Criminal prosecution of seven torture cases in Indonesia

In Indonesia, criminal prosecution of state officials involvedin the practice of torture is possible. Although torture, as itis defined by the UN Convention against Torture and otherCruel, Inhuman or Degrading Treatment or Punishment (UNCAT), is yet to be criminalised under the country’s legal system;however, there have been cases where the police and militaryofficers who perpetrated torture had been held criminally liableand punished in courts for maltreatment or other provisions. TheAHRC recorded at least seven torture cases from 2005 to mid 2013which resulted in the punishment of the accused. To concludethat such punishment indicates a State where justice is obtainableby torture victims and their families in Indonesia, however, ismisleading. Criminal punishment – or in fact any punishment atall – for torturers is still merely the exception and not the norm.

In most of the cases, torture allegations are not investigated dueto several factors. Victims and their relatives tend to be reluctantin filing a complaint against the police for fear of repercussionsdue to failing protection for witnesses and victims in the system.Several cases documented by the AHRC reveals how there is ahigh price to pay by victims or their relatives in submitting acomplaint against State officials on torture. Six political prisonersin Papua, for instance, had been subjected to severe beatings,confined to congested cell, denied access to food and water fordays after submitting a formal complaint on the torture of theirfellow political prisoner, Buchtar Tabuni (see Story 26). In anothercase, a woman was barred from seeing her detained husband after submitting a criminal complaint against four prison guards whoabused her husband (see Story 36).

The exceptionality of punishment on State officials practisingtorture is partly caused by the absence of independent mechanismfor investigating allegation on such abuse. Despite the fact thatthe police have been mentioned by various reports as state agentswho practised torture the most, they are the same authority withpowers under Article 6 (1) of Law No. 8 Year 1981 on CriminalProcedure Code, to investigate torture allegation. Therefore,when a torture victim or her relatives submits a complaint, thepolice simply do not take effective measures but rather come upjustifications, like absence of substantial evidence, the victimwas escaping or had been injured prior to the arrest, to rejectallegations of torture. This paper will discuss torture cases whosejudgements have been rendered by the court and argues how,despite the end results on the punishment of the accused, theyhave only provided the victims with ‘pseudo justice’. This articlealso wishes to point out challenges met by local activists in thecourse of the trial of torture cases.

‘Pseudo justice’ for the victims

During the course of 2005 until the second quarter of 2013,the AHRC noted seven torture cases which resulted in thepunishment of the accused. In most of the cases, the courtshanded down punishment of less than a year of imprisonment. Inthe case of Hartoyo who was tortured in 2007 due to his sexualorientation, for instance, Banda Raya District Court sentencedthe four police officers who perpetrated the abuse only to threemonths imprisonment (see Story 34). Similarly, in the infamoustorture case of a Papuan in 2010, military officers who engaged inthe abuse were only handed down a punishment of 9-12 monthsimprisonment. There is no specific guideline provided by the UNCAT on what punishment and how many years of imprisonmentshould be imposed on State officials practicing torture; however,in the case of Kepa Urra Guridi v Spain (para. 2.4 of the Comm.No. 212/2002, UN Doc. CAT/C/34/D/212/2002 (2005)) the CATCommittee held that a year imprisonment is inappropriate thusin violation of the State’s duty under the CAT Convention.

In 2005, Kupang District Court sentenced a police officer guiltyfor maltreating a criminal suspect to three year imprisonment (seeStory 42). Early this year, the Sijunjung District Court handeddown a punishment of 18 months to three year imprisonmentto four police officers who tortured two brothers to death at theend of 2011 (see Story 9). The most recent judgement comes fromCibinong District Court which sentenced three police officers totwo to five years imprisonment for torturing and shooting to deathYusli, a 23 year old man (see An interview: ‘Justice don’t comeeasy; searching for truth is risky’).

Justice is not merely a matter of number. Although thepunishments in those three cases are more severe, justice remainsto be denied because there is no recognition by the State as towhat has happened. While punishing the perpetrators in onehand, the courts examining the complaints of torture does notconsider all relevant facts. The court rather ‘cherry-picked’ thoseevidence to make sure it would not really harm the reputationof the perpetrators. In the 2005 for example, in a torture case inKupang, although the victim reported that five prison guards havetortured him but the court only punished one of the perpetratorssupposedly due to lack of evidence and witnesses.

In the case of torture of twobrothers in Sijunjung, the four policeofficers who were tried were convictedonly for maltreatment under Article351 (1) of the Indonesian PenalCode imposing a punishment of amaximum imprisonment of two yearsand eight months or a maximumfine of three hundred rupiahs. Thelenient punishment in Article 351(1) in cases of torture has been aconcern, let alone that maltreatmentis itself not suitable to death arisingfrom torture. The perpetrators shouldhave been convicted under Article338 for murder or Article 351 (3)for maltreatment leading to death;however, by not imposing suchpunishment the judges in effectexonerated the perpetrators from anyliability to the victims’ death.

