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Fwd: [AHRC Statement] INDONESIA: Refusal to amend the law on torture lends support to its widespread use by the State officers

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  • Mira Wijaya Kusuma
    AHRC wrote: Subject: [AHRC Statement] INDONESIA: Refusal to amend the law on torture lends support to its widespread use by the State
    Message 1 of 1 , Feb 1, 2007
      AHRC <listadmin@...> wrote:
       
      Subject: [AHRC Statement] INDONESIA: Refusal to amend the law on torture lends support to its widespread use by the State officers
      Date: Thu, 1 Feb 2007 10:53:03 +0800
      From: AHRC <listadmin@...>
       
      FOR IMMEDIATE RELEASE
      AS-021-2007
      February 01, 2007

      A Statement by the Asian Human Rights Commission

      INDONESIA: Refusal to amend the law on torture lends support to its
      widespread use by the State officers

      Indonesia signed the International Convention against Torture and
      Other Cruel, Inhuman and Degrading Treatment or Punishment on the 23
      October 1985 and ratified it on the 28 October I 998 by the Law No.
      5/1998.

      Since its ratification, there have been numerous calls by the CAT
      Committee- for instance in its &ldquo;Concluding Observations:
      Indonesia&rdquo; (01/11/2002. A/57/44, paragraphs 36-46)- and other
      civil society organizations for the amendment of domestic legislation
      as it has been found to be inadequate and ineffective in curbing
      torture in Indonesia. The first in its long list of recommendations
      by the CAT Committee is for the Indonesian Government to
      &ldquo;...Amend the penal legislation so that torture and other
      cruel, inhuman or degrading treatment or punishment are offenses
      strictly prohibited under criminal law&rdquo;.

      Despite the fact that this recommendation was made in 2002, the state
      of Indonesia has deliberately avoided taking any responsible action,
      thereby denying redress to victims of torture, granting impunity to
      the perpetrators closing all doors to any preventive action. In fact,
      judging from the sharp increase in the use of torture and the glaring
      refusal by the State either to recognise it or to take punitive
      action, it appears that the State is deliberate in its refusal to
      amend its legislative constitution.

      This is confirmed by the two following reasons:

      1. The State has adamantly refused to adopt the definition of torture
      found in the Convention Against Torture. Instead, torture is defined
      as "... every act conducted intentionally, which causes severe pain
      or suffering, whether physical or mental, in order to obtain
      confession or information from somebody or a third person, punishing
      him for an act he or a third person has committed or is suspected of
      having committed; or intimidating or coercing him or a third person,
      or for any reason based on discrimination of any kind; when such pain
      or suffering is inflicted by or at the instigation of or with the
      consent or acquiescence of a public official or other person acting
      in an official capacity."

      The main problem is relating to the comment made in the next article,
      namely article 21, where it adds that &ldquo;torture should be
      conducted not only by public authorities, but also by
      individuals&rdquo;. The state in its eagerness to demonstrate that
      its definition is far superior to that which is found in the
      definition of CAT Convention, has downplayed the gravity that is
      attached to the crime itself. Indonesia has clearly failed to
      recognize the fundamental difference between a crime committed by an
      ordinary person and by someone who represents the state. This seeming
      oblivion or deliberate attempt to confuse an important aspect of the
      Convention defeats the very purpose for which the Convention was
      promulgated; namely to articulate the gravity of the crime committed
      by actors of the state. By adding the comment &ldquo;any
      person&rdquo;, the specificity of the crime has been subjugated to
      the level of &ldquo;assault&rdquo;. By confusing
      &ldquo;assault&rdquo; and &ldquo;torture&rdquo; as one and the same,
      the state has deprived the gravity attached to the latter with the
      corollary of the punishment itself being lessened. Having reduced
      torture to &lsquo;assault&rsquo;, the state has conveniently
      discarded its responsibility to put into place the adequate legal,
      administrative and other measures to provide justice to the victims,
      punish the perpetrators and adopt preventive measures.

