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.25-06448 (E)
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 102nd session, 1–10 April 2025
Opinion No. 5/2025 concerning Linn Htut (Myanmar)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly
resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the
mandate of the Commission. The Council most recently extended the mandate of the
Working Group for a three-year period in its resolution 51/8.
2.
In accordance with its methods of work,1 on 26 November 2024 the Working Group
transmitted to the Myanmar military a communication concerning Linn Htut. The Myanmar
military replied to the communication on 27 January 2025. Myanmar is not a party to the
International Covenant on Civil and Political Rights.
3.
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 or her
sentence or despite an amnesty law applicable to him or her) (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 Covenant (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);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination, based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2025/5
General Assembly
Distr.: General
12 June 2025
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Mr. Htut, born on 20 January 1960, is a national of Myanmar. His usual place of
residence is Lashio, Myanmar.
5.
According to the source, at the time of his arrest, Mr. Htut was serving as the
democratically elected Chief Minister of Shan State (eastern Myanmar) and was a member
of the National League for Democracy. Reportedly, his engagement dated back to the 1988
uprising, when he joined peaceful protests against the Myanmar military. The source notes
that Mr. Htut was a well-respected leader who engaged in community development, led aid
campaigns and raised funds for charities. He joined the National League for Democracy in
2015 and was elected as Chief Minister in 2016 and 2020. He holds a bachelor’s degree in
dental surgery from the University of Yangon, Myanmar, and he practised as a dentist for 18
years.
(i)
Context
6.
The source submits that, at 3 a.m. on 1 February 2021, the military arrested the
President of Myanmar and the State Counsellor. The military then announced the
establishment of the State Administrative Council, invoking article 417 of the Constitution.2
7.
Reportedly, a civil disobedience movement took hold and people took to the streets
across the country to demand the end of the military takeover and the return of democracy
and the rule of law in Myanmar. The State Administrative Council reportedly responded with
a nationwide crackdown, which allegedly included killings, torture and arrests by the military
authorities aimed at suppressing peaceful opposition to military rule.
8.
In his 2021 report to the General Assembly, the Special Rapporteur on the situation
of human rights in Myanmar observed that the junta had, since the very first day of its illegal
coup d’état, engaged in arbitrary detentions in violation of articles 9, 10 and 11 of the
Universal Declaration of Human Rights.3 In 2022, the Special Rapporteur noted that the scale
of the atrocities was immense, with nearly 10,000 people detained at the time because of their
opposition to military rule, and that the junta had amended the legal code to further
criminalize the exercise of fundamental rights, including the rights to freedom of expression
and assembly. He also noted that many of the junta’s human rights violations constituted
probable crimes against humanity and war crimes.4
9.
Reportedly, as at 11 March 2022, 12,598 people – of which 9,588 remained in
detention at the time – had been arrested for exercising their internationally protected rights
under the Universal Declaration of Human Rights.5 According to the source, at 3 a.m. on
1 February 2021, military officers arrested Mr. Htut along with 13 other state chief ministers
belonging to the National League for Democracy, all of whom were charged with corruption
and, to date, remain in detention.
(ii)
Arrest and detention
10.
The source submits that Mr. Htut was arrested on 1 February 2021 at around 3 a.m. in
the Shan State Governor’s residence in Taunggyi Aindaw, Myanmar. Reportedly, 40 armed
soldiers and four military vehicles, led by the Shan State Regional Military Deputy
Commander-in-Chief, entered Mr. Htut’s home and took him to an unknown military
compound. According to the source, Mr. Htut was not presented with an arrest warrant or
informed of the reasons for his arrest nor the applicable legislation under which he was being
arrested.
11.
The following day, on 2 February 2021, Mr. Htut was reportedly returned to the Shan
State Governor’s residence and placed under house arrest along with his family.
2 A/HRC/46/56, paras. 3–5.
3 A/76/314, para. 58.
4 A/HRC/49/76, paras. 2 and 3.
5 Ibid, para. 51.
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12.
On 10 February 2021 at 8.30 p.m., the Regional Chief of Police, by order of the Shan
State Military Regional Commander-in-Chief, went to the Shan State Governor’s residence
and took Mr. Htut to a secret detention centre in the region of Taunggyi, the capital of Shan
State. The source notes that Mr. Htut was not allowed to take any personal belongings or
medicine with him. Moreover, he was not shown an arrest warrant or made aware of the
charges against him. From that date until 16 July 2021, the military forces reportedly held
Mr. Htut incommunicado and in secret detention.
13.
The source reports that Mr. Htut was tortured and ill-treated in May 2021. Reportedly,
a Shan State military regional officer told Mr. Htut that he would be released from detention
if he agreed to support and join the military junta, which he refused to do. It is submitted that
Mr. Htut was subsequently tortured to extract a false confession of corruption and was
subjected to sleep deprivation for about two weeks and to continuous hours of interrogation,
without any legal representation or breaks.
14.
According to the source, Mr. Htut’s family enquired about his whereabouts at the
Taunggyi City police station and asked how long he would be detained and whether he had
been charged with any crimes. The military officers, however, reportedly did not provide an
answer.
15.
On 16 July 2021, at 4.45 p.m., Mr. Htut was transferred to Nyaung Shwe (Taung Lay
Lone) State Prison and brought before a judge for the first time.
16.
That same day, Mr. Htut’s whereabouts were disclosed in the evening news, which
reported on the charges brought against him.6 Similarly, that day, The Global New Light of
Myanmar, a military-run newspaper, announced that Mr. Htut had been prosecuted on
corruption charges under articles 55 and 63 of the Anti-Corruption Law of Myanmar. The
source submits that, under the Anti-Corruption Law, any holder of a political post convicted
of corruption is liable to a fine and up to 15 years’ imprisonment. Reportedly, Mr. Htut and
three former Shan State ministers had been charged for allegedly reducing the value of tender
for Innlay (Inle) Lake Zone entry fee collection by 50 per cent of approximately €153,000
(300 million kyats) from a bidder at the Shan State government. The source notes that, despite
the reduction, the remaining funds could not be recovered.7
17.
