Someone has been arrested

Right to a lawyer

Your rights:

• Right to a lawyer^{13 (Code of Criminal Procedure §340)}
• to privately communicate with a lawyer while in detention, including within 24 hours of arrest.^{14 (Prisons Act, §40; Police Manual para 73-74;)}
• to have a lawyer provided if you cannot afford one at the commencement of trial proceedings and post-trial stages.^{15 (2021 Law Amending the 2016 Legal Aid Law Section 2(b) The Union Attorney General Law, §36(l); The Union Attorney General’s Rules, Rule 110; Courts Manual para. 457(1))}

 

Right to silence

You cannot be forced through threats, promises, or harm to confess or otherwise disclose information.^{16 (Penal Code §330; §331; 343)}
Only voluntary confessions made before a judge may be used as evidence against the accused at trial.^{17 (Evidence Act (1872)(amended 2015) §24)}

 

Detention

The accused must be brought before a judge within 24 hours.^{18 (Constitution (2008) Art. 376)}
Persons under 18 years old at the time the charged offence(s) allegedly occurred (children) have additional rights and safeguards.
If not directed to a diversion process, children should be transferred to juvenile court immediately.^{19 (Child Rights Law (2019)) §20)}
Indefinite detention is prohibited.
For non-cognizable offences, you generally cannot be detained beyond 24 hours.
For cognizable offences, you are entitled to appear before a judge and make a case for release in a remand hearing.^{20 (}
You may be detained up to 15 or 30 days (depending on alleged offence/s) while police investigate.^{21 (Code of Criminal Procedure §167; Code of Criminal Procedure §167(2))}

 

သင်ဘာလုပ်နိုင်သလဲ။

 

Mistreatment in police custody

Police officers cannot harm detainees, or allow detainees to be harmed, while in custody.^{22 (Myanmar Police Force Maintenance of Discipline Law (1995) (amended 1997) 17(c); Constitution (2008) Art. 44; Penal Code §330; §331)}
It is a criminal offence for a police officer to harm a detainee during an official interrogation to gain a confession or information.^{23 (Myanmar Police Force Maintenance of Discipline Law (1995) (amended 1997) 17(c); Constitution (2008) Art. 44; Penal Code §330; §331)}

 

Bail

You have the right to bailand a bail hearing.^{24 (Police Manual para. 1785)}
If the offence is bailable, the judge must allow bail with only a few exceptions.^{25 (Code of Criminal Procedure §496)} အာမခံပေးခွင့်ရှိသည့် အမှုဖြစ်စေ၊ အာမခံမရနိုင်သည့် အမှုမျိုးဖြစ်စေ၊ စွပ်စွဲခံရသူသည် –

 

1. under 16 years old
2. a woman, or
3. sick or infirm^{26 (ရာဇဝတ်ကျင့်ထုံးဥပဒေ ပုဒ်မ ၄၉၇(၁)။)}

 

အာမခံပေးခွင့် မရှိသည့် အမှုဖြင့် စွဲဆိုရန် စုံစမ်းစစ်ဆေးရာတွင် လုံလောက်သည့် သက်သေ မရှိပါက စွပ်စွဲခံရသူကို အာမခံ ဖြင့် လွှတ်ပေးရမည်။^{You should be released on bail if the investigation finds insufficient evidence to support the charge of a non-bailable offence.}
Bail should not be excessive.^{28 (Code of Criminal Procedure §498)}

 

What you can do?

Act on right to a lawyer

You can appeal based on the denial of this right.
You may file a revision during trial.

 

Act on right to silence

Consult privately with a lawyer before making any statement to police or in court, such as pleading guilty or testifying as a witness.
You should object to the use of forced confessions as evidence in trial.
You may appeal or file for a revision based on the use of a forced confession.
You can file a case in criminal court against any police officer/s who, through threats, promises, or acts of harm, coerced you to confess or otherwise disclose information.

