Myanmar (Burma)
24.02.04
Urgent Interventions
Myanmar: child witness of Depayin attack arbitrarily arrested and detained
Case MMR 240204.CC
Child Concern /Arbitrary Arrest / Fair Trial
The International Secretariat of OMCT requests your URGENT intervention in the following situation in Myanmar.
Brief description of the situation
The International Secretariat of OMCT has been informed by the Asian Human Rights Commission (AHRC), a member of the OMCT network, of the arbitrary arrest and detention of a 15-year-old boy, Maung Chan Thar Kyaw at the Chan Awsan Training School, a detention centre in the Yangon Division, Myanmar. According to the information received, the high school student was arrested on June 3rd 2003, and accused of having thrown rocks at police during the attack on the National League for Democracy by government-organised gangs at Depayin, on 30 May 2003. Thar Kyaw denied these allegations, but has nevertheless been charged and tried on July 7th 2003 by the Monywa Township Court, which found him guilty of obstructing the police. He was sent to Chan Aswan detention centre and reportedly has to remain there until October 4th 2005, the day of his 18th birthday. After that time, he may be charged as an adult and transferred to a prison.
However, OMCT sources believe that the boy's arrest and detention are in fact motivated by the fact that Maung Chan Thar Kyaw witnessed the afore mentioned event on May 30th 2003, which is known as the "Depayin massacre". Numerous civilians and human rights defenders were killed, injured and detained during these events (for further information see: www.article2.org).
Additionally, the procedure and sentencing of the young boy violates fundamental domestic and international Child laws.
· Chan Thar Kyaw was charged under section 333/114 of the Penal Code, which applies only to non-bailable offences, and therefore should not have applied in this case.
· Under section 41(c) of the Burmese Child Law, the boy should have been released into the custody of his parents (or other suitable persons) during the trial, but he remained detained.
· Under section 42 (c) of the Child Law, the boy should have had legal counsel unless his parents waived this right. However, he did not receive any legal counsel and his parents were not permitted to assist him. He appeared alone before court.
· As the accused lacked legal counsel, no witnesses were called on his behalf. By contrast, the prosecution named 24 witnesses and called 10 of them to the trial (4 police officers, 2 Ward Peace and Development Council chairmen, 4 doctors - not witnesses to the alleged event; they merely treated the injured police).
· Chan Thar Kyaw has been put under custody of the "training school" under section 47 (d) of the Child Law. However, according to the domestic law, this provision can only be applied as a last resort for children without parents or guardians, or in situations where no alternative exists. Art. 47 (a) (b) (c) outline a number of less restrictive sanctions, but the judge did reportedly not consider them duly nor did he consult the boy's parents or other persons appearing on his behalf.
The International Secretariat of OMCT is gravely concerned about violations of due process during Thar Kyaw's prosecution and detention and recalls that Myanmar, as a State party to the Convention on the Rights of the Child (CRC), has the duty to fully respect the following provisions: " The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time" (Art. 37 (b)). Further, Art 37 (d) of the CRC underlines the right to "prompt access to legal and other appropriate assistance (…)" of every child deprived of his/her liberty and Art. 40 (b) states that "every child alleged as or accused of having infringed the penal law has at least" the guarantee to have "legal or other appropriate assistance in the preparation and presentation of his or her defence (…)" (ii), as well as a "fair hearing according to law, in the presence of legal or other appropriate assistance" (iv).
Action requested
Please write to the authorities in Myanmar - and importantly to the Minister of Social Welfare, Relief and Resettlement, Major-General Sein Htwa, who has the power to release children from detention under Section 59 (a) of the Burmese Child Law - urging them to:
i. order the immediate release of Maung Chan Thar Kyaw from the Chan Awsan Training School and give him in custody of his parents;
ii. order a thorough investigation into the circumstances and legality of his arrest;
iii. review his case and, if charges consistent with international standards exist, charge him in a fair and impartial trial, in which all his procedural rights would be guaranteed at all times;
iv. provide adequate reparation to him and his family;
v. guarantee the respect of human rights and the fundamental freedoms throughout the country in accordance with national laws and international human rights standards.
Addresses
Dr. Tun Shin, Director General, Office of the Attorney General, 101 Pansodan Street, Kyauktada Township,Yangon, MYANMAR, fax: + 95 1 371 028
General Khin Nyunt, Prime Minister, c/o Ministry of Defence, Signal Pagoda Road, Yangon, MYANMAR, fax: + 95 1 652 624
Major-General Sein Htwa, Minister, Ministry of Social Welfare, Relief and Resettlement, 53 Strand Road, Yangon, MYANMA,fax: +951 650 002, Email:
social-wel-myan@mptmail.net.mm
Colonel Tin Hlaing, Chairman, Myanmar Human Rights Committee , c/o Ministry of Home Affairs, Corner of Saya San Street and No 1 Industrial Street, Yankin Township, Yangon, MYANMAR
Minister for Foreign Affairs, U Win Aung, Ministry of Foreign Affairs, Yangon, Myanmar, Email: mofa.aung@mptmail.net.mm
Ambassador U Mya Than, Av. Blanc 47, CH-1202, Genève, Suisse, e-mail : mission.myanmar@ties.itu.int, fax: +4122 738 48 82
Please also write to the embassies of Myanmar in your respective country.
