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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME Urgent Appeal Update: AHRC-UAU-010-2011 16 March 2012 [RE: AHRC-UAU-009-2011:

Family of accused denied prison visits; detainee reportedly held in dog kennels]--------------------------------------------------------------------BURMA: Appeal for retrial or release of accused and dismissal of judge in Phyo Wai Aung case ISSUES: Independence of judges & lawyers, right to fair trial, fabrication of charges, torture--------------------------------------------------------------------CAMPAIGN PAGE: FREE PHYO WAI AUNG http://www.humanrights.asia/campaigns/phyo-wai-aung --------------------------------------------------------------------Dear friends, The Asian Human Rights Commission (AHRC) has been closely following the case of a young man whom the authorities in Burma have falsely accused of involvement in a bombing during 2010, and who confessed after extremely brutal and protracted torture. In this appeal, we are urging you to support a recent call of the AHRC for a retrial or dismissal of the case, and, a letter submitted by the brother of the accused for action to be taken against the presiding judge for his unjust handling of the case. CASE UPDATE: In previous appeals and statements the AHRC already expressed concerns over the case of Phyo Wai Aung, who was arrested on 22 April 2010, a week after the explosions at the annual water festival, and whom the police chief in a press conference declared a terrorist. Full details of the case are available on the campaign website (above). The case against Phyo Wai Aung, which has throughout been conducted in a closed court inside the central prison, has been continuing up to the present. In an open letter to the chief justice of Burma issued in February (AHRC-OLT-004-2012), the AHRC already called for the case to be dropped, or for a retrial, because of multitudinous miscarriages of justice. Among these, the presiding judge has now ordered that the prosecution initiate criminal action against Phyo Wai Aung and his two lawyers because as part of the defence they indicated that another judge had not taken a confession from the accused in the manner that he had testif ied. Although this accusation was made as part of the defence rebuttal of the prosecution case, the presiding judge said that it brought disrepute on the judiciary and other officials involved and ordered that charges be laid against the defendant and his attorneys. Additionally, in March the brother of the defendant submitted a complaint letter against the presiding judge to the chief justice, president and legislature, calling for action to be taken against the judge on a number of grounds. Among these, he highlighted that the judge cut off the defendant's testimony after only six hearings. He points out that the prosecution took one year and eight months to present over 40 witnesses and that the case file now runs to about 5000 pages. In all of these testimonies and other evidence, there are many contradictions that show the prosecution case is full of inaccuracies and inconsistencies, which are inevitable, because the case is fabricated. The defendant in only six hearings could not possibly go through and rebut all of these flaws in the prosecution case, based on the facts of what actually happened, as he wanted to describe it. Furthermore, the charges include those that carry the death sentence and it is patently unjust to give only six hearings to rebut these charges when the prosecution had 20 months in which to present its case. He additionally points out that the judge made a number of statements that show his bias against the defendant and support for the prosecution case, and hence

that the defendant has a low expectation of a fair trial with this judge. Currently, as the defence was curtailed, the case is drawing to a close and a verdict is expected soon. Therefore, we urge you to take the action as suggested below in order to draw attention to this case. Further details of the case are provided in the sample letter, below. SUGGESTED ACTION: Please write to the persons listed below to call for the release of Phyo Wai Aung, or for a retrial, and for action to be taken against the officials responsible for his torture, maltreatment and unjust trial. Please note that for the purpose of the letter, the country should be referred to by its official title of Myanmar, rather than Burma, and Rangoon, Yangon. Please be informed that the AHRC is sending letters on this case to the UN Special Rapporteurs on Myanmar, on the independence of judges and lawyers, and on torture; the UN Working Group on Arbitrary Detention and the regional human rights office for Southeast Asia, calling for further interventions. SAMPLE LETTER: Dear ___________, MYANMAR: Call for release or retrial of Phyo Wai Aung, action against police and judge Details of accused: Ko Phyo Wai Aung, a.k.a. Mohammad Sharvan, electrical engineer/ contractor, resident of Ward 2, Pazundaung Township, Yangon, Myanmar Date of arrest: 22 April 2010 Place of detention and trial: Insein Central Prison, Yangon; Criminal Case No. 103/2012 (and three other cases), Yangon Western District Court, District Judge U Aung Thein presiding I am writing to call for the dropping of charges against and the release of an accused in the case of the April 2010 traditional new year festival bombing, Phyo Wai Aung, or at very least, for a retrial of the accused, and for action to be taken against the police responsible for his torture and also in support of a call by the brother of the accused for action against the presiding judge. According to the latest information about this case that I have received, on 20 February 2012 the trial judge in the closed court in the central prison where the trial has been going on ordered that contempt of court proceedings begin against the defendant and his two lawyers and curtailed the defendant's testimony. The lawyers, U Kyaw Hoe and Daw Thinza Hlaing had been examining their client concerning the taking of advance testimony from a witness before the actual trial had begun. When the defendant cast doubt on the manner in which the judge responsible for taking this advance testimony had conducted the inquiry and the defence lawyer asked if it appeared that evidence had been deliberately withheld--since the purpose of the advance testimony was evidently to deny the defendant a witness who could provide him with an alibi--the prosecution claimed that the defence had intentionally insulted the judicial and legal officers involved in the case and asked for legal action to be taken against the two defence lawyers and the defendant. The defendant's lawyers objected that no legal ground existed for action against them as they were just rebutting the evidence brought against their client, but Judge U Aung Thein ordered that charges be laid against the lawyers and their client either under section 228 of the Penal Code, for intentionally causing an insult to a judicial officer or under the Contempt of Courts Act, 1926.