 

Act on detention rights 

 

Seek release from police custody as soon as possible after arrest.
You may challenge the legality of detention in a High Court^{90 (Code of Criminal Procedure §491(1) (a)-(b))}
file a Writ of Habeas Corpus with the Supreme Court^{91 (Law on the Application for Writs (No. 24/2014); Constitution (2008) Art. 378)}  or file a revision in a higher court during the trial.^{92 (Code of Criminal Procedure § 439)}  ကို ပြုလုပ်နိုင်သည်။
You may also file suit for false imprisonment under the Penal Code.^{93 (Penal Code §330)}

Act on mistreatment in police custody 

Alert the judge to instances of torture and/or other forms of mistreatment immediately.
Request a transfer to another detention location if you cannot secure immediate release from police custody.
You can file criminal charges with the court if you were harmed for the purposes of extracting information or restoring property during an official interrogation.
ရဲအရာရှိမှ ထိခိုက်နာကျင်စေလျှင်^{94 (Myanmar Police Force Maintenance of Discipline Law (1995) (amended 1997) 17(g))}  You can file a complaint to initiate administrative disciplinary proceedings against police officers who mistreated you
or allowed you to be mistreated.^{95 (Myanmar Police Force Maintenance of Discipline Law (1995) (amended 1997) 17(c))}   ရဲဝန်ထမ်းဆိုင်ရာ အုပ်ချုပ်မှုစည်းမျဉ်းကျင့်ထုံးနှင့်အညီ အရေးယူရန် တိုင်ကြားနိုင်သည်။

Act on right to bail

Apply for bail as soon as possible.
File a revision in a higher court if you wish to challenge the outcome of the bail hearing.⁹⁶

 

Tips on hiring a lawyer

Right to a lawyer

Your rights:

• Right to a lawyer^{30 (Code of Criminal Procedure §340)}
• to privately communicate with a lawyer while in detention, including within 24 hours of arrest.^{31 (Prisons Act, §40; Police Manual para 73-74;)}
• to have a lawyer provided if you cannot afford one at the commencement of trial proceedings and post-trial stages.^{32 (2021 Law Amending the 2016 Legal Aid Law Section 2(b) The Union Attorney General Law, §36(l); The Union Attorney General’s Rules, Rule 110; Courts Manual para. 457(1))}

The right to be presumed innocent 

The accused has the right to be presumed innocent until the prosecution proves with evidence every element of the offence/s charged beyond a reasonable doubt.^{33 (Evidence Act §101; Union of Burma v. U Aye Kyi, 1964 BLR 396; Maung Tin Mya v. Union of Myanmar, 1966 B.R. 644)}

Right to defence

The accused has the right to be informed of the charges.^{35 (Code of Criminal Procedure § 210)}
The accused has the right to examine witnesses and other evidence brought against them in court.^{36 (Code of Criminal Procedure § 208 (2))} The accused has the right to offer evidence on their own behalf.^{37 (Code of Criminal Procedure § 298; §290; §342)}
You are not required to testify as a witness^{38 (Code of Criminal Procedure § 342(1)(a))} although you may be questioned by the judge at different stages of the trial.^{39 (Code of Criminal Procedure § 342(2);)}

Adequate time and facilities

The accused must be given sufficient time and facilities to prepare a defence.^{40 (Constitution (2008) Art. 19(c); Art. 375)}

This includes a right to an interpreter^{41 (Code of Criminal Procedure § 361)}  and access to the necessary documents and evidence for trial.

