Responses to The List of Issuesin relation to theInitial Report of ICCPR-Indonesia
With a focus on Torture Issues
Prepared by :
WORKING GROUP ON THE ADVOCACY AGAINST TORTURE (WGAT)
2013
WGAT Team : Institute for Policy Research and Advocacy (ELSAM), Indonesian Women Coalition (KPI), YPHA, Jakarta Legal Aid Institute (LBH Jakarta), Center Detention Studies (CDS), Human Rights Working Group (HRWG).
Responses to The List of Issuesin relation to the Initial Report of ICCPR-Indonesia
Torture Issues
Prepared by :
WORKING GROUP ON THE ADVOCACY AGAINST TORTURE (WGAT)
In consultation with :
The World Organisation Against Torture (OMCT)

Contributor Team :

  1. Adzkar Ahsinin (YPHA)
  2. Ali Akbar Tanjung (HRWG)
  3. Feby Yonesta (LBH Jakarta)
  4. Ikhana Indah Barnasaputri (ELSAM)
  5. Maruli Radjaguguk (LBH Jakarta)
  6. M.Gatot Goei (CDS)
  7. Th. Mike Verawati (KPI)
  8. Wahyu Wagiman (ELSAM)

WGAT Secretariat:

Institute for Policy and Research and Advocacy (ELSAM)

Jl. Siaga II No. 31, Pejaten Barat, Pasar Minggu, INDONESIA 12510

Tel; (62-21) 79192564

Fax: (62-21) 79192519

Email:

I.Introduction

1. This document is submitted as an alternative report to the combined initial and first periodic report of the Republic of Indonesia about the fulfillment of the International Covenant on Civil and Political Rights (“the Covenant”). The present report takes into consideration the questions submitted by the Human Rights Committee in the List of Issues[1]with a specific focus on the questions related to torture and other cruel, inhuman or degrading treatment or punishment (“ill-treatment”). It provides recommendations to the State for each issue addressed.

2. Thisalternative report was drafted by the Working Groupon the Advocacy Against Torture (WGAT). TheWGAT was set up in 2007 andis composed of 15 national and local NGOs working for the elimination of torture. Some members focus their work on policymaking processes,while others concentrate on public litigation as well as monitoring of human rights issues.

3. This alternative reportwas drafted on the basis of various materials and sources received from each of the WGAT’s members. The information was collected from monitoring and advocacy activities conducted by each of the member organizations.

4. The WGAT wishes to mention that it submitted an alternative report and a follow-up note in 2008 and 2010 respectively to the Committee Against Torture in the framework of the examination of the second periodic report of the Government of Indonesia. Up until today, the government has yet to improvethe level of implementation of the recommendationsformulatedby the Committee.

II.Constitutionaland legal framework within which the Covenant is implemented, right to an effective remedy (art. 2)

Issue 1:Please also provide information on the availability of remedies for individuals claiming a violation of the rights contained in the Constitution and the Covenant.

  1. There are several regulations on compensation, restitution and rehabilitation. Those are, inter alia, articles 34 and 35 of Law No. 26/2000 on Human Rights Courts[2].Other regulations are Law No. 13/2006 on Witnesses and Victims Protection andGovernment Regulation No. 44/2008 on Granting Compensation, Restitution and Assistance to the Witnesses and Victims.

6. The Witness and Victim Protection Agency (LPSK), established by Law No. 13/2006, has the mandate to provide protection and fulfill the witness and victim’s rights (including the rightto compensation of the victims of grosshuman rights violations and the right on the restitution of the victims of criminal act).

7. TheWitness and Victim Protection Agency (LPSK)has not completely been efficient for victims since its establishment. For example, in the case of UrutSewu in Kebumenthe victimsweresuspects so that LPSK was unable to grant protection forthe victims.The lack of carefulness also lead to the end of medical service assistance to the victim of the tragedy of 1965. It happened toNaniNurani, whom the assistance was ended without clear reasons.Another weakness of LPSK is the time-consuming decision making process to accept a request of protection and aid by avictim; the victim must wait for the Plenary Session of LPSKinstead of receiving immediate assistance[3].

