Rights of Persons Held in Detention
Table of Contents
- The right to liberty is a fundamental right.1
- A detained person should seek a lawyer as soon as possible.
- A lawyer can protect a detainee’s right to liberty by challenging detention at any time.2 See How May I Help You: Rights of Accused Persons
- A lawyer can help a detainee by ensuring that the trial proceeds as early and quickly as possible.3
- Detainees should consider how a speedy trial may affect their rights, especially the right to due process.
- A lawyer can assist a detainee in asserting rights both in relation to a fair trial and other rights that protect the detainees under the law.
- A lawyer can also assist a detainee in taking legal action against the relevant authorities for rights violations committed against him or her while under detention.
- Certain prison authorities who are guilty of violation of duty or willful breach or neglect of rules and regulations may be punished with three months in prison4
- Voluntarily causing harm for the purpose of extorting information may be punished up to seven years.5
- If the perpetrator is a member of the Myanmar Police Force, then he or she may be sentenced in Police Court up to 3 years in prison for the following:
- Striking or otherwise ill-treating a detainee.6
- Causing or allowing a detainee to strike or otherwise ill-treat another detainee.7
- Demanding or accepting cash from any person.8
- A lawyer can also access an accused person in detention and therefore provide support in communication with family and friends, provision of necessities, and can record and address instances of abuse, such as torture or ill-treatment.
- While awaiting trial, detainees have the right to communicate with a lawyer in private.
- The right to meet with a lawyer in private is essential to the fundamental right to a defence and other fair trial rights. 9
- Prison authorities are required to make the necessary accommodations for detainees to privately consult with a lawyer. 10
- However, the police may conduct a security search and require the name and address of the visiting lawyer. 11
- A person’s refusal to comply with the above may lead to denial of access to a detainee.
- A lawyer does not need to have a “power of attorney” to meet with a potential client in detention. 12
- A “power of attorney” is a written document that legally authorizes a lawyer to act on behalf of another person.
- A lawyer will need a “power of attorney” in order to represent a client in court proceedings but not to meet a potential client in detention.
- When a person is first admitted into police custody, they are to be searched by the authorities. 13
- All weapons and prohibited items should be seized.
- Searches of a female detainees should be conducted by a female officer. 14
- As soon as possible, every detainee, should be examined by a medical officer who shall record the health of the detainee in writing. 15
- A medical officer must also assess if the detainee is fit to carry out any labour.
- Convicted detainees should not be detained with detainees who have not been convicted. 16
- Detainees sentenced to death must be detained separately from others and under 24-hour guard. 17
- There are special protections for women in detention
- Women prisoners over 16 years of age should be admitted into prison by female prison staff. 18
- Searches of a female detainees should be conducted by a female officer. 19
- Women are to be held in separate detention areas. 20
- No male prison official shall be permitted, on any pretext, to enter the female section of a prison alone. 21
- If no other person is available to take custody of the child of a female prisoner, the official in charge of the prison shall permit a female prisoner’s child to stay with her in prison until the age of 4 if there is no guardian or caregiver for the child outside the prison, or if the child was born in the prison, or the mother wishes the child to remain with her in prison. 22
- Under the above conditions, a child of the female prisoner may be allowed to remain with the mother in the prison until the age of 6 if the mother so wishes. 23
- In this case, the officer in charge of the prison is responsible for food, clothing, accommodation, and healthcare of the child. 24
- Women should not be handcuffed, shackled, or whipped in detention. 25
- In addition to any protections available to adults (and female detainees, if applicable), there are additional protections for persons under 18 years of age in detention.
- Children cannot be detained together with adult detainees. 26
- Female children should be supervised by female prison staff. 27
- Separate confinement that involves the cutting off of communication from other detainees, but not out of sight of other detainees, may be permitted for only a limited period of time.
- If during confinement the detainee is provided the opportunity to eat daily meals with another detainee and exercise at least one hour per day, then such confinement may last up to three months 28
- Cellular confinement (which does not include exercise or meals with another detainee) must be no longer than 14 days. 29
- Prison officials are prohibited from moving detainees to solitary confinement, a type of confinement that both isolates a detainee from communication but also sight of other detainees.
- Solitary confinement may only be imposed on persons by the court after conviction as part of a prison sentence.
- The length depends on the length of the total sentence. However, it must not exceed fourteen days at a time 30
- Daily medical examinations from a medical officer and daily visits from prison guards is required for persons in solitary confinement. 31
- No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer.
- A medical examination that determines the detainee is physically or mentally unsuitable for such confinement shall lead to removal of the prisoner from confinement. 32
- All prisoners are free to work for pay in detention where available.
