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BURMA: Nine people imprisoned on confessions obtained from torture

February 11, 2010

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-011-2010

11 February 2010
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BURMA: Nine people imprisoned on confessions obtained from torture

ISSUES: Rule of law; judicial system; illegal detention; freedom of association; torture
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NEW REPORT NEW REPORT NEW REPORT
STATE OF HUMAN RIGHTS IN BURMA 2009
http://material.ahrchk.net/hrreport/2009/

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Dear friends,

The Asian Human Rights Commission (AHRC) has already issued an open letter on the case of Dr. Wint Thu and eight other people who in December 2009 were given long jail terms for alleged offences against the state in Burma after they were tortured into giving confessions that the police used in court. In this appeal we bring you the full details of the cases that were fabricated against them.

CASE DETAILS:

As we wrote in the open letter to the UN Special Rapporteur on torture, Dr. Wint Thu and eight others were arrested in September 2009 over alleged plans to commemorate the 2007 monk-led uprising and other activities deemed 'anti-government': for instance, that they had distributed CDs showing footage of the protests and had had contact with--and received money from--unlawful groups abroad. They were illegally detained until perfunctory and unlawful trials were held against them in December, when confessions extracted during torture were used against them in court. Details of the torture are in the sample letter below.

The trials were themselves held contrary to law, inside a special room of a prison in Mandalay Division. There was no public access and the accused were only able to have a defence lawyer appear for them when they gave their own testimonies, not when the prosecutor presented his arguments. This prevented the lawyer from cross-examining the police and other witnesses for the prosecution: in the past, defence lawyers have quickly shown all the embarrassing errors and illegalities in cases with foregone conclusions like these.

Each one of the accused denied the confessions and testified that they were innocent, but the judge bizarrely reversed the burden of proof--which requires that the prosecution prove the case--and said that because they didn't have evidence that they were innocent then they must be guilty. The confessions were also used illegally, since they were obtained during police interrogation and should not have been used in evidence; but without the confessions the police had no basis for any of the charges.

The sentences are very lengthy, from 11 to 71 years, because although the offences should have been combined into two or three charges, the police separated them into multiple cases and the judge gave maximum terms. After the sentences, as an additional form of punishment that is common for prisoners of conscience in Burma, all accused were transferred to remote prisons, separate from one another and far from their families and friends, on whom prisoners depend to bring food and medicine and give other types of support that are needed to survive in Burma's jails.

Details of charges and officials involved are provided in the sample letter below, as usual.

BACKGROUND INFORMATION:

The AHRC has in recent times issued a number of statements and appeals on the use of torture in Burma, as well as the open letter on this case. Please see further: AHRC-STM-220-2009; AHRC-STM-199-2009; AHRC-UAC-004-2010; AHRC-UAC-137-2009; AHRC-UAC-110-2009; AHRC-UAU-019-2009

All urgent appeals on Burma can be accessed by going to the appeals homepage and typing 'Burma' or 'Myanmar' into the search box: http://www.ahrchk.net/ua/. See also articles and special reports on the article 2 website: http://www.article2.org/search.php -- again search for Burma, and see the 2009 annual report on Burma: http://material.ahrchk.net/hrreport/2009/.

The AHRC Burmese-language blog,Pyithu Hittaing, is updated constantly for Burmese-language readers, and covers the contents of urgent appeal cases, related news, and special analysis pieces.

SUGGESTED ACTION:

Please write to the persons listed below to call for the immediate release of Dr. Wint Thu and these other eight accused persons. Please note that for the purposes of the letter Burma is referred to by its official name, Myanmar.

Please be informed that the AHRC is writing separate letters to the UN Special Rapporteurs on Myanmar, torture, and the independence of judges and lawyers, the UN Working Group on Arbitrary Detention, and the regional human rights office for Southeast Asia calling for interventions into this case.

SAMPLE LETTER:

Dear ___________,

MYANMAR: Nine persons imprisoned on confessions obtained through torture

Details of accused, cases, sentences & prisons where reported held:
1. Dr. Wint Thu, resident of Myinchan, Mandalay; Case Nos. 211, 212 & 213/09; 28 years, Bhamo Prison, Kachin State
2. Ko Myo Han, resident of Mandalay; Case Nos. 192, 196, 197, 211, 212 & 213/09; 51 years, Taunggyi Prison, Shan State
3. Ko Hla Myo Kyaw, resident of Mandalay; Case No. 211/09; 14 years, Shwebo Prison, Sagaing Division
4. Soe Yaza Phyu, resident of Mandalay; Case No. 211/09; 14 years, Kale Prison, Sagaing Division
5. Wei Hpyoe (arrested in Yangon, transferred to Mandalay); Case No. 213/09; 11 years, Kale Prison, Sagaing Division
6. Ko Ko Naing, resident of Mandalay; Case No. 192/09; 28 years, Monywa Prison, Sagaing Division
7. U Nandawuntha, a monk, civilian name Naing Oo, residing at Sunlungu Monastery, Myinchan, Mandalay; Case Nos. 192, 196, 197, 211, 212 & 213/09; 71 years, Lashio Prison, Shan State
8. Than Htaik Aung, resident of Mandalay; Case Nos. 211 & 213/09; 38 years, Taunggoo Prison, Bago Division
9. Kyi Soe, resident of Mandalay; Case Nos. 196, 197, 211 & 213/09; 22 years, Myitchina Prison, Kachin State

Investigating Special Branch police:
1. Police Major San Pe (Case No. 197/09)
2. Police Major Zaw Lin (Case Nos. 196, 211 & 212/09)
3. Police Captain Maung Maung Lwin (Case Nos. 192 & 213/09)
4. Police Major Thet Wei
5. Sub-Inspector Hsan Lin
6. Sub-Inspector Hkun Min Thein
7. Sub-Inspector Kyaw Htoo Naing
8. Sub-Inspector Aung Thwin
9. Sub-Inspector Win Myint Htun
10. Sub-Inspector Kyaw Myo Hlaing
11. Sub-Inspector Soe Aung
12. Sub-Inspector Win Myint