The source reports that, once at Nyaung Shwe (Taung Lay Lone) State Prison,
Mr. Htut was held in solitary confinement, allegedly to prevent him from communicating
with other political prisoners. Reportedly, he was held in a 10 m2 cell infested with rats and
ants and with unsanitary, unhygienic and degrading conditions.
18.
On 13 August 2021, Mr. Htut’s trial began behind closed doors at a temporary
courthouse next the entrance of Nyaung Shwe (Taung Lay Lone) State Prison, which
prevented his family, the media and the public from attending. Reportedly, Mr. Htut was
denied his right to hold private conversations with his lawyer and prepare for his defence
until the sixth day of the trial, on 1 October 2021. According to the source, even when
Mr. Htut was given the opportunity to talk to his lawyer, the conversation took place inside
the courtroom. Moreover, Mr. Htut and his lawyer were prohibited from taking notes during
the hearings and the proceedings were held under the close surveillance of armed military
guards.
19.
The source submits that the only available official sources of information about the
trial are from State-owned media.
20.
The source further reports that family members are strictly prohibited from visiting
Mr. Htut. Reportedly, Mr. Htut’s family member acted as his co-lawyer in the case, the only
legal role that reportedly allowed her to see him. Mr. Htut’s family member, however, has
not been able to meet with him, in either her role as family member or as lawyer. In addition,
6 The source provides the following news article: Myanmar News Agency, “Shan State ex-chief
minister, ex-government officials charged under anti-corruption law”, The Global New Light of
Myanmar, 17 July 2021, available at https://www.gnlm.com.mm/shan-state-ex-chief-minister-ex-
government-officials-charged-under-anti-corruption-law.
7 The source provides the following news article: Myanmar Now, 19 February 2021, available at
https://www.myanmar-now.org/mm/news/5802 (in Myanmar (Burmese)).
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the letters exchanged with Mr. Htut have been subjected to monitoring by the military,
resulting in delays of up to one month before he can receive them.
21.
The source reports that, on 3 September 2021, Mr. Htut fainted during his trial due to
a coronavirus disease (COVID-19) infection and his overall poor conditions of detention.
The prison doctor allegedly argued that Mr. Htut had fainted because he had taken double
the prescribed dose of his diabetes medication. Although he recovered, it is reported that
other prominent political prisoners belonging to the National League for Democracy have
died from COVID-19 in Nyaung Shwe (Taung Lay Lone) State Prison.
22.
Reportedly, the trial consisted of day-long sessions during which no food or drinks
were provided to Mr. Htut. After the sessions, Mr. Htut was reportedly returned to solitary
confinement in poor and unhygienic conditions of detention and was subjected to nightly
interrogations with no sleep.
23.
On 28 January 2022, the Taunggyi Court reportedly sentenced Mr. Htut to 16 years’
imprisonment under article 55 of the Anti-Corruption Law.
24.
On 15 July 2022, Mr. Htut’s legal defence found out that new charges would be filed
against Mr. Htut under article 130A of the Penal Code, namely, electoral fraud charges.
25.
On 3 August 2022, the Taunggyi Court sentenced Mr. Htut to a further two years’
imprisonment under article 130A of the Penal Code. That same day, Mr. Htut’s family found
out that he was being accused of campaigning during a silent strike day at Lashio Court.
26.
On 29 November 2022, the Lashio Court sentenced Mr. Htut to an additional two
years’ imprisonment with hard labour under article 130A of the Penal Code, bringing his
total sentence to 20 years in prison.
27.
The source submits that judges in Myanmar are not independent from the military and
that the State Administration Council controls the judiciary, including judicial proceedings
and their outcomes. Moreover, the prosecutor was reportedly forced to report on the outcome
of the proceedings on Mr. Htut’s case to the Ministry of Home Affairs.
28.
Reportedly, an appeal was submitted to the Union Supreme Court in an effort to
challenge the 16-year prison sentence that Mr. Htut had received under article 55 of the Anti-
Corruption Law. The appeal was rejected, however. Furthermore, the source reports that, due
to the predictable outcome of appeals and Mr. Htut’s financial constraints, an appeal for the
charges brought under article 130A of the Penal Code was not submitted.
29.
In December 2022, Mr. Htut was secretly transferred to Tharyarwaddy Prison.
30.
According to the source, Mr. Htut has a heart condition (arrhythmia), diabetes and
high blood pressure. In detention, he has suffered from diarrhoea and Achilles tendon pain.
He reportedly has not received any adequate medical treatment for those conditions, however.
Furthermore, the source reports that Mr. Htut’s physical health is concerning due to his low
blood sugar and weight loss, and his mental health condition is alarming.
31.
Lastly, the source reports that family visits have been extremely limited. Over the past
three years, Mr. Htut has received only one 15-minute family visit at Tharyarwaddy Prison,
under strict surveillance, with guards taking notes, and surrounded by multiple layers of
fencing.
32.
Reportedly, Mr. Htut remains in detention and is currently being held at
Tharyarwaddy Prison.
(iii)
Legal analysis
33.
The source argues that the arrest and detention of Mr. Htut are arbitrary under
categories I, II, III and V.
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a.
Category I
Failure to produce an arrest warrant
34.
The source argues that Mr. Htut’s detention is arbitrary under category I as it lacks
any legal basis.
35.
