Torture, forced confession and a death sentence in Myanmar
A written statement submitted by the Asian Legal
Resource Centre (ALRC), a non-governmental organisation with
general consultative status
MYANMAR:
Torture, forced confession and a death sentence in Myanmar:
the case of Phyo Wai Aung
On 8 May 2012, a judge
in Yangon sentenced young engineer Phyo Wai Aung to death
for his alleged involvement in a bombing attack in 2010 that
killed 10 people and injured scores. His trial began on 30
June 2010, when Myanmar was still under a military junta.
Since then, many important social and political changes have
occurred in Myanmar; however, the manner in which this case
has been conducted and its outcome speak to the continued
political control of the judiciary, and continued
authoritarian tendencies in institutions of justice in
Myanmar that enable officials to use the courts to persecute
rather than protect citizens.
Of the many and manifold
violations of domestic and international law in the case of
Phyo Wai Aung--whom the Special Rapporteur on the situation
of human rights in Myanmar has met in prison and on whose
case he has written in a number of reports (recently,
A/HRC/19/67, 7 March 2012)--we wish to highlight the
following:
a. Illegal arrest: A group of plain-clothed
officials came to arrest Phyo Wai Aung at his residence late
on 22 April 2010, a week after the bombing. They did not
properly identify themselves. They did not have an arrest
warrant. They said that he would have to go with them for "a
short time". They did not take him to a judge or a regular
police station. They did not lodge any other documentation
with which to initiate a criminal case or detain the accused
on that date. Instead, they took him a special interrogation
centre.
b. Illegal detention: Special Branch police held
Phyo Wai Aung for eleven days straight, of which for the
first six days and six nights they tortured him to confess
to involvement in the bombing. They testified in the trial
that on 23 April 2010 they obtained a detention order from a
court. However, no such order was ever submitted as
evidence. Even if such an order were issued, it would be
contrary to law, because the court that the police named as
issuing the order was not the court with jurisdiction over
the case. The defendant denies ever being taken to get such
an order.
c. Torture: Special Branch police for six days
assaulted Phyo Wai Aung and forced him into stress positions
for hours on end to have him confess to involvement in the
bombing. They stripped him and burned his genitalia with lit
newspaper, and dripped hot wax onto them. During this time
neither his family nor lawyer could contact him, and he was
not fed or allowed to change his clothes. The police
variously threatened Phyo Wai Aung that if he died in
custody it was nothing to them, that if he did not confess
they would make him an accused, and that if he confessed
they would make it easy for him; that he would not go to
jail, or would go only go for a short time. Although Phyo
Wai Aung named some of the officers responsible for his
torture in court, they were not called or examined.
d.
Illegally obtained confession: Police Captain Win Maung
testified that Phyo Wai Aung confessed after six days of
interrogation. According to law, a defendant who says he
wants to confess should be taken promptly to a judge.
Therefore, the police should have taken the defendant to
court on 27 April 2010. However, they did not take him until
3 May 2010, once they had coached him on what to say. The
judge taking the confession, Judge Win Swe, failed to do his
basic duties. He did not ask the accused how long he had
been held in police custody, or check if the custody was
lawful. He did not warn him that he was not under any
obligation to confess. He did not check the body of the
accused for evidence of torture. He also recorded on the
confession that all questions and answers had been written
in full, but when he testified in the trial, he admitted
that he had only recorded a summary of what the accused had
said, casting doubt upon the entire contents of the
confession.
e. Closed trial: The Supreme Court ordered
that the trial be held at the central prison. The defence
requested a copy of the order. It did not get one. Not only
was the trial not held in a public location but the family
of the defendant also was for the first 14 months of the
trial refused entry to the courtroom.
f. Problems with
judges: Four judges heard the trial. Phyo Wai Aung's lawyer
twice applied for recommencement of the trial with new
judges, but his applications failed. At least one of the
judges made irrelevant and prejudicial comments towards the
accused, and did not sanction police who insulted and
intimidated him.
g. Fabricated evidence: The police
submitted an immigration travel permit that supposedly shows
that the accused went to the border of Thailand and Myanmar
on 11 May 2010: in other words, eight days after the
defendant gave his forced confession, and almost three weeks
after the police had arrested him. The police also submitted
a list of supposed telephone calls between the mobile phone
of the defendant and the other accused. But the list was not
taken directly from the phone database. Instead, it was on a
computer spreadsheet, which anybody could make up.
h.
Contradictory evidence: The chief of police, Brigadier
General Khin Yi, said in a press conference days after Phyo
Wai Aung's forced confession that the police had found one
of the terrorists responsible for the April 2010 bombing.
The prosecutor submitted the news reports as part of the
evidence. However, on at least 15 points the contents of the
press conference as reported in the media were incorrect.
Furthermore, the police submitted a map of the scene of the
crime, with distances recorded between the sites of three
explosions, but another map they submitted contained
different distances. Photographs of the locations of the
incident site also were inconsistent, as were the
testimonies of police officers on specific facts.
i.
