Sentencing of three defenders following their participation in peaceful protests against the Letpadaung copper mining project

MMR001 / 0613 / OBS 055.1

Sentencing/ Judicial harassment

Burma

July 11, 2013

TheObservatory for the Protection of Human Rights Defenders, a joint programme ofthe International Federation for Human Rights (FIDH) and the World OrganisationAgainst Torture (OMCT), has received new information and requests your urgentintervention on the following situation in Burma.

Newinformation:

TheObservatory has been informed by Burma Partnership and Assistance Associationfor Political Prisoners – Burma of the sentencing of Mr. U Aung Soe, amember of Yangon People’s Support Network, which campaigns for the respect ofrule of law and democracy in Burma and has been involved in the campaignagainst the Letpadaung project, along with Messrs. Ko Soe Thu and UMaung San, two villagers, for their participation in peaceful protests against the Letpadaung copper mining project inSalingyi Township, Sagaing Region, a joint venturebetween the Burmese military's Union of Myanmar Economic Holdings Limited(UMEHL) and Wan Bao Company which led to the displacement of farming families in 26 villages fromtheir land, with more than 7,000 acres confiscated in 2010.

Accordingto the information received, on July 8, 2013, Shwebo Township Court sentenced Mr.U Aung Soe to an additional 10 years imprisonment under Sections 505(b) (intentto cause alarm to the public)[1],295 and 295(a) (intent to insult a religion), and 333 (voluntarily causinggrievous hurt to deter public servant from his duty) of the Penal Code,increasing his total sentence to eleven years and six months (see backgroundinformation). Messrs. U Maung San and Ko Soe Thu were sentenced to two years’imprisonment each under Sections 505(b) and 333, making their total sentence totwo years and six months each in prison.

Asof issuing this Urgent Appeal, Messrs. U Aung Soe, U Maung San and Ko Soe Thuremain detained at the Shwebo prison. Their lawyer appealed the sentence.

Sincetheir initial sentencing on June 1, 2013, the three human rights defenders havebeen made to stand trial every few days. On June 24, their hearing was cutshort (to approximately three minutes) due to “security reasons”, whereby thedefendants were made to return to their prison cells in Shwebo prison. While nofurther information was given as to the nature of the security risks, it isbelieved the hearing was cut short because about 30 farmers planned to attendthe hearing alongside the defendants' family members.

Itshould be noted that the three human rights defenders did not have a defensivelawyer present for the entirety of their court hearings. Lawyer U AungThurein Tun made repeated attempts to gain power of attorney but was deniedaccess to his clients. When he finally was able to meet with the three inprison to gain power of attorney, it was agreed that he would attend the nexthearing to defend the three. When he showed up at court for the hearing on July8, Mr. U Aung Thurein Tun learned that the three had already been sentenced. Inaddition, when lawyer U Aung Thurein Tun visited the three in prison, he wasphotographed by one prison official, two prison wardens, and two plain-clothesauthorities. A total of eight photos were taken of the lawyer. Mr. U AungThurein Tun asked for the names of the plain-clothes authorities but theyrefused to reveal that information. All five authorities were present duringthe conversation between the lawyer and the clients. The conversation wasrecorded by the authorities. All this contravenes the principle of lawyer-client conversationconfidentiality.

This is the first timesince the so-called democratic reforms initiated in 2011-2012 that human rights defendershave been sentenced to such lengthy prison terms. The Observatory expresses itsdeepest concern about the sentences against Messrs. U Aung Soe, U Maung San,and Ko Soe Thu, as they seem to merely aim at sanctioning their human rightsactivities. The Observatory therefore calls for their immediate andunconditional release.

Backgroundinformation:

In 2012, peaceful protests began against the Letpadaung copper miningproject and were heavily repressed by the autorities. In November 2012, the police used smoke bombs to disperse the crowd,injuring dozens of demonstrators, including monks, and triggering a nationaloutcry. Activists have been facing harassment since protest began.