      2. The addressing of the issue of adequate legal mechanisms both to
      prohibit and punish the perpetrators is apparently incorporated into
      the National Penal Code. What is paradoxical is that this National
      Penal Code has been in the process of revision for the last ten
      years, and there is no guarantee that this will be completed anytime
      soon. This basically denies any avenue for the victims to make any
      complaint of torture and have the guarantee that it will be inquired
      into or prosecuted.

      This lacuna of a legal mechanism has had serious consequences. The
      victims of torture suffer isolation, anxiety and fear. The victims
      suffer from feelings of guilt and are reluctant to lodge any
      complaints. Since torture is legally not defined as a crime and since
      there are no avenues for reporting or any guarantees that it will be
      investigated into and lead to prosecution, the victims continue to
      shy away or suffer in silence; except in cases where torture has
      resulted in death, it is very rare that the victims would want to
      make a complaint. Even the few persons that have turned to civil
      society organizations would not request any prosecution, but only the
      prevention of further torture as there is no avenue for prosecution.
      Besides, the complaints made in the past, when proven guilty, the
      perpetrators were given simple disciplinary action and no adequate
      punishment or compensation to the victims.

      A case which is symptomatic of the present situation is the arrest
      and the torture of 10 farmers in October 2005 by police officers in
      Central Sulawesi, Indonesia. Eight were sentenced to nine years
      imprisonment, on the charges of maltreatment and killing of 17 police
      officers, three of whom died. However, no investigation was ever
      conducted into the farmers' complaint of police torture during
      investigation, made in December 2005. The AHRC, together with local
      human rights groups, expressed concerned that although the Central
      Sulawesi Provincial Police promised to investigate the farmers'
      torture complaint and punish the perpetrators if they were found to
      have committed torture, no investigation has so far been conducted.
      These farmers have been denied redress for the brutal torture they
      suffered, and now their rights have been further violated by being
      unjustly sentenced. Despite the fact that the complaint was made to
      the judge during the hearing of the case, it was simply dismissed by
      him. RE: UA-239-2005: Custodial torture of ten men by Central
      Sulawesi Provincial Police]. 8 June 2006

      Another problem that the victims are confronted with is lack of
      medical evidence to corroborate claims of torture. One of the key
      threads of evidence of torture lies in the medical examination. In
      all the cases that have been reported to us, not a single incident
      has the victim being given a proper medical examination. The medical
      reports provided so far have lamentably failed to provide an accurate
      medical report as was the case of the brutal murder of the 14 year old
      boy Irfan in Jakarta quite recently. It is alleged that Irfan lost
      consciousness due to torture by Muncipal Administrative Police Unit
      (SATPOL PP) and died on his way to Bumi Puskesmas hospital. However,
      the members of the family have failed to get any evidence from the
      medical quarters that would challenge the statement by Mr. Harianto
      Bajuri, the Head of Security and Discipline of the Jakarta
      administrative region, who claimed that the death was due to
      ill-health, as opposed to severe internal injuries allegedly caused
      by the police assault.

      It is against this background we would like to make the following
      recommendations:

      1. Amend the existing law No. 5/1998.of 1998 against torture so that
      it becomes an effective instrument in prohibiting torture and getting
      redress to the victims,
      2. Define torture in such a manner that it corresponds adequately to
      the gravity attached to torture as found in the Convention and not be
      treated as &lsquo;assault&rsquo;. The complaint of torture is only
      when committed by anyone representing the state.
      3. A punishment appropriate to the gravity of torture and
      compensation adequate for the victim to recover and lead a normal
      life be made part of the amended law.
      4. An independent and efficient mechanism for complaints and
      investigations be established.
      5. The National Human Rights Commission, Komnas Ham be authorised to
      visit places of detention, investigate complaints of torture and
      recommend suitable compensation.
      6. When complaints of torture are made to judges, that they be
      investigated under his/her scrutiny,
      The doctors who are familiar with the domestic laws be appointed to
      hospitals who can conduct proper medical examinations into cases of
      torture.

      # # #

      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.


      Asian Human Rights Commission
      19/F, Go-Up Commercial Building,
      998 Canton Road, Kowloon, Hongkong S.A.R.
      Tel: +(852) - 2698-6339 Fax: +(852) - 2698-6367

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