Similarly, in Yusli’s case eventhough the three police officers whotortured and shot the young manto death have been sentenced tothree to five years imprisonment,the court convicted the two only formaltreatment resulting in severeinjuries as prohibited in Article 351 (2)of the Penal Code. There was anotherofficer who was held responsible for Yusli’s death but he was convicted only for manslaughter underArticle 359 of the Penal Code and not murder. By relying on theversion of story of the police, the court accepted that Yusli’s deathwas an accident effectively ignoring evidence that the shootingwas deliberate due to gunshot to his left chest.

Challenges in prosecution of torture cases

It has often been mentioned that the prevalence of lightpunishment for State officials engaging in torture is a result of theabsence of an article criminalising torture. It may be true to someextent yet it is misleading to assume that it is always the case.With the current available criminal provisions, there are actuallyways for law officials to provide the victims with justice had theyhave genuine motivation to punish torturers and prevent torturefrom occurring. In the cases of Sijunjung and Yusli, in prosecutingthe perpetrators the law enforcement officials had the choice offiling charges of murder, collective violence resulting in death andmaltreatment provided under Article 170 (2) point 3 of the PenalCode. Punishments carried by these articles range from seven to15 years of imprisonment. However, in the prosecution of casesthey deliberately choose to file charges that were ‘convenient’for the perpetrators. If this practice is allowed to continue evenhaving a law on torture would not bring any significant impactin ensuring remedy for victims and punishment to perpetrators.This is not to suggest that there is no need to criminalize torturein line with the CAT Convention.

The Government of Indonesia has a legal obligation tocriminalize torture as State party to the CAT Convention. Aspointed by the CAT Committee one of its general comments, ‘[b]ydefining the offence of torture as distinct from common assaultor other crimes… will promote the Convention’s [against Torture]aim, inter alia, by alerting everyone, including perpetrators,victims, and the public, to the special gravity of the crime oftorture’. It is important to emphasized that there are systemicproblems that cannot be solved simply by enacting a domestic lawprohibiting and punishing torture. The law enforcers must alsouse most relevant and suitable criminal provision in charging,prosecuting and convicting individuals who committed torture.

The nexus between the police and the prosecutors

The police, as the institution with exclusive authority to handlecriminal investigation, have enormous powers to decide whichcharges in penal law should be employed in prosecuting criminalsuspects. Once the police completed their investigation theywould submit their findings to the prosecutor. The prosecutorwill examine whether or not the case requires more evidence andthat the police needs to investigate further. Since the prosecutorhas the responsibility to ensure successful prosecution of cases,they could instruct the police to investigate further. They couldalso request the police to amend the charges if they are of theview that the charges the police had filed are irrelevant or notsuitable. Once the prosecutor is satisfied, he or she will draftan indictment letter which prescribes, inter alia, the charges onwhich the accused would be tried. Depending on the case, theprosecutor may impose single, alternative or cumulative chargeson the accused. A panel of judges would examine the case anddecide whether the accused is guilty as charged.

Pursuing alternative charges in prosecution of cases is perhapsthe safest method; however, this method is problematic in twoways. First, it is too much for the accused to make their owndefence in court; second, the law enforcement officials couldexploit this to camouflage an injustice at the victim’s disadvantage.The need of alternative charges is based on the concerns thatfailure to prove a crime in single or cumulative charges wouldresult to acquittal of the accused. Though a criminal proceedingbased on alternative charges could lead to the punishment ofthe accused, it is giving false impression to public that justicehas been done whilst actually the punishment has been lenient.The result could please the public and the perpetrators, but notthe victims and their family. This is what happened in the caseof Sijunjung (see Story 9). In this case, the prosecutor pursuedalternative charges which resulted to the conviction of fourpolice officers for the torture of brothers to death for commonmaltreatment under Article 351 (1) of the Penal Code. Imposition of punishment does not mean justice has already been served.It should have also included recognition of the wrongdoings anddisclosure as to what had happened by the State. A proportionatepunishment for violation of the criminal offence also forms partof recognizing the wrong.

Under the current setting, theoretically the prosecutors havea supervisory role over the police on what charges could be filedin prosecution of cases in court. However, this supervisory rolehas been problematic due to close working relationship betweenthe police and prosecutors whom they police had subjected foran investigation. The police and the prosecutors tend to workby protecting each other. In a consultation with local activistsin November 2012, one of them noted that: ‘they [the police andprosecutors] have collaborated in dirty practices previously that itis difficult for one of them to reveal the other’s wrongdoing. If oneis trying to do so, the other will remind him or her: ‘do not forgetthat I know your bad track records’. The absence of an effectivelegal mechanism which would ensure that prosecutors wouldprosecute cases in line with the provision of the Penal Code hasaggravated this problem. This could be addressed by embeddinga mechanism within the trial process which would minimise therole of the prosecutors by employing criminal provisions as theywish without being held to account. For judges to have power toorder the prosecutors amend their charges and the indictment,once they are of the opinion that the nature of charges beingpursued on the perpetrators are in line with the penal code, couldprobably address this problem also.

