Persons Accused of A Crime

Searches

Searches must be made in front of the occupier or a representative. ^{6 Code of Criminal Procedure §103(3)}

Searches must be conducted within the scope of the search warrant. ^{7 Code of Criminal Procedure §97}

Police officers should provide a receipt for seized items (search form).^{8 Code of Criminal Procedure § 103.}  This form may be used as evidence against the accused in court.

 

Arrests

Police need a warrant to arrest for an alleged non-cognizable offence ^{9 Code of Criminal Procedure §4(1)(f); §4(1)(n)}  but not for cognizable offences.

ဖမ်းဆီးခြင်းကို ခုခံခြင်းမရှိလျှင် ရဲအရာရှိမှ အင်အား အလွန်အကျွံသုံး၍ ဖမ်းဆီးခြင်းမပြုရ။^{10 (ရာဇဝတ်ကျင့်ထုံးဥပဒေပုဒ်မ ၄၆(၃)၊ ၅၀။)}

Handcuffs or other restraints should only be used when necessary. ^{11 Courts Manual para. 397}

Searches of women must be conducted by another woman.^{12 Code of Criminal Procedure § 52}

Right to silence

စွပ်စွဲခံရသူကို ခြိမ်းခြောက်ခြင်း၊ ကတိပေးခြင်း၊ သို့မဟုတ် ဝန်ခံစေရန် ထိခိုက်အနာတရ ဖြစ်အောင် ဆောင်ရွက်ခြင်း၊ သို့မဟုတ် ထုတ်ဖော်ပြောလာစေရန် တစ်နည်းနည်းဖြင့် ဖိအားပေး၍ မရပါ။^{13 (ရာဇသတ်ကြီးပုဒ်မ ၃၃၀၊ ၃၃၁။ ရာဇဝတ်ကျင့်ထုံးဥပဒေ ပုဒ်မ ၃၄၃။)}

တရားသူကြီးရှေ့မှောက်တွင် အလိုအလျောက် ကိုယ်တိုင် ဝန်ခံခြင်းသာလျှင် ရုံးတော်တွင် သက်သေအဖြစ် သုံးနိုင်သည်။^{14 (၁၈၇၂ သက်သေခံအက်ဥပဒေ (၂၀၁၅ ပြင်ဆင်ချက်) ပုဒ်မ၂၄။)}

Detention

The accused must be brought before a judge within 24 hours.^{15 Constitution (2008) Art. 376}

Children (under 18 years of age at the time of the alleged offence/s) have additional rights and safeguards,^{16 (Child Right Law 2019 Section 80} including the right to be transferred to juvenile court immediately. ^{17 (Child Right Law 2019 Section 19)}

Indefinite detention is prohibited.

For non-cognizable offences, the accused generally cannot be detained beyond 24 hours.

For cognizable offences, the accused is entitled to appear before a judge and make a case for release in a remand hearing.^{18 (Courts Manual Para 403(1))} They may be detained up to 15 or 30 days (depending on alleged offence/s) while police investigate. ^{19 (Code of Criminal Procedure §167; Code of Criminal Procedure §167(2))}

Mistreatment in police custody

Police officers cannot harm detainees, or allow detainees to be harmed, while in custody. ^{20 (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.^{21 (Myanmar Police Force Maintenance of Discipline Law (1995) (amended 1997) 17(c); Constitution (2008) Art. 44; Penal Code §330; §331)}

Bail

The accused has the right to bail^{22 (Police Manual para. 1785)} The alleged offence may be bailable or non-bailable.

bailable offence	non-bailable offence
Longest sentence for the offence is 3 years or less.	Longest sentence for the offence is over 3 years.
Judge allows bail with few exceptions	Judge refuses bail with some exceptions.
နမူနာ ချွင်းချက် အမှု –  Offence punishable by death penalty.23 (Code of Criminal Procedure §496; §497(1) Code of Criminal Procedure §4(1)(A))	နမူနာ ချွင်းချက် အမှု –  Investigation finds insufficient evidence to support the charge of a non-bailable offence.24 (Code of Criminal Procedure §496)

Regardless of the offence, the accused may be entitled to bail if:

 

1. under 16 years old
2. a woman, or
3. sick or infirm^{25 (Code of Criminal Procedure §497 (1))} အာမခံ ရပိုင်ခွင့်ရှိသည်။

 

Bail can be revoked if the terms of bail are not followed.^{26 (Code of Criminal Procedure §496)}

အာမခံစည်းကမ်းများကို မလိုက်နာပါက ပေးထားသည့် အာမခံကို ရုပ်သိမ်းနိုင်သည်။

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.

