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BURMA: Appeal for release from jail of former army officer & two other men

February 7, 2012

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-018-2012

7 February 2012
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BURMA: Appeal for release from jail of former army officer & two other men

ISSUES: Illegal detention; rule of law; judicial system; torture
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AHRC WEBSITE: BURMA PAGE
http://www.humanrights.asia/countries/burma

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Dear friends,

As the Asian Human Rights Commission (AHRC) has noted in a recent update (UAU-004-2012), we are very happy to see the release in recent months of many people on whose behalf we have campaigned for a number of years. However, many other unjustly imprisoned persons remain in Burma's jails. As at this time people see the opportunity and prospects for release are better than in recent years, many are appealing for amnesty or for reviews of their cases. In this appeal we bring you the case of a former army officer and two other men imprisoned in 2010 on a confession extracted through use of torture.

CASE NARRATIVE:

The AHRC has obtained details of a case that the Supreme Court dismissed on appeal in 2010, of alleged torture and forced confession of a former army officer and two men associated with him. These men are all still in prison but in view of the recent releases are hoping to have their case reviewed.

In this case, a joint military-police-immigration team detained U Win Naing Kyaw, a former army major working as a businessman, as he came on a flight from Bangkok to Yangon on 29 July 2009. After accusing him of having on his laptop secret information and passing that information to news agencies based abroad, they held him in custody for 105 days before lodging charges against him.

When the officials lodged the charges, they based them on a confession from Win Kyaw Naing obtained after 42 days held in custody. According to Win Kyaw Naing, the confession was extracted from him through physical and psychological torture. Specifically, he was forced to go without sleep, was drugged, and interrogators also threatened the physical safety of his family members.

In the district court, the judge acknowledged that the confession was obtained after 42 days but said that did not make it inadmissible. The judge concluded that because the contents of the confession corresponded with other testimonies and evidence brought by the police, then it should be genuine; however, this is nonsensical reasoning, since if the police wrote a confession and forced the accused to sign it under duress, naturally its contents would correspond with the version of events that they had prepared for the case.

Many other flaws in the case, the district court and Supreme Court both also ignored, despite the defence lawyers bringing them to the courts' attention. These included that a charge of foreign exchange violations (for bringing into Myanmar over USD8400 and other currencies) was invalid, since the accused had not even reached the counter where he might declare this currency; that charges under another law were invalid because none of the alleged offences come within the parameters of this law; that the alleged contents of the documents found by the police on the accused did not in fact constitute official secrets; and, that the police submitted no evidence to prove that the said information was sent through email to news agencies abroad, as the officials alleged.

The other point that the lawyers raised was that three of the charges related to the same alleged single offence, of having sent state secrets abroad, and therefore the officials should only have lodged a single charge for this offence, not multiple charges.

Not withstanding, the accused were all convicted and their appeals in the Supreme Court failed. Win Naing Kyaw and another accused each received death penalties on top of lengthy jail terms. Each of the men received over 15 years in prison, which they are currently serving. However, as other persons with much longer sentences have been released in recent times, they also hope to have their cases reconsidered.

Further details of the case are in the sample letter below, as usual.

BACKGROUND INFORMATION:

The AHRC has recently issued an update with details of persons from appeals issued in the last few years who were released in December 2011 and January 2012 under prisoner amnesties: AHRC-UAU-004-2012.

For more commentary on these and other human rights issues in Burma, visit the Burma page on the new AHRC website: http://www.humanrights.asia/countries/burma

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

REQUESTED ACTION:

Please write to the persons listed below to call for the release of U Win Naing Kyaw and the two other accused men. Please note that for the purposes of the letter Burma is referred to by its official name of Myanmar, and Rangoon as Yangon.

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

SAMPLE LETTER:

Dear ___________,

MYANMAR: Call for release from prison of former army officer and two other men

Names of detainees: U Win Naing Kyaw, businessman, former army major; Thura Kyaw (alias Aung Aung); Gopyan Sen (alias Azin)

Prosecuting officials:
1. Captain Kyaw Zin Latt (army), complainant in Case Nos. 132, 134, 135/2009
2. Police Captain Than Soe, complainant in Case No. 133/2009

