Torture remains a part of Criminal Law Enforcement in Indonesia

“Indonesia has failed to prevent and handle many torture cases. Not to mention a weakening of their legal system against the torture”

General situation

On 26 June 2016, international community will once more celebrate the world’s anti-torture day. Indonesia, which has become the part of the international community since they ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (Convention against Torture – “CaT”) in 1998, has also committed to participate in the fight against the practice of torture. However, even eighteen years after the ratification, Indonesia is still unable to adequately improve and suppress the practice of torture.

Based on the CaT, it is stated that torture is “…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed…” Therefore, the Institute for Criminal Justice Reform (“ICJR”) insists that the practice of torture as a technique to obtain any evidences is indeed prohibited under both international and national law.

Since 2014, ICJR, as an organization concerned with the efforts to stop and eliminate the practice of torture in Indonesia, has conducted an annual update related to the general situation of torture in Indonesia. In 2016, result of the update shows that Indonesia is still unable to prevent and handle many torture cases. Not to mention a weakening of their legal system against the torture as well.

To this date, the Indonesian government even failed to report the situation and development of the prevention of torture in Indonesia to the United Nations which has been matured since 2011. The UN Committee against Torture has long issued a request for Indonesia to fulfill its obligation to report the situation of torture in Indonesia to them.

Moreover, Indonesia has also failed to conduct a prevention and management of torture cases. This is demonstrated by the absences of official data from official commission or institution that consistently monitor the torture cases in Indonesia. The National Commission on Human Rights (Komnas HAM) is one of the institutions that has a mandate but has failed to provide a consistent periodical report regarding the torture cases in Indonesia.

The critical situation related to prison density until June 2016 at the Ministry of Justice and Human Rights (http://smslap.ditjenpas.go.id/public/grl/current/monthly accessed on 24 June 2016) was amounted to 198.674 persons under the capacity of only 119.036 persons. This means that there is 167% of prison density. This density problem may potentially drive the practice of torture in prisons. The density problem will also complicate all aspects related to the services and management of inmates in Indonesia. Until present, there is still the so-called “dualism management” of prisons. There are several prisons which managed the Ministry of Law and Human Rights, and other prisons which managed by police. This causes lack of definitive data related to the number of prisoners throughout all prisons Indonesia, especially the number of pretrial detainees in places of detention which run by police.

Regarding the torture in death penalty, ICJR encourages for moratorium of death penalty in Indonesia. The practice of the death penalty has been pushing the “death row phenomenon” due to the long waiting execution time for death row inmates. It may even reach 16 years. The long waiting execution time is indeed causing a torturing situation for death row inmates.

On 2012, the UN Special Reporter on Torture and Degrading Treatment, Juan Mendez, stated that death penalty must be seen in the frame of human dignity and in the prohibition against torture and degrading treatment framework. In practice, death penalty has resulted in torture and arbitrary actions related to the death row phenomenon (a phenomenon of execution waiting time), and its method has also resulted in torment and inhumane treatment.

In the regime of President Joko Widodo, death penalty has caused a serious problem. In the last two executions, the average waiting period was up to 10 years 6 months, with the longest wait time up to 16 years. This long waiting execution time, on the one hand shows that the prisoners actually been getting a long prison sentence, therefore, we can say that the convicted will get a double punishment: long imprisonment sentence and the death penalty itself.

This treatment can be categorized as an inhumane treatment. In addition, the long execution waiting period will also resulted in severe mental trauma and deterioration of physical conditions. Rodrigo Gularte and Marco Archer Cardoso Moreira were executed in a state of mental disorder and mental instability. Mary Jane, who is still on the death row waiting period, experience a mental trauma and stress resulting her regularly banging her head against the wall (according to the Deputy Chairman of the National Commission on Anti-Violence against Women, Yuniyanti Chufaizah). Zainal Abidin was moved to an isolation room in a stress condition when his application for judicial review was being checked in the Supreme Court after 10 years of delay without any clear explanation. Until now, the parliament is still not implementing their supervision function on the Supreme Court to ask for an explanation after such 10 years of delay.