Right to defence^{27 (Constitution (2008) Art. 19(c); Art. 375)}

The accused has the right to be informed of the charges. ^{28 (Code of Criminal Procedure § 210)}

The accused has the right to examine witnesses and other evidence brought against them in court.^{29 (Code of Criminal Procedure § 208 (2))}

The accused has the right to offer evidence on their own behalf.^{30 (Code of Criminal Procedure § 298; §290; §342)}

The accused is not required to testify as a witness^{31 (Code of Criminal Procedure § 342(1)(a))} although they may be questioned by the judge at different stages of the trial. ^{32 (Code of Criminal Procedure § 342(2))}

Adequate time and facilities

The accused must be given sufficient time and facilities to prepare a defence.^{33 (Constitution (2008) Art. 19(c); Art. 375)}

This includes a right to an interpreter^{34 (Code of Criminal Procedure § 361)} and access to the necessary documents and evidence for trial.

Fair and impartial hearing

The accused has the right to a fair and impartial hearing.^{35 (Constitution (2008) Art. 347)}

Judicial decisions must be based on the law and facts of the case, without bias or prejudice.^{36 (The Code of Judicial Ethics for Myanmar Judges (2017) Art. 1-4.)}

The presiding judge must be present at every hearing.^{37 (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.^{38 (The Code of Judicial Ethics for Myanmar Judges (2017) Art. 1-4; Anti‐Corruption Law (2013) (amended 2016 and 2017))}

Right to a speedy trial

The accused should be tried as early as possible while also ensuring a fair proceeding. ^{39 (Courts Manual para. 466; para. 42)}

Unjustifiable delay of trial proceedings is prohibited.^{40 (Courts Manual para. 24, para. 466)} Judges should avoid frequent adjournments.  ^{41 (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. ^{42 (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. ^{43 (Code of Criminal Procedure §366(a))}

The judge must also issue a written judgment stating clearly the reasons for the final decision.^{44 (Code of Criminal Procedure §367(1))}

The accused has the right to appeal the outcome. ^{45 (Constitution (2008) Art.19(c); Code of Criminal Procedure §537, Code of Criminal Procedure §404)}

Children 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.46 (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.47 (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.48 (Child Rights Law (2019) §78 (b))
Under 10	Must not be charged with an offence.49 (Child Rights Law (2019) §78(a))

Arrest

The arresting officer must explain the reasons for arrest and the offence in a manner that is understandable to the child.^{50 (Child Rights Law (2019) §80(b))}

A child should not be placed in handcuffs or similar restraints during arrest.5^{51 Child Rights Law (2019) §80(d)}

Police officers must not threaten or maltreat a child during arrest.^{52 (Child Rights Law (2019) §80(c))} The child’s guardian or parent must be informed of the arrest immediately.^{53 (Child Rights Law (2019) §80(g))} The parents, guardians, relatives and lawyer of the child shall be allowed to meet with the child.^{54 (Child Rights Law (2019) §80(g))}

 

Transport, detention, and bail 

A child cannot be detained or transported together with an adult prisoner.^{55 (Child Rights Law (2019) §80(f))}
Female children should be supervised by female prison staff.^{56 (Child Rights law (2019) §80(f))}
Children shall not be held in police custody or prison.^{57 (Child Rights Law (2019) §80(e); §83(e))}
Where possible children shall be released to their parent(s) or guardian(s).^{58 (Child Rights Law (2019) §83(c)-(d))}
A child may also be placed, as a last resort, in a Temporary Care Station.^{59 (Child Rights Law (2019) §83(c)-(d))}
A child is eligible for bail regardless of the offences charged.^{60 (Code of Criminal Procedure §497 (1))}

 

Court proceedings

If the diversion process is not taken, then the child shall be sent to juvenile court without delay.^{61 (Child Rights Law (2019) §80(i))}