Issue 3:Furthermore, what measures have been put in place to ensure that Komnas HAM can challenge decisions of the Attorney General not to prosecute cases of human rights violation that KOMNAS HAM hasrecommended for prosecution?

  1. As of June 2013, the Attorney General (KejaksaanAgung) has not proceededwith several inquiry reports of KOMNAS HAMin relation to human rights violations cases despite KOMNAS HAM recommendations.While KOMNAS HAM considered the results of these investigations as completed, the Attorney General considered that they have yet to be (there are at least 6 reports of past human rights violations that have not been proceededby the Attorney General, such as the Incident of Trisakti, Semanggi I and Semanggi II (1998), Incident of May 1998, enforced disappearances after 1997-1998, Talangsari Incident of 1989, Incident of 1965, Incident of Mysterious Shooting).

9. In 2009, the House of Representatives issued four recommendations to the President in an attempt to complete withthe cases of enforces disappeared persons in 1997-1998 (the case of the suspected abduction of 23 student activists by Indonesian security forces in 1997 and 1998, in the last months of former President Suharto's rule. Nine of the activists were later released alive, one was found dead, and 13 have never been found. In 1999 a military court convicted 11 military personnel of kidnapping the activists who were later found alive, but the court did not examine the issue of enforced disappearances of the other 13 cases).These recommendations wereas followed 1) Recommend to the President to create an ad hoc human rights court.Until today the adhoc Human Rights Court has yet to be established since theAttorney General has not followed up on the recommendation of KOMNAS HAM in this case.Moreover, the establishment of anadhoc Human Rights Court shall also require a Presidential Decree as regulated in Law No. 26/2000; 2) Recommend to the President and the government institutions, as well as relevant stakeholders to discover the whereabouts of the 13 student activists, who remain missing3)Recommend to the government to rehabilitate and provide compensation forthe families of the disappeared; 4) Recommend to the government to immediately ratify the International Convention For the Protection of All Persons from Enforced Disappearance. As of June 2013, these recommendations have not been implemented, except for theratification process of the International Convention for The Protection of All Persons from Enforced Disappearances (ICEPD).

10. As of June 2013, an ICPED ratification plan has been prepared by the Ministry of Law and Human Rights on behalf of the Government of Indonesia. However, the Government has not yet submitted to the House of Representative the draft of the ratification plan.

11. In the year of 2012, the President establisheda small team under the coordination of the Coordinating Minister for Political, Legal and Security Affairs to look into the best way to provide solutions to pasthuman rights violations, but until June 2013 theaforementioned team has not communicated any result.

II. Right to Life (Article 6)

Issue 10: Please provide data on the number of deaths and their causes in the State party’s prisons and places of detention. Please also provide information on the specific measures that are being taken to prevent deaths in prison. What measures have been taken to investigate, and where appropriate, prosecute and punish acts of prison personnel or inter-prisoner violence that have led to deaths in prisons and detention facilities? Please provide data on the number of prison personnel that have been disciplined or prosecuted for cases related to deaths in prisons or detention facilities.

  1. According tothedocument “Recapitulation of Causes of Prisoner’s and Detainee’s death in Prisons and Detention Places in Indonesia 2012” (Rekapitulasi Sebab Kematian Narapidana dan Tahanan Seluruh Wilayah Indonesia tahun 2012) published by the Directorate General of Corrections,in 2010, the number of deaths was 791; in 2011 (January-August), the number of deaths was 352 and, in 2012 (January-September), the number of deaths was 440. According to the said report, deaths in detention were related to health problems (heart attack, respiratory problems) or internal violence in prisons. The number of deaths due to HIV/AIDS was the highest with 204 cases in 2010, 105 of cases in 2011, and a decreaseof73 of cases in 2012.
  1. According to the said document, mortalityof detainees and prisoners in prison and detention places in Indonesia has decreased from year 2010, 2011 and 2012(see annex 3). WGAT is concerned that no autopsy was conducted in cases of suspicious deaths. This is for example the case of the Sijunjung case (in annex 2), where the victims died in detention. Authorities reported that they committed suicide in detention.