On April 25, 2013, villagers in the Letpadaung area tried to ploughtheir fields but were prohibited by police from entering pursuant to an orderissued under Section 144 of the Criminal Procedure Code[2].The police reportedly opened fire on the crowd and arrested without warrant Messrs.Ko Soe Thu, U Maung San and U Aung Soe. Sagaing Region authorities kept thewhereabouts of the three men secret for over 30 days. Only after a closed-doorcourt proceeding, during which they were deprived of access to their lawyers,the whereabouts of the three defenders were revealed.

On June 1, 2013, the Shwebo Township Court sentenced Mr. U Aung Soe to18 months in prison, Mr. Ko Soe Thu and Mr. U Maung San to six months’imprisonment on charges under Section 188 of the Penal Code (disobedience of anorder promulgated by a public servant). All of themwere also facing additional charges under Sections 505(b), 295 and 295(a) and333 of the Penal Code. Their lawyer appealed the sentence.

Warrants were also issued for the arrests of eight other human rightsdefenders and villagers on charges of “inciting protests”, namely Han WinAung, a member of the Political Prisoners Families' Beneficial Network, ThaungTaik Oo, a member the Yangon Institute of Technology Students Union, aswell as six members of the Yangon People's Support Network: Ko Aung Soe,Ba Htoo, Thar Kyi, Ko Latt, Thaw Zin and Ko Thu.

On May 8, 2013, because villagers had become afraid of police raids, Messrs.Moe Thway, a member of Generation Wave Youth Force, a network of humanrights defenders that campaigns for civil and political rights, including thesignature of the International Covenant on Civil and Political Rights by Burma,and that campaigns against the Letpadaung copper mine project, and have broughtthe campaign to national attention, Wai Lu and Wai Hmuu Thwin,members of Yangon People Support Network, along with Mr. Aung Thu, a memberof the 1988 Student Generation, went to Monywa to calm tensions. They informedpolice of their intentions in this regard. While they were there, some localreporters interviewed Messrs. Moe Thway, Wai Lu and Wai Hmuu Thwin. During theinterview, observed by police from the Special Branch, the three human rightsdefenders gave their opinions on the use of Section 144 to keep the villagersfrom ploughing their fields, opinions which were perceived as damaging thepolice and government's credibility.

On June 13, 2013, the Monywa Court issued arrest warrants againstMessrs. Moe Thway, Wai Lu and Wai Hmuu Thwin under Section 505 (b) of the PenalCode. These arrest warrants are reportedly linked to statements the three humanrights defenders had made about the Letpadaung copper mine project.

On June 15, 2013, Mr. Moe Thway received a phone call from LieutenantKhin Zaw Latt, Deputy Township Police Commander from the Monywa Police Station1, who had requested the court to issue the arrest warrants and who summonedthe three human rights defenders to appear at Monywa Police Station 1. In themorning of June 23, Lieutenant Khin Zaw Latt travelled to Rangoon and went toMr. Wai Lu's house with Rangoon police and Special Branch officers. As Mr. WaiLu was not present, Special Branch officers were then posted at his house.

TheObservatory condemns the arrest warrants and judicial harassment against the above-mentionedhuman rights defenders, which seems to merely aim at sanctioning their peacefulhuman rights activities.

Actionsrequested:

Pleasewrite to the authorities of Burma, urging them to:

i. Guarantee in allcircumstances the physical and psychological integrity of Messrs. Ko Soe Thu, UMaung San, U Aung Soe, Moe Thway, Wai Lu, Wai Hmuu Thwin, Ko Aung Soe, Ba Htoo,Thar Kyi, Ko Latt, Thaw Zin, Ko Thu, Han Win Aung and Thaung Taik Oo, as well as of all human rights defenders inBurma;

ii. Release Messrs. U AungSoe, Ko Soe Thu and U Maung San immediately and unconditionally since theirdetention is arbitrary as it seems to only aim at sanctioning their humanrights activities;

iii. Put an end to any actsof harassment, including at the judicial level, against them as well as againstall human rights defenders in Burma;

iv. Publicly express concernabout the repression of human rights activists and of those protesting againstthe mining project;

v. Comply with all theprovisions of the United Nations Declaration on Human Rights Defenders, inparticular with its:

- Article 1, whichprovides that “everyone has the right, individually and in association withothers, to promote and to strive for the protection and realization of humanrights and fundamental freedoms at the national and international levels”;