The source submits that Mr. Htut was not shown an arrest warrant or informed of the
applicable legislation under which he was arrested on 1 February 2021, in contradiction with
articles 75 and 80 of the Myanmar Code of Criminal Procedure. Moreover, on 10 February
2021, he was taken to a secret detention centre and held incommunicado and in solitary
confinement until 16 July 2021, when he was transferred to Nyaung Shwe (Taung Lay Lone)
State Prison.
36.
The source recalls that article 9 of the Universal Declaration of Human Rights
guarantees freedom from arbitrary arrest, detention and exile. Principle 10 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
requires that the arrested individual be informed at the time of his arrest of the reasons for
his arrest and the charges against him.
37.
The source argues that Mr. Htut’s arrest and detention were in breach of domestic law.
It asserts that the requirements of article 20 of the Myanmar Code of Criminal Procedure and
article 17 (g) of the Myanmar Anti-Corruption Law were not met because Mr. Htut’s arrest
was not conducted by the civil police and he was not brought to a police station. Instead, he
was taken to an unknown military compound, where he was held for over five months.
38.
Furthermore, it recalls that the Working Group has stated in its jurisprudence that an
arrest without an arrest warrant is permissible only in cases of flagrante delicto or when the
arrest is carried out under emergency powers when all other procedural standards have been
satisfied.
39.
With regard to the admissible exception of emergency powers, the source argues that
none of the procedural standards have been satisfied. According to the source, the military
invoked article 417 of the Constitution, which allows for a military takeover for one year in
the event of a state of emergency that threatens the sovereignty of the country. Under that
article, only the President can declare a state of emergency. The President and the State
Counsellor at the time, however, were reportedly arrested in the early hours of 1 February
2021 and the state of emergency was thus declared by the Vice-President, who was appointed
by the military. In that context, the source asserts that no parliamentary consent to the
declaration of the state of emergency was sought in accordance with article 421 (a) of the
Constitution and, as such, the admissible exception of the state of emergency does not apply
in the present case.
40.
The source contends that the decision to arrest Mr. Htut, along with most of the other
National League for Democracy leaders, was made with the sole intention of disbanding the
party.
41.
Furthermore, the source notes that, although arrest warrants are provided for by
domestic laws in Myanmar, the military often arrest political prisoners arbitrarily. Since 1
February 2021, the State Administration Council, which was created by the military, has
made key revisions to a number of laws, reportedly enabling violations of the right to privacy
and the right to freedom from arbitrary arrest and detention. For instance, the source asserts
that basic protections were removed from the Law Protecting the Privacy and Security of
Citizens, including the right to be free from arbitrary detention, warrantless surveillance and
search and seizure. In addition, the Code of Criminal Procedure was amended to expand or
create new offences subject to warrantless arrests. In that context, the source asserts that the
measures taken by the military in the present case contravene international obligations under
customary international law.
42.
The source contends that the fact that charges were brought later against Mr. Htut does
not preclude the arbitrary nature of his arrest and subsequent detention. The source recalls
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that the Working Group has found that, even where a detainee is later charged, an arrest
without a warrant is, in and of itself, arbitrary.8
Enforced disappearance and failure to bring Mr. Htut’s detention into conformity with
international law promptly after his arrest
43.
The source submits that, following his arrest, Mr. Htut was held in an unknown
military compound for over five months without being brought before a judge and was neither
notified of the allegations against him nor charged. His demands to be brought before a judge
were unanswered for several months and he appeared before a judge only on 16 July 2021.
44.
The source argues that Mr. Htut was held in solitary confinement and denied his right
to communicate with counsel, including during interrogations held at night, or with his
family. He was also denied his right to be brought before a judge to challenge his detention.
Moreover, the source asserts that no assessment has been made by a court of the lawfulness,
necessity and proportionality of his detention.
45.
The source recalls that principle 15 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment prohibits incommunicado detention
in that it states that the communication of the detained or imprisoned person with the outside
world, and in particular his family or counsel, should not be denied for more than a matter of
days. It notes that the Working Group previously held that, under the United Nations Standard
Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), the maximum
length of solitary confinement is 15 consecutive days.
46.
In the light of the above, the source concludes that Mr. Htut’s deprivation of liberty is
both unlawful and arbitrary and falls within category I.
b.
Category II
47.
The source argues that Mr. Htut’s detention is arbitrary under category II.
48.
Reportedly, Mr. Htut was prosecuted on the basis of articles 55 and 63 of the Myanmar
Anti-Corruption Law for allegedly accepting kick-back payments in public tenders and
failing to recover fees in multiple instances between 2018 and 2021. He was further
prosecuted under article 130A of the Penal Code for election fraud and accused of
campaigning on a silent strike day at Lashio Court.
49.
The source submits that Mr. Htut was charged with accepting kick-back payments in
public tenders and failing to recover fees in multiple instances. Moreover, he was reportedly
tortured and coerced into a false confession of corruption. The source recalls that principle 6
of the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment provides that no person under any form of detention should be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.
50.
The source recalls that article 19 of the Universal Declaration of Human Rights
protects freedom of opinion and expression, including the freedom to hold opinions without
interference. It argues that that article also prohibits deprivation of liberty for solely political
motives. It also recalls that the Working Group has emphasized the importance of the right
to hold political opinions without interference. 9 Furthermore, for high-ranking political
figures, the Working Group has established that politicized detentions aimed at eliminating
them from the political stage constitute a violation of their freedoms of opinion and
expression and contravene article 19 of the Universal Declaration of Human Rights.10
51.