Name Waiting Period
Namaona Denis 12 Years
2 Marco Archer Cardoso Moreira 11 Years
3 Daniel Enemuno 9 Years
4 Ang Kiem Soei a.k.a Kim Ho Alian Ance a.k.a ​​Tahir Tommi Wijaya 11 Years
5 Tran Thi Bich Hanh 2 Years
6 Rani Andriani a.k.a Melisa Aprilia 13 Years
7 Myuran Sukumaran 8 Years
8 Andrew Chan 8 Years
9 Martin Anderson 11 Years
10 Zainal Abidin bin Mgs Mahmud Badarudin 13 Years
11 Raheem Agbaje Salami 16 Years
12 Rodrigo Gularte 10 Years
13 Sylvester Obiekwe Nwolise 10 Years
14 Okwudili Oyatanze 13 Years

Notes / Source: Death Row Inmates Batch 1 and Batch 2 / ICJR

From the reports and monitoring were also showed by the execution of the first and second batch of death row inmates which still raises questions. Indonesian law, specifically Police Chief Regulation No. 12 of 2010 on the Implementation of Death Penalty, is unable to guarantee that the inmates are not going to be tortured during the execution process. This rule allows for multiple shots until the convicted died, if the first shot was unable to kill the convicted. During the execution process of the first batch, Tran Thi Bich Hanh, were declared dead at 1:21 pm, or 35 minutes after the execution. Subsequently, during the execution process of the second batch, there was no specific report. All the death row inmates were pronounced dead 27 minutes after the execution. The length of time span between the execution and the time of death shows that the state is unable to guarantee the convicted from any pain and suffering during the execution process. Thus, it can be classified as torture and inhuman acts.

In the enforcement of terrorism criminal acts, the alleged torture case wide open in the Suyono case in relation with the Anti-terror Detachment 88 (Densus 88) in 2016. As a result, there are more and more reports regarding the procedural violations during the enforcement of terrorism criminal acts.

Furthermore, a specific issue regarding the torture is in the practice of Female Genital Mutilation/Cutting (FGM/C), or better known as female circumcision, which is still being implemented in Indonesia. Based on data from the Primary Health Research (Riset Kesehatan Dasar“RISKESDAS”) in 2013, there are four professions who perform female circumcision practices in Indonesia. The practice of circumcision is performed by an expert circumcision as much as 6.8%, 40% by traditional midwives, 50.9% by professional midwives, and 2.3% by other health personnel. This data shows that female circumcision is still being implemented in Indonesia.

Currently, Qanun No. 6 of 2014 on Jinayat which supports the practice of caning in Aceh is being more consolidated and officially used since 2015. The new regulation is much tougher and detailed. At present, the most severe punishment is up to 150 lashes or a fine of 1,500 grams of gold or 150 months imprisonment sanction. ICJR has conducted a review to the Qanun, however on 1 December 2015, the Supreme Court by Decision No. 60P/HUM/2015 rejected the proposal to conduct the judicial review to the Qanun No. 6 in 2014 on Jinayat, for reasons that it is not the appropriate time for such review. This is due to that Law on Aceh Government is currently being reviewed by the Supreme Court

The Government of Indonesia is currently unable to review the Qanun on Jinayat. Until now, the Minister of Interior Affairs must be satisfied in just evaluating local regulations related to investments.

Torture Cases in 2016

From the monitoring which conducted by ICJR in 2016 (from January until June 2016), there are 18 (eighteen) cases of torture. These torture cases were happened in 3 legal jurisdictions: investigation stage, prisons and military. Although there is a tendency to decline, ICJR suspects that the practice of torture is still being the so-called “iceberg cases”. ICJR believes that there are still many unrevealed torture cases more than that have been reported.

From those 18 cases, three of the victims were passed away due to torture, while the other 15 victims were slightly injured, seriously injured, intimidated and degraded as human beings.

From the 18 victims, 3 of them are children, 2 of them were suspected to be involved in a terrorist network, while the other 1 was convicted of premeditated murder.

The child victims admitted that they were under pressure when investigated by authorities in the detention period, were forced to admit the act, and forced to sign the Police Investigation Report (BAP) which was alleged against them, by the way being slapped, tortured with electric shocks, or threatened with a gun. Even there was a child who could not walk and had to crawl because of the investigation process. He got more physical violence by being ordered to sleep on their backs. Then, his thigh was placed by a wooden block. Subsequently, the wood was trampled several times. These children were also beaten and kicked repetitively until their epigastria are injured. Their head were also pushed into a toilet while they could not even breathe. Lastly, their cock was beaten until their skin blisters.

Moreover, the perpetrators of those 18 torture cases are varying. Not only done by the police, warden or military, but also by Detachment 88 or the association of military/police/Detachment 88.

Based on those 18 torture cases, torture practice were mostly done during the arrest process, which is up to 11 people. While the torture practices at the detention period was conducted to 6 people and only 1 people who being tortured in prison, when he was already dead.

Torture practices that occurred in 2016 are qualified into minor criminal offense, serious criminal offence, or miscellaneous. The “minor criminal offense” consists of gambling and mugging cases. Meanwhile, the “serious criminal offence” includes murder, terrorism and treason cases. Lastly, the “miscellaneous” consists of any effort which done by the perpetrators in order to dismantle a road of a region or being captured by a policeman without any clear reason.

