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BURMA: Court sentences 11 innocent people to lengthy prison terms

July 3, 2012

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-023-2012

3 July 2011

[AHRC-UAC-145-2011: BURMA: 14 accused over bombing in fabricated case]
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BURMA: Court sentences 11 innocent people to lengthy prison terms

ISSUES: Arbitrary detention; enforced disappearances; fair trial; rule of law; judicial system
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AHRC WEBSITE: BURMA PAGE
http://www.humanrights.asia/countries/burma


Dear friends,

The Asian Human Rights Commission (AHRC) has received information regarding the passing down of long jail sentences on 11 people who were falsely accused in connection with a bombing in Pegu town during 2010. The innocent persons were brought to a special interrogation centre where they were tortured to confess and charged under various criminal cases for which they have now been sentenced in 23 December 2011 at the Insein prison closed courtroom. Additionally, the cases against the accused are completely confused, and full of fabrications and lacking in hard evidence. In this appeal, the AHRC draws your attention to the fact that the judiciary system in Burma has failed to conduct a fair trial even in a period of transition.

UPDATED INFORMATION:

In the previous urgent appeal (AHRC-UAC-145-2011) the AHRC express its concern over the case of the 14 accused, of whom 11 were in custody over the bomb explosion in Pegu, northeast of Rangoon in September 2011. The police opened a case against them four months later when forced confessions were obtained from them and they were charged with fabricated cases. It is quite likely that during this time all of the accused were tortured.

Also, the material evidence linking the accused to the bombing, are listed along with omission of dates and the ink color of the handwriting is different in remarking each of the items. Also, it has been proved that that the police gave this material to the military intelligence. However, no material has been brought to court nor has any army officer been called to testify to prove that such material actually exists; only some photographs of the purported evidence were shown to the court as evidence against the accused. The three major charges are those of Unlawful Association Law, the Explosive substance Act and the Immigration Law and have sentences of imprisonment of a maximum of 10 years to a minimum of 2 years. Though, all the accused were given sentences under each of the two charged. Not all charges apply to all accused in fact, on the records, the policies have all been mixed together.

On 23 December 2011, the accused, Htun Oo received the longest jail term and was charged with having contact with unlawful groups and being in possession of containing explosive substances, two punishments for both sentences combined in total 13 years of imprisonment. The other five victims, Win Myint, Hanminthar, Anthony, Saw William, were sentenced under The Explosive substance Act section 4 and The Unlawful Association Law 17(1) and received a total 12 years detention. The rest of them, Saw Naing Win, Myint Kyaing, Saw Francis, Zarni Oo, Aye Aye Nwei were charged with the Unlawful Association and received three years of imprisonment and The Immigration Law (Emergency) for two years of imprisonment making a total of five years in total.

The last persons are Min Min Htun and Aung Myo Thu, who were suspected of having direct involvement with explosives. They were not listed as accused while the prosecution was made after they were transferred to the Military affair security. None of the material evidence was brought to the court and nor was this army officer called to appear as a witness, so there is no proof that such evidence actually exists, or if it does, that it establishes a connection between any of the accused with the crime; only some photographs of the purported evidence were shown in court.


REQUESTED ACTION:
Please write to the people listed below to intervene in this case and to call for the unconditional release of these persons. Please note that for the purposes of the letter Burma is referred to its official name Myanmar; Pegu as Bago and Rangoon as Yangon.

Kindly note that the AHRC will write separate letters to the UN Special Rapporteurs on Myanmar and on the independence of judges and lawyers, the UN working group on Arbitrary Detention (WGAD) and to the regional human rights office for Southeast Asia to call for intervention into this matter.