The source contends that Mr. Htut’s deprivation of liberty occurred only because of
his political position and association with the National League for Democracy. In the source’s
views, Mr. Htut’s deprivation of liberty ensured the successful execution of the military
takeover and allowed the seizing of political power in Shan State. That political motive was
allegedly reflected by Mr. Htut’s arrest on 1 February 2021, the pretextual charges brought
8 Opinion No. 37/2000, paras. 10 and 11.
9 Opinion No. 33/2007, para. 16.
10 Opinion No. 22/2015, para. 38.
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against him and the procedure of his detention, namely, being held incommunicado and in
solitary confinement, and the offer for his release by the military Deputy Commander-in-
Chief in exchange for his support of the military.
52.
The source notes that, previously, the Working Group has found that the detention of
the General Secretary of the National League for Democracy and other members around her
was based solely on political association and was therefore arbitrary.11 In connection with
that, the source asserts that Mr. Htut’s arrest and detention occurred due to his political
position and that his deprivation of liberty therefore resulted from the exercise of the rights
prescribed by article 19 of the Universal Declaration of Human Rights.
53.
It is further argued that the pretextual charges brought against Mr. Htut over five
months after his arrest were based solely on the discriminatory motive of his political identity,
which was being the elected Shan State Minister of the National League for Democracy
administration. The charges, the source adds, were aimed at removing Mr. Htut from his
function as Chief Minister to secure the military’s success in Shan State and prevent him
from exercising his legitimate right to participate in public affairs after the February 2021
coup.
54.
The source contends that the offer of release by the military Deputy
Commander-in-Chief to Mr. Htut in exchange for his support of the military is evidence of
the political motive of his deprivation of liberty. The source recalls that article 7 of the
Universal Declaration of Human Rights requires equality before the law and equal protection
of the law without discrimination. Pursuant to that article, detention based solely on
discriminatory motives is invalid. The source recalls that, in a similar case to the present one,
the Working Group found that discrimination based on political affiliation was in violation
of article 7 of the Universal Declaration of Human Rights.12
55.
Similarly, under article 21 (1) of the Universal Declaration of Human Rights,
everyone has the right to take part in the government of his country, directly or through freely
chosen representatives. The source notes that the Working Group has previously found that
the arrest and detention of a prominent post holder of the political opposition 13 and the
interrogations of prisoners about their political convictions and ties to political parties 14
masked underlying political motives. In the present case, the source argues that Mr. Htut was
interrogated about his political affiliations prior to any charges being brought against him.
Moreover, his deprivation of liberty removed his ability to act as the democratically elected
Chief Minister of Shan State.
56.
The source recalls that article 20 of the Universal Declaration of Human Rights
protects the freedom of peaceful assembly and association and states that no one may be
compelled to belong to an association. The fact that the charges were brought only after
Mr. Htut’s refusal to support the military reinforces that his deprivation of liberty was due to
his affiliation with the National League for Democracy and the exercise of his rights under
articles 18, 19, 20 and 21 of the Universal Declaration of Human Rights.
57.
Moreover, the source notes that article 20 of the Code of Criminal Procedure requires
the immediate transfer of the accused to a police station for interrogation. Article 17 (g) of
the Anti-Corruption Law also states that law enforcement in corruption matters is not to be
conducted by the military but that, instead, charges must be brought before the relevant
regional civil jurisdiction. In the present case, the source asserts that Mr. Htut was arrested
by the military forces, immediately detained in an unknown military compound and tried
before a de facto military tribunal.
58.
The source recalls that the Working Group has previously found that arrest by the
Myanmar military and detention in a military camp violate domestic law and constitute a
violation of article 19 of the Universal Declaration of Human Rights.15 Moreover, the source
11 See opinions No. 2/2002, No. 46/2008 and No. 12/2010.
12 See opinion No. 39/1993.
13 Opinion No. 27/2015, paras. 27 and 29.
14 Opinion No. 35/2015, para. 45.
15 Opinion No. 49/2013, paras. 19 and 20.
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recalls that the Working Group has consistently noted that arrests by military forces instead
of civilian authorities may not be seen as prescribed by law.16
59.
The source contends that the corruption charges were brought against Mr. Htut over
five months after he was arrested on 10 February 2021. On 15 July 2022, over a year after
the arrest, Mr. Htut’s co-lawyer found out that electoral fraud charges had later been brought
against Mr. Htut. Moreover, long before the charges were brought, Mr. Htut had reportedly
been interrogated regarding his political involvement in the National League for Democracy
and the elected government of Shan State. In fact, the source argues, the charges were brought
against Mr. Htut only when he refused to support the military takeover, suggesting a purely
political motive for his deprivation of liberty.
60.
The source further asserts that pretextual charges of corruption and electoral fraud
were brought against Mr. Htut to silence and prevent him from exercising his legitimate rights
to freedom of expression, freedom of assembly, freedom of association and the right to
participate in public affairs in the aftermath of the military coup of February 2021. The source
argues that Mr. Htut’s detention by the military forces is directly linked to his political
activities as the National League for Democracy administration’s Shan State Chief Minister
and was aimed at removing him from his function as Chief Minister to secure the military’s
success. Noting that context, the Working Group refers the present case to the Special
Rapporteur on the situation of human rights in Myanmar in accordance with paragraph 33 (a)
of its methods of work.
61.
The source recalls that the Working Group has previously qualified the removal of
high-ranking politicians from the political playing field as unproportional restrictions of their
freedom of expression.17 It further recalls that the Working Group has consistently held that
arrests and detentions for criminal charges conducted by military forces are unacceptable and
lacking proportionality.18
c.
Category III
62.
The source submits that Mr. Htut’s right to a fair trial was violated, rendering his
detention arbitrary and falling under category III.
63.
The source states that, since 1 February 2021, the State Administration Council has
put in place measures that have reportedly led to the collapse of the rule of law and the
independence of the judiciary in Myanmar. It further asserts that there is no credible legal
recourse available to thousands of people in Myanmar who have been subjected to arbitrary
detention, enforced disappearance, torture and ill-treatment, unlawful killings and forced
displacement.
