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BURMA: Young woman illegally detained and denied bail after September protests

February 2, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-022-2008

2 February 2008
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BURMA: Young woman illegally detained and denied bail after September protests

ISSUES: Rule of law; rights to liberty and security; police; military government; judicial system; illegal detention; prison conditions
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article 2 Special Report
BURMA, POLITICAL PSYCHOSIS & LEGAL DEMENTIA
www.article2.org

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Dear friends,

The Asian Human Rights Commission (AHRC) has been documenting cases of illegal arrest, detention and prosecution since the nationwide protests in Burma last September. In this appeal we give the details of the case of one woman who was abducted and held at a special military camp and later released but again rearrested and charged. After she was given bail set at a higher amount than the legal maximum, the judge retracted the bail and she has been held in prison since. Your strong support is needed to see her released.

ILLEGAL DETENTION & FABRICATING OF CASE

A group of men in plain clothes, apparently members of a government gang and a government-organised mass group, allegedly stopped Khin Sanda Win, a 23-year-old university student, in Rangoon on the morning of 29 September 2007 during the military-led crackdown on protestors. They searched her and although she only had her ID cards, a small amount of money and some personal items, they tied her hands behind her back and took her to the town hall.

At the town hall, she was put together with ten men who were unknown to her and then they were each photographed with various weapons, including knives, slingshots and pellets. Then they were allegedly forced to sign confessions that the weapons had been found in their bags. When Khin Sanda Win refused to sign, one of the men in plain clothes hit her on the head with a bamboo rod.

That night, Khin Sanda Win was sent to a special interrogation centre and she was kept there without charge, warrant or otherwise until October 7.

On October 7, she was transferred to the central prison and held there, again without charge, warrant or any other legal order until October 25.

On October 25, Khin Sanda Win was sent to a local council office where in the presence of the council chairman and her parents she was told to sign a pledge that she would not take part in any anti-state activities, after which she was released.

REARREST, CHARGE & DETENTION

Although it seemed like Khin Sanda Win's ordeal was over, it was not. On November 1 two police officers came to her house and informed her that she would be charged with having illegal arms, although the "arms" they claimed to have found were a slingshot and some pellets, which do not violate the law.

But when Khin Sanda Win went to court the next day, the charge that the court put against her was not as the police had indicated but instead acting "to endanger human life or the personal safety of others". A police officer who testified at the trial admitted under cross-examination that the charge had been changed.

This is a charge for which the accused can get bail. But when her lawyer applied, the judge set bail at five million kyat (USD 4000) from two separate bailors. In fact, this amount is far more than the amount that they judge could legally set, which is three million kyat (USD 2400) from a single bailor.

Then, on November 12 the judge, without any request from the police, unilaterally revoked the bail on the absurd grounds of Khin Sanda Win being a threat to security forces personnel because the charge against her relates to the "disturbances" of September.

Quite apart from the fact that a female university student is in no position to threaten police and army officials, Khin Sanda Win suffers from migraines caused by twice being in vehicle accidents, and has had to obtain medical treatment for her condition. This also should in itself have been a sufficient reason for her to have bail.

Khin Sanda Win's lawyer unsuccessfully appealed at the subdivisional and divisional courts to have her released on bail. On February 5 it will go to the Supreme Court. Meanwhile, she has been held in the central prison up to the present day, reportedly in solitary confinement.

ADDITIONAL INFORMATION:

The AHRC followed and documented the protests in Burma of August and September 2007 very closely and set up a webpage with links to statements, appeals and media on the historic events: http://campaigns.ahrchk.net/burmaprotests/

Since then, it has issued a number of appeals on cases arising from the protests, including: UP-140-2007; UP-136-2007; and, UP-132-2007. It has obtained details on numerous other cases and will issue further appeals and updates in the coming days.

In December the AHRC's sister organisation issued a comprehensive report on Burma: "Burma, political psychosis and legal dementia". The report contains a lengthy section on the protests.

For further general information on Burma see also the 2007 AHRC Human Rights Report chapter on Burma, and visit the AHRC Burma homepage: http://burma.ahrchk.net.

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SUGGESTED ACTION:

Please write to the persons listed below to call for Khin Sanda Win to be released from prison without delay and for a thorough review of the case against her. Please note that for the purpose of the letter, the country should be referred to by its official title of Myanmar, rather than Burma, and Rangoon, Yangon.?

Please be informed that the AHRC is writing a separate letter to the UN Special Rapporteurs on Myanmar, independence of judges and lawyers, and on violence against women, as well as the UN Working Group on arbitrary detention, calling for intervention in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear ___________,

MYANMAR: Young woman illegally detained awaiting trial in fabricated case

Details of victim: Khin Sanda Win, 23, 2nd year philosophy major, Yangon Eastern University
Date and place of incident: Taken into custody on 29 September 2007, outside the Pansodan Department Store, Kyauktada Township, Yangon; sent to Yangon Town Hall
Alleged perpetrators: Persons in civilian clothes, apparently Swan-arshin and Union Solidarity and Development Association members attached to the Yangon Town Hall
Held at: Kyaikkasan Interrogation Camp, 29 September ?7 October 2007; Insein Prison, 7 ?25 October 2007, and 12 November 2007 ?present
Charge and trial: Rearrested by Kyauktada Township Police Station personnel on 1 November 2007; charges lodged by the Kyauktada station chief, Police Superintendent Soe Naing, Police No. La/147569; initially charged under section 19(e) of the Arms Act, changed to section 336/511 of the Penal Code on 2 November 2007; Kyauktada Township Court Felony No. 525/2007 (Assistant Judge U Thaung Lwin [First Class] presiding), Western Yangon District Court Revision of Criminal Case No. 323/2007 (Deputy Judge U Kyaw Swe presiding), Yangon Divisional Court Criminal Case No. 1024/2007

I am writing to express my concern at the case of Khin Sanda Win, a 21-year-old university student who is being tried for endangering human life, in connection with the protests in Myanmar of last September 2007.

