ALRC-CWS-36-002-2017
18 August 2017
A Written Submission to the UN Human Rights Council by the Asian Legal
Resource Centre
The Asian Legal Resource Centre (ALRC) wishes to draw the attention of
the UN Human Rights Council to the problem of arbitrary arrest and
detention in Indonesia, which occurs widely and frequently. Despite
Indonesia being a State party to the International Covenant on Civil
and Political Rights (ICCPR), the needed redesigning of the justice
institutions, to reduce arbitrary arrest and detention, has yet to be
done.
Despite former dictator Suharto having stepped down over 18 years ago,
and the country having seen some law and institutional reform, the
practice of arbitrary arrest and detention continues, due to failures
of the criminal justice system. This is also related to the fact that
the drafting committee of the House of Representatives (DPR RI) has
been working on the revision of the new Penal Code Bill (RKUHP) for
the last decade.
Since the independence of the Republic of Indonesia from the Dutch 72
years ago, the government continues to apply the old penal code from
colonial times. The Indonesian government also continues to apply the
Indonesian Criminal Procedure (KUHAP) No. 8 of 1981, under which there
is a pretrial detention mechanism. This mechanism allows for the
police to detain suspects for 60 days, the public prosecutor (JPU) for
50 days, district court for 90 days, high court for 90 days and the
Supreme Court for 110 days detention, prior to any binding sentences
issued by the Supreme Court.
Such provisions allow the police to continue to abuse their power. In
many cases, the police arrest and detain accused persons without an
arrest warrant, taking shelter behind these provisions. Such arbitrary
detention results in torture and ill treatment conducted by the
police.
Take, for example, the case of arbitrary arrest and torture which
occurred on 7 April 2017, committed by police officers in Jakarta
Metropolitan police office (Polda Metro Jaya), documented by the
ALRC’s sister organization, the Asian Human Rights Commission
(AHRC). Mr. Herianto, Mr. Aris Winata and Mr. Bihin Charles were
illegally arrested and detained; they were examined without the
presence of legal counsel and tortured to confess to stealing a
motorcycle.
Despite the South Jakarta district court deciding that the arrest and
detention committed by the Jakarta Metropolitan Police is illegal, and
hence releasing the three suspects, up until now, there is no
punishment for the responsible police officers. The court also did not
order any adequate remedy for the three victims. Impunity is a serious
problem in Indonesia, particularly with regard to law enforcement
officials who abuse their power. It is also very rare that a pretrial
court will accept the petition submitted by suspects, who face the key
issue of burden of proof; the victims have to prove that the arrest
and detention is illegal.
The AHRC has documented numerous cases of arbitrary detention in
Indonesia. Victims include children, poor people, vulnerable groups,
and members of indigenous communities. The case of Fiki Arfindo, a
13-year-old boy, is a notable example; police officers of the Widang
Police Sector, Tuban Regency, East Java Province, illegally arrested,
detained, and tortured Arfindo. The boy was stripped naked, kicked,
and beaten in custody. The officers threatened him with a gun. He was
forced to confess to having stolen a motorbike.
Another AHRC documented case is that of the arbitrary detention that
occurred in Papua recently. Three indigenous Papuans in Nabire,
members of the National Committee for West Papua (KNPB), a Papuan
organization fighting for freedom and justice, were illegally arrested
and detained by the police officers of Nabire Police Office (Polres
Nabire). They were illegally detained after distributing printed
statements in Nabire, Papua on 30 June 2017. As a state party to the
ICCPR, and by the enactment of Law Number 12 of 2005, the Indonesian
government is obligated to respect and obey the Covenant. Article 9,
paragraph 2 states: “Anyone who is arrested shall be informed, at
the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him.” Furthermore, Article
19, paragraph 2 requires that “Everyone shall have the right to
freedom of expression.”
Despite the wide and repeated occurrence of arbitrary arrest and
detention, Indonesian law makers have increased the detention period
of terrorist suspects in the new draft anti-terrorism law from seven
to 23 days.
Long detention periods potentially cause torture and other forms of
abuse of power. In the case of Mr. Siyono for instance, the
anti-terror unit arrested him on 10 March 2016, using excessive force
and without any arrest warrant from his house in Pogung village, Cawas
sub district, klaten Regency, Central Java province. The house also
functions as a kindergarten, and the search and arrest frightened the
children who were studying there. During his detention, Mr. Siyono was
repeatedly tortured, and according to the autopsy of the Kramat Jati
Hospital in Jakarta, Mr. Siyono died from bleeding in the brain due to
being hit by a hard object. Unfortunately, up until present the police
are still reluctant to properly investigate the case.
Allowing for 23 days of detention, the new bill potentially
legitimizes incommunicado detention, which will only increase the
number of arbitrary arrests. Moreover, the new bill also specifically
legitimizes the detention of accused persons in unknown places.
Therefore, the ALRC respectfully calls upon the UN Human Rights
Council to urge the Government of Indonesia to avoid enactment of the
new bill in favour of arbitrary detention. Instead, the government
should strengthen due process of law, and adopt fair trial principles
at all stages of the judicial process.
Furthermore, the parliament must be urged to urgently complete the
revision of the Penal Code and revision of the Indonesian Criminal
Procedure Code, to stop or reduce the practice of arbitrary arrest and
detention. We also request the Council to ensure that the government
of Indonesia is willing to invite the Working Group on Arbitrary
Detention to visit Indonesia, as a commitment to strengthen human
rights protection in the country.
Read this Statement online
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The Asian Legal Resource Centre (ALRC) works towards the radical
rethinking & fundamental redesigning of justice institutions in Asia,
to ensure relief and redress for victims of human rights violations,
as per Common Article 2 of the International Conventions. Sister
organisation to the Asian Human Rights Commission, the ALRC is based
in Hong Kong & holds general consultative status with the Economic &
Social Council of the United Nations.
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