SAMPLE LETTER:

Dear ___________,

Re: MYANMAR: Immediate intervention on sentencing of 11 innocent people with a long imprisonment

Details of victims:
1.Htun Oo, 36, M, resident of Ward 8, Bago.
2.Win Myint, 42, M, resident of Kadaingsein Village Tract, Taikkyi Township, Yangon Region.
3.Hanminthar (a.k.a. Francis), 22, M, resident of Golden Heart Christian School, Ward 8, Oatthar New Town, Bago
4.Anthony (a.k.a. Htun Mya), 22, M, pastor, resident of Insein Station Road, Nanthargon Ward, Insein Township, Yangon
5.Zaw Min Aung (a.k.a. Duwa/ Paukpaw), 30, M, poultry farmer, resident of Thapyechaung Village Tract, Nyaungdon Township, Ayeyarwaddy Region
6.Saw William, 24, M, resident of Pyay Road, Mingalardon Township, Yangon, former migrant worker in Thailand
7.Saw Naing Win (a.k.a. Alexander), 25, M, resident of St Joseph's School, Thonze, Bago Division, former migrant worker in Thailand
8.Myint Kyaing, 32, M, farmer, resident of Kadaingsein Village Tract, Taikkyi Township, Yangon Region
9.Saw Francis (a.k.a. Kyaw Kyaw), 27, M, resident of Hlapadar Village, Hmawbi Township, Yangon Region
10.Zarni Oo (a.k.a. Zar Zar), 31, F, street vendor, resident of Wagatdan Road, Pepingon Ward, Thonze, Bago Division
11.Aye Aye Nwei (a.k.a. Elizabeth), 27, F, resident of Shwesangaung, Ward 6, Kyansitthar Estate, Hlaingthayar Township, Yangon, former migrant worker in Thailand

Details of key officials involved:
1. Police Major Aung Swe, Serial No. La/58844, Special Branch, Yangon Division, plaintiff in Criminal Case Nos. 14 & 15
2. Police Captain Kyaw Soe, Serial No. La/128592, Special Branch
3. Inspector Saw Moe Shwe, Serial No. La/129866, Station Commander, Police Station No. 3, Bago, plaintiff in Criminal Case Nos. 16 & 17
4. Inspector Khin Myint, Serial No. La/126459, Special Branch, Myawadi detachment
5. Inspector Kyaw Yin, Serial No. La/86694, Special Branch, investigating officer
6. Inspector Ko Ko Htay, Serial No. La/113104, Special Branch
7. Sub Inspector Htun Htun Naing, Serial No. La/16022, Special Branch
8. Sub Inspector Kyaw Min Oo, Serial No. La/166325, Special Branch, Bathein detachment

Charged and sentenced.
Case No. 14.1908 The Unlawful Association Law 17(1). 3 years imprisonment.
Case No.15. 1947 The Immigration Law(Emgency) 13(1) 2years imprisonment.
Case No. 16. 1908 The Explosive substance Act section 4.7 years imprisonment.
Case No, 17. 1908 The Explosive substance Act section 3. 10 years imprisonment.

Date of incident: 29 September 2010
Place of incident: Pegu, northeast of Rangoon
Place of detention and trial: Insein Central Prison, Yangon; Criminal Case No. 401/2010

I am writing to voice my deep concern regarding the illegal arrest, and long sentences passed down against 11 innocent people who are being accused of the bombing in Pegu, northeast of Rangoon in September 2010.

According to the information I have received from Asian Human Rights commission (AHRC), I have learnt that from the time, when the case was brought to the court, there are numerous errors in the procedure in the cases against the accused. This includes the fact that the accused were illegally kept in custody for 4 months before being brought to court. In fact, the explosion happened on 29 September 2010, and the accused were arrested during October 2011. Additionally there was an inexplicable delay of 18 days between the time of the bombing occurred and when the police opened a case in the official record.

Furthermore, I have learn that there are still many omissions and errors in the dates on the police documents in court and the evidences were incorrectly collected and recorded; some of the accused have been accused of having connection with the illegal immigration and contact with unlawful associations without any relation to the bombing have also been included in the accused list under the explosive substances law because the charges have been brought together. Some of these errors the police, themselves made admitted in court.