Also in criminal trials, to prove a crime has also beenchallenging. The current criminal procedure code lists typesof evidence admissible before the court. Under the CriminalProcedure Code, it requires testimony of the witnesses, of anexpert, documents, circumstantial evidence and the testimonyof the accused. To ensure conviction, at least two of these typesof evidence must be met and in practice one of them should bethe testimony of witnesses. In addition, the code also requirestestimonies from at least two witnesses. All there requirementshave been very difficult to meet in most torture cases. Apart fromthat, under the Indonesian legal system the burden of proof inmost criminal cases, including cases of torture, lies upon theprosecutors. This was one of the concerns raised by Prof. ManfredNowak, UN Special Rapporteur on Torture and other Cruel,Inhuman or Degrading Treatment or Punishment, in his report(UN Doc. A/HRC/7/3/Add.7, 10 March 2008) after his visit toIndonesia.

In addition to the difficulties of finding witnesses in torturecases due to the secretive nature of the crime, in cases where thoseindividuals are actually available there is no adequate protectionprovided for them. Local NGOs ELSAM and Padang Legal AidInstitute (LBH Padang) reported that during the trial in the caseof Erik, the ELSAM and LBH Padang in its press release on 22October 2012 that the witnesses were inside a car carrying theaccused when they appear in court. The key witness had changed his testimony when they testified in court. He earlier told LBHPadang and the National Human Rights Commission (KomnasHAM) that although Erik had tried to escape from arrest and fellover, he was not in any way hurt. This was in total contradictionwith the police’s claim that Erik was injured because he fell offhis motorbike and had his head hit metal fences. In court, thewitness testified consistent with the police’s version of story aboutErik’s death.

Also, there were practical difficulties in getting an expert witnessto testify. Activists assisting the family of brothers in Sijunjungcase, for instance, had been complaining about the difficulty infinding a forensic expert who could support their argument thatthe victims died from torture and not suicide as claimed by thepolice. In the similar case, there was an independent medicalreport produced by Komnas HAM which concludes that thereare strong indicators that the brothers have been murdered. Yetthese reports were ignored by the judges. In the case of Yusli, thetestimony of a legal expert from the University of Indonesia too,who argued that the abuse should be categorised as premeditatedmurder, has not been considered by the court judges.

In taking decisions on how severe or lenient a punishmentshould be imposed, the judge has the discretion to consider bothaggravating and mitigating factors. In general such consideration isconsidered to be good as it gives a judgement a touch of humanityand not simply a formal and legalistic one; however, in torturecases mitigating factor taken into account is often unreasonable.In some cases perpetrators who are senior officials had receivedlenient punishment because the judges considered their serviceto the country as mitigating factor rather than aggravating one. Inthe torture case of Hartoyo (see Story 34), the judge had justifiedimposing light punishment on the perpetrators of torture becausethey are ‘police officers who are needed by their country’.

Yeni, the sister of torture victim Yusli, also recalled that thecourt’s judgement on his brother’s case, the judges also invokedsimilar reasoning. This practice is in total contradiction with thebasic concept of human rights which claims that human rightsviolations are something more severe than ‘ordinary crimes’ for thereason that those who perpetrated those abuses are state officialswho have breached their utmost obligations and responsibility toprotect the rights of the people. In fact, the severity of criminaloffense committed by the state agents is clearly stipulated in theIndonesian Penal Code, which states that: in Article 52, crimesperpetrated by state agents in their official capacity should bepunished with a punishment that is one third more severe thanwhen it is committed by a civilian. Therefore, it is clear that theimposition of light punishment by judges upon the public officials,by justifying that their service to the government is a mitigatingfactor, is contrary to principles of national law and internationalhuman rights law.

Conclusion

On the issue of torture, the State has two core obligations: toprevent and to punish. The obligation to prevent torture requiresthe state to criminalise torture and establish a set of safeguardsagainst it, like reducing period of detention, ensuring detainees’access to independent medical treatment and lawyers, detaineesprompt access to judges. In the last few months up to the time ofwriting, the House of Representatives have been active again inpromoting its plan to revise the Penal Code and Criminal ProcedureCode which would accommodate some of these safeguards onprevention and prosecution of torture. Where there has beenmuch attention on the prevention of torture, little attention ispaid on the aspect of punishment aspect. Both prevention andpunishment are equally important in the elimination of torture.