Regulations and Policies that Support Torture Practices

Up to this time, there are still no regulations that specifically can be used to punish the perpetrators of torture. No special criminalization for the crime of torture. The only hope is in the Draft Bill on the Indonesian Criminal Code. The crime of torture is regulated in two articles, namely in Chapter XXXII on Crime of Occupation in Article 669 Book II of the Draft Bill on the Indonesian Criminal Code in 2015, which is currently still being discussed in the Parliament.

Even the initiatives related to the Optional Protocol (an additional protocol to supplement the ratification of anti-torture convention) had been rejected by the government. Optional Protocol against Torture is an instrument to support the prevention of torture. Indonesia is not willing to ratify this protocol by invoking the sovereignty reasons. This resulted Indonesia has no mechanism to monitor detention places which are integrated with various supervisory institutions and human rights protectors. That makes detention places more like a “paradise” for the perpetrators of torture.

In the 2014, the Ministry of Law and Human Rights and the Ministry of Foreign Affairs has initiated to Draft Bill on the Prevention of Torture, however, the plan was stalled in their own hands since 2015. On 24 February 2016, 5 State institutions, including the National Commission on Human Rights (Komnas HAM), the National Commission on the Prevention of Violence Against Women (Komnas Perempuan), the Commission of Indonesian Child Protection (Komisi Perlindungan Anak Indonesia), Ombudsman of the Republic of Indonesia, and the Witness and Victims Protection Agency (Lembaga Perlindungan Saksi Korban), signed a joint agreement (MoU) on the National Preventive Mechanism for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment. Until now, there is still no result and official report regarding the MoU.

On the other hand, there are several regulations that actually loosen the practice of torture. Draft Bill on Terrorism which proposed by the government in 2016 has opened a potential situation that may increase the practice of torture, which is by increasing the period of incommunicado arrest and the most longer detention period in the history of the Indonesian criminal procedure law. In that draft bill, incommunicado arrest can be done for 30 days, while detention can be done up to 450 days. The draft bill also explicitly grant authorities for investigators and law enforcers to put someone in an unknown place without a clear status. Explicitly, this is a legal practice of “incommunicado detention” in Indonesia and will certainly be perfect place to commit a torture.

The President has also signed Government Regulation in Lieu 0f Law (Peraturan Pemerintah Pengganti Undang-Undang“Perppu”) related to Sexual Offences to Child, specifically Perppu No. 1 of 2016 on the Second Amendment to Law No. 23 of 2002 on Child Protection, which provides corporal punishment “chemical castration” as a sentence that can be imposed by judges. However, this provision is actually forbidden in the Convention against Torture, as a “cruel, inhuman and degrading treatment” type of punishment. Fortunately, some people are still consider the execution of this punishment.

Lack of Rehabilitation for Victims of Torture

In terms of the legislation, there is some development by the issuance of Law No. 31 of 2014 which revised Law No. 13 of 2006. In Article 6, victims of torture are entitled to medical assistance, psychosocial rehabilitation, and psychological support in the Witness and Victims Protection Agency (LPSK). However, in practice, the Agency only received 8 applications and only provides services to 4 victims of torture until in this year. According to ICJR, compared to the number of torture cases that occurred in that period, the total is relatively small. ICJR suspects that may be a problem for victims to access the Agency.

Another issue is that Law No 13 of 2006, Law No. 31 of 2014, and the Criminal Procedure Code are inadequate in regulating the rights of victims regarding the restitution and compensation. As a result, there is no single torture case which successfully uses the restitution and compensation mechanism until now. The Ministry of Justice and Human Rights is also owed for a revision to Government Regulation No. 44 of 2008 on Restitution, Compensation and Rehabilitation of Victims. Revision to this government regulation is considered late, because the law which mandates for such implementing regulation, specifically Law No. 31 of 2014 on the Revision of Law on Protection of Witnesses and Victims has been issued since 1,5 years ago.

On 8 December 2015, the government has revised a government regulation on the implementation of the Criminal Procedure Code (Government Regulation No. 92 of 2015 which revised Government Regulation No. 27 of 1983) which increased the amount of compensation for the victims of wrongful arrest or wrongful procedures. However, this regulation has not been implemented because a regulation from the Minister of Finance Regulation has not been drafted. Though, based on the government regulation, this regulation shall be made by not later than 8 June 2016. ICJR criticized the slow pace of the policy making process.

On the other hand, by using the civil law, some claims for compensations which filed by the victims of torture was not able to be executed by the court. This situation can be added to a long series of failures to exercise rehabilitation for the victims of torture.

On 7 August 2015, the Supreme Court has issued Regulation No. 2 of 2015 on Settlement Procedures of Simple Lawsuit. This regulation may be an alternative way to facilitate the granting of compensation to victims of torture. However, in terms of substance, this Supreme Court regulation is still debatable, especially related to the scope of regulation, execution power, and its unproven effectiveness.

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