Legal framework regarding torture:
On the Convention against Torture:
Burma has neither signed nor ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment nor for that matter the International Covenant on Civil and Political Rights. It has not expressed any intent to do so nor bring any international standards on torture into the domestic law.
On the existing domestic law:
Torture is not criminalised in law as a separate or special offense. It has the same provisions in its Penal Code as in the Indian Penal Code, 1860 (sections 330 & 348), which penalise acts that can also be considered as torture, with seven and three years of imprisonment respectively if proven guilty, but as in India the offence attracts no particular relevance if the crime is committed by a police officer and the two provisions also fall short of covering all aspects of torture, as defined in the Convention against Torture.
In any event, as the courts are under executive control, cases involving executive officers, including police or military officers accused of torture, are not conducted independently or according to fair trial procedures. For this reason, any provisions of law whether they exist or not, are meaningless.
On compensation:
There are no provisions for compensation of victims of torture.
On witness protection:
There are no provisions for protection of witnesses in criminal cases.
The magnitude of the problem:
Anecdotal evidence is that torture is endemic although it is not possible to document and report systematically due to prevailing conditions in the country. Torture and cruel and inhuman treatment or punishment occurs in both political and ordinary criminal cases as well as in other settings, and is practiced by the police, military intelligence officers, soldiers, prisons officers, and executive officers (such as council officials) acting in a policing capacity.
Military intelligence officers and police investigating political cases are known to commit extreme forms of torture on detainees. Methods include electrocution, water torture and standing for extended periods in positions intended to cause serious stress to the body. Since 1991 military intelligence officers have been able to submit confessions obtained from detainees directly to court and the burden of proof has been placed on the detainee to show that he or she hadn’t been tortured (as decided in the U Ye Naung case, before the Supreme Court Special Appellate Bench). Some political detainees have been tortured to death during interrogation.
Torture is also widespread in ordinary criminal inquiries and in crime control, where it most commonly takes the form of beatings and other blunt methods intended to cause pain and obtain a confession, such as twisting and bending of limbs into unnatural positions and burning of limbs. Police investigators and council officials working in a quasi-investigative capacity torture people of all ages and both genders, from young girls accused of theft to elderly relatives of absconding accused. Some victims of torture retract their confessions in court but the non-independent character of the courts makes obtaining an acquittal where a confession has been obtained through torture extremely difficult.
Prior to the military assumption of full power in 1962, the courts in Burma entertained many allegations of torture and abuse against police officers, but often as a defence of an accused rather than in a case of prosecution of the alleged perpetrators. Since then there have been very few such cases reported, although defendants still cite use of torture as cause for confession.
In remote parts of the country where armed conflict persists or in ceasefire areas, soldiers torture people to obtain information about rebel movements, and more commonly as a method of punishment and to set an example for villagers failure to comply with their demands for food, labour, and to relocate away from areas of rebel activity.
Cruel and inhuman treatment is also endemic in the country’s prisons, where the majority prisoners, both political and ordinary, contract serious contagious diseases as a consequence of the extremely poor living conditions, food and lack of health facilities, many of whom die from a combination of abuse and neglect. Since 2006 the International Committee of the Red Cross, which has a presence in the country, has been denied access to the prisons in accordance with the terms of its internationally recognized mandate.
