Dear
MYANMAR: Wrongful conviction of U Tin Nyein in Bogalay Township Court Criminal Case No. 390/06 under sections 504/505(b) of the Penal Code
Name of victim: U Tin Nyein, 46-years-old, farmer, son of U Khwe, residing in Kwunthi Chaung village, Kyun village tract, Bogalay Township, Pyapon District, Ayeyawaddy Division
Convicted under: Sections 504/505(b) of the Penal Code, in Bogalay Township Court, Criminal Case No. 390/06, Judge U Bhyein Htun Aung presiding, decided on 29 March 2006, sentenced to two years in prison under each section (to be served consecutively)
Related actions: Appeal No. 75/2005, Pyapon District Court, decided on 23 December 2005, against Felony No. 1496/2005 lodged in the Bogalay Sub-township Court under section 211 of the Penal Code on 6 December 2005; Irrawaddy Sub-divisional Court application of U Tin Nyein lodged on 14 February 2006
Names of persons involved in the case:
1. Police Superintendent Tin Htun, Bogalay Township Police Station, plaintiff in second case
2. U San Myint and five other workers assigned for land and water works in Kyun village tract, Bogalay Township, Pyapon District, Ayeyawaddy Division, respondents in original complaint
I am greatly disturbed to hear of yet another case of unjust persecution of a farmer in Bogalay Township, Myanmar by local authorities there.
According to the information I have received, U Tin Nyein of Kyun village tract in Bogalay Township complained that at about 1pm on 19 August 2005 U San Myint and five other workers who were assigned by the township authorities to land and water works in Kwunthi Chaung village demolished embankments that he had constructed in a stream on his land. As a result, over 100 acres of crops were destroyed.
After Tin Nyein lodged complaints at various levels, including with the Bogalay Township Peace and Development Council, Pyapon District Peace and Development Council, Irrigation Department, Agricultural Planning Department, and Water Resources Utilization Department, on December 6 U San Myint then lodged a counter-complaint in the Bogalay Sub-township Court that Tin Nyein had made false claims in order to injure their reputations under section 211 of the Penal Code (Felony No. 1496/2005).
Tin Nyein lodged Appeal No. 75/2005 in Pyapon District Court against the legal action of U San Myint but it was thrown out without a hearing on December 23.
In an attempt to stop Tin Nyein from further action, the authorities allegedly put him under illegal detention at the Bogalay Township Police Station on 6 February 2006. However, on February 14 he was able to lodge another appeal in the Irrawaddy Sub-divisional Court that the case against him was illegal because section 182, not 211 should be used in cases of this nature and that under section 195(b) of the Criminal Procedure Code the case should anyhow be disallowed as it did not comply with correct procedure. The court upheld the appeal.
Therefore, on March 9 Police Superintendent Tin Htun of Bogalay Township Police Station lodged a new complaint against Tin Nyein for attempting to cause a breach of the peace and upsetting public tranquility, under sections 504 and 505(b) of the Penal Code.
In the hearings at the Bogalay Township Court, Tin Nyein (representing himself) pointed out that the authorities had not denied that they had broken the embankments, but just that the effect was that water had flooded his land. He also produced a signed document by seven other farmers supporting his claims and saying that their lands had also been affected (namely, Ko Kyaw Kyaw, son of U Maung, 9 acres; U Thi, son of U Htun Min, 20 acres; Daw San Myint, daughter of U Htun Khin, 9 acres; Myint Lwin Oo, son of U Lone, 10 acres; Myint Oo, son of U Mya Maung, 20 acres; Kular, son of U Kyaw Sein, 11 acres; Khin Zaw Oo, son of U Win Htay, 12 acres). Nonetheless, on March 29 the township court found Tin Nyein guilty of both charges and sentenced him to two years in jail under each offence, to be served consecutively.
Sadly, this is yet another conviction speaking to how persons with grievances who bring complaints against local authorities in Myanmar are themselves made the subject of legal action. While the question of whether or not the complaint is legitimate is one thing; the right of a citizen to lodge a complaint against a public official acting in his or her official capacity is essential for a functioning society. Without this right, it is quite impossible to ensure even the most basic adherence to the rule of law and guarantee and orderly and stable country. Unfortunately, as it stands at present this right is appears to be completely absent from Myanmar.
If the government of Myanmar expects to be able to build a new, modern and developed state as it constantly iterates then it must do much more to set up avenues through which complaints can be received from citizens, independently investigated and alleged perpetrators prosecuted. In the absence of such avenues, there is no possibility for your nation to grow and prosper.
In this case, I call on you to order a full inquiry into the original complainant with a view to the necessary action with reference to the local authorities, and the release of U Tin Nyein from prison on the spurious charges under sections 504 and 505(b). More generally, I call on your government to review laws that are used for frivolous legal actions against complainants, especially sections 182, 211, 504 and 505 of the Penal Code, in order that persons with genuine complaints be able to air these without fear of retribution by the authorities.
Yours sincerely
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PLEASE SEND YOUR LETTERS TO:
Maj-Gen. Maung Oo
Minister for Home Affairs
Ministry of Home Affairs
Corner of Saya San Street and No 1 Industrial Street,
Yankin Township
Yangon
MYANMAR
Tel: +951 250 315 / 374 789
Fax: +951 549 663 / 549 208
PLEASE SEND COPIES TO:
1. Lt-Gen. Soe Win
Prime Minister
c/o Ministry of Defence
Signal Pagoda Road
Yangon
MYANMAR
Tel: + 95 1 372 681
Fax: + 95 1 652 624
2. U Aye Maung
Attorney General
Office of the Attorney General
101 Pansodan Street
Kyauktada Township
Yangon
MYANMAR
Fax: + 95 1 371 028/ 282 449 / 282 990
3. Brig-Gen. Thura Myint Aung
Commander of Southwest Command
Chairman
Ayeyawaddy Division Peace & Development Council
Pathein, Ayeyawaddy Division
MYANMAR
4. Mr. Patrick Vial
Head of Delegation
ICRC
No. 2 (C) - 5 Dr. Ba Han Lane
Kaba Aye Pagoda Road, 8th Mile
Mayangone Township
Yangon
MYANMAR
Tel.: +951 662 613 / 664 524
Fax: +951 650 117
5. Professor Paulo Sergio Pinheiro
Special Rapporteur on Myanmar
Attn: Ms. Audrey Ryan
Room 3-090
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: + 41 22 9179 281
Fax: + 41 22 9179 018 (ATTN: SPECIAL RAPPORTEUR MYANMAR)
6. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Att: Sonia Cronin
Room: 3-060
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9160
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR INDEPENDENCE JUDGES & LAWYERS)
7. Ms Leila Zerrougui
Chairperson
Working Group on arbitrary detention
Attn: Mr Miguel de la Lama
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006 (ATTENTION: WORKING GROUP ARBITRARY DETENTION)
Thank you.
Urgent Appeals Programme
