance of public order and stability. He also received funds from the exiled anti-government groups.
16. The case against Mr. Sithu Zeya was brought by the Mingala Taungnyunt police station on 4 May 2010, after having found evidence of connections with unlawful organization [section 17(1) of the Unlawful Associations Act], committing offences such as illegal border crossings [section 13(1) of the Immigration Act (Emergency Provision Act)] and distributing information through e-mail which undermined the maintenance of public order [section 33(b) of the Electronic Transactions Law].
17. On the same day, the Bahan police station has brought case against Mr. Thagyi Maung Zeya also based on violation of the section 33(b) of the Electronic Transactions Law, section 13(1) of the Immigration Act (Emergency Provision Act) and section 17(1) and (2) of the Unlawful Associations Act. Mr. Thagyi Maung Zeya was charged with violating section 17 (1) and (2) of the Unlawful Associations Act on 14 June 2010; section 13(1) of the Immigration Act (Emergency Provision Act) and section 33(b) of the Electronic Transactions Law on 22 July 2010 in the Yangon Western District Court. He was sentenced to a total of 13 years imprisonment by the court.
18. Regarding the legal proceedings against Mr. Sithu Zeya, two cases of violating section 17(1) of the Unlawful Associations Act and section 13(1) of the Immigration Act (Emergency Provision Act) were brought in the Mingala Taungnyunt Township Court on 1 June 2010. A case relating to violation of the section 33(b) of the Electronic Transactions law was brought in the Yangon Eastern District Court on 9 August 2010. He was sentenced to 5 years imprisonment. The case relating to violation of the section 33(b) of the Electronic Transactions Law is still pending in the Yangon Eastern District Court.
19. The Government concludes that Mr. Sithu Zeya and Mr. Thagyi Maung Zeya were detained for violation of the existing laws rather than their activities relating to the sending of the news to DVB media.
20. On the day of the bomb blasts (15 March 2010), the police have detained Mr. Sithu Zeya for suspicious in the case. He was arrested for 24 hours (until 16 March 2010) without a warrant and it is lawful under Code of Criminal Procedure Act 54 (1) and 61. From 16 March 2010 to 14 May 2010, after obtaining remand from Mingala Taungnyunt Township Court, he was detained for questioning in total for 29 days relating to the offences under Code of Criminal Procedure Act 307/ 302/ 326/ 114, After having found violations of the above-mentioned provisions, the cases against him were brought in to court on 4 May 2010.
21. Under the Code of Criminal Procedure Act 167(2), the detention of criminal where the offence is punishable with more than 7 years, an accused person can be detained for 30 days after obtaining remand from the court. An accused person shall be brought to court within 30 days on the basis of one criminal offence. According to the reply, Mr. Sithu Zeya has committed several other criminal offences so that the officials have sought respective remands in order to investigate each case thoroughly. The Government concludes that, for that reason, it is not required to charge him in court within 30 days and the authorities have found that there is no illegal detention in the present case.
22. The Government also refutes the allegations of use of torture during the interrogation of Mr. Sithu Zeya. The Government maintains that he made the confessions voluntarily after realizing that the evidence was undeniable and repented his acts that he had done in violation of the existing laws.
23. The Government maintains that the officials have put forward his case to court in line with the existing procedures and rules of evidence.
24. Accordingly, the Government disagrees that the defendant was detained and charged unlawfully. The officials have taken legal actions against him for violating the existing domestic laws.
Comments from the Source
25. The source maintains that the court verdicts convicting the two accused were based solely on police testimonies and confessions obtained through the use of torture and duress. The accused Sithu Zeya retracted the confession that he alleged was obtained through the use of torture; however, the court ignored this retraction for the purposes of reaching a guilty verdict. Consequently, the convictions are unlawful and the periods of imprisonment ordered on the basis of these convictions are also invalid.
26. The source notes that the Government has not denied, and has indeed argued, that the imprisonment of the two detainees is justified under domestic law for alleged offences of having taken photographs and video footage of a bombing incident, and for having travelled to a neighbouring country to obtain training for the purposes of journalism work, having obtained financial and material support for the same, and having used the Internet to send information without approval of the Myanmar authorities. Neither of the accused was imprisoned for having any direct involvement in the bombing incident. The contents of the police and court records support this position. Although the obtaining of media training abroad and video recording of incidents in Myanmar may be disagreeable to the Government, the peaceful exercise of the right to freedom of expression is protected by international human rights law. Consequently, the offences for which the detainees have been imprisoned cannot be considered to constitute justification in terms of the mandate of the Working Group, irrespective of other factors.
27. In its reply, the Government confirms that the main reasons for detention and conviction of Mr. Thagyi Maung Zeya and Mr. Sithu Zeya were the sending information relating to the domestic matters through e-mail to opposition groups and media; exaggerating the information in order to undermine public order and stability; and receiving financial support from the exiled opposition groups.
28. The Working Group previously, in the cases concerning Myanmar, emphasised that sanctioning of any of such activities, can never stand the test against the rights and freedoms as contained in the Universal Declaration of Human Rights (see, for instance, Opinion No. 43/2008 (Myanmar), para. 23; Opinion No. 12/2008 (Myanmar), para. 12; Opinion No. 25/2000 (Myanmar), para. 12).
29. Indeed, as it was stressed in the Opinion No. 25/2000 (Myanmar), peaceful expression of opposition to any regime cannot give rise to arbitrary arrest. It is apparent both from the source’s communication and Government’s reply that the two men were detained and convicted for peaceful exercise their rights to freedom of opinion and expression, and to freedom of peaceful association provided for in Articles 19 and 20 of the Universal Declaration of Human Rights.
30. In light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mr. Thagyi Maung Zeya and Mr. Sithu Zeya has been arbitrary, being in contravention of Articles 19 and 20 of the Universal Declaration of Human Rights, and falls within category II of the categories applicable to the consideration of the cases submitted to the Working Group.
31. Consequent upon the Opinion rendered, the Working Group requests the Government to take the necessary steps to remedy the situation of Mr. Thagyi Maung Zeya and Mr. Sithu Zeya and bring it into conformity with the standards and principles set forth in the Universal Declaration of Human Rights.
32. The Working Group believes that, taking into account all the circumstances of the case, the adequate remedy would be to release of Mr. Thagyi Maung Zeya and Mr. Sithu Zeya and accord them an enforceable right to compensation.
33. The Working Group encourages the Government to consider the possibility to accede to the International Covenant on Civil and Political Rights.
Adopted on 30 August 2011