IV. Prohibition of torture and other cruel, inhuman or degrading treatment; liberty and security of person, treatment of persons deprived of their liberty, independence of the judiciary and fair trial (Articles 7, 9, 10 and 14)

Issue 12:Please provide an update on the specific steps that have been taken to revise the current Criminal Code so that it prohibits torture and it includes a definition of torture that complies with article 7 of the Covenant and article 1 of the Convention against Torture. Please provide information on the measures taken to combat the alleged widespread torture and ill treatment of detainees, and poor conditions in prisons that are allegedly exacerbated by overcrowding because most prisons and detention facilities operate at almost double capacity.

  1. Indonesia has ratified the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment since 1998. 15 (fifteen) years after ratification, torture isstill practiced bypolice officers, prison officers, officers from otherplacesof detention ( for example, training centers for migrant workers, migrant workers detentioncenters, drugs rehabilitation centers, and social homes),and the military[4]across Indonesia. The perpetrators areoften free from punishmentbecause, among others, the lack of definition andcriminalization of torture. The definition of torture as stated in Article 1 of the Convention against Torture has not been incorporated into domestic law due the long delayed legislation process of the Draft Criminal Code. It has neither been incorporated into a special law.
  1. The existing Criminal Code (KUHP) only recognizes the term of “maltreatment” punishable by maximum imprisonment of two years and eight months, or five years if it resulted in a serious physical injury, orseven years if it resulted in death.[5]Suchpunishmentsprovided in KUHP for maltreatment do not reflect the very element of torture, in whichits prohibition has been recognized as an international norm of jus cogens[6].
  1. This practice has beenconfirmed by findings from trial monitoring conducted by ELSAM and research conducted by LBH Jakarta. The examples of which are theSijunjung case and Erick Alamsyah case. In West Sumatra in 2011 (annex 2),the trial against the perpetrator was onlycarried outafter public denunciation by media, civil society, and KOMNAS HAM and LPSK.
  1. Since early 2013, discussionson the draft of the newcriminalcode are ongoing in Parliament. While the draft of the new criminal codeprovides a definition of torture[7], civil society has made ​​a critical note because other contents of the draftarecontrary to the principles and norms of human rights.[8]
  1. The Chief of Indonesian National Police (Perkap) enacted Police Regulation Number 8/2009 on Implementation of Human Rights Standards and Principles in Carrying Out Police Tasks, applicable to the Police (and all related police special units, such as the anti-terrorism unit Special Detachment 88 – known as Densus 88.) While the said regulation includes the prohibition of torture and ill-treatment, it does not clearly specify the act of torture. This Police Regulation has been viewed as a positive step at the time. However, it has failed to adequately respond tothe practice of torture by the policein Indonesia, notably because of itsweak implementation and socialization in the field.
  2. Based on the cases that ELSAM and LBH Jakarta has monitored, interrogations rooms of police officesare not all equipped with audio and video taping. But in some place, as in the area of Police Resort of North Jakarta, there is a CCTV in the investigation room, but it does not work.

According to LBH annual report and LBHresearch on the prevention and the abolition of torture during 2010-2012, the police were the main perpetrators of torture[9]. The table below shows the number of torture cases committed bythe police received by LBH Jakarta in 2010, 2011 and 2012 (the complete description of the case attached in the Annex 1).

Torture cases reported to the LBH Jakarta

Year / Number / Perpetrator
2010 / 7 cases / Police
2011 / 2 cases / Police
2012 / 5 cases / Police

(Source: Report by LBH Jakarta)

  1. The report of LBH Jakarta “Research on Measuring the Reality and Perception of Torture in Indonesia of 2010”, which was conducted in five areas in Indonesia such as Jakarta, Makassar, Surabaya, Banda Aceh and Lhokseumawe, showed that the highest prevalence of torture occurred at the level of investigation andpre trial detention with various percentages above 53% to 97.9%. Prevalence of torture was quite low at punishment level, with the highest rate at 44% in Lhokseumawe.

23. Since the past decade (2002-2012), 56 terrorist suspects were shot to deathduring Indonesian Police (Special Detachment 88)operations. There is no scrutiny mechanism for police officials on the authority to arrest or to detain terrorist suspect. From 2010-2012 28 wrongful arrests were documented. Those people charged under terrorism are without enough preliminary evidence. There are many terrorist suspects arrested without warrant. Sometimes, police simply make the warrant after arresting terrorist suspects[10].