According to Khin Sanda Win, a group of men in plain clothes stopped her and searched her bag at 10am on 29 September 2007. Although they did not find anything, they allegedly tied her hands behind her back and took her to the Yangon Town Hall, where they put her together with ten unknown men and photographed each along with various weapons, including knives, slingshots and pellets. Then they were allegedly forced to sign confessions that the weapons had been found in their bags. When Khin Sanda Win refused to sign, one of the men in plain clothes allegedly hit her on the head with a bamboo rod.

Khin Sanda Win was sent that night to the Kyaikkasan Interrogation Camp and she was kept there without charge, warrant or otherwise until October 7 when she was transferred to Insein Prison and held there, again without charge, warrant or any other legal orders until October 25. On that day she was sent to the Hlaing Township Peace and Development Council office where in the presence of the council chairman and her parents she was told to sign a pledge that she would not take part in any anti-state activities, after which she was released.

However, on November 1 two police officers from Kyauktada Township Police Station came to her house and informed her that she would be charged with having illegal arms in her possession as per section 19(e) of the Arms Act, although the "arms" they claimed to have found were a slingshot and some pellets, which are not listed under the act.

Instead, when Khin Sanda Win went to court the next day, the charge put against her was acting "to endanger human life or the personal safety of others" under section 336/511 of the Penal Code. A police officer who testified at the trial admitted under cross-examination that the charge had been changed because a slingshot is not an offensive weapon under the Arms Act.

Section 336 is a bailable offence, but Asst. Judge U Thaung Lwin set bail at five million kyat (USD 4000) from two separate bailors. In fact, this amount is far more than the amount that a township judge can legally set in a felony, which is three million kyat (USD 2400) from a single bailor.

Then, on November 12 the judge, without any recommendation or urging from the police, unilaterally revoked the bail on the grounds that Khin Sanda Win is a threat to security forces personnel because the charge against her relates to the "disturbances" of September. Her lawyer has so far applied unsuccessfully for a review of the decision at the Western Yangon District Court and Yangon Divisional Court. Meanwhile, his client has been held in Insein Prison, reportedly in solitary confinement.

The following are just a few of the glaring violations of criminal law, criminal procedure and human rights in this case:

1. The persons who took Khin Sanda Win into custody did not indicate at any time that they were state officials and there were no grounds for arrest by a private citizen as provided by section 59 of the Criminal Procedure Code (CrPC).

2. The persons searched her in violation of section 52 of the CrPC that the search of a woman should be conducted by another woman, and also tied her hands in violation of section 50 that no more restraint than necessary should be applied to prevent escape.

3. While in custody at the town hall, Khin Sanda Win was allegedly coerced to sign a fake confession and was assaulted.

4. Khin Sanda Win was first held without charge for total of 26 days, in violation of CrPC sections 167-9, which limit detention without charge to 24 hours, and she was denied access to a lawyer and her family. In order to be released she had to sign a document which has no legal authority.

5. Assistant Judge U Thaung Lwin exceeded the maximum amount at which he could set bail in the first instance and then without justification withdrew the bail order altogether.

6. Khin Sanda Win has reportedly been held in solitary confinement since she was taken back into custody on November 12, for which there can be no justification.

In view of these and other acts and omissions I call for immediate action on this case. I urge that Khin Sanda Win, a young, female university student who suffers from migraines as a result of being in vehicle accidents (and for which she has been treated in hospital) be given the utmost consideration and be released from imprisonment without further ado. I also call for a thorough review of the circumstances under which she was investigated and brought before the court, in accordance with the Judiciary Law 2000 and Attorney General Law 2001 in order that the apparently fabricated case against her is dropped and action might be taken against the alleged perpetrators of these abuses.

The Government of Myanmar is well aware of the extent of adverse attention that it has received internationally as a result of its handling of the protests of 2007. It should also be aware that it does itself no service by continuing to prosecute and pursue innocent persons like Khin Sanda Win, but should on the other hand demonstrate a commitment to a peaceful and lawful society of the sort it asserts that it wishes to establish by seeing that she and all other such persons are released without delay and not subjected to further harassment.

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: +951 549 663 / 549 208

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

6. Mr. Patrick Vial
Head of Delegation
ICRC
No. 2 (C) - 5 Dr. Ba Han Lane
Kaba Aye Pagoda Road, 8th Mile
Mayangone Township
Yangon
MYANMAR
Tel: +951 662 613 / 664 524
Fax: +951 650 117
E-mail: yangon.yan@icrc.org

7. Mr. Shariq Bin Raza
Representative
UN Office on Drugs and Crime
11A Malikha Road
Ward 7, Mayangone Township
Yangon
MYANMAR
Tel: +951 666 903/ 660 556/ 660 538/ 660 398/ 664 539
Fax: +951 651 334
E-mail: fo.myanmar@unodc.org, shariq.raza@unodc.org, camila.vega@unodc.org

Thank you.

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

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-022-2008
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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.