64.
Throughout the duration of his detention, Mr. Htut has been held incommunicado,
which, the source asserts, has placed him outside of the protection of the law and prevented
him from challenging the legality of his detention, notably his right to petition for a writ of
habeas corpus as provided for by the Constitution of Myanmar. Although article 381 of the
Constitution allows for the suspension of the writ of habeas corpus and due process during a
declared state of emergency, the military reportedly seized control in violation of domestic
law.
65.
The source argues that incommunicado detention may constitute torture or other cruel,
inhuman or degrading treatment when the period of incommunicado detention is prolonged
and additional circumstances prevail.19 Despite his serious medical conditions, Mr. Htut has
been detained incommunicado for over a year and three months. The source further asserts
that, from 10 February 2021 until 16 July 2021, Mr. Htut was held in an unknown military
compound.
16 Opinion No. 26/2014, para. 56.
17 Opinions No. 22/2015, para. 38; and No. 24/2015, para. 44.
18 Opinion No. 49/2013, para. 19.
19 A/HRC/13/42, para. 32; General Assembly resolution 61/153, para. 12; and opinion No. 10/2008,
para. 30.
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66.
It is argued that Mr. Htut has been denied the right to communicate with his family
and legal counsel and the right to be brought before a judge to challenge his detention. No
assessment has been made by a court of the lawfulness, necessity and proportionality of his
detention.
67.
The source asserts that, upon his transfer to Nyaung Shwe (Taung Lay Lone) State
Prison on 16 July 2021, Mr. Htut was held in solitary confinement in a 10 m2 cell to prevent
him from communicating with other political prisoners. Reportedly, the cell was infested
with rats and ants and had poor sanitary conditions. Due to the unhygienic conditions to
which Mr. Htut has been subjected while in detention, he has suffered from diarrhoea and a
severe worsening of his Achilles tendon pain. The source submits that that is particularly
threatening for Mr. Htut, who suffers from heart problems (arrhythmia), diabetes and high
blood pressure. Moreover, on 3 September 2021, Mr. Htut was infected with COVID-19, and
he was weakened and lost 25 kg as a result. Trials were reportedly held regardless of his
suffering from COVID-19. The source submits that Mr. Htut’s health conditions associated
with his age further aggravate the abuse of his rights and may amount to inhuman and
degrading treatment.
68.
Moreover, the source argues that the fact that Mr. Htut was later charged and brought
to trial does not in any way remedy prior violations of his due process and fair trial rights.
His trial was held from 13 August 2021 to 28 January 2022, when he was sentenced to 16
years’ imprisonment. On 3 August and 29 November 2022, Mr. Htut was sentenced to a
further four years of imprisonment on separate charges under article 130A of the Penal Code.
69.
The source argues that Mr. Htut was denied his right to a competent, independent and
impartial tribunal in violation of article 10 of the Universal Declaration of Human Rights.
Reportedly, Mr. Htut was tried in a “special court” in a “temporary courthouse”, a prison
facility next to the entrance of Nyaung Shwe (Taung Lay Lone) State Prison, and his family,
the media and the public were prevented from attending.
70.
Furthermore, the source contends that Mr. Htut was denied his right to adequate time
and facilities to prepare for his defence. It asserts that Mr. Htut was not able to hold private
conversations with his lawyer until the sixth day of the trial, on 1 October 2021, when they
were allowed to hold a conversation inside the courtroom. Moreover, Mr. Htut and his lawyer
were prohibited from taking any notes during the proceedings and were unable to cross-
examine the witnesses, who did not testify in their own words but instead read their
testimonies from notebooks.
71.
The source concludes that the Myanmar military’s failure to observe norms relating
to the right to due process and fair trial, notably articles 9 and 10 of the Universal Declaration
of Human Rights, renders Mr. Htut’s detention arbitrary under category III.
d.
Category V
72.
The source submits that Mr. Htut was arrested discriminatorily solely for his political
position as Shan State Chief Minister and his affiliation with the National League for
Democracy.
73.
The source argues that category V applies to Mr. Htut’s case, as his detention is based
on discrimination due to his political opinion and high-profile role in the democratic
movement as Chief Minister of Shan State. The source contends that Mr. Htut’s arrest and
continued detention are serving as a targeted measure by the military to suppress and
eliminate political opposition.
74.
According to the source, the types of charges brought against Mr. Htut, including
those under anti-corruption laws, are selectively applied as a means to discredit and
incapacitate political figures aligned with the democratic movement. Furthermore, Mr. Htut’s
detention conditions, including restricted access to legal representation, health risks and
isolation, are indicative of discriminatory treatment aimed at intimidating other political
dissenters and thus violate the principle of equality under international law.
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(b)
Response from the Myanmar military
75.
On 26 November 2024, the Working Group transmitted the allegations from the
source to the Myanmar military under its regular communications procedure. The Working
Group requested the Myanmar military to provide detailed information by 27 January 2025
about the current situation of Mr. Htut.
76.
On 27 January 2025 the Myanmar military submitted its reply.
77.
In its reply, the Myanmar military sets out the six charges for which Mr. Htut was
prosecuted.
78.
Specifically, it contends that Mr. Htut was prosecuted on the basis of articles 55 and
63 of the Myanmar Anti-Corruption Law for allegedly accepting kick-back payments in
public tenders and failing to recover fees in multiple instances between 2018 and 2021 (cases
No. 1, No. 2, No. 3 and No. 4). He was further prosecuted under sections 10, 12, 14 and 16
of the Union Election Commission Law and article 130A of the Penal Code for election fraud
(case No. 5) and under article 130A of the Penal Code for allegedly campaigning on silent
day at Lashio Court (case No. 6).
