Dear friends,
The Asian Human Rights Commission (AHRC) has received information that the appeal of eight men over their wrongful and illegal conviction for treason in Burma has been postponed to February 22. Meanwhile, one of the defendants is reported to be sick in prison. In this update we also bring you further information on the illegal aspects of the conviction of one of the accused.
CASE DETAILS:
The eight accused, who had been involved in the Shan State Advisory Expert Group working for the end to civil conflict in the northeast of Burma–including Hkun Htun Oo and Sai Nyunt Lwin of the Shan National League for Democracy (a registered political party)–are appealing their convictions by a tribunal without legal jurisdiction, on inapplicable charges, without proper evidence or the right to cross-examine witnesses that had appeared for the prosecution (UA-017-2007; UP-008-2007). The Supreme Court is now due to hear their special appeal on February 22, rather than February 8 as originally scheduled.
Meanwhile, it has been reported that a number of the accused are seriously ill. Among them, U Htun Nyo (57), who is housed at Buthihtaung Prison in Arakan State (western Burma) is said to be in the worst condition. According to an interview with a colleague broadcast on the Voice of America Burmese service on February 3, his left arm has gone numb and he is feeling pain in his chest. A doctor who checked him said he is suffering heart disease and that he had been taking the wrong medicine, which was brought from outside as there is nothing in the jail.
Among the others, Hkun Htun Oo (63), who is in Putao Prison, Kachin State (northern Burma) is also suffering from haemorrhoids, gout, dysentery, fever, breathing difficulty and possibly urinary infection and cataracts, according to family members who have visited. Also, Nyi Nyi Moe (36) has haemorrhoids, Sai Hla Aung (61) has an ear infection, Sai Nyunt Lwin (52) has blood pressure problems and Sai Myo Win Htun (42) is suffering from some minor ailments and weakness.
One of the men, U Myint Than, is already reported to have died in custody on 2 May 2006. The detainees have been kept in jail now for two years, since 9 February 2005. They have reportedly all been denied permission to get medical treatment outside the prisons where they are being held, despite requests from their families. Each has been held in a different facility from the others.
It is common for detainees in prisons in Burma to contract illnesses while in detention and due to inadequate medical attention many older prisoners or those with prior conditions die as a result. In December 2005 the International Committee of the Red Cross was ordered to halt its visits to prisons in Burma, and in November 2006 it was forced to close its field offices “effectively making it impossible for the organization to carry out most of its assistance and protection work” (see ICRC press release here).
FURTHER DETAILS ON CASE OF U HSO TEN:
In addition to the details of the case that the AHRC reported in the original appeal and previous update, it has obtained further detailed information on the wrongful conviction of U Hso Ten, president of the Shan State Peace Council and chairman of the Shan State Army, which had entered a ceasefire with the government in 1989. Hso Ten was convicted for a period of over 100 years, including on allegations of being involved in the illegal timber business on the border of China. However, close scrutiny of the court records of his conviction on this count, as in other charges, reveals many flaws, including a lack of evidence and denial of the right to present defence witnesses (by giving them insufficient time to reach the courthouse). Also, there were many procedural errors in the arrest and conviction, including that the charges related to a licenced business, that the accused had already been in jail for five months before an order was issued for his arrest on these charges, and that exactly the same proceedings and testimonies were used to convict him under two separate charges.
There were, therefore, no grounds for the convictions.
For additional comments on this and related cases, please refer to the original appeal (UA-017-2007), the update on the case of Sai Nyunt Lwin (UP-008-2007) and the AHRC Burma webpage: http://burma.ahrchk.net.
SUGGESTED ACTION:
Please write to the Attorney General and Chief Justice of the Supreme Court to demand that the accused obtain his legal rights, either by way of his case being reviewed and the accused released, or by upholding appeals against the convictions. Please also request that all of the accused have access to proper medical treatment.