The order to charge the defendant and lawyers not only demonstrates the utter lack of credibility of the trial process in this case but also raises serious questions about the rights of any defendant in a Myanmar court to issue a defence on the facts of the case. Phyo Wai Aung and his lawyers were doing no more than submit a defence testimony in response to the facts alleged by the prosecution. They did not raise questions concerning the evidence submitted by the judge in order to cause insult or do anything else in contempt of the judiciary, but merely as part of the defence of the accused, as is his legal right. Following these events, on 9 March 2012 the brother of the defendant submitted a complaint letter to the chief justice, president and legislature. In the letter he points out that the judge cut off the defendant's testimony after only six hearings. He notes that the prosecution took one year and eight months to present over 40 witnesses and that the case file now runs to about 5000 pages. In all of these testimonies and other evidence, there are many contradictions that show the prosecution case is full of inaccuracies and inconsistencies, because the case is fabricated. The defendant in only six hearings could not possibly go through and rebut all of these flaws in the prosecution case. Furthermore, the charges include those that carry the death sentence and it is patently unjust to give only six hearings to rebut these charges when the prosecution had 20 months in which to present its case. He additionally points out that the judge made a number of statements that show his bias against the defendant and support for the prosecution case, and hence that the defendant has a low expectation of a fair trial with this judge. I strongly support this letter of Phyo Wai Aung's brother and call for inquiries to be made and action to be taken accordingly, such that: (1) No charges are brought against Phyo Wai Aung and his lawyers, U Kyaw Hoe and Daw Thinza Hlaing, for merely presenting a case in defence of the fabricated evidence brought by the prosecution. (2) The case against Phyo Wai Aung is transferred to an open district court where members of the public can assemble and hear the charges and trial freely. (3) A retrial of the case is conducted, or better still, the case is dismissed as groundless, fruitless, illegal and unjust. (4) Special investigations are initiated against all of the police involved in the case, many of whom have reportedly been promoted for their roles in bringing the accused to court, on the basis of the alleged torture and other multitudinous abuses of the legal process committed during investigation. These abuses, the officers involved and other details have been documented in the contents of records before the court and in complaint letters repeatedly submitted by the defendant's family to all levels of government, but so far as I am aware, to date no action has been taken against any of the allegations, despite their detail and credibility. I am aware that at this time Myanmar is in a period of political transition much of the discussion is turning towards questions of the rule of law and the prospects for change to the legal system. It is obvious that for any possibility of reform to the legal system, patently unjust cases of this sort must be brought to a halt and known torturers and abusers of human rights must be identif ied and rooted out. This will be a slow process, but I believe that the government of Myanmar can begin that process by responding to calls on this case of Phyo Wai Aung and demonstrating a commitment to rhetoric about the rule of law and human rights by taking the steps that I have set out above. Yours sincerely, ---------------PLEASE SEND YOUR LETTERS TO: 1. U Thein SeinPresident of Myanmar

President OfficeOffice No.18NaypyitawMYANMAR 2. U Tun Tun OoChief Justice Office of the Supreme CourtOffice No. 24 NaypyitawMYANMAR Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145Fax: + 95 67 404 059 3. U Hla MinMinister for Home Affairs Ministry of Home AffairsOffice No. 10 NaypyitawMYANMARTel: +95 67 412 079/ 549 393/ 549 663Fax: +95 67 412 439 4. Dr. Tun ShinAttorney General Office of the Attorney GeneralOffice No. 25 NaypyitawMYANMAR Tel: +95 67 404 088/ 090/ 092/ 094/ 097Fax: +95 67 404 146/ 106 5. U Kyaw Kyaw HtunDirector General Myanmar Police ForceMinistry of Home Affairs Office No. 10Naypyitaw MYANMARTel: +95 67 412 079/ 549 393/ 549 663Fax: +951 549 663 / 549 208 6.Thura U Aung KoChairman Pyithu Hluttaw Judicial and Legislative CommitteePythu Hluttaw Office NaypyitawMYANMAR. 7.U Aung NyeinChairman Pyithu Hluttaw Judicial and Legislative CommitteeCommittee for Public Complaints and AppealsAmyotha Hluttaw OfficeNaypyitawMYANMAR 8. U Win MraChairman Myanmar National Human Rights Commission27 Pyay Road Hlaing TownshipYangonMYANMARTel: +95-1-659668Fax: +95-1-659668 Thank you. Urgent Appeals Programme Asian Human Rights Commission (AHRC) (ua@ahrc.asia)