Fair and impartial hearing

You have the right to a fair and impartial hearing.^{42 (Constitution (2008) Art. 347)}
Judicial decisions must be based on the law and facts of the case, without bias or prejudice.^{43 (The Code of Judicial Ethics for Myanmar Judges (2017) Art. 1-4.)}
The presiding judge must be present at every hearing.^{44 (Courts Manual para. 13)}

The judge, law officer and all public officials in court proceedings cannot accept gifts or other items of value from anyone involved in the case.^{45 ((၂၀၁၇)မြန်မာနိုင်ငံ တရားသူကြီးများအတွက် တရားစီရင်ရေး ကျင့်ဝတ် အပိုဒ် ၁ မှ ၄။ (၂၀၁၃) အဂတိလိုက်စားမှုတိုက်ဖျက်ရေးဥပဒေ (၂၀၁၆၊ ၂၀၁၇ ပြင်ဆင်ချက်))}

Right to a speedy trial

You should be tried as early as possible while also ensuring a fair proceeding.^{46 (Courts Manual para. 466)}
Unjustifiable delay of trial proceedings is prohibited^{47 (Courts Manual para. 24)}
Judges should avoid frequent adjournments.^{48 (Code of Criminal Procedure §344 (1),)}

Right to a public trial

Trial should be in a courtroom open to the public except in specific cases such as in juvenile court.^{49 (Code of Criminal Procedure §352; Constitution Article 19(b) Child Rights Law (2019) Section 84(b).)}

Judgment and appeal

The judgment must be delivered in open court.^{50 (Code of Criminal Procedure §366(a))}
The judge must also issue a written judgment stating clearly the reasons for the final decision.^{51 (Code of Criminal Procedure §367(1))} The accused has the right to appeal the outcome.^{52 (Constitution (2008) Art.19(c); Code of Criminal Procedure §537, Code of Criminal Procedure §404)}

 

What you can do?

Act on right to a lawyer

You can appeal based on the denial of this right.
You may file a revision during trial.

Act on right to be presumed innocent

You may request a dismissal of the charges where law officer, complainant or complainant’s lawyer has not proved every element of the offence/s charged.
Object to any statements which suggest or assume guilt for the offence/s charged (unless they are made after conviction).

Act on right to defence, adequate time and facilities

If denied the right to a defence, including adequate time and facilities to prepare a defense, you must object to each instance during proceedings and ensure objections are properly recorded by the court clerk.
These objections allow you to raise these issues later in an appeal.
You may also file a revision during trial proceedings.

Act on right to a speedy trial 

Object to any routine use of adjournments, especially related to a witness failing to appear in court.
Where a witness fails to appear in court, you may request a dismissal of the witness or request the use of a summons to bring them to court.^{97 (Code of Criminal Procedure §90; Supreme Court Notification 114/424 PTC [2855/2015])}
If the judge fails to use their powers to bring a witness to court, you may file a revision to a higher court.^{98 (Code of Criminal Procedure §439)}

 

You may also challenge the legality of the ongoing detention in higher court or file a Writ of Habeas Corpus to the Supreme Court.

Where a police officer receives a summons, yet repeatedly fails to appear in court as a witness, you may file a complaint to initiate administrative disciplinary proceedings against them.^{99 (Myanmar Police Force Maintenance of Discipline Law (1995) (amended 1997) §20(a))}

This will not affect the outcome of your trial.

Act on unfair or partial hearings

Request an adjournment whenever the judge is not present.
Legal decisions can be challenged in the form of a revision (during an ongoing trial) or appeal (after judgment and sentencing).
Suits may be filed alleging corrupt practices under both civil and criminal law. For example, public servants may be tried in criminal proceedings for bribery.^{100 (Penal Code §161)}
You may also file a complaint with the Anti-Corruption Commission (ACC) against judges, law officer and other public servants for engaging in corrupt practices, including bribery, extortion and the abuse of office.^{101 (Anti‐Corruption Law (2013) (amended 2016 and 2017)).} You must provide concrete evidence in support of your claims to avoid defamation charges or other forms of legal action against you.^{102 (Anti‐Corruption Law (2013) (amended 2016 and 2017) §46)}

 

Contact the ACC for further information.
Where instances of corruption involve police officers, consider filing a complaint to initiate administration disciplinary proceedings.^{103 (Myanmar Police Force Maintenance of Discipline Law (1995) (amended 1997) §17(h))}

 

Act on right to a public trial

Where the case falls under one of the few exceptions, such as juvenile cases, you may request that the courtroom be closed to the public.