79.
For cases No. 1, No. 2, No. 3 and No. 4, Mr. Htut was charged under the
Anti-Corruption Law on 16 July 2021 at the Taunggyi Township Court and the Taunggyi
Myoma police station. He was then heard at the Shan State High Court on 13 August 2021.
With regard to cases No. 5 and No. 6, complaints were filed against Mr. Htut on 14 July 2021
at the Taunggyi Township Court and on 18 July 2022 at the Lashio Township Court.
80.
Mr. Htut was sentenced to 16 years of imprisonment with labour for the corruption
charges (cases No. 1, No. 2, No. 3 and No. 4) on 28 January 2022. He was further sentenced
to two years’ imprisonment under article 130A of the Penal Code for election fraud on 3
August 2022 and another two years’ imprisonment with labour, also under article 130A of
the Penal Code, on 29 November 2022 for engaging in campaign activities. Mr. Htut was
thus tried by the relevant courts and sentenced to a total of 20 years’ imprisonment with
labour.
81.
Lastly, the Myanmar military notes that Mr. Htut is serving his sentence at
Tharyarwaddy Central Prison and that he is in good health.
(c)
Additional comments from the source
82.
The source contends that the Myanmar military limited its response to listing the cases
for which Mr. Htut was prosecuted, without responding to any of his specific allegations of
arbitrary detention. It then reiterates its claims at length.
2.
Discussion
83.
The Working Group thanks the source and the Myanmar military for their
submissions. In determining whether Mr. Htut’s detention is arbitrary, the Working Group
has regard to the principles established in its jurisprudence to deal with evidentiary issues. If
the source has presented a prima facie case for breach of the international law constituting
arbitrary detention, the burden of proof should be understood to rest upon the Myanmar
military if it wishes to refute the allegations.20
(a)
Category I
84.
The source submits that, when Mr. Htut was arrested on 1 February 2021 and again
on 10 February 2021, the military did not provide him with a warrant of arrest and did not
inform him of the reasons for which he was being arrested. In its reply, the Myanmar military
does not address those submissions.
85.
The Working Group notes that persons who are detained have the right to be informed
promptly of the charges against them. That is inherent in article 9 of the Universal Declaration
of Human Rights and principles 2 and 10 of the Body of Principles for the Protection of All
20 A/HRC/19/57, para. 68.
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Persons under Any Form of Detention or Imprisonment. The Working Group has previously
stated that, for a deprivation of liberty to have a legal basis, it is not sufficient that there is a
law which may authorize the arrest. The authorities must invoke that legal basis and apply it
to the circumstances of the case.21 That is typically done through an arrest warrant or arrest
order (or equivalent document).22
86.
Having reviewed the submissions, the Working Group notes that the Myanmar
military does not address the source’s allegations regarding the notification of the reasons for
arrest. On that basis, the Working Group is satisfied that Mr. Htut was not shown a warrant
during his arrests, nor otherwise notified of the reasons therefor. The Working Group notes
that the Myanmar military has not claimed any exception based on emergency powers in its
reply and that, in any event, the source demonstrates that none of the procedural requirements
were satisfied to apply such an exception. In that light, the Working Group finds that the
arrests violated article 9 of the Universal Declaration of Human Rights and principles 2 and
10 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment.
87.
The source submits that, after his arrest and placement under house arrest on 10
February 2021, Mr. Htut was taken to a secret detention centre and held incommunicado and
in solitary confinement until 16 July 2021. It adds that Mr. Htut was denied his right to be
brought promptly before a judge to challenge his detention. In its reply, the Myanmar military
makes no attempt to respond to those allegations.
88.
The Working Group notes that prompt and regular access to family members and to
independent medical personnel and lawyers is an essential and necessary safeguard for the
prevention of torture and for protection against arbitrary detention and infringement of
personal security.23 Prohibitions against incommunicado detention are included in principles
15 and 19 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment and rules 43 (3), 58 and 68 of the Nelson Mandela Rules.
Moreover, under article 9 of the Universal Declaration of Human Rights and principles 11,
32 and 37 of the Body of Principles, detainees have the right to take proceedings promptly
before a court to challenge the legality of their detention.24 Judicial oversight of detention is
a fundamental safeguard of personal liberty and is essential to ensuring that detention has a
legal basis.25
89.
Noting the source’s detailed submissions, in which it lists the lengths of time that
Mr. Htut was kept in solitary confinement and asserts that he was not given a hearing
promptly following his arrest, as well as the lack of justification from the Myanmar military
regarding those submissions, the Working Group considers that Myanmar was in violation
of article 9 of the Universal Declaration of Human Rights and principles 11, 32 and 37 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.26
90.
On the preceding bases, the Working Group considers that Mr. Htut was deprived of
his liberty without a proper basis in law, in violation of article 9 of the Universal Declaration.
(b)
Category II
91.
The source argues that Mr. Htut’s deprivation of liberty was imposed due to his
political position and association with the National League for Democracy, for the purpose
of ensuring the successful execution of the military takeover and allowing the junta to seize
political power in Shan State. It argues that that violated articles 19, 20 and 21 of the
Universal Declaration of Human Rights. In its reply, the Myanmar military does not address
those submissions.
21 Opinions No. 9/2019, para. 29; No. 46/2019, para. 51; and No. 59/2019, para. 46.
22 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39. In cases of arrests
made in flagrante delicto, the opportunity to obtain a warrant is typically not available.
23 Opinion No. 84/2020, para. 70.
24 Opinion No. 33/2020, para. 56.
25 A/HRC/30/37, para. 3.
26 See opinions No. 28/2016 and No. 79/2017.
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92.
