Myanmar: Death in Custody of Maung Chan Kun Violation alleged: Death in custody
Subject(s) of appeal: 1 male
Character of reply: Allegations rejected but without adequate substantiation
Observations of the Special Rapporteur The Special Rapporteur appreciates the information provided by the Government of Myanmar. However, the SR notes that the suggestion that Maung Chan Kun died of malaria is not responsive to allegations that his body had a hole at the back of his head and bruising on his face, neck, and forearms.
Allegation letter dated 12 March 2007sent with the Special Rapporteur on the question of torture
We would like to bring to your Excellency’s attention information we have received regarding the death in custody of Mr. Maung Chan Kun. According to information received:
Mr Chan Kun was arrested at his home in the Irrawaddy Delta Region by the police during the night of 11 January 2007. The next morning the family of Mr Chan Kun went to the Pantanaw Township hospital upon being advised about his whereabouts by the police. Mr Chan Kun was reportedly already dead, and he had a hole at the back of the head. There was bruising from his neck to the back of his ears, to the sides of his face and forearms. Mr Chan Hun was found lying on a wooden bed frame with one arm apparently chained to it.
While we do not wish to prejudge the accuracy of these allegations, we would like to draw your Government’s attention to the fundamental principles applicable under international law to this incident. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) enshrines the right not to be arbitrarily deprived of one’s life. Article 7 ICCPR and Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment proscribe torture and inhuman or degrading treatment.
When the State detains an individual, it is held to a heightened level of diligence in protecting that individual’s rights. As a consequence, when an individual dies in State custody, there is a presumption of State responsibility. In this respect, I would like to recall the conclusion of the Human Rights Committee in a custodial death case (Dermit Barbato v. Uruguay, communication no. 84/1981 (1990)):
“While the Committee cannot arrive at a definite conclusion as to whether Hugo Dermit committed suicide, was driven to suicide or was killed by others while in custody; yet, the inescapable conclusion is that in all the circumstances the Uruguayan authorities either by act or by omission were responsible for not taking adequate measures to protect his life, as required by article 6 (1) of the Covenant.”
We respectfully request that your Government ensures that the death of Mr. Chan Kun is promptly, independently and thoroughly investigated, in accordance with the United Nations principles on the effective prevention and investigation of extra-legal, arbitrary and summary executions. According to these Principles all States have “the obligation (…) to conduct exhaustive and impartial investigations into all suspected cases of extrajudicial, summary or arbitrary executions”, as reiterated by the 61st Commission on Human Rights in Resolution 2005/34 on “Extrajudicial, summary or arbitrary executions” (OP 4). The Commission added that this includes the obligation “to identify and bring to justice those responsible, (…) to grant adequate compensation within a reasonable time to the victims or their families and to adopt all necessary measures, including legal and judicial measures, in order to (…) prevent the recurrence of such executions”.
Furthermore, we would like to draw your Government’s attention to articles 12 and 7 of the Convention against Torture. Article 12 requires the competent authorities to undertake a prompt and impartial investigation wherever there are reasonable grounds to believe that torture has been committed, and article 7 requires State parties to prosecute suspected perpetrators of torture. We would also like to draw your Government’s attention to paragraph 3 of Resolution 2005/39 of the Commission on Human Rights. Paragraph 3 stresses that “all allegations of torture or other cruel, inhuman or degrading treatment or punishment must be promptly and impartially examined by the competent national authority, that those who encourage, order, tolerate or perpetrate acts of torture must be held responsible and severely punished, including the officials in charge of the place of detention where the prohibited act is found to have been committed, and takes note in this respect of the Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Principles) as a useful tool in efforts to combat torture”.
It is our responsibility under the mandate provided to us by the Commission on Human Rights and extended 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 in relation to the case referred to above:
1. Are the facts alleged in the above summary of the case accurate?
2. Please provide the details, and where available the results, of any investigation, medical examinations (autopsy), and judicial or other inquiries which may have been carried out in relation to the death of Mr. Chan Kun. If no inquiries have taken place or if they have been inconclusive, please explain why.
3. In the event that the alleged perpetrators are identified, please provide the full details of any prosecutions which have been undertaken; have penal, disciplinary or administrative sanctions been imposed on the alleged perpetrators?
