INDONESIA: Government violates international law by delaying reforms to end torture

INDONESIA: Government violates international law by delaying reforms to end torture

In 2010, the AHRC continued to receive information on several cases of torture in Indonesia. Twelve years after the ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) by the Indonesian government, there is still a routine and widespread use of torture and ill-treatment of suspects, especially in police custody. Torture is systematically used as a way to extract confessions or information to be used in criminal proceedings despite its prohibition under international law applicable to Indonesia.

In December 2009, Mr. J.J. Rizal was arrested on false charges in West Java and was severely beaten during his arrest while in custody (See full case at AHRC-UAC-178-2009). On July 24, 2009, Ms. Muliyana, 24, was illegally arrested by Jakarta Metropolitan police officers and tortured while being interrogated about a bank robbery that her husband was allegedly involved with (See full case at: AHRC-UAC-175-2009). This rampant use of torture is to be linked with abuse of power by the police and constant miscarriage of justice. Credible allegations of corruption in the justice system and a criminal nexus with business and political interests have also been reported.

The National Human Rights Commission (Komnas HAM) was set up in 1993 to monitor human rights violations in the areas of civil, political, economic and social rights. From January to May 2010, it gathered 491 claims of human rights violations by the police, a large number of which involve the use of torture. The police department is the institution most often reported by the public to Komnas HAM for human rights violations. Komnas Ham recently particularly underlined the police's abusive interrogation techniques against suspected terrorists. "The main barrier in upholding human rights is the government itself," said Komnas HAM chief Ifdhal Kasim.

While police torture in Indonesia is widely practiced, adequate punishment for those who torture, are lacking. Properly conducted investigations on torture cases are rare. Perpetrators are left unpunished, and the victims without effective remedies. A root cause lies in the lack of necessary laws and legal avenues to obtain justice.

12 years after the ratification of the Convention against Torture, torture has still not been criminalized. If torture occurs in Indonesia, the perpetrators will be charged only for maltreatment (Article 351-358 of Indonesian Penal Code, KUHP) or 'use of coercion to wrench a confession' (Article 422 of KUHP). This is significantly different from the definition of torture introduced by Article 1 of CAT. As a result, no sanctions or inadequate sanctions are imposed on the perpetrators. Article 4 of the Convention obliges state parties to ensure that torture is made an offence under its criminal law and punishable by appropriate penalties. While the ratification displays a 'human rights-friendly country' image, the reality shows just the opposite. It is time to prove and act.

The AHRC welcomes the steps taken by the government and the House of Representatives (DPR) to include torture as a criminal offence in the new Penal Code bill. It therefore urges both institutions to enact the new Penal Code as soon as possible. But, the AHRC is concerned about the unreasonable delays in passing this new draft legislation. It is important for both the government and the DPR to understand that stalling the enactment means stalling justice for the victims. As long as there is no law which criminalises torture, perpetrators remain unpunished.

The ongoing violations of human rights by the police are also in contradiction with several national laws on human rights that have been enacted since the fall of Suhartos regime in 1998. Law number 39/1999 concerning human rights adopts a definition of torture that complies with that stated in the CAT. It asserts the right of every person “not to be torture, while the Law No. 26 Year 2000 establishing the Ad Hoc Human Rights Court defines torture as a “crime against humanity. However, the law is not applicable to individual cases of torture but to that of systematic and widespread nature. A reform of the policing system has been launched and was concretized with the new Police Regulation number 8 passed in 2009. It is concerned with the implementation of human rights principles and standards in the discharge of duties of the Indonesian National Police. It asserts the duty of all members of the police to respect and observe human rights, which are defined as “non-derogable by any person under any circumstances”, including the right to be free from torture. The regulation forbids all police officers and personnel from using torture against suspected or detained persons, during arrest, during custody and during interrogations.

These provisions are not adequately implemented, as the numerous reported cases of police torture show. It is necessary to effectively criminalize the use of torture in any circumstance. The ongoing police reform alone is not a sufficient enough reform to address the problem. Reforms cannot be isolated to one institution of the state. The prosecution and court system suffers from political influence and corruption that need to be addressed together.

Cases of torture perpetrated by the military can only be brought before a military court. Military courts are notorious for lenient punishments of soldiers committing crimes against civilians. The law on military courts has to be reviewed to allow for military personnel to be held fully accountable before a criminal civilian court.

Monitoring mechanisms over the police present another obstacle in the prevention of torture. As an institution mandated to exercise considerable power in public life, the police also have to be subject to monitoring to prevent arbitrary and unlawful actions. The current, internal police monitoring mechanism is run by the Internal Disciplinary Unit (IDU or Propam) and the General Evaluation Inspectorate (Irwasum). Both have been criticised by the public for their lack of transparency in conducting any investigation or monitoring of staff within the police institution. An effective external monitoring mechanism is lacking. The National Police Commission (Kompolnas) of Indonesia is only mandated to advise the President in taking decisions related to the policing system. Decisions of the Ombudsman can be breached without any legal consequences while the National Human Rights Commission (Komnas HAM)'s can only issue recommendations.