Please note that for the purpose of the letter, the country should be referred to by its official title of Myanmar, rather than Burma, and Rangoon, Yangon.
Please also see the sample letter in the original appeal for the case against all of the accused (UA-017-2007).
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
Dear _______,
MYANMAR: Wrongful conviction of U Hso Ten
Details of convicted person:
U Hso Ten, 69, President, Shan State Peace Council; Chairman, Shan State Army, currently held in Khanti Prison, Shan State
Complainants: Police Lt-Col. Khin Htay & Police Lieutenant Myint Aung, Special Branch, Myanmar Police Force
Convictions: High treason, Penal Code sn. 122(1), Felony No. 233/2005; sedition, Penal Code sn. 124A, Felony No. 234/2005; subversion, Anti-Subversion Law (The Law Protecting the Peaceful and Systematic Transfer of State Responsibility and the Successful Performance of the Functions of the National Convention against Disturbances and Opposition), No. 5/96, sn. 4, Felony No. 235/2005; forming an illegal organisation, Organisation Law, No. 6/88, sn. 6, Felony No. 236/2005; illegal publishing, Printers and Publishers Registration Law, sns. 17 & 20, Felony No. 237/2005; illegal exporting, Control of Imports and Exports (Temporary) Act 1947, sn. 5(3), Criminal Case No. 293/2005; illegal logging, Common Property Protection Act 1963, sn. 3, Criminal Case No. 294/2005; registered under Supreme Court Order No. 37/2005
I am writing to you to express my serious concerns about the illegal conviction and imprisonment of U Hso Ten and others for treason and other offences because they established the Shan State Advisory Expert Group during a meeting in November 2004 between the government of Myanmar and armed groups aimed at obtaining a ceasefire.
The accused was tried and sentenced under a tribunal established through the Northern Yangon District Court from 5 May 2005 (preliminary hearings), with proceedings being held on the grounds of the Insein Central Prison. The October 2 judgment found him guilty on all counts and gave a compounded sentence of 106 years in prison.
In addition to the inapplicability of the charge of high treason under Penal Code sn. 121(d) due to the absence of a constitution in Myanmar, the lack of jurisdiction of the tribunal in violation of Criminal Procedure Code (CrPC) sections 177, 178 & 526 and Supreme Court Directive Nos 7/56 & 3/69, the denial of the right to cross-examination under CrPC sn. 256 and Supreme Court Directive No. 3/66 and the problematic use of evidence, there are a number of other areas of specific concern regarding the charges of illegal logging and exporting against U Hso Ten.
I am concerned both about the problems in the investigation and conviction of the accused under these charges. I am informed that the evidence presented against the accused on these latter charges was not sound as it related to the activities of other persons, not the accused personally, who was convicted only by way of association. It is also the case that the charges related to the period of 2000-03. If the accused had committed an offence, why was he not arrested and charged during this period? Police Lieutenant Myint Aung himself testified that it was only decided to lay these charges against him only after his arrest on the other allegations of high treason and sedition; however, the approval to arrest the accused under the Public Property Protection Act was not given by the Ministry of Home Affairs until 1 July 2005, almost five months after the accused was already detained.
As for the tribunal process, I am informed that witnesses for the defence were not given enough time to appear and depose: the summons was issued on 26 July 2005 but only two days later, on July 28, the tribunal announced that those who had not come by that time would not be heard. As witnesses were expected to travel from the far northeast regions of the country it was not a reasonable amount of time. An attempt by the defence for the names of the witnesses due to appear be given to the state airline in order that they be given seats to come from Lashio to Yangon in time also was rebuffed. For this reason, only one witness, U Sai Htoo, was heard for the defendant. Additionally, exactly the same evidence, testimonies and trial proceedings were used to convict the accused on two separate charges: this is a clear violation of basic legal procedure, which obliges the court to ensure that each witness testifies only on one charge at a time, and that documentation be kept for each (Court Manual, para. 614).