4. Please indicate whether compensation has been provided to the family of Mr. Chan Kun. Response from the Government of Myanmar dated 22 May 2007 The Government informed that Maung Chan Kun was sentenced on 30 October 2006 to two years’ imprisonment in Maubin Prison for cheating and dishonestly inducing donations from others while he was in monkhood (sections 295(A) and 420 of the Penal Code). On 13 December 2006, he escaped during a transfer from Maubin Prison to Pantanaw Prison. On 11 January 2007, the Pantanaw Police found him again. He was seriously ill from malaria and was immediately sent to Pantanaw Hospital for treatment, however he died on the same day in hospital.
Myanmar: Deaths during Demonstrations in September 2007 Violation alleged: Deaths due to excessive use of force by law enforcement officials
Subject(s) of appeal: Number of persons unknown
Character of reply: No response
Observations of the Special Rapporteur The Special Rapporteur regrets that the Government of Myanmar has failed to cooperate with the mandate that he has been given by the General Assembly and the Human Rights Council.
Urgent appeal dated 28 September 2007sent with Chairperson-Rapporteur of the Working Group on Arbitrary Detention, Special Rapporteur on freedom of religion or belief, Special Rapporteur on the question of torture, Special Rapporteur on the situation of human rights in Myanmar and Special Representative of the Secretary-General on the situation of human rights defenders
We would like to draw the attention of your Government to reports we have received indicating that, in the course of the past week or more, the military has dispersed demonstrations, peacefully initiated by Buddhist monks, in Yangon and other cities by use of force, including teargas and beatings. According to the information received:
The armed forces also have fired indiscriminately into the crowds, thereby killing and injuring a significant number of persons.
The mandate holders have also received allegations that raids on at least six monasteries have resulted in numerous monks being beaten and arrested. About 200 monks are said to be detained in two monasteries in Yangon alone.
In the light of these allegations, the mandate holders appeal to your Excellency’s Government not to use excessive force on the protesters. Excessive or disproportionate use of force can amount to cruel and degrading treatment and could, under certain circumstances, also amount to torture.
The mandate holders also appeal to the Government to adhere to international human rights norms when arresting persons. In particular, they seek clarification over allegations of beatings of monks in the recent raids on a number of monasteries. Additionally, in light of the allegations, concern is expressed over the well-being of the arrested monks. In this context, we would like to stress that each Government has the obligation to protect the right to physical and mental integrity of all persons. This right is set forth inter alia in the Universal Declaration of Human Rights.
We would also like to draw your Government’s attention to Principle 4 of the UN Basic Principles on the Use of Force and Firearms by Law Officials, which provides that, “Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms.” Furthermore, Principle 5 provides that, “Whenever the use of force and firearms is unavoidable law enforcement officials shall, (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate object to be achieved; (b) Minimize damage and injury, and respect and preserve human life; (c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment and (d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.”
Without expressing at this stage an opinion on the facts of the case and on whether the detention of the monks mentioned above is arbitrary or not, we would like to appeal to your Excellency's Government to take all necessary measures to guarantee their right not to be deprived arbitrarily of their liberty and to fair proceedings before an independent and impartial tribunal, in accordance with articles 9 and 10 of the Universal Declaration of Human Rights.
In this connection, we would like to refer Your Excellency's Government to the fundamental principles set forth in the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, and in particular articles 1 and 2 which state that everyone has the right individually or in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels” and that “each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice”.
Furthermore, we would like to bring your Excellency’s attention to the following provisions, and in particular:
- article 5 point a) which establishes that for the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels, to meet or assemble peacefully.
- article 6 points b) and c) which provides that everyone has the right, individually and in association with others as provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms; to study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matter.
- article 12 paras 2 and 3 of the Declaration which provide that the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the Declaration.
We would also like to appeal to your Excellency's Government to ensure the right to freedom of religion or belief in accordance with the principles set forth in the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief and article 18 of the Universal Declaration on Human Rights.
In the event that your investigations support or suggest the above allegations to be correct, we urge your Government to take all necessary measures to guarantee that the rights and freedoms of the aforementioned persons are respected and accountability of any person guilty of the alleged violations ensured. We also request that your Government adopts effective measures to prevent the recurrence of these acts.
In view of the urgency of the matter, we would appreciate a response on the initial steps taken by your Excellency’s Government to safeguard the rights of the above-mentioned persons in compliance with the above international instruments.
Moreover, it is our responsibility under the mandates provided to us by the Commission on Human Rights and extended 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 above summary accurate?