Cases lodged against detainees: Cases brought in the Yangon Western District Court, Case Nos. 132-135/2009, verdicts issued on 7 January 2010; all cases appealed to the Supreme Court and appeals dismissed [Criminal Revision Nos. 325(b), 371(b), 414(b), 415(b)/2010, Criminal Appeal Nos. 9-10/2010, all dismissed 9 December 2010]:
1. Foreign Exchange Regulations Act, 1947, section 24(1), sentence of three years (Win Naing Kyaw)
2. Emergency Provisions, 1950, section 3, death sentence, reduced to life imprisonment under 13 January 2012 amnesty order (Win Naing Kyaw and Thura Kyaw)
3. Electronic Transactions Law, 2004, section 33(1)(a)(b), sentence of 15 years (all three accused)
4. Burma Official Secrets Act, 1923, section 6(3), sentence of two years (Win Naing Kyaw)

In light of the recent releases of prisoners from Myanmar's jails, which have attracted international interest and support, I am writing to ask you to review the case of three men currently in prison whose appeals against their imprisonment to the Supreme Court have failed.

According to the information I have received, a joint military-police-immigration team detained U Win Naing Kyaw, a former army major working as a businessman, as he came on a flight from Bangkok to Yangon at around 1:20pm on 29 July 2009. After accusing him of having on his laptop secret information and passing that information to news agencies based abroad, they held him in custody for 105 days before lodging charges against him at the Mingalardon Police Station.

When the officials lodged the charges, they based them on a confession from Win Kyaw Naing obtained after 42 days held in custody. According to Win Kyaw Naing, the confession was extracted from him through physical and psychological torture. Specifically, he was forced to go without sleep, was drugged, and interrogators also threatened the physical safety of his family members.

In the district court, the judge acknowledged that the confession was obtained after 42 days but said that did not make it inadmissible. The judge concluded that because the contents of the confession corresponded with other testimonies and evidence brought by the police, then it should be genuine; however, this is nonsensical reasoning, since if the police wrote a confession and forced the accused to sign it under duress, naturally its contents would correspond with the version of events that they had prepared for the case.

Many other flaws in the case, the district court and Supreme Court both also ignored, despite the defence lawyers bringing them to the courts' attention. These included that the charge of foreign exchange violations (for bringing into Myanmar over USD8400 and other currencies) was invalid, since the accused had not even reached the counter where he might declare this currency; that the charges under the Emergency Provisions are invalid because none of the alleged offences come within the parameters of this law; that the alleged contents of the documents found by the police on the accused did not in fact constitute official secrets; and, that the police submitted no evidence to prove that the said information was sent through email to news agencies abroad, as the officials alleged.

Finally, the defence lawyers pointed out that the second, third and fourth charges all overlap and concern the same alleged offence of sending official secrets to news agencies abroad; constantly, the multiple charges for the same offence constitute double jeopardy, and are unlawful.

On the basis of the above information, I am deeply concerned that these men have not obtained fair trials and have been imprisoned on the basis of human rights violations, rather than on the basis of a due legal process. I urge that their cases be reviewed and that they be released at the earliest possible moment.

I am particularly concerned by the imposition of the death sentence on two of the accused. Although I appreciate that in recent years death sentences have not been carried out in Myanmar, these sentences ought under no circumstances have to be imposed and then commuted. I urge the government of Myanmar to instruct courts to cease issuing any punishment longer than life imprisonment.

I also urge that other persons still held in custody in cases where their convictions rest on confessions obtained through use of torture likewise have their cases opened and reviewed at the earliest possible time.

Lastly, I urge the government of Myanmar to allow the International Committee of the Red Cross access to prisons in its country in accordance with its globally recognized mandate without any further delay. At this time that the government is releasing persons from custody who should not have been imprisoned in the first place, it is especially important that the ICRC have access, in order to ascertain the circumstances of those persons remaining in prisons, like the three men in this case.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. U Hla Min
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. U Thein Sein
President of Myanmar
President Office
Office No.18
Naypyitaw
MYANMAR

3. U Tun Tun Oo
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. Dr. Tun Shin
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. U Kyaw Kyaw Htun
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

6. Thura U Aung Ko
Chairman
Pyithu Hluttaw Judicial and Legislative Committee
Pythu Hluttaw Office
Naypyitaw
MYANMAR

7. U Aung Nyein
Chairman
Pyithu Hluttaw Judicial and Legislative Committee
Committee for Public Complaints and Appeals
Office of the Amyotha Hluttaw
Naypyitaw
MYANMAR

8. U Win Mra
Chairman
Myanmar National Human Rights Commission
27 Pyay Road
Hlaing Township
Yangon
MYANMAR
Tel: +95-1-659668
Fax: +95-1-659668

9. Ko Ko Hlaing
Chief Political Advisor
Office of the President
Naypyitaw
MYANMAR
Tel-+951532501ext-605
Fax-+951 532500
Thank you.

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

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-018-2012
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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.