Myanmar: Call For Release From Prison Of Former Army Officer
February 7, 2012
U Win Mra
Myanmar National Human Rights Commission
27 Pyay Road
Re: Myanmar: Call For Release From Prison Of Former Army Officer And Two Other Men
Dear U Win Mra,
Names of detainees: U Win Naing Kyaw, businessman, former army major; Thura Kyaw (alias Aung Aung); Gopyan Sen (alias Azin)
1. Captain Kyaw Zin Latt (army), complainant in Case Nos. 132, 134, 135/2009
2. Police Captain Than Soe, complainant in Case No. 133/2009
Cases lodged against detainees: Cases brought in the Yangon Western District Court, Case Nos. 132-135/2009, verdicts issued on 7 January 2010; all cases appealed to the Supreme Court and appeals dismissed [Criminal Revision Nos. 325(b), 371(b), 414(b), 415(b)/2010, Criminal Appeal Nos. 9-10/2010, all dismissed 9 December 2010]:
1. Foreign Exchange Regulations Act, 1947, section 24(1), sentence of three years (Win Naing Kyaw)
2. Emergency Provisions, 1950, section 3,
death sentence, reduced to life imprisonment under 13
January 2012 amnesty order (Win Naing Kyaw and Thura
3. Electronic Transactions Law, 2004, section 33(1)(a)(b), sentence of 15 years (all three accused)
4. Burma Official Secrets Act, 1923, section 6(3), sentence of two years (Win Naing Kyaw)
In light of the recent releases of prisoners from Myanmar’s jails, which have attracted international interest and support, I am writing to ask you to review the case of three men currently in prison whose appeals against their imprisonment to the Supreme Court have failed.
According to the information I have received, a joint military-police-immigration team detained U Win Naing Kyaw, a former army major working as a businessman, as he came on a flight from Bangkok to Yangon at around 1:20pm on 29 July 2009. After accusing him of having on his laptop secret information and passing that information to news agencies based abroad, they held him in custody for 105 days before lodging charges against him at the Mingalardon Police Station.
When the officials lodged the charges, they based them on a confession from Win Kyaw Naing obtained after 42 days held in custody. According to Win Kyaw Naing, the confession was extracted from him through physical and psychological torture. Specifically, he was forced to go without sleep, was drugged, and interrogators also threatened the physical safety of his family members.
In the district court, the judge acknowledged that the confession was obtained after 42 days but said that did not make it inadmissible. The judge concluded that because the contents of the confession corresponded with other testimonies and evidence brought by the police, then it should be genuine; however, this is nonsensical reasoning, since if the police wrote a confession and forced the accused to sign it under duress, naturally its contents would correspond with the version of events that they had prepared for the case.
Many other flaws in the case, the district court and Supreme Court both also ignored, despite the defence lawyers bringing them to the courts’ attention. These included that the charge of foreign exchange violations (for bringing into Myanmar over USD8400 and other currencies) was invalid, since the accused had not even reached the counter where he might declare this currency; that the charges under the Emergency Provisions are invalid because none of the alleged offences come within the parameters of this law; that the alleged contents of the documents found by the police on the accused did not in fact constitute official secrets; and, that the police submitted no evidence to prove that the said information was sent through email to news agencies abroad, as the officials alleged.
Finally, the defence lawyers pointed out that the second, third and fourth charges all overlap and concern the same alleged offence of sending official secrets to news agencies abroad; constantly, the multiple charges for the same offence constitute double jeopardy, and are unlawful.
On the basis of the above information, I am deeply concerned that these men have not obtained fair trials and have been imprisoned on the basis of human rights violations, rather than on the basis of a due legal process. I urge that their cases be reviewed and that they be released at the earliest possible moment.
I am particularly concerned by the imposition of the death sentence on two of the accused. Although I appreciate that in recent years death sentences have not been carried out in Myanmar, these sentences ought under no circumstances have to be imposed and then commuted. I urge the government of Myanmar to instruct courts to cease issuing any punishment longer than life imprisonment.
I also urge that other persons still held in custody in cases where their convictions rest on confessions obtained through use of torture likewise have their cases opened and reviewed at the earliest possible time.
Lastly, I urge the government of Myanmar to allow the International Committee of the Red Cross access to prisons in its country in accordance with its globally recognized mandate without any further delay. At this time that the government is releasing persons from custody who should not have been imprisoned in the first place, it is especially important that the ICRC have access, in order to ascertain the circumstances of those persons remaining in prisons, like the three men in this case.