In order to create a comprehensive mechanism in preventing and punishing torture, the government needs to revise the Criminal Procedure Code (KUHAP). There are a number of loop holes in this law which result in the prevalent use of torture. According to KUHAP, persons may be put under police custody for up to 61 days initially and can be detained for 340 more days if the case is brought for appeal before the Supreme Court. The unreasonably long detention period makes detainees more vulnerable to torture. This is seen especially in the lack of a mechanism to ensure regular and independent checks of detainees and detention facilities.

The provisions in Article 185 paragraph (2) of KUHAP imply the legal principle of unus testis nullus testis (one witness is not a witness). This has made it difficult for torture victims to prove to the court that they have experienced human rights violations. Torture is mostly conducted inside detention centres such as police stations. This makes the witness requirement practically impossible to fulfil in most cases. Article 185 paragraph (2) of KUHAP should thus not be applied in torture cases. Instead, the testimonies of torture victims should be heard as witness testimonies and the burden of proof should be on the perpetrator. A revised KUHAP should also regulate that confessions made without the presence of a lawyer shall not be admissible as evidence, as recommended by UN Special Rapporteur on Torture, Manfred Nowak.

Both the Government and the House of Representatives (DPR) are now in the process of reviewing KUHAP. If the process is oriented towards a clear human rights protection perspective, the AHRC welcomes the revision. This revision draft authorizes Magistrate Judges to exercise various powers in such cases. Several other issues are not addressed by the current revision draft as yet. Two examples are: house and city detention as more lenient and alternative forms of detention which are abolished in the draft. It provides additional grounds for detention instead of limiting the power to detain more closely. However, the draft does not provide for any special procedures taking into account the particular vulnerabilities of the victim and the involvement of the police themselves in the case. The criminal procedure for cases of torture should address these circumstances.

Victims in detention are often not given access to a doctor as provided by law. Family members, in several cases, reported that they were not allowed to see their relatives. This kind of a situation makes detainees more vulnerable. It becomes difficult to obtain medical evidence of the torture they had to endure or to receive adequate medical treatment.

The legal-institutional problems are aggravated by the fact that there is no independent detention and correctional facilities monitoring mechanisms to check the condition of detainees. An absence of such independent mechanisms has been highlighted by the UN Committee against Torture in Geneva in its Concluding Observations published in 2008. The Committee recommended the following: “establish consistent and comprehensive standards for independent monitoring mechanisms of all places of detention, ensuring that any body established, at the local or the national level, has a strong and impartial mandate and adequate resources".

In this regard, Indonesia should respond to international calls to ratify the Optional Protocol CAT (OPCAT). This Protocol imposes the obligation on state parties to allow visits by international and national independent bodies to places of detention. The Indonesian government announced its decision to ratify the optional protocol in 2008, following the 2004-2009 Human Rights National Action Plan (RANHAM 2004-2009). Two years after the government set a deadline and one year after the end of the action plan period, Indonesia has yet to give any further indications that it will ratify OPCAT in the near future. The AHRC deplores the failure on the governments side to implement its own targets.

Indonesia's Witness and Victims Protection Agency is insufficiently funded and ill-equipped to provide protection in cases of torture by the police. Unless this body is further developed, it can play no meaningful role in supporting victims of torture.

In 2008, Manfred Nowak,the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, published a report following his visit to Indonesia. His report denounces the routine practice of torture in urban area police stations and the serious allegations of ill-treatment in rural areas. The reports assessment pointed out that torture is used especially to extract confessions or money. Mr. Nowak underlined the “quasi-total impunity related to the use of torture. He further warned against the extensive use of excessive violence in police and army operations, especially in conflict zones, such as Papua. Among several others, he notably made recommendations to properly criminalize torture, to recognize the authority of the Committee against Torture and to reduce the period of custody. He finally called for a "zero-tolerance policy" vis-à-vis torture and ill-treatment by state officials and encouraged the authorities to adopt a comprehensive anti-torture plan. However, most of the recommendations formulated by Mr. Nowak have not been taken into account by the Indonesian government. This demonstrates an appalling lack of political will of the state institutions to put an end to the use of torture.

Indonesia must accept its responsibilities under international law and before its citizens. Joint efforts from the government, the parliament, the civil society and the international community must realize all necessary reforms to end the practice of police torture.

Recommendations:

  • The government and the House of Representatives must enact the new Penal Code Draft criminalizing torture as defined in the convention.
  • The criminal procedure code must be reviewed including a reduction of the length of police custody, the end of the applicability of Article 185 paragraph (2) KUHAP in cases of torture, and the admissibility of confessions made in the absence of a lawyer
  • The new police regulations need to be distributed and enforced more strictly among the police.
  • Family members and Doctors need to be given full access to detainees as provided by the law.
  • Indonesia should ratify the Optional Protocol of the convention against torture.
  • The Internal Disciplinary Unit of the police must be reformed to become a transparent and accountable monitoring instrument; an effective external monitoring mechanism must be put in place.
  • The budget of the Victims and Witness Protection Agency must be increased to ensure that effective aid can be provided in cases of torture.
  • The military court law must be reviewed to hold perpetrators accountable under civil courts.

 

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.