2. Please provide the details, and where available the results, of any investigations, and judicial or other inquiries carried out in relation to these events. If no inquiries have taken place, or if they have been inconclusive, please explain why.
3. Please provide the full details of any prosecutions which have been undertaken. Have penal, disciplinary or administrative sanctions been imposed on the alleged perpetrators?
Nepal: Deaths of Reena Rasail, Subhadra Chaulagain and Tasi Lama Violation alleged: Deaths due to attacks or killings by the security forces
Subject(s) of appeal: 2 females, 1 male (juvenile offenders)
Character of reply: Cooperative but incomplete response
Observations of the Special Rapporteur The Special Rapporteur appreciates the preliminary information provided by the Government of Nepal with respect to the death of Tasi Lama. However, the Special Raporteur notes that the information provided does not contain details on the charges brought against those accused in relation to Tasi Lama’s death or on the death sentences imposed on those individuals.
The Special Rapporteur would also request that the Government of Nepal provide him with the results of the investigations initiated in relation to the deaths Reena Rasail and Subhadra Chaulagain.
Follow-up letter dated 17 October 2006 to an urgent appeal sent on 3 March 2004 I would like to draw your Excellency’s attention to our correspondence, (reflected in my report to the Commission on Human Rights E/CN.4/2006/53/Add.1 p. 141-143), relating to killings by security forces in the village of Pokharichauri in March 2004. In its response dated 8 March 2005, his Excellency Government informed that the central RNA Investigation team was investigating the deaths of Reena Rasail and Subhadra Chaulagain. As further indicated in my observations, I would be grateful if your Government could provide me with information relating to the results of the above mentioned investigation. I would also like to know if any penal or disciplinary sanctions were imposed and if any compensation was provided to the families of the victims. I would also be grateful if I could also receive clarification regarding the case of Tasi Lama which I have already brought to your attention.
Response from the Government of Nepal dated 5 June 2007 The study of the files of the Court of inquiry and the General Court Martial of the case concerning Tashi Lama's death reveals that when the security forces had an encounter with Mr. Lama in the Pokharichauri area of the Kabhre District on February 12, 2004, he tried to run away in a suspicious manner. Search of his bag revealed Maoist documents and detonators. As he continued to display unusually suspicious behavior, he was shot dead on the spot. Leaving the dead body behind, the security forces headed towards their base.
While retuming to the army barrack, the same security forces were ambushed in a landmine planted by the CPN (Maoist) on the Sun Koshi Bridge in Dolalghat. One civilian died; another civilian sustained loss of eyes; one personnel of the Nepal Police was wounded; and three individuals of the Nepal Army sustained minor injuries.
On charges of failure to bring Mr. Lama to the barrack safely, creating a situation that led to shooting, and leaving the dead body behind without completing necessary legal formalities and informing the individuals/authorities concemed, the security forces involved in the incident were meted out the following punishments:
a. The then chief of Shri Sher Barrack Lt Col. Karmerndra Limbu was reprimanded.
b. The then Deputy Chief of the Barrack Major Sher Singh Bista was awarded a one-year promotion forfeiture for bis inability to complete the Court of Inquiry in a satisfactory manner.
c. Team Commander of the operation Lieutenant Saroj Basnet of Shri Sher Barrack was sentenced to a four-month imprisonment and a three-year promotion forfeiture.
d. Jamadar Dewan Thapa Magar of the same Barrack, who had already resigned, was sentenced to a 4-month imprisonment
c. Hudda Sher Bahadur Ranabhat of the same Barrack was sentenced to a
e. Amaldar Kaji Bahadur Karki of the same Barrack is still a deserter and an arrangement has been made to take a stern action against him by the Court Martial once he is arrested.
f. Pyuth Bal Bahadur Shrestha, Pyuth Jagendra Pyakurel, private Khet Raj Tamang, Private Deepak Nepali and Private Lila Prasad Bima are still deserters, once they report or once they are arrested, an investigation shall be made to take necessary action against them.
Follow-up letter dated 17 July 2007 I am writing in reference to your correspondence of 5 June 2007 regarding the case of Tashi Lama. I would note my appreciation for the attitude of constructive dialogue with which your Government has approached my efforts to clarify the various cases that I have brought to your Government’s attention in the course of carrying out my mandate.
