Opinion; Subjects: MYANMAR, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.12-11297
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-first session, 29 August–2 September
2011
No. 25/2011 (Myanmar)
Communication addressed to the Government on 23 February 2011
Concerning: Thagyi Maung Zeya and 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 in resolution 1991/42 of
the former Commission on Human Rights. The mandate of the Working Group was
clarified and extended in Commission resolution 1997/50. The Human Rights Council
assumed the mandate in its decision 2006/102. The mandate was extended for a further
three-year period in Council resolution 15/18 of 30 September 2010.
2.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
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);
(b)
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);
(c)
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);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
United Nations
A/HRC/WGAD/2011/25
General Assembly
Distr. General
28 February 2012
Original: English
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(e)
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).
Submissions
Communication from the source
3.
The source informs that Thagyi Maung Zeya, 58 years old, is an artist, and Sithu
Zeya, aged 20 years, son of 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, Sithu Zeya was taking photographs and a video of
the festivities; when the blasts occurred he began taking shots of the dead and wounded.
The source reports that security forces on the scene arrested Sithu Zeya at around 3:45 p.m.
and took him into custody. Following interrogation, the police allegedly claimed that Sithu
Zeya intended to send the photographs to Democratic Voice of Burma, the exiled, anti-
government media agency, and that his father also maintained contact with the agency. As a
result, his father, Thagyi Maung Zeya, was detained and charged with the same offence as
his son.
5.
Sithu Zeya’s case was brought before the Yangon Eastern District Court and
Mingalar Taung-nyunt Township Court (case Nos. 466 and 467/10, decided on 21
December 2010, Township Judge U Tin Htun Oo, Serial No. Ta/2165 presiding). Sithu
Zeya was sentenced to five years’ imprisonment on the grounds of violating section 13(1)
of the Immigration (Temporary) Act of 1947, and three years’ imprisonment for violating
section 17(1) and (2) of the Unlawful Associations Act of 1908. Similarly, in the case
pending before the Yangon Eastern District Court, Sithu Zeya is charged with violating
section 33(1)(a) and (b) of the Electronic Transactions Law of 2004, which provides for a
minimum and maximum sentence of seven years and 15 years in prison, respectively.
6.
According to the source, although Sithu Zeya was arrested on 15 April 2010, the
authorities did not open the case against him until 4 May 2010, and did not bring the case
before a court until 14 June 2010. The source maintains that in accordance with domestic
law, the police should have made a First Information Report and only thereafter should they
have arrested Sithu Zeya. The source argues that for 19 days, Sithu Zeya was illegally
detained. Reportedly, he was 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. Sithu Zeya was not charged in court within 30 days of arrest, as prescribed by
section 167 of the Criminal Procedure Code.
7.
The source further reports that Sithu Zeya was allegedly tortured for four days while
in detention, and that a confession that was 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, hanged
upside down, and denied food. The police allegedly threatened Sithu Zeya that if he did not
confess, they would also arrest and charge his mother. It is reported that after
approximately one month in detention, an immigration department official allegedly came
to the prison and threatened Sithu Zeya with further acts of torture.
8.
Regarding the detention of Thagyi Maung Zeya, the source reports that he was
drugged during interrogation. Reportedly, as a result, he experienced strange physical
sensations throughout the 20 days in custody for interrogation, including lack of hunger or
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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 for Thagyi Maung Zeya and Sithu Zeya’s
detention was the fact that they were taking photographs. The source contends that there is
no material evidence against Thagyi Maung Zeya and Sithu Zeya to convict them, and the
police cases were exclusively based on confessions extracted through the alleged use of
torture and drugging. According to the source, the investigating police repeatedly admitted
in court that they did not have evidence, but that facts emerged during the investigation to
justify charging Thagyi Maung Zeya and Sithu Zeya.
10.
The source contends that, apart from the fact that the charges brought against Thagyi
Maung Zeya and Sithu Zeya were formulated on the basis of forcibly extracted confessions,
paragraph 612(10) of the Myanmar Court Manual states that following a confession before
a judge, the accused should be sent to a separate remand section of the prison to await trial
and sentencing. However, Sithu Zeya was sent back to the Yangon Police Headquarters for
further interrogation and was allegedly tortured. The source also argues that the police case
against Thagyi Maung Zeya and 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 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 Thagyi Maung Zeya and Sithu
Zeya’s deprivation of liberty is 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 Thagyi Maung Zeya and 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 Sithu Zeya was detained for
interrogation on 15 May 2010 when he was taking photographs of the bomb blasts,
including the security forces.
13.
During the interrogation, the officials found that Sithu Zeya had illegally visited
Mae Sot City, Thailand, in October 2009. He had undergone media training with
Democratic Voice of Burma (DVB) media agency, and returned to Myanmar illegally.
14.
The officials also found that he had sent information relating to domestic matters
through e-mail to the National Coalition Government of the Union of Burma (NCGUB) –
which has been declared an unlawful and terrorist organization by the Government –, DVB
media and other exiled groups in March 2010. They claim that he had exaggerated the
information sent in order to undermine public order and stability. He received financial
support from exiled, anti-government groups and sent information to DVB media via his
father, Thagyi Maung Zeya.
15.