Charges & trials: Mandalay District Court, Judge Moe Myint presiding, trial conducted inside Ohboe Prison, Mandalay; sentenced on 31 December 2009 under various laws including --
1. Unlawful Associations Act 1908, section 17(1) (Criminal Case Nos. 192 & 213/09)
2. Television and Video Law 1996, section 32(b) (Criminal Case No. 196/09)
3. Penal Code, section 505(b) (public mischief) (Criminal Case No. 197/09)
4. Printers and Publishers Registration Act 1961, sections 17 & 20 (Criminal Case No. 211/09)
5. Organizations Law 1988, sections 6 & 7 (Criminal Case No. 212/09)

I am shocked to hear that at the end of 2009, eight men and a monk in Myanmar were sentenced to extremely long jail terms for alleged offences against the state on the basis of confessions that were obtained through the use of torture.

According to the information that I have received, Dr. Wint Thu and eight others were arrested in September 2009 over alleged plans to commemorate the 2007 monk-led uprising and other activities deemed 'anti-government', including that they had distributed CDs showing footage of the protests, and had had contact with--and received money from--unlawful groups abroad. They were illegally detained until perfunctory and unlawful trials were held against them in December, when confessions extracted from them during torture were used against them in court.

Regarding the torture, I am informed that officers including Sub-inspectors Aung Thwin, Hsan Lin and Win Myint Htun allegedly forced Than Htaik Aung to stand with toothpicks inserted into his heels, to drink putrid drain water, and allegedly also came into his cell and urinated. Officers including Police Captain Zaw Lin and Sub-inspectors Thet Wei, Kyaw Myo Hlaing and Kyaw Htoo Naing allegedly forced U Nandawuntha to stand throughout two days of interrogation and then forced him to kneel on sharp gravel while an officer jumped up and down on his calves. If he didn’t give him the answers that they wanted then they hit him on the head with a wooden rod. Dr. Wint Thu and Ko Myo Han were also both allegedly forced to stand throughout interrogations of two and four nights respectively.

Four officers at the Aungthapyay interrogation facility in Yangon Division, including Sub-inspectors Win Myint and Soe Aung allegedly dripped candle wax onto the genitalia of co-accused Wei Phyoe, splashed him with boiling water and tied him to metal bars then assaulted him with bamboo rods. They also applied a stinging substance to his open wounds.

The trials were held contrary to the Judiciary Law 2000, which states that hearings should be conducted in open courts, but these were conducted inside a special room of the Ohboe Prison in Mandalay. The accused were only able to have a defence lawyer appear for them when they gave their own testimonies, not when the prosecutor presented his arguments. This prevented the lawyer from cross-examining the police and other witnesses for the prosecution and showing up the multiple illegalities and errors in the case against his clients.

Each one of the accused denied the confessions and testified that they were innocent, but the judge unlawfully reversed the burden of proof and said that because they didn't have evidence that they were innocent then they must be guilty. The confessions were also used illegally, because they were obtained during police interrogation and were used contrary to the terms of the Evidence Act.

I am told that the police had no firm evidence on which to lay the charges, which were patently flawed. For instance, the allegation that they had had contact with an unlawful association abroad is baseless because the government at no time declared as unlawful the group in question, which is a prerequisite for prosecution under this offence.

Furthermore, the allegations relate to the same incidents and should have been compounded under section 234(1) of the Criminal Procedure Code, which allows for up to three like offences within a year to be tried as a single case, but the police separated them into multiple cases and the judge gave maximum terms, hence the excessive sentences.

According to reports, as an additional form of punishment all accused have been transferred to remote prisons, separate from one another and far from their families and friends. This will affect not only their mental health but physical health as well, because prisoners in Myanmar rely on people from outside bringing food and medicine in order to survive the appalling conditions inside the country's jails.

In light of the above, I urge that these nine persons be released without delay. I note that the UN Special Rapporteur on human rights in Myanmar has recently called for all prisoners of conscience in Myanmar to be released in advance of the general election scheduled for later in the year, lest the election be seen as nothing more than a farce, and I share his concern and join in his call.

I also ask that the Ministry for Home Affairs and Myanmar Police Force conduct inquiries in this case to investigate the allegations of torture by the abovementioned Special Branch personnel so that criminal charges can be brought against them. In this respect, I note that Myanmar does not have a law to prohibit torture and has not joined the UN Convention against Torture and I urge that it does so.

Finally, I take this opportunity to remind the Government of Myanmar of the need to allow the International Committee of the Red Cross access to places of detention, in accordance with its globally recognized mandate, without any further delay.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Maj-Gen. Maung Oo
Minister for Home Affairs
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +95 67 412 439

2. Lt-Gen. Thein Sein
Prime Minister
c/o Ministry of Defence
Naypyitaw
MYANMAR
Tel: + 95 1 372 681
Fax: + 95 1 652 624

3. U Aung Toe
Chief Justice
Office of the Supreme Court
Office No. 24
Naypyitaw
MYANMAR
Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145
Fax: + 95 67 404 059

4. U Aye Maung
Attorney General
Office of the Attorney General
Office No. 25
Naypyitaw
MYANMAR
Tel: +95 67 404 088/ 090/ 092/ 094/ 097
Fax: +95 67 404 146/ 106

5. Brig-Gen. Khin Yi
Director General
Myanmar Police Force
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +951 549 663 / 549 208

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Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC) (ua@ahrchk.org)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-011-2010
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.