24.Data on detainees and convicts in Indonesia can be accessed through the following updated website by the Directorate General of Correction. Every day it is reported that both the correction centers and detention centers are in overcapacity up to 150% from the available space. There has beenno clear program to overcome this problem by the Ministry of Law and Human Rights, although it was supposed to design a policy to overcome this situation.

25.OMCT published an urgent appeal in May 2013 on the conditions of detention of Mr. Matan Klembiap, a 41-year-old Papuan, detained in Abepura prison since February 2013. OMCT had been informed about his poor health, resulting from the torture he suffered during his arrest and the interrogation process by the police, and the lack of medical treatment provided by the competent authorities since his detention[11].

26.Overcapacity is also a reality in places of detention of the police.However, no data was available to compare the number of detainees in the police facilitieswith the detention centers managed by the Directorate General of Corrections. The restricted information about the overcapacity in place of detention of the police shows a lack of willingness by the Indonesian police to communicateon the human rights situation of detainees under police custody.

Issue 13:Please provide information on the steps taken to grant access to prisons and detention facilities by independent monitoring bodies following the refusal by the government in 2009 to grant access to the International Committee of the Red Cross (ICRC) to inspect prisons and detention facilities in the State party. Please respond to allegations that the State party requested the ICRC to close its field offices in Aceh and Papua provinces. Please confirm whether an independent monitoring mechanism has been designated to monitor the conditions of imprisonment and detention and the situation of prisoners and detainees, with powers to conduct unannounced

27.As of June 2013,Indonesia does nothave an independent mechanism that conducts monitoring activities to places of detention. This is because Indonesia has not yet ratified the OPCAT although it was included in the National Action Plan for Human Rights (RANHAM) 2011-2014.With regard to the ratificationprocess of OPCAT, the Ministry of Law and Human Rights is currently drafting the ratification law and academic manuscript.

28.Civil society can visit places of detentionthatfall under the jurisdiction of the Directorate General of Correctionsthrough a direct agreement (MoU) with the said Directorate. However, these visits have to be announced and cannot be impromptu visits. Places of detention that fall under the jurisdiction of the policeandTNI (Indonesian Army)are still hard to access for civil society.

29.State institutions that can monitor places of detention are the National Commission for Human Rights (Komnas HAM), the National Commission on Violence against Women, and the Ombudsman. However, a visit can only be done if there is a complaint addressed to them.None of these institutions can carry out impromptu visits to places of detention.

30.At the request of the Military and the Police, the Ministry of Foreign Affairs refused, in 2009,the ICRCaccess toprisons and detention facilities. The WGAT considers that prisons visits by the ICRC could be very helpful for the improvement of sanitation and health conditions in prisons, just like other international organizations that have helped build a health monitoring system for the prevention of HIV/AIDS and other contagious illness.

Issue14:Please respond to allegations that torture and ill treatment of detainees is widespread especially at the moment of apprehension and during pre-trial detention, and that it is mostly used to extract confessions. What measures have been put in place to ensure that evidence obtained under torture is inadmissible and is excluded in court? Please provide data on the activities of the Internal Affairs Division and the National Police Commission, which are mandated to investigate complaints against police officers. Specifically, please provide data on: (a) the number of complaints received against police officers; (c) investigations carried out; (d) prosecutions, convictions and types of penalties imposed; and (e) compensation awarded to the victims of torture or ill-treatment

31.Referring to previous paragraphsof the present alternative report, the practice of torture is still ongoing and likely to increase. From January to November 2011, ELSAM documented 19 cases of torture and ill-treatment[12], while it documented 83 similar cases from December 2011 to November 2012[13].From the monitoring activities conducted by ELSAM, most of the torture victims were offenders of petty crimes such as mobile phones theft, charity box theft, motor vehicle theft, and fights[14].

32.NGOs have submitted complaints about torture practice to various institutions, startingfrom criminal reports at the Police Service Center, complaints to the Propam of the Indonesian Police Force, as well as to the National Police Commission. However, the response to these reports was very slow, particularly in revealing the practice of torture. Reparation for the victims was barely received (see annex 1).