NATIONS UNIES UNITED NATIONS HAUT COMMISSARIAT DES NATIONS UNIES OFFICE OF THE UNITED NATIONS AUX DROITS DE L’HOMME HIGH COMMISSIONER FOR HUMAN RIGHTS

PROCEDURES SPECIALES DU SPECIAL PROCEDURES OF THE CONSEIL DES DROITS DE L’HOMME HUMAN RIGHTS COUNCIL

Mandates of the Special Rapporteur on the situation of human rights in and the Special Rapporteur on extrajudicial, summary or arbitrary executions.

REFERENCE: AL G/SO 214/62-11 G/SO 214 (33-27) G/SO 214 (53-24) MMR 9/2012

3 December 2012 ,

We have the honour to address you in our capacities as Special Rapporteur on the situation of and Special Rapporteur on extrajudicial, summary or arbitrary executions pursuant to Human Rights Council resolution 19/21 and 17/5.

In this connection, we would like to bring to your Excellency’s Government’s attention information we have received concerning the alleged death by torture in custody of Mr. Myo .

According to information received:

On 28 June 2012, Mr. Ma Poe Poe Mon, a flower seller, 19 years old, was murdered in Mayangone Township, Yangon. A week later, the police from the township station arrested Mr. Myo Myint Swe, a carpenter of the same age, at his residence and accused him of being involved.

On 6 July 2012, the mother of Mr. Swe, Ms. Daw Sein Sein, and his cousin, Mr. Ko Soe Lin, were also taken to the same police station without a court order. Both of them were set free on 8 July 2012, around 5:00 p.m. At approximately 10:00 p.m., on the same day, the district police commander informed Ms. Daw Sein Sein that in the meantime her son had died from illness during interrogation.

The family members of Mr. Myo Myint Swe took photographs of his body after the post mortem examination and before he was cremated, and the pictures show that he had been tortured. In one of the photographs of the victim, his shins show scars and bruising from the rolling of a rubber or bamboo stick or similar instrument. The other photographs show that the right cheek and forehead of the deceased are heavily bruised and swollen, as is the left jaw and lower cheek. The neck of the deceased is black with bruising, and scars and bruises are obvious on his shoulders and back.

The doctor who conducted the post mortem on the body recorded on 23 July 2012, that the victim had died due to a heart attack.

Subsequently, the district police commander donated the equivalent of around USD600 to the family, for funeral expenses, and the victim's mother accepted the money because she didn't have the funds for the funeral. Later on the police from Mayangone Township offered another amount, about double; however, she refused to take the money, believing that the police were trying to pay her off for her son's death. She insisted that a criminal case be opened against the perpetrators.

The family of the victim tried to open a case against the commander of the Bayinnaung Police Station and the interrogators for murder, at the East Dagon Police Station on 27 July 2012, and at the Bayinnaung Police Station on 28 July 2012, but neither station would accept the complaint. In August 2012, Ms. Daw Sein Sein sent complaint letters to the Director General of Myanmar Police Force, Ministry of Home Affairs and the Myanmar National Human Rights Commission, urging that the case be investigated properly and charges brought against the perpetrators in accordance with the law. It is alleged that the family has not received any replies to its complaints.

Furthermore, when the death inquest was held in court, it was registered as a simple death, not as a murder. Ms. Daw Sein Sein also saw that the photographs of the deceased that the police submitted to court looked nothing like those that she had seen, and that they had allegedly been modified with a computer programme to conceal the scars and wounds on the dead body that can be clearly seen in the original photos. The court hearings into the death have since been conducted without the family being informed of the dates on which the hearings were to be held.

According to an article that appeared in the media in late June, the Deputy Commander of the Yangon Region Police had ordered that an internal investigation be conducted by two police majors; however, to date the family does not know what progress if any has been made by the investigation team.

The most recent report of the Special Rapporteur on the situation of human rights in Myanmar to the 67th Session of the General Assembly (A/67/383), included a recommendation that “Immediate and effective measures should be taken to prevent torture and ill-treatment and to investigate all allegations.” In order to overcome the presumption of State responsibility for a death resulting from injuries sustained in custody, there must be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions (principle 9 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions). This principle was reiterated by the Human Rights Council at its 17th Session in Resolution 17/5 on the “Mandate of the Special Rapporteur on extrajudicial, summary or arbitrary executions” (OP 4).The Council added that this obligation includes identifying and bringing to justice those responsible; granting adequate compensation to the victim or his family; and taking steps to end impunity and the recurrence of such executions.

2 It is our responsibility under the mandates provided to us by the Human Rights Council, to seek to clarify all cases brought to our attention. Since we are expected to report on these cases to the Human Rights Council, we would be grateful for your cooperation and your observations on the following matters, when relevant to the case under consideration:

1. Are the facts alleged in the summary accurate?

2. Has an investigation been conducted by an independent, competent domestic authority into the alleged torture and subsequent death in custody of Mr. Myo Myint Swe?

3. Please provide the details, and where available the results, of any investigation, medical examinations, and judicial or other inquiries carried out in relation to this case. If no inquiries have taken place, or if they have been inconclusive, please explain why.

4. Please provide information on how the complaints reportedly made by the family of Mr. Myo Myint Swe at East Dagon Police Station, Bayinnaung Police Station, and to the Director General of the Myanmar Police Force, the Ministry of Home Affairs and the Myanmar National Human Rights Commission have been dealt with?

5. Please provide information concerning the legal grounds for the arrest and detention of Mr. Myo Myint Swe, and how these measures are compatible with international norms and standards.

6. Please provide information on whether adequate compensation has been provided to the family of the alleged victim, Mr. Myo Myint Swe.

We would appreciate a response within sixty days. Your Excellency’s Government’s response will be made available in a report to the Human Rights Council for its consideration.

While awaiting your response, we urge your Excellency’s Government to take all necessary measures to guarantee that, in the event that your investigations support or suggest the above allegations to be correct, the accountability of any person responsible of the alleged violations should be ensured. We also request that your Excellency’s Government adopt effective measures to prevent the recurrence of these acts.

Please accept, Excellency, the assurances of our highest consideration.

Tomás Ojea Quintana Special Rapporteur on the situation of human rights in Myanmar

Christof Heyns Special Rapporteur on extrajudicial, summary or arbitrary executions 3