- Article 6(a), whichforesees that “everyone has the right, individually and in association withothers, to participate in peaceful activities against violations of humanrights and fundamental freedoms”;

- Article 12.2, whichprovides that “the State shall take all necessary measures to ensure theprotection by the competent authorities of everyone, individually and inassociation with others, against any violence, threats, retaliation, defacto or de jure adverse discrimination, pressure or any otherarbitrary action as a consequence of his or her legitimate exercise of therights referred to in the present Declaration”;

vi. More generally, ensurein all circumstances the respect for human rights and fundamental freedoms inaccordance with the Universal Declaration of Human Rights, ratify internationaland regional human rights instruments and undertake human rights impactassessment of the Letpadaung mining project with a view to identifying, preventingand mitigating any adverse human rights impacts linked to the project andengaging into meaningful consultations of local communities affected by theproject.

Addresses:

· U Thein Sein, Presidentof Myanmar, President Office, Office No.18, Naypyitaw, MYANMAR; Fax: + 95 1 652624

· U Hla Min, Minister forHome Affairs, Ministry of Home Affairs, Office No. 10, Naypyitaw, MYANMAR; Tel:+95 67 412 079/ 549 393/ 549 663; Fax: +95 67 412 439

· U Win Mra, Chairman ofthe Myanmar National Human Rights Commission, 27 Pyay Road, Hline Township,Yangon, Republic of the Union of Myanmar; Fax: +95-1-659668

· Dr. Tun Shin, AttorneyGeneral, Office of the Attorney General, Office No. 25, Naypyitaw, MYANMAR;Tel: +95 67 404 088/ 090/ 092/ 094/ 097; Fax: +95 67 404 146/ 106

· U Tun Tun Oo, ChiefJustice, Office of the Supreme Court, Office No. 24, Naypyitaw, MYANMAR; Tel: +95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145; Fax: + 95 67 404 059

· U Kyaw Kyaw Htun,Director General, Myanmar Police Force, Ministry of Home Affairs, Office No.10, Naypyitaw, MYANMAR; Tel: +95 67 412 079/ 549 393/ 549 663; Fax: +951 549663 / 549 208

· H.E. Mr. Maung Wai,Ambassador Extraordinary and Plenipotentiary, Permanent Representative to theUnited Nations in Geneva, Avenue Blanc 47, 1202 Geneva, Switzerland. Fax: +4122 732 89 19, +41 22 732 73 77, Email: mission@myanmargeneva.org

· Embassy of Myanmar inBrussels, Boulevard Général Wahis 9, 1030 Brussels, Belgium, Fax: +32 (0)32 2705 50 48, Email: mebrussels@skynet.be

Pleasealso write to the diplomatic representations of Burma in your respectivecountries.

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Paris-Geneva,July 11, 2013

Kindly inform us of any action undertakenquoting the code of this appeal in your reply.

The Observatory, a FIDH andOMCT venture, is dedicated to the protection of Human Rights Defenders and aimsto offer them concrete support in their time of need.

To contact the Observatory, call the emergency line:

· E-mail: Appeals@fidh-omct.org

· Tel and fax FIDH + 33 143 55 25 18 / +33 1 43 55 18 80

· Tel and fax OMCT + 41 22809 49 39 / + 41 22 809 49 29

[1] Section 505(b) punishes “Whoever makes, publishes or circulates anystatement, rumour or report […] with intent to cause, or which is likely tocause, fear or alarm to the public or to any section of the public whereby anyperson may be induced to commit an offence against the State or against thepublic tranquillity”.

[2] Section144 grants the Judiciary the power to issue orders: “Such Magistrate may, bya written order stating the material facts of the case and served in mannerprovided by section 124, direct any person to abstain from a certain act or totake certain order with certain property in his possession or under hismanagement, if such Magistrate considers that such direction is likely toprevent, or tends to prevent, obstruction, annoyance or injury, or risk ofobstruction, annoyance or injury, to any person lawfully employed, ordanger to human life, health or safety, or a disturbance of the publictranquillity, or a riot, or an affray”. In this case the orders issuedunder Section 144, which were actually not enacted by the judiciary, prohibitvillagers from access to their farmlands or any form of use of the farmlands.