Based on Sithu Zeya’s confessions, his father, Thagyi Maung Zeya, was detained for
interrogation on 16 March 2010. The officials found that Thagyi Maung Zeya had visited
Mae Sot City, Thailand, illegally in September 2008 and in January, May, and September
2009, respectively, and returned to Myanmar illegally. During the visits, he apparently met
with representatives of NCGUB, DVB media and other exiled groups. He had sent
information which undermined the maintenance of public order and stability, and he
received funds from exiled, anti-government groups.
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16.
The case against Sithu Zeya was brought by the Mingala Taungnyunt police station
on 4 May 2010, after it had found evidence of connections with an 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 via e-mail information undermining the maintenance of public order (section
33(b) of the Electronic Transactions Law].
17.
On the same day, the Bahan police station brought the case against Thagyi Maung
Zeya, also based on violation of 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. Thagyi Maung Zeya was charged in the Yangon Western
District Court with violating section 17 (1) and (2) of the Unlawful Associations Act on 14
June 2010; and with violation of section 13(1) of the Immigration Act (Emergency
Provision Act) and section 33(b) of the Electronic Transactions Law on 22 July 2010. He
was sentenced to a total of 13 years’ imprisonment by the court.
18.
Regarding the legal proceedings against 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 before the Mingala Taungnyunt Township Court
on 1 June 2010. A case relating to violation of section 33(b) of the Electronic Transactions
law was brought before the Yangon Eastern District Court on 9 August 2010. He was
sentenced to 5 years’ imprisonment. The case relating to violation of section 33(b) of the
Electronic Transactions Law is still pending before the Yangon Eastern District Court.
19.
The Government concludes that Sithu Zeya and Thagyi Maung Zeya were detained
for violation of existing laws, rather than for their activities relating to the sending of the
information to DVB media.
20.
On the day of the bomb blasts (15 March 2010), the police had arrested Sithu Zeya
as a suspect in the case. He was detained for 24 hours (until 16 March 2010) without a
warrant, and this is lawful under the Code of Criminal Procedure, articles 54 (1) and 61.
From 16 March 2010 to 14 May 2010, after obtaining a remand order from Mingala
Taungnyunt Township Court, he was detained for a total of 29 days for questioning relating
to the offences under the Code of Criminal Procedure, articles 307, 302, 326 and 114. After
finding violations of the above-mentioned provisions, the cases against him were brought
before the court on 4 May 2010.
21.
Under the Code of Criminal Procedure, article 167(2) concerning the detention of an
accused, where the offence is punishable by more than seven years’ imprisonment, an
accused person can be detained for 30 days after obtaining a remand order from the court.
An accused person shall be brought to court within 30 days on the basis of one criminal
offence. According to the Government’s response, Sithu Zeya had committed several other
criminal offences, therefore the officials sought respective remand orders so as to
investigate each case thoroughly. The Government concludes that, for that reason, it was
not required to charge him in court within 30 days, and the authorities find that there is no
illegal detention in the present case.
22.
The Government also refutes the allegations of the use of torture during the
interrogation of Sithu Zeya. The Government maintains that he made the confessions
voluntarily after realizing that the evidence was undeniable, and repented the acts that he
had carried out in violation of the existing laws.
23.
The Government maintains that the officials put forward his case to the court in line
with the existing procedures and rules of evidence.
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24.
Accordingly, the Government disagrees that the defendant was detained and charged
unlawfully. The officials took legal action 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 the alleged
offences of taking photographs and video footage of a bombing incident, travelling to a
neighbouring country to obtain training for the purpose of journalism work, having
obtained financial and material support for such training, and using the Internet to send
information without the 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 for imprisonment in terms
of the mandate of the Working Group, irrespective of other factors.
Discussion
27.
In its reply, the Government confirms that the main reasons for the detention and
conviction of Thagyi Maung Zeya and Sithu Zeya were sending information relating to
domestic matters via e-mail to opposition groups and the media; exaggerating the
information in order to undermine public order and stability; and receiving financial
support from exiled opposition groups.
28.
In previous cases concerning Myanmar, the Working Group emphasized that
sanctioning any such activities can never stand the test against the rights and freedoms as
contained in the Universal Declaration of Human Rights (see, for instance, opinions No.
43/2008, para. 23; No. 12/2008, para. 12; No. 25/2000, para. 12).
29.
Indeed, as was stressed in the Working Group’s opinion No. 25/2000, peaceful
expression of opposition to any regime cannot give rise to arbitrary arrest. It is apparent
from both the source’s communication and Government’s reply that the two men were
detained and convicted for peaceful exercise of their rights to freedom of opinion and
expression, and freedom of peaceful association, as provided for in articles 19 and 20 of the
Universal Declaration of Human Rights.
Disposition
30.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Thagyi Maung Zeya and Sithu Zeya is arbitrary, being
in contravention of articles 19 and 20 of the Universal Declaration of Human Rights,
and falling within category II of the categories applicable to the consideration of the
cases submitted to the Working Group.
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31.
Consequent upon the opinion rendered, the Working Group requests the
Government of Myanmar to take the necessary steps to remedy the situation of Thagyi
Maung Zeya and Sithu Zeya and to 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 Thagyi Maung Zeya and Sithu Zeya and to
accord them an enforceable right to compensation.
33.
The Working Group encourages the Government to consider the possibility of
acceding to the International Covenant on Civil and Political Rights.
[Adopted on 30 August 2011]