HAUT-COMMISSARIAT AUX DROITS DE L HOMME OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS PALAIS DES NATIONS 1211 GENEVA 10, SWITZERLAND Mandates of the Special Rapporteur on the situation of human rights in Myanmar; the Special Rapporteur on extrajudicial, summary or arbitrary executions; and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment REFERENCE: AL MMR 7/2014: Excellency, 6 November 2014 We have the honour to address you in our capacities as Special Rapporteur on the situation of human rights in Myanmar; Special Rapporteur on extrajudicial, summary or arbitrary executions; and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment pursuant to Human Rights Council resolutions 25/26, 26/12, and 25/13. In this connection, we would like to bring to the attention of your Excellency s Government information we have received concerning the death of Mr. Ko Aung Kyaw Naing, a journalist who died under the custody of the Myanmar Army. According to information received: Mr. Ko Aung Kyaw Naing, also known as Ko Par Gyi, was a 49 year-old freelance journalist who regularly reported on ethnic issues along the Myanmar- Thailand border for Yangon-based newspapers. He had been covering the conflict between the Myanmar Army and the Democratic Karen Benevolent Army (DKBA) and was last seen returning from an area of DKBA control to Kyaikmayaw Town on 30 September 2014. He was allegedly seized by the Light Infantry Battalion 208 of the Myanmar Army in Kyaikmayaw Town, Mon State. It is alleged that the army arrested Mr. Ko Aung Kyaw Naing to interrogate him about where certain members of the DKBA were hiding at the time. On 21 October 2014, Mr. Ko Aung Kyaw Naing s wife, Ms. Ma Thandar, filed a lawsuit on behalf of her missing husband at the Kyaikmayaw Police Station. A police corporal informed her that he had seen Mr. Ko Aung Kyaw Naing s injurycovered body. On 23 October 2014, the Myanmar Army sent a statement to the Interim Myanmar Press Council informing them of Mr. Ko Aung Kyaw Naing s death.
The statement claimed that Mr. Ko Aung Kyaw Naing was under the custody of a battalion that was searching of DKBA rebels on 04 October. A guard shot him dead at 7:40 pm because he was trying to seize a gun and escape. A Ministry of Defence report claims that Ko Aung Kyaw Naing was an information officer for the DKBA, although the DKBA s headquarters denied any affiliation with him. Ms. Ma Thandar filed a complaint with the Kyaikmayaw Police Station against Mr. San Min Aung, Army Captain of the 208 Light Infantry Battalion, for allegedly being involved in Mr. Ko Aung Kyaw Naing s illegal arrest, torture, and death. A police officer initially dismissed the charges after having been ordered to by his superiors. However, while traveling to the Mon State capital of Moulmein, Ms. Ma Thandar received a phone call that the Kyaikmayaw Police Station would receive her complaint. Ms. Ma Thandar alleges that she was repeatedly questioned and intimidated during her trip. She has also yet to receive her husband s body. We are seriously concerned that Mr. Ko Aung Kyaw Naing was arrested by the army in late September 2014, that he was arbitrarily detained, that he may have been tortured during his detention, and that he died, either from the treatment he was subject to, or from what may have been a summary execution. We are also concerned that his family was not informed about his wherabouts while detained, was not allowed to visit him in detention, that she was informed about his detah nearly three weeks after his arrest, and that the body of her husband was not handed over to her. We are further concerned that to our knowledge no judicial investigation, independent of the army, has been conducted into the death of this person, and that no army personnel responsible for his detention, treatment and death has been prosecuted. Our concern in this regard is heigthened by the fact that according to the 2008 Constitution, defence service personnel can only be tried in military courts, should there be an investigation into the death of Mr. Ko Aung Kyaw Naing. We call upon your Excellency's Government to open an investigation into the death in military custody of Mr. Ko Aung Kyaw Naing, in particular the legality of his arrest and detention, and his treatment while detained, and to institute independent criminal proceedings against any responsible military personnel. In connection with the above alleged facts and concerns, please refer to the Reference to international law Annex attached to this letter which cites international human rights instruments and standards relevant to these allegations. As 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, we would be grateful for your observations on the following matters: 1. Please provide any additional information and any comment you may have on the above mentioned allegations. 2
2. Please provide information concerning the legal grounds for the detention of Mr. Ko Aung Kyaw Naing, and indicate how such measure complies with international human rights laws. 3. Please provide information on each stage of the arrest and detention of Mr. Ko Aung Kyaw Naing, and the events that led to his death. 4. Please provide information on why the Myanmar Army waited three weeks before reporting on Mr. Kyaw Aung Kyaw Naing s death. 5. Please provide information on the investigation of this case and steps that your Excellency s Government is taking in order to ensure a fair investigation and fair judicial processes. 6. Please provide information on the initial steps that your Excellency s Government is taking in order to protect the rights of journalists, especially in conflict areas. We would appreciate receiving a response within 60 days. While awaiting a reply, we urge that all necessary interim measures be taken to investigate the alleged violations and prevent their re-occurrence and in the event that the investigations support or suggest the allegations to be correct, to ensure the accountability of any person responsible of the alleged violations. Your Excellency s Government s response will be made available in a report to be presented to the Human Rights Council for its consideration. Please accept, Excellency, the assurances of our highest consideration. Yanghee Lee Special Rapporteur on the situation of human rights in Myanmar Christof Heyns Special Rapporteur on extrajudicial, summary or arbitrary executions Juan E. Méndez Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment 3
Annex Reference to international human rights law In connection with above alleged facts and concerns in this letter, the following international human rights standards appear to be relevant: Articles 3 of the Universal Declaration of Human Rights (UDHR) and article 10 and 11 of the ASEAN Human Rights Declaration which guarantee the right of every individual to life and security. When the State detains an individual, it is held to a heightened level of diligence in protecting that individual s rights. 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). The Human Rights Council reiterated this principle at its 26 th session in Resolution 26/12 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. We wish to recall also that the families and dependents of victims of extra-legal, arbitrary or summary executions shall be entitled to fair and adequate compensation within a reasonable period of time, pursuant to principle 20 of the of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. We would also like to remind your Excellency s Government of the absolute and non-derogable prohibition of torture and other ill-treatment as recalled, inter alia, in Human Rights Council Resolution 25/13 and paragraph 1 of General Assembly Resolution 68/156. We urge your Government to carry out an expeditious, independent and transparent inquiry into the circumstances surrounding the death of Mr. Ko Aung Kyaw Naing, also with a view to taking all appropriate disciplinary and prosecutorial action and ensuring accountability of any person guilty of the alleged violations. In this respect we note that Human Rights Council Resolution 16/23, paragraph 7(b), urges States to hold responsible not only those who perpetrate torture, but also those who encourage, order, tolerate or perpetrate such acts [...], to have them brought to justice and punished in a manner commensurate with the gravity of the offence, including the officials in charge of the place of detention where the prohibited act is found to have been committed. Moreover, with regards to the retributions suffered by Ms. Ma Thandar and the denied access to redress and compensation, including the access to her husband s body, we would like to draw the attention of your Excellency s Government to paragraphs 22 and 23 of General Assembly Resolution 68/156, which stress that, national legal systems must ensure [ ] effective access to justice and obtain redress without suffering any retribution for bringing complaints or giving evidence, and call upon States to provide 4
redress [ ] encompassing effective remedy and adequate, effective and prompt reparation, which should include restitution, fair and adequate compensation, rehabilitation, satisfaction and guarantees of non-repetition, taking into full account the specific needs [ ]. 5