 

Act on judgment and appeal

Once found guilty and sentenced, you can challenge the outcome by filing an appeal to a higher court.^{104 (Code of Criminal Procedure §537)}
If successful, the case may be dismissed or you may be granted a new trial, a reduced sentence, or some other form of relief.^{105 (Code of Criminal Procedure §423)} In specific situations, you may challenge the laws themselves in a Constitutional Tribunal.^{106 (Union Judiciary Law (2010) Chapt.VI)}

 

Tips on hiring a lawyer

• Right to a lawyer

  Your rights:

  • Right to a lawyer^{54 (Code of Criminal Procedure §340)}
  • to privately communicate with a lawyer while in detention, including within 24 hours of arrest.^{55 (Prisons Act, §40; Police Manual para 73-74;)}
  • to have a lawyer provided if you cannot afford one at the commencement of trial proceedings and post-trial stages.^{56 (2021 Law Amending the 2016 Legal Aid Law Section 2(b); The Union Attorney General Law, §36(l); The Union Attorney General’s Rules, Rule 110; Courts Manual para. 457(1))}

  Children and criminal responsibility  

  Your age at the time of the alleged offence affects your rights, safeguards and criminal responsibility:

  Under 18	Considered a child Where a person appears to be under 18 years of age, he or she enjoys the rights of a child until evidence can be produced that proves she or he has reached 18 years of age.57 (Child Rights Law (2019) § 79) A child has all the rights of an accused adult plus additional rights and safeguards, such as the right to be tried in a juvenile court or directed towards diversion.58 (Child Rights Law (2019) §83(a).)
  10 or 11	Cannot be found guilty of an offence if he or she has not developed enough maturity to understand the nature and consequences of his or her actions at the time of the offence.59 (Child Rights Law (2019) §78 (b))
  Under 10	Must not be charged with an offence.60 (The Child Rights Law, 2019, Section 78; Penal Code, Section 84.)

   

  Arrest

  A child should not be placed in handcuffs or similar restraints during arrest.^{61 (Child Rights Law (2019) §80 (d))}
  Police officers must not threaten or maltreat a child during arrest.^{62 (Child Rights Law (2019) §80 (c))}
  The child’s guardian or parent must be informed of the arrest immediately.^{63 (Child Rights Law (2019) §80 (g))}
  The parents, guardians, relatives and lawyer of the child shall be allowed to meet with the child.^{64 (Child Rights Law (2019) §80 (g))}

  Transport, detention, and bail

  Children shall not be held in police custody or prison.^{65 (Child Rights Law (2019) §80(e); §83(e))}
  A child cannot be detained or transported together with an adult prisoner.^{66 (Child Rights Law (2019) §80(f))}
  Female children should be supervised by female prison staff.^{67 (Child Rights Law (2019) §80 (f))}
  A child should be released from police detention as soon as possible.
  A child is eligible for bail regardless of the offences charged.^{68 (ရာဇဝတ်ကျင့်ထုံးဥပဒေ ပုဒ်မ ၄၉၇(၁)။)}
  A child should be released from police detention as soon as possible.
  During trial, children should be released to their parent(s) or guardian(s).^{69 (Child Rights Law (2019) §83(c),(d))}
  A child may also be placed, as a last resort, in a Temporary Care Station.^{70 (Child Rights Law (2019) §80(j))}

  Court proceedings 

  If a child is not directed to a diversion process, then the child must be sent to the relevant juvenile court as soon as possible.^{71 (Child Rights Law (2019) §80(i))}
  The juvenile court proceedings shall be conducted in a separate court or building from adult proceedings.^{72 (Child Rights Law (2019) §84(b))}
  Juvenile court proceedings are not open to the public. The court shall allow parents, guardians, relatives, and those concerned with the case proceedings, such as witnesses and court staff. The judge has discretion to allow other individuals to attend court proceedings.^{73 (Child Rights Law (2019) §84(b))}
  The court shall not allow information on juvenile cases to be reported in the media except in the best interest of the accused child.^{74 (Child Rights Law (2019) §85(b))}
  Child victims and witnesses also have special protections under the law, including the right to privacy.^{75 (Child Rights Law (2019) §96(a)-(e))}