Geneva, February 24th , 2004.
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.
Child Concern /Arbitrary Arrest / Fair Trial
The International Secretariat of OMCT requests your URGENT intervention in the following situation in Myanmar.
Brief description of the situation
The International Secretariat of OMCT has been informed by the Asian Human Rights Commission (AHRC), a member of the OMCT network, of the arbitrary arrest and detention of a 15-year-old boy, Maung Chan Thar Kyaw at the Chan Awsan Training School, a detention centre in the Yangon Division, Myanmar. According to the information received, the high school student was arrested on June 3rd 2003, and accused of having thrown rocks at police during the attack on the National League for Democracy by government-organised gangs at Depayin, on 30 May 2003. Thar Kyaw denied these allegations, but has nevertheless been charged and tried on July 7th 2003 by the Monywa Township Court, which found him guilty of obstructing the police. He was sent to Chan Aswan detention centre and reportedly has to remain there until October 4th 2005, the day of his 18th birthday. After that time, he may be charged as an adult and transferred to a prison.
However, OMCT sources believe that the boy's arrest and detention are in fact motivated by the fact that Maung Chan Thar Kyaw witnessed the afore mentioned event on May 30th 2003, which is known as the "Depayin massacre". Numerous civilians and human rights defenders were killed, injured and detained during these events (for further information see: www.article2.org).
Additionally, the procedure and sentencing of the young boy violates fundamental domestic and international Child laws.
· Chan Thar Kyaw was charged under section 333/114 of the Penal Code, which applies only to non-bailable offences, and therefore should not have applied in this case.
· Under section 41(c) of the Burmese Child Law, the boy should have been released into the custody of his parents (or other suitable persons) during the trial, but he remained detained.
· Under section 42 (c) of the Child Law, the boy should have had legal counsel unless his parents waived this right. However, he did not receive any legal counsel and his parents were not permitted to assist him. He appeared alone before court.
· As the accused lacked legal counsel, no witnesses were called on his behalf. By contrast, the prosecution named 24 witnesses and called 10 of them to the trial (4 police officers, 2 Ward Peace and Development Council chairmen, 4 doctors - not witnesses to the alleged event; they merely treated the injured police).
· Chan Thar Kyaw has been put under custody of the "training school" under section 47 (d) of the Child Law. However, according to the domestic law, this provision can only be applied as a last resort for children without parents or guardians, or in situations where no alternative exists. Art. 47 (a) (b) (c) outline a number of less restrictive sanctions, but the judge did reportedly not consider them duly nor did he consult the boy's parents or other persons appearing on his behalf.
The International Secretariat of OMCT is gravely concerned about violations of due process during Thar Kyaw's prosecution and detention and recalls that Myanmar, as a State party to the Convention on the Rights of the Child (CRC), has the duty to fully respect the following provisions: " The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time" (Art. 37 (b)). Further, Art 37 (d) of the CRC underlines the right to "prompt access to legal and other appropriate assistance (…)" of every child deprived of his/her liberty and Art. 40 (b) states that "every child alleged as or accused of having infringed the penal law has at least" the guarantee to have "legal or other appropriate assistance in the preparation and presentation of his or her defence (…)" (ii), as well as a "fair hearing according to law, in the presence of legal or other appropriate assistance" (iv).
Action requested
Please write to the authorities in Myanmar - and importantly to the Minister of Social Welfare, Relief and Resettlement, Major-General Sein Htwa, who has the power to release children from detention under Section 59 (a) of the Burmese Child Law - urging them to:
i. order the immediate release of Maung Chan Thar Kyaw from the Chan Awsan Training School and give him in custody of his parents;
ii. order a thorough investigation into the circumstances and legality of his arrest;
iii. review his case and, if charges consistent with international standards exist, charge him in a fair and impartial trial, in which all his procedural rights would be guaranteed at all times;
iv. provide adequate reparation to him and his family;
v. guarantee the respect of human rights and the fundamental freedoms throughout the country in accordance with national laws and international human rights standards.
Addresses
Dr. Tun Shin, Director General, Office of the Attorney General, 101 Pansodan Street, Kyauktada Township,Yangon, MYANMAR, fax: + 95 1 371 028
General Khin Nyunt, Prime Minister, c/o Ministry of Defence, Signal Pagoda Road, Yangon, MYANMAR, fax: + 95 1 652 624
Major-General Sein Htwa, Minister, Ministry of Social Welfare, Relief and Resettlement, 53 Strand Road, Yangon, MYANMA,fax: +951 650 002, Email:
social-wel-myan@mptmail.net.mm
Colonel Tin Hlaing, Chairman, Myanmar Human Rights Committee , c/o Ministry of Home Affairs, Corner of Saya San Street and No 1 Industrial Street, Yankin Township, Yangon, MYANMAR
Minister for Foreign Affairs, U Win Aung, Ministry of Foreign Affairs, Yangon, Myanmar, Email: mofa.aung@mptmail.net.mm
Ambassador U Mya Than, Av. Blanc 47, CH-1202, Genève, Suisse, e-mail : mission.myanmar@ties.itu.int, fax: +4122 738 48 82
Please also write to the embassies of Myanmar in your respective country.
Geneva, February 24th , 2004.
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.