The juvenile court proceedings shall be conducted in a separate court or building from adult proceedings.^{62 (၂၀၁၉ ကလေးသူငယ်ဥပဒေပုဒ်မ ၈၄(ခ)။)}

Juvenile proceedings must be heard promptly.^{63 (Child Rights Law (2019) §84f())}

Juvenile court hearings must prioritise the best interests of the child in fairly adjudicating the case.^{64 (Child Rights Law (2019) §83(d))}

 

The court shall allow parents or other suitable persons to make applications and statements as part of the accused child’s defence on her or her behalf.^{65 (Child Rights Law (2019) §84(c))}

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.^{66 (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.^{67 (Child Rights Law (2019) §85(b))}

Child victims and witnesses also have special protections under the law, including the right to privacy.^{68 (Child Rights Law (2019) §96(a)-(e))}

 

Sentencing

If a child is found guilty of a criminal offence, the judge shall make a ruling aimed at serving the best interests of the child and reforming his or her character.^{69 (Child Rights Law (2019) §87)}

The judge must take special consideration of age, character of the youth, his or her physical and mental condition and other circumstances during sentencing.^{70 (Child Rights Law (2019) § 87(a)-(f))}

The juvenile court shall not impose a prison sentence normally.^{71 (Child Rights Law (2019) § 88 (a))}

The goal of sentencing in juvenile court is to reform the child’s character, not to punish.^{72 (Child Rights Law (2019) §88(a); For more on punishment, see Child Rights Law (2019) §88(c); §89)}

 

Diversion

Several factors may determine eligibility for the diversion process. These include the nature of the alleged offence, age, mental development and maturity, history of criminal convictions, and whether or not the child poses a safety threat to the community.^{73 (Child Rights Law (2019) §3(n); §71(a)(i)-(vii))}

 

The diversion process may include various actions intended to encourage rehabilitation of the accused child, this may include admonishment, victim compensation, counseling, working for social services for the benefit of the local community.^{74 (Child Rights Law (2019) §75(b)(i)-(ix).)}

The diversion programme may also involve the removal of the child from custody of his or her parents into a temporary home or alternate care facility if that is in the best interest of the child.^{75 (Child Rights Law (2019) §75(b)(vii))}

If the diversion process is not taken, then the child shall be sent to juvenile court without delay.^{76 (Child Rights Law (2019) §80(i))}

 

Children in prison

Children must be kept separate from adults in prison, receive regular medical checkups, be granted regular access to visitors, and be provided with educational opportunities.^{77 (Child Rights Law (2019) §93(a),(c),(f), and (g).)}

Children shall not be subject to hard labour or detention camps while in prison.^{78 (Child Rights Law (2019) § 93 (e))}

Scope and Limitation

The basic principle of legal aid is for those that have been accused or convicted of a crime to have access to legal aid.^{79 (Law Amending 2015 Legal Aid Law (2021) §4)}

Legal aid is defined as the hiring of a lawyer, providing legal education, advice, and assistance with the legal aid claimant.^{80 (Law Amending 2015 Legal Aid Law (2021175) §2 (a))}

Legal aid claimants must be Myanmar citizens and cannot be refugees, foreigners, or migrants.^{81 (Law Amending 2015 Legal Aid Law (2021175) §2 (b))}

Accused persons during trial proceedings and after conviction are entitled to claim legal aid. Persons detained or arrested are not eligible for legal aid.^{82 (Law Amending 2015 Legal Aid Law (2021175) §2 (b))}

Legal aid providers can provide an interpreter in cases where there is difficulty in communicating.^{83 (Law Amending 2015 Legal Aid Law (2021175)§27 (a))}

• Anti‐Corruption Law (2013) (amended 2016 and 2017)
• Child Rights Law (2019)
• Code of Judicial Ethics for Myanmar Judges (2017)
• Constitution (2008)
• Courts Manual
• Criminal Procedure Code
• Evidence Act (1872)(amended 2015)
• Legal Aid Law (2015)(amended 2017 and 2021)
• Myanmar Police Force Maintenance of Discipline Law (1995) (amended 1997)
• Penal Code (including review of amending laws 2019 and 2021)
• Police Manual
• Prisons Act
• Union Attorney General Law (2010)
• Union Judiciary Law (2010)(amended 2013)