According to the Immigration law, there are different departure dates to Thailand of the accused, these should be opened separately but are now combining together. The charges under the Immigration Act should be dealt with in a separate case from those in connection with the alleged bombing. They should have been brought by immigration officials rather than police.

According to the police records, the first Information Reports against Htun Htun Oo and Aung Win Naing were arrested on the 15 September 2010 and registered as no. 401/2010 in the police station. In reality, the police documents show that the accused were arrested on 11 January 2011, with charges lodged on February 21. It can be seen obviously in the arrested of Zau Min Aung at the Myawaddy, Thailand on 24 October 2010. He was sent to the Aungthapyay Interrogation Centre, and after that, passed him to Yangon division information center. According to the record of the evidence, it was written down that the first information report on the day of 21 February 2011. These records are fabricated. In fact, the accused were illegally detained at a special interrogation centre and other facilities in this time where confessions were obtained from them under which to lodge the cases. It is quite likely that all of the accused were tortured, and suffered from custodial violence in the custody.

It is unacceptable that the witness make the complain according to the order from the above authorities and Min Min Htun and Aung Myo Thu, who are suspected of direct involvement with explosive things are not listed as accused while the prosecution made after they were transferred to the Military affair security and none of the material evidence that supposedly exists was brought to the court and nor was this army officer called to appear as a witness, so there is no proof that such evidence actually exists, or if it does, that it establishes a connection between any of the accused and the crime; only some photographs of the purported evidence were shown to the court.

According to the search warrants in the case, the list of the evidences recorded along with omitting of the date record and ink color were different in remarking each of the items. The investigators recovered material evidence to link them to the bombing but according to records that material was then handed to a Sergeant Shwe Htun Aung of the Military Affairs Security (military intelligence), Bago.

None of the material evidence was brought to the court and nor was this army officer called to appear as a witness, so there is no proof that such evidence actually exists, or if it does, that it establishes a connection between any of the accused and the crime; only some photographs of the purported evidence were shown to the court.

Moreover, these evidences are not strong enough to prove the guilt of the accused. Likewise, the documents for witness are the money receipts of the necessary things to buy the organ instrument for the church. One of the investigators state and signed in the evidence paper that in 23 October 2010, 2 telephones were collected from Saw William and two letters from Aung Win Naing, However, the evidence things are not collected in front of them but In the Aungthapyay interrogation Centre.

I regret to note that the accused, Htun Oo received the longest jail term and was charged with having contact with unlawful groups and being in possession of containing explosive substances, two punishments for both sentences combined in total 13 years of imprisonment. The other five victims, Win Myint, Hanminthar, Anthony, Saw William, were sentenced under The Explosive substance Act section 4. and The Unlawful Association Law 17(1) and received a total 12 years detention. The rest of them ,Saw Naing Win ,Myint Kyaing, Saw Francis, Zarni Oo, Aye Aye Nwei were charged with the Unlawful Association and received three years of imprisonment and The Immigration Law(Emergency) for two years of imprisonment making a total of five years in total.

I am extremely concern about these people that without urgent state intervention and institutional reform, it is unlikely that these 11 people will ever be able to free themselves from this long imprisonment and the fabricated charges and material for the court are remaining true for the whole judiciary system.

I therefore urge you for immediate release of those people from the long imprisonment for a crime that they did not commit. I am also calling for protecting and security for both them and their families. I am of the opinion that the officers involved in the interrogation must be also subjected to internal investigation and the police station must be prosecuted for implicating the false documents and it should be removed.

I am mostly concerned and aware that if Myanmar is still fails to perform the independent judiciary it is hardly to believe the recent reforms in Myanmar, since the violations in place, these are the reasons why. Despite the positive steps by the military-backed government, it is to acknowledge the government that many of international communities are still in cautious on the reforms in Myanmar.


Yours sincerely,

----------------

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

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-023-2012
Countries :
Issues :
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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.