I find it shameful that the court system in Myanmar can be so blatantly misused and perverted for the purpose of patently political objectives. I urge that the case against the accused be thoroughly reviewed and he be released from detention by way of appeals or revision of the case.
I also wish to take this occasion to make a special request concerning the health of the accused and his fellow appellants in the case going before the Special Appellate Bench of the Supreme Court on 22 February 2007. According to the information given to me, one of the eight, 59-year-old U Myint Than already died in Thantwe Prison, Rakhaing State on 2 May 2006 due to illness. Both 57-year-old U Tun Nyo, in Buthihtaung Prison, Rakhaing State and 63-year-old Hkun Htun Oo, in Putao Prison, Kachin State, are reported to be in worsening health. The former is said to be suffering from heart disease, while the latter is reportedly suffering a variety of ailments, including haemorrhoids, gout, dysentery, fever, breathing difficulty, and possibly urinary infection and cataracts. Meanwhile, Nyi Nyi Moe (36; Pakukku Prison, Magwe Division) has haemorrhoids, Sai Hla Aung (61; Kyaukhpyu Prison, Rakhaing State) has an ear infection, Sai Nyunt Lwin (52; Kale Prison, Sagaing State) has blood pressure problems and Sai Myo Win Htun (42; Myingyan Prison, Mandalay Division) is suffering from some minor ailments and weakness.
If these men are not only persecuted in your courts but die due to a lack of adequate treatment in your prisons then it will be a terrible indictment upon your government. Please ensure that they and all persons in custody in Myanmar are given access to doctors and medicines, and where necessary are able to be referred outside for treatment. I also urge you to ensure that the International Committee of the Red Cross be given full and uninterrupted access to prisons and all inmates in Myanmar, in accordance with its globally-established and recognised mandate.
Yours sincerely
————–
PLEASE SEND YOUR LETTERS TO:
1. U Aung Toe
Chief Justice
Office of the Supreme Court
101 Pansodan Street
Kyauktada Township
Yangon
MYANMAR
Tel: +951 372 249 / 253 066
2. U Aye Maung
Attorney General
Office of the Attorney General
101 Pansodan Street
Kyauktada Township
Yangon
MYANMAR
Fax: + 95 1 371 028/ 282 449 / 282 990
PLEASE SEND COPIES TO:
1. Lt-Gen. Soe Win
Prime Minister
c/o Ministry of Defence
Naypyitaw
MYANMAR
Tel: + 95 1 372 681
Fax: + 95 1 652 624
2. Maj-Gen. Maung Oo
Minister for Home Affairs
Ministry of Home Affairs
Naypyitaw
MYANMAR
Tel: +95 67 412 040/ 069/ 072
Fax: +95 67 412 016/ 439
3. Brig-Gen. Khin Yi
Director General
Myanmar Police Force
Naypyitaw
MYANMAR
Tel: + 95 1 549 196/ 228/ 209
4. Mr. Patrick Vial
Head of Delegation
ICRC
No. 2 (C) – 5 Dr. Ba Han Lane
Kaba Aye Pagoda Road, 8th Mile
Mayangone Township
Yangon
MYANMAR
Tel.: +951 662 613 / 664 524
Fax: +951 650 117
E-mail: yangon.yan@icrc.org
5. Professor Paulo Sergio Pinheiro
Special Rapporteur on Myanmar
Attn: Mr. Laurent Meillan
c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: + 41 22 9179 281
Fax: + 41 22 9179 018 (ATTN: SPECIAL RAPPORTEUR MYANMAR)
E-mail: lmeillan@ohchr.org
6. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Attn: Sonia Cronin
Room: 3-060
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9160
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR JUDGES & LAWYERS)
7. Ms Leila Zerrougui
Chairperson
Working Group on arbitrary detention
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006 (ATTENTION: WORKING GROUP ARBITRARY DETENTION)
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ahrchk@ahrchk.org)