Regarding the legal framework, article 19 of the Universal Declaration of Human
Rights protects the right to freedom of expression, which covers the freedom to seek, receive
and impart information, and includes political discourse, commentary on public affairs, the
discussion of human rights and journalism. It protects the holding and expressing of opinions,
including those that are critical of or not in line with government policy.27 Article 20 provides
that everyone has the right to freedom of peaceful assembly and association. In addition,
article 21 (1) of the Universal Declaration of Human Rights provides that everyone has the
right to take part in the government of his country, directly or through freely chosen
representatives. In relation to those rights, article 29 (2) of the Universal Declaration of
Human Rights provides that the only legitimate limitations to their exercise must be for the
purposes of securing due recognition and respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order and the general welfare in a
democratic society.28
93.
According to the Working Group’s jurisprudence, restrictions placed on freedom of
expression by way of deprivation of liberty can be justified only when it is shown that the
deprivation of liberty has a legal basis in national law, does not violate international law and
is necessary to ensure respect for the rights or reputation of others, or for the protection of
national security, public order, public health or morals, and is proportionate to the pursued
legitimate aims.29
94.
In the present case, the Myanmar military does not explain how those criteria were
met. It refers to the charges against Mr. Htut but does not make any attempt to dispel the
allegation that they were pretextual in nature. The Working Group also notes its previous
findings whereby the detention of the General Secretary of the National League for
Democracy and of other members around her were based solely on political association and
were therefore arbitrary.30 Noting the lack of an explanation from the Myanmar military, the
Working Group considers that Mr. Htut was detained for conduct falling within the right to
freedom of opinion and expression protected under article 19 of the Universal Declaration of
Human Rights.
95.
In relation to the rights under articles 20 and 21 of the Universal Declaration of Human
Rights, the Myanmar military has also not dispelled the source’s credible allegations. The
Working Group finds that Mr. Htut’s detention was imposed for his peaceful association
under article 20 of the Universal Declaration, his participation in protests and his efforts to
take part in the government of his country, which is protected under article 21 (1) of the
Universal Declaration.
96.
It has not been shown that his detention was necessary to ensure respect for the rights
or reputation of others, or for the protection of national security, public order, public health
or morals, and proportionate to the pursued legitimate aims.
97.
On the preceding basis, the Working Group considers that the deprivation of liberty
of Mr. Htut is arbitrary, as it resulted from his exercise of the rights or freedoms guaranteed
under articles 19, 20 and 21 of the Universal Declaration of Human Rights. His deprivation
of liberty therefore falls within category II.
(c)
Category III
98.
Given its finding that the deprivation of liberty of Mr. Htut is arbitrary under category
II, the Working Group wishes to emphasize that, in such circumstances, no trial should have
taken place. As his trials have taken place, however, the Working Group will now consider
whether the alleged violations of the right to a fair trial and due process were grave enough
to give his deprivation of liberty an arbitrary character, such that it falls within category III.
In its reply, the Myanmar military does not address those submissions.
99.
The source submits that Mr. Htut’s right to a fair trial was violated, rendering his
detention arbitrary under category III. Specifically, in addition to repeating several arguments
27 Opinions No. 79/2017, para. 55; and No. 8/2019, para. 55.
28 See opinion No. 48/2016.
29 E/CN.4/2006/7, para. 43; and opinions No. 21/2017, para. 40; and No. 63/2017, para. 55.
30 See opinions No. 2/2002, No. 46/2008 and No. 12/2010.
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13
addressed under category I, the source argues that Mr. Htut was denied the right to
communicate with legal counsel, did not have adequate time and facilities to prepare for his
defence and was denied his right to a competent, independent and impartial tribunal, in
violation of articles 10 and 11 of the Universal Declaration of Human Rights.
100.
As the Working Group has previously observed, all persons deprived of their liberty
have the right to legal assistance by counsel of their choice at any time during their detention,
including immediately after their apprehension, and such access must be provided without
delay.31 That is also reflected in principles 15, 17 and 18 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
101.
Having reviewed the submissions, the Working Group notes that the Myanmar
military does not specify when Mr. Htut was provided with access to lawyers. It finds that
the Myanmar military failed to respect Mr. Htut’s right to legal assistance, in violation of
article 11 (1) of the Universal Declaration of Human Rights.
102.
The source submits that Mr. Htut’s solitary confinement amounted to an act of torture.
The Working Group considers that the matter of solitary confinement has already been
addressed above under category I. It also notes here, however, that he was reportedly tortured
and coerced into a false confession of corruption. The Myanmar military does not address
that argument.
103.
According to the Working Group’s jurisprudence, if a person alleges that his or her
confessions were coerced, regardless of the stage of the proceedings at which that allegation
is first made, it is for the judiciary to establish that they were not obtained through the
application of pressure of any kind.32
104.
The Working Group recalls that the use of a confession extracted through ill-treatment
contravenes article 15 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment and principle 21 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.33 Principles 1, 6
and 22 of the Body of Principles and articles 2 and 16 (1) of the Convention against Torture
reinforce that prohibition. The Working Group has concluded consistently in its opinions
that, when it is not possible for a person who is subjected to torture or other forms of ill-
treatment or punishment to prepare an adequate defence for a trial that respects the equality
of both parties before the judicial proceedings, that amounts to a fair trial violation.34 In the
Working Group’s view, the torture or ill-treatment of detainees is not only a grave violation
of human rights but it also seriously undermines the fundamental principles of a fair trial, as
it can compromise the ability to defend oneself, especially in the light of the right not to be
compelled to testify against oneself or to confess guilt.35 The Working Group reiterates that
the prohibition of torture is non-derogable, including during the fight against terrorism,
because of its status as a jus cogens norm, and that it encompasses the obligation to
investigate alleged violations promptly and bring perpetrators to justice and the prohibition
of the use of evidence obtained under torture in legal proceedings.36
105.