  Sentencing

  The juvenile court shall not impose a prison sentence normally.^{76 (Child Rights Law (2019) § 88 (a))}
  The Juvenile Court shall not impose a prison sentence normally.^{77 (Child Rights Law (2019) §88(a); Union Judiciary Law (2010)(amended 2013) §3(g))}
  Preference should be granted to diversion programmes rather than imprisonment.^{78 (Child Rights Law (2019) §87(e))}
  A child has the right to appeal juvenile court orders or decisions.^{79 (Child Rights Law (2019) §91(c))}
  The judge must take special consideration of age, character of the youth, his or her physical and mental condition and other circumstances during sentencing.^{80 (Child Rights Law (2019) § 87(a)-(f))}
  Sentences cannot exceed 10 years for persons under 18 years of age.^{81 (Child Rights Law (2019) §88(d))}
  The court shall not impose the death penalty or life imprisonment on a child.^{82 (Child Rights Law (2019) §88(b))}
  A youth must be kept separate from adults in prison, be allowed regular visitors, and receive regular medical checkups, and educational opportunities.^{83 (Child Rights Law (2019) §93(a),(c),(f), and (g))}
  Children shall not be subject to hard labour or detention camps while in prison.^{84 (Child Rights Law (2019) § 93(e))}
  Children are eligible for a various number of diversion processes including counselling, working for social services and the placement of the child into alternative care facilities.^{85 (Child Rights Law (2019) §75(b)(vii))}
  Factors for diversion include age, offence, maturity and threat to the community.^{86 (Child Rights Law (2019) §3(n); §71(a)(i)-(vii))}

 

What you can do?

Act on child’s or youth’s right to a lawyer

Denial of this right, including private consultation, may be grounds for appeal or, while juvenile proceedings are ongoing, a revision.
In cases involving children, non-legal professionals (in addition to a lawyer) may be able to provide psycho-social support and coordinate, for example, safe places for the child to stay.
Some courts will provide social workers to help with cases involving children.

Act on definition of child and youth and criminal responsibility

If age is in dispute, an age assessment can be conducted.
If the child is between the ages of 10 and 11, consider arguing for an immediate dismissal on the basis that they have not developed enough maturity to understand their actions.^{107 (Child Rights Law (2019) §78 (b))}

Act on arrest, transport and detention rights

If a child is not transferred to juvenile proceedings and/or released from police detention 24 hours after arrest, the detention may be challenged as follows:
During the proceedings, a revision may be filed.
The outcome of the case may be challenged in an appeal.^{108 (Child Rights Law (2019) §91 (c))}
The basis of their detetntion can be challenged in either a High Court^{109 (Code of Criminal Procedure §491(1) (a)-(b))} or by filing a writ of habeas corpus in the Supreme Court. ^{110 (Law on the Application for Writs (No. 24/2014))} တို့ကို လုပ်နိုင်သည်။

Act on court proceedings 

If the accused child is in adult court proceedings, a transfer must be requested.^{111 (Code of Criminal Procedure § 540)}
Each District Court should have separate juvenile court or separate designated courtrooms.
Request that the judge direct any persons not part of the case to leave the proceedings and request no public release of the child’s name, place of residence or any photos by the police.
Act on sentencing of child or youth  
If found guilty, evidence in support of a lenient sentence, such as of releasing the child to his or her parents should be submitted to the court.^{112 (Child Rights Law (2019) §88 (c))}
Where a child is convicted and sentenced, an appeal of the outcome may be filed.

 

Tips on hiring a lawyer