- Children shall not be subject to hard labour or detention camps while in prison. 33
- At admission to detention, each detainee is to be examined by a medical officer who shall assess and record in writing whether the detainee is fit to carry out any labour. 34
- All detainees who are not sentenced to hard labour (rigorous imprisonment) must be permitted to stop working at any time. 35
- No detainee, either sentenced to labour or willfully employed to perform labour, shall be kept working for a prolonged period of time in any one day. 36
- A medical officer shall examine detainees who are working at least once every two weeks. 37
- When the medical officer is of opinion that the health of any detainee suffers from employment on any kind or class of labour, such detainee shall not be employed on that labour. 38
- Detainees who are working in detention are to be given three meals a day. 39
- No detainee who is not sentenced to hard labour or rigorous imprisonment by a court shall be punished for neglect of work. 40
- Persons who have not been convicted have the right to maintain themselves and to purchase or receive food, bedding, clothing, or other necessities from private sources at proper hours. 41
- These items may not be transferred to another detainee. 42
- Prison officials may not have business dealings with detainees. 43
- Prison authorities shall provide for unconvicted detainees who cannot provide their own sufficient clothing and bedding. 44
- Authorities must provide for the communication between unconvicted detainees and outside visitors, including qualified legal counsel. 45
- Prison authorities may demand the name and address of any visitor to a prisoner. 46 (Jail Manual (1937), para. 41(1)-(2))
- If the prison authorities decide to search the visitor, the visitor who refuses to permit themselves to be searched may be denied admission. The denial shall be recorded in writing.
- As other restrictions such as timing, identification needed, and items that can be brought to detainees may vary, it is recommended that visitors contact the relevant authorities in advance of a visit to a detainee wherever possible.
- While a prison superintendent may withhold letters addressed to prisoners, it must be properly recorded in writing.
- If the prison authorities refuse to allow a detainee to communicate with a visitor from outside, the refusal must be recorded in writing, along with the reason for the refusal. 47
- Every prison is required to maintain a proper place for sick prisoners 48 (Prisons Act (1894), §39)
- Prison authorities must notify a medical officer without delay when: 49 (Prisons Act (1894), §37(1)-(2))
- A detainee wishes to see a medical officer; or
- Appears unhealthy (mentally or physically)
- Where a medical officer has reason to believe that the mind of a detainee is, or is likely to be, injuriously affected by the discipline or treatment to which he is subjected,” the medical officer must report this in writing to the Superintendent in charge of the prison. 50 (Prisons Act (1894), §14)
- The death of prisoner shall be recorded in writing by a medical officer, including, but not limited to, details regarding: 51 (Prisons Act (1894), §15)
- The nature and time of death.
- The day on which the deceased first complained of illness or was observed to be ill.
- Labour, if any, that the detainee was engaged in on the day of his or her death.
- Prison authorities must immediately notify the Superintendent in charge of the prison in the event of a death of a detainee. 52 (Prisons Act (1894), §17)
- A medical officer must examine prisoner before transfer to another prison for health purposes. 53 (Prisons Act (1894), §26)
- Detainees suffering from medical conditions should be sent to medical treatment without unnecessary delays.
- Prisoners may be sent to civil hospitals for treatment with permission. 54 (Jail Manual (1937), para. 948)
- Where there is overcrowding or other safety concerns, such as disease, inside of a prison so that the persons cannot be safely detained therein, provision must be made to provide for the shelter and safe custody of detainees elsewhere. 55 (Prisons Act (1894), §7)
- Torture and mistreatment of detainees is prohibited under the law. 56 (Constitution (2008), Art. 44 and Art. 357; Penal Code (1861), §330 and §331.)
- To protect the detainee against torture, mistreatment and other forms of abuse, there are several safeguard protecting detainees:
- The authorities must not use any more force than is absolutely necessary against a detainee.
- The authorities are prohibited from striking a prisoner except in self-defense or in defense of another or in order to suppress a disturbance. 57 (Jail Manual (1937), para. 114; Police officer may also be punished under Myanmar PoliceForce Maintenance of DisciplineLaw (1995), §17(g).)
- No detainee is to be interrogated without permission from a higher government authority. 58 (Jail Manual (1937), para. 33. Presence of jailor also required.)
- Except in an emergency, no detainee may be put in restraints without first notifying the Superintendent of the prison. 59 (Prisons Act (1894), §58)
- Except by court order, no punishment, other than enumerated, shall be inflicted on a detainee. 60 (Prisons Act (1894), §58)
- Punishments include a formal warning, restrictions on penal diet, and confinement. 61 (Prisons Act (1894), §45 and §46.) See Admission and separation of prisoners in detention
- Only the Superintendent of the prison has the authority to award any punishment as enumerated. 62 (Prisons Act (1894), §48(1)-(2) Exceptions apply.)
- A Medical Officer who has “reason to believe” that a detainee’s mind will, or is likely to be, injuriously affected by the discipline or treatment to which he is subjected, must report this to the Superintendent in writing. 63 (Prisons Act (1894), §14)
- Any officer who contravenes the law and existing rules may be subject to criminal and administrative charges. 64 (Prisons Act (1894), §54(1); Penal Code (1861), §330 and §331; Myanmar PoliceForce Maintenance of DisciplineLaw (1995).)