Omitted evidence: The police pressured a business associate
of Phyo Wai Aung who could provide him with an alibi to give
a statement before the trial began; however, no details of
the pre-trial statement, which was extremely important to
the defence case, were given to the court. The business
associate also gave the police receipts for materials that
he and the defendant had purchased on the day of the
incident, the details of which are consistent with Phyo Wai
Aung's testimony that he had been working on a job
renovating a supermarket at the time of bombing; however,
the police likewise did not submit these records to the
court.
j. Inadmissible evidence: Not only did the court
not receive evidence for the defence, but it also allowed
inadmissible evidence for the prosecution. Police witnesses
testified about statements that the accused made when in
custody. These statements are inadmissible against the
accused; however, when the defence attorney tried to have
them struck from the record the court overruled him. Hearsay
statements by police officers were also recorded in
evidence. And according to the Criminal Procedure Code,
whereas witnesses can under certain circumstances refer to
notes but cannot read verbatim from prepared statements, one
police witness testified directly from start to finish off
around 10 A4 pages, and from a notepad of around 80
pages.
k. Denial of right to defence: When Phyo Wai
Aung's lawyer came to meet him in prison before trial,
Special Branch police officers listened and recorded their
discussion. When the defendant gave the names and details of
police officers who had tortured him, a police inspector
stopped the lawyer from recording details. Later, a Special
Branch police officer masqueraded as a prison officer to
listening to the conversations. The prison officers also
limited the lawyer's visits to his client to one per month.
In trial, the presiding judge curtailed the
cross-examination of two police witnesses. The court also
refused to allow the defence access to, and copies of,
documentary records submitted as evidence by the police.
Furthermore, after over a year of hearings from more than 60
prosecution witnesses, the judge allowed the defendant only
six days to testify, which was insufficient time to respond
to all of the prosecution case.
Despite all the above
flaws, on May 8 District Judge U Aung Thein convicted Phyo
Wai Aung--who is currently suffering from tuberculosis,
liver illness and Hepatitis-B and who has complained of not
getting adequate medical treatment in prison--of seven
charges in four cases, and sentenced him to death for one of
the charges and to a total of 39 years in jail for the
others. To convict the accused, the judge relied primarily
on the confession obtained through the use of
torture.
Observing this case, the Asian Legal Resource
Centre is concerned that whereas other institutions and
their personnel in Myanmar have in the last year begun to
show signs of change in response to the newly emergent
political conditions in the country, the judiciary, the
police, prosecutors and other agencies concerned with the
handling of criminal cases have not. Indeed, in the long run
the eliminating of authoritarian tendencies from these
agencies could prove to be a more difficult task than from
other parts of the state apparatus.
The case also speaks
to the problem of the continued heavy reliance on torture to
extract confession as the basis for conviction in criminal
cases in Myanmar. From the work conducted by the ALRC on
Myanmar over the last decade, we have observed that this
method of conviction through use of confession is
widespread, and is a feature of all types of criminal cases,
not only those with a political or special quality, as in
the current case. Indeed, the Supreme Court reports
themselves attest to the continued heavy reliance on
confession. Therefore, the Centre has reached the conclusion
that the prevalence of torture in Myanmar will be addressed
only through a reduction in reliance on confession.
We
also regret to learn that after his sentence, Phyo Wai Aung
was diagnosed with advance liver cancer and he only has a
short time left to live. Furthermore, according to his
family, he is in severe pain that prevents him from lying
down or sleeping, throughout his time in the central prison
since 2010 he has not obtained specialist treatment. Despite
the family's interventions on the case, and those that the
ALRC and other groups have undertaken, Phyo Wai Aung has not
received specialist medical attention of the sort stipulated
in rule 22(2) of the Standard Minimum Rules on the Treatment
of Prisoners.
In light of the above, the Asian Legal
Resource Centre calls on the Government of Myanmar to:
a.
Pardon the accused, or remit his sentence, so that he can go
home and live the remainder of his time in peace; and,
ensure that he obtain the necessary medical attention
without cost to his family.
b. Accede to the Convention
against Torture and introduce a law to prohibit and punish
torture in accordance with the Convention at the nearest
possible opportunity;
c. Amend the Evidence Act, Criminal
Procedure Code and Courts Manual to reduce significantly the
evidentiary value of confession in criminal cases; and, to
impose more stringent requirements on the taking of
confession and the accepting of confession as evidence than
exist at present--in particular, to remove the presumption
that a confession is valid if it appears to have been taken
by a judge in accordance with procedure; and,
d. Amend
the 2008 Constitution, which provides in its article 11(a)
for the separation of powers only "to the extent possible",
so that the separation of powers is normatively secured, and
then take all necessary steps to have political control of
the judiciary removed in fact, such that cases of this sort
are not able to recur in the future.
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