On that basis, I would observe that the information provided regarding the case of Tashi Lama raises some of the same concerns that have arisen in other cases that I have brought to your Government’s attention, such as that of Maina Sunuwar (A/HRC/4/20/Add.1, page 226). In particular, are the punishments being imposed on members of the military proportionate to the gravity of the crimes committed? If they are not proportionate then the conclusion to be drawn would be that a situation of relative impunity exists.
With a view to clarifying this matter in my next report to the Human Rights Council, I would be grateful for your cooperation and observations on the following matters:
1. What were the precise charges brought against each of the individuals?
2. Was the use of lethal force itself — as opposed to various related actions — found to be unlawful? If not, why not and what was the basis for bringing other charges?
3. On what basis were the various punishments determined? In this case, as in other cases that your Government has provided information on, the terms of imprisonment have numbered in months rather than years. I would appreciate information on the factors which account for the brevity of these sentences.
4. How long did each of the individuals spend in pretrial detention?
5. Please provide a copy of the referenced “files of the Court of Inquiry and the General Court Martial”? I understand that these documents may be written in Nepali.
Response from the Government of Nepal dated 10 September 2007 The Permanent Mission of Nepal informed that the contents of the letter have been forwarded to Kathmandu with a request for information on these cases. Any information received in this regard shall be duly communicated to the Special Rapporteur.
Nepal: Death Threats against Journalist Rajendra Karki Violation alleged: Death threats and fear of imminent extrajudicial execution
Subject(s) of appeal: 1 male (journalist)
Character of reply: Largely satisfactory response
Observations of the Special Rapporteur (report 2006) The Special Rapporteur appreciates the information provided by the Government of Nepal.
Follow-up letter dated 17 October 2006 (to an urgent appeal sent on 25 October 2004)
I would like to draw your Excellency’s attention to our correspondence, (reflected in my report to the Commission on Human Rights E/CN.4/2006/53/Add.1 p. 159-160), relating to death threats by police officers against journalist Rajendra Karki in October 2004. In its response dated 1 April 2005, his Excellency Government informed that the police officer who threatened Mr. Karki had been identified and that he was safe in his residence in Khalanga, Jajarkot. As indicated in the case-related observations I have made in my report, I would be grateful if your Government could provide me with information relating to any penal or disciplinary sanctions taken against the person believed responsible.
Response from the Government of Nepal dated 16 February 2007 Upon an inquiry by the concerned entities of the Government of Nepal it has been revealed from the local residents that journalist Karki and Police Constable Krishna Bahadur Khatri entered up to an extent of argument while the latter inquired the former as a part of his picket duty in October 2004 at Khalanga 2, Jajarkot. Nothing beyond this fray has been recorded and no case has been filed to the concerned police authorities about the incidence. Constable Khatri was then transferred to a remote Police Post Narakot, Jumla district from where he resigned from his job one year ago in December 2005. Journalist Karki is safe at his residence in Khalanga, Jajarkot.
Niger: Exécutions extrajudiciaires par les forces armées Violation allégée: Morts dues à des exécutions des forces armées
Objet de l’appel: Au moins 21 personnes
Caractère de la réponse: Pas de réponse
Observations du Rapporteur Spécial Le Rapporteur Spécial regrette que le Gouvernement du Niger n’ait pas coopéré avec le mandat qui lui a été conféré par l’Assemblée Générale et le Conseil des droits de l’homme.
Lettre d’allégation envoyée le 21 janvier 2008avec le Rapporteur spécial sur la situation des droits de l'homme et des libertés fondamentales des populations autochtones … en relation avec de récents cas d’exécutions extrajudiciaires de personnes, et notamment de membres de la communauté Touareg, qui seraient survenus au nord du pays.
Selon les informations reçues:
Depuis octobre 2007, au moins 21 personnes, la majeure partie d’entre eux appartenant à la communauté Touareg, auraient été abattues de manière extrajudiciaire dans les régions du nord du pays. Les rapports indiquent la responsabilité directe des forces armées dans ces actes.
