PROLONGED TRIALS A common complaint from human rights lawyers, victims of arbitrary arrest or detention and their families is the length of time it takes for a case to come to trial, and of the trial hearing itself. Many complained that court hearings are routinely adjourned,58 often because state officials who are either complainants or witnesses to a case fail to appear for court hearings. Another factor leading to prolonged trials is the replacement of the presiding judge, often at short notice. The routine postponement of court hearings means that proceedings frequently drag on for many months, in some cases for over a year. This not only allows the authorities to prolong the detention of political activists and human rights defenders, essentially keeping them out of action, it disrupts the work of those who are on bail but have to take time off from their work to attend multiple hearings. Many activists see this as yet another form of harassment by the authorities, designed to prevent or curtail their human rights activities. For example, over a year and a half after his arrest on 25 August 2014, lawyer Zaw Win from Pyin Oo Lwin Township, Mandalay Region, remains in detention while on trial accused of “incitement” and protesting without permission. He was arrested and charged after he staged a peaceful solo protest against unfair judges calling for better administration of justice in May 2014. Prior to his detention, Zaw Win was well known for providing free legal representation to farmers protesting against land confiscations. He is currently detained in Mandalay’s Oh-Bo prison. In another example, over a year after they were arrested and charged for largely peaceful protests in Letpadan, Bago Region, on 10 March 2015, 81 student leaders and protesters remain on trial charged with “unlawful assembly” and “incitement”, among other offences. At the time of writing 45 remain in detention at Tharawaddy prison, where they have been held since their arrest. Under international human rights law, everyone charged with a criminal offence has the right to be tried without undue delay.59 Individuals held in pre-trial detention have the right to have criminal proceedings against them conducted with particular speed and promptness, and if a person in detention is not brought to trial within a reasonable time, they have the right to be released from detention pending trial. 60 This right is based on the presumption of innocence and on the right to liberty, which requires that detention should be an exception and should last no longer than is necessary in a particular case. 61 Prolonged trials of political detainees are clearly in violation of these rights. Amnesty International is concerned that extending trials through routine adjournments can also affect defendants’ access to legal counsel. In Myanmar, very few lawyers are willing to take on politically sensitive cases for fear of threats, harassment or other forms of reprisal,62 resulting in a small pool of lawyers representing a large number of cases. While most of these lawyers represent “political cases” free of charge, travel to and from hearings and other associated costs can be very expensive, and can build up considerably over extended periods of time. The likelihood of adjournments, and a heavy caseload, means that in some cases, lawyers do not – or cannot – attend all court hearings. Section 344 of the Code of Criminal Procedure grants judges the power to postpone or adjourn an inquiry or trial in the absence of a witness or for “any other reasonable cause”. There is no limit on the number of times a court hearing can be adjourned, although each adjournment cannot exceed 15 days at a time. However, Section 20(1) of the Courts Manual provides that, in criminal cases “when a case is tried locally every endeavour should be made to complete the trial without adjournment”. Section 24 further states that “When the hearing of evidence is begun, the hearing must be continued from day to day until all the witnesses in attendance have been examined, unless there are reasons, which must be recorded, for an adjournment.” 59 ICCPR Article 14(3)(c). The right to be tried without undue delay is also guaranteed in Article 40(2)(b)(iii) of the CRC. 60 See ICCPR Article 9(3). 61 Amnesty International, Fair Trial Manual (Second Edition) (Index: POL 30/002/2014), April 2014, Chapter 7: Right of detainees to trial within a reasonable time or to release, pp70-73 and Chapter 19: Right to be tried without undue delay, pp143-6. 62 Amnesty International interviews, June and July 2015. See also International Commission of Jurists (ICJ), Right to Counsel: The Independence of Lawyers in Myanmar, December 2013, Section V. Discipline and Harassment of Lawyers, pp22-26. 58 NEW EXPRESSION MEETS OLD REPRESSION ENDING THE CYCLE OF POLITICAL ARRESTS AND IMPRISONMENT IN MYANMAR Amnesty International 25