Noting the lack of a detailed and substantiated response from the Myanmar military
regarding the allegations of torture, the Working Group finds that the source has established
in its allegations that the fairness of the proceedings was tainted by mistreatment and torture,
and thus amounts to a violation of Mr. Htut’s fair trial rights under article 11 (1) of the
Universal Declaration of Human Rights. As the Working Group has previously found, a
31 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, principle 9 and guideline 8;
CAT/C/SAU/CO/2 and CAT/C/SAU/CO/2/Corr.1, paras. 14 and 15; and opinions No. 86/2020,
para. 78; No. 93/2017, para. 52; No. 63/2017, para. 70; and No. 32/2013, para. 24.
32 Opinion No 78/2019, para. 52.
33 Opinions No. 48/2016, para. 52; No. 3/2017, para. 33; No. 6/2017, para. 43; No. 29/2017, para. 64;
and No. 39/2018, para. 42.
34 Opinion No. 32/2019, para. 42.
35 Opinions No. 22/2019, para. 78; No. 26/2019, para. 104; and No. 56/2019, para. 88.
36 Opinion No. 66/2022, para. 99.
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forced confession taints the entire proceedings, regardless of whether other evidence was
available to support the verdict.37
106.
The source submits that Mr. Htut was charged before a de facto military court, which
constitutes a due process violation, and that the judges were not independent from the
executive. It states that Mr. Htut was tried in a “special court” in a “temporary courthouse”,
a prison facility next to the entrance of Nyaung Shwe (Taung Lay Lone) State Prison, and
that his family, the media and the public were prevented from attending. Although it is
unclear whether the named special court is the one that the source describes as a de facto
military court, the Working Group is satisfied on the basis of on the unrebutted arguments
that the judges overseeing his trial were not independent from the State and concludes that
the trial of Mr. Htut violated article 10 of the Universal Declaration of Human Rights.
107.
For the reasons above, the Working Group concludes that the breaches of the fair trial
and due process rights of Mr. Htut were of such gravity as to give his deprivation of liberty
an arbitrary character, falling within category III.
(d)
Category V
108.
The source submits that Mr. Htut was detained on a discriminatory basis, specifically
for his political position as Shan State Chief Minister and his affiliation with the National
League for Democracy. The Myanmar military does not address that argument.
109.
To determine the discriminatory nature of a deprivation of liberty, the Working Group
takes into account several non-cumulative factors. Those include whether the deprivation of
liberty is part of a pattern of persecution targeting the detained person, including for example
through previous detentions, whether other people with comparable distinctive
characteristics have also been persecuted or if the context suggests that the authorities have
detained a person for discriminatory reasons or to prevent them from exercising their human
rights.38
110.
The Working Group notes the source’s unrebutted arguments that Mr. Htut was
targeted for his political views. It also notes that he was arrested on the same morning as
other leading political figures. Given that the Working Group has found that the detention of
the other members of the National League for Democracy was also arbitrary,39 the Working
Group considers that the source has shown that his arrests were conducted on discriminatory
grounds. The Working Group concludes that the Myanmar military violated articles 2 and 7
of the Universal Declaration of Human Rights. The deprivation of liberty of Mr. Htut is
therefore arbitrary under category V.
(e)
Concluding remarks
111.
The Working Group notes the worrying information concerning the ill-health of
Mr. Htut. Specifically, the source submits that the unhygienic conditions in detention have
caused Mr. Htut to suffer from diarrhoea and experience severe Achilles tendon pain, which
exacerbate his existing conditions of arrhythmia, diabetes and high blood pressure. Although
the Myanmar military says that he is in good health, it does not provide any detail to support
that contention.
112.
In that respect, the Working Group reminds the Myanmar military to adhere to its
obligations under principles 15 and 19 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment and rules 43 (3), 58 and 59 of the
Nelson Mandela Rules. It notes that prompt and regular access to family members and
independent medical personnel and lawyers is an essential and necessary safeguard to protect
against arbitrary detention and prevent torture.40
37 Opinion No. 34/2015, para. 28.
38 A/HRC/36/37, para. 48.
39 See opinions No. 2/2002; No. 46/2008; and No. 12/2010.
40 Para. 58. See also Human Rights Committee, general comments No. 32 (2007), para. 34; and No. 35
(2014), para. 58; and opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and
No. 45/2019, para. 76.
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15
3.
Disposition
113.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Linn Htut, being in contravention of articles 2, 7, 9, 10,
11, 19, 20 and 21 of the Universal Declaration of Human Rights, is arbitrary and falls
within categories I, II, III and V.
114.
The Working Group requests the Myanmar military to take the steps necessary to
remedy the situation of Mr. Htut without delay and bring it into conformity with the relevant
international norms, including those set out in the Universal Declaration of Human Rights.
115.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Htut immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
116.
The Working Group urges the Myanmar military to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Htut
and to take appropriate measures against those responsible for the violation of his rights.
117.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the situation of human rights in Myanmar, for
appropriate action.
118.
The Working Group requests the Myanmar military to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
119.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Myanmar military to provide it with information on action taken in follow-
up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Htut has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Htut;
(c)
Whether an investigation has been conducted into the violation of Mr. Htut’s
rights and, if so, the outcome of the investigation;
(d)
Whether any other action has been taken to implement the present opinion.
120.
The Myanmar military is invited to inform the Working Group of any difficulties it
may have encountered in implementing the recommendations made in the present opinion
and whether further technical assistance is required, for example through a visit by the
Working Group.
121.
The Working Group requests the source and the Myanmar military to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as of any failure to take action.
122.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.41
[Adopted on 1 April 2025]
41 Human Rights Council resolution 51/8, paras. 6 and 9.