Le premier de ces actes aurait eu lieu le 1 Octobre 2007, quand les Forces Armées auraient arrêté un convoi de cinq véhicules près de la frontière avec l’Algérie. Les passagers furent obligés d’abandonner leurs véhicules, et séparés selon leur couleur de peau. 12 personnes de peau plus claire, supposés Touaregs, auraient été séparées du groupe par les militaires, qui les auraient abattus. 10 des personnes tués auraient été identifiés comme Zeyda ag Badi, Ahmadu ag Moussa, Ghoumour ag Ahmad, Mohamed ag Akarfa, Ismaghil ag Akam, Rhissa ag Attaher, Bikim ag Ilyas, Akloua ag Hama, Oumra et Lahcen
Le même jour, toujours selon les rapports reçus, la même unité des Forces Armés se serait dirigée vers une tente de Touaregs aux alentours de la piste entre Assamakka et Arlit. Les soldats se seraient emparés des occupants, entre cinq et dix personnes en tout, dont les noms n’ont pu être identifiés.
Le 22 novembre 2007, quatre personnes, M. Bachir Mouhamad, M- Mariko Kané, M. Oukhoudane Algha, M. Hamad Ibrahim, éleveurs et jardiniers de la communauté Touareg locale, auraient été arrêtées par la Gendarmerie au village de Tchintébizguint, à 30 km à l’ouest d’Agadez, à la suite de l’explosion d’une mine. Alors que les gendarmes voulaient interroger ces suspects, des éléments des Forces Armées se sont emparés de ces quatre personnes. Leurs corps auraient été retrouvés cinq jours plus tard dans une fosse commune. Selon les rapports, les corps portaient des traces de balles au cœur, au front et à l’oreille.
Le 9 Décembre 2007, sept personnes, y compris deux commerçants arabes,
Ibrahim Sidi Amar et Osmane Sidi Rali, ainsi qu’un cuisinier, un mécanicien et deux chauffeurs d’ethnies Touareg et Haoussa qui rentraient à Agadez dans leurs véhicules ont été arrêtées sur la route par les forces de sécurité nigériennes. Leurs familles qui les attendaient à Agadez auraient vu arriver leurs véhicules conduits par des militaires. Ils auraient alors tenté d’obtenir des informations concernant les membres de leurs familles. Après avoir longuement insisté, les militaires leur auraient confirmé les décès des 7 personnes, et les auraient conduits à l’endroit où ces sept personnes auraient été enterrées. Selon les allégations, des personnes qui ont identifié les corps auraient témoigné que les victimes portaient de nombreuses marques de brûlures de cigarettes et de coups de ceintures ainsi que de multiples impacts de balles au visage et à la poitrine.
Il est allégué que ces exécutions extrajudiciaires pourraient avoir eu lieu en représailles aux attaques lancées par le mouvement d’opposition armé Touareg Mouvement des Nigériens pour la justice (MNJ), dans le contexte de la reprise des activités armées en février 2007.
Sans vouloir à ce stade préjuger des faits qui nous ont été soumis, nous voudrions attirer l’attention du Gouvernement de votre Excellence sur le droit à l’intégrité physique et mentale de la personne sus-mentionnée. Ce droit est consacré notamment aux articles ……. [citer les articles pertinents des conventions]. [Codes d’allégations du mandat].
Dans le cas où vos enquêtes appuient ou suggèrent l’exactitude des allégations susmentionnées, nous prions votre Gouvernement de prendre toutes les mesures nécessaires pour assurer la protection des droits et des libertés de l’(des) individu(s) mentionné(s), de diligenter des enquêtes sur les violations perpétrées et de traduire les responsables en justice. Nous prions aussi votre Gouvernement d’adopter toutes les mesures nécessaires pour prévenir la répétition des faits mentionnés.
Il est de notre responsabilité, en vertu des mandats qui nous ont été confié par la Commission des Droits de l’Homme et prolongé par le Conseil des droits de l’homme de solliciter votre coopération pour tirer au clair les cas qui ont été portés à notre attention. Etant dans l’obligation de faire rapport de ces cas à la Commission des Droits de l’Homme, nous serions reconnaissants au Gouvernement de Votre Excellence de ses observations sur les points suivants :
1. Les faits tels que relatés dans le résumé du cas sont-ils exacts? Si tel n’est pas le cas, quelles enquêtes ont été menées pour conclure à leur réfutation ?
2. Au cas où une plainte a été déposée, quelles suites lui ont été données ?
3. Veuillez fournir toute information, et éventuellement tout résultat des enquêtes menées, examens médicaux, investigations judiciaires et autres menées en relation avec les faits.
4. Si les allégations sont avérées, veuillez fournir toute information sur les poursuites et procédures engagées contre les auteurs de la violence.
5. Le cas échéant, veuillez indiquer si les victimes ont été indemnisées.