INDONESIA: Banten High Court reduces punishment for police officers who tortured and shot a man to death

Dear friends,

The Asian Human Rights Commission (AHRC) has received updated information regarding the torture case of Yusli, who was physically assaulted and shot to death by three police officers in 2011. In March this year, Tangerang District Court sentenced the perpetrators to two to five years imprisonments for maltreatment. However, the AHRC has learned that the district court’s judgment has been revised by the High Court and the punishment imposed on the police officers is now even more lenient.

UPDATED INFORMATION:

Yeni, who is the sister of the torture victim Yusli, told the AHRC that she went to Tigaraksa Police Station on 19 September 2013, accompanied by her sister-in-law, Maria. The purpose of their visit was to clarify the rumours that the three police officers convicted for maltreating Yusli have not served their terms. As reported earlier by the AHRC in AHRC-UAC-015-2013, the police officers named Ricky Sembiring and Hermanto were sentenced to two years of imprisonment whilst another officer named Aan Triharianto was sentenced to five years. The judges in Tangerang District Court found the officers were responsible for physically assaulting Yusli yet they failed to conclude that the officers were guilty for murdering the 23-year-old. (Photo: Yusli’s sister, Yeni. Her fight to bring the torturers of her brother to justice has been ongoing for almost two years – longer than the period of imprisonment Banten High Court imposed on two of the torturers. Photo: AHRC/Danilo Reyes)

At around 3 p.m. on that day, Yeni and Maria went to the cafeteria of Tigaraksa Police Station. They asked a lady who was working there whether she knew a police officer named Ricky Sembiring. The lady working in the cafeteria responded by calling the aforementioned officer, who turned out to be sitting not far from Yeni and Maria. According to Yeni, the officer was wearing a police uniform and quickly left as soon as he saw Yeni and Maria in the cafeteria.

Following her unexpected encounter with the convicted police officer, Yeni approached the Tangerang District Court and Tigaraksa District Attorney’s Office to get the latest update on his brother’s case. Yeni was informed that Banten High Court had concluded the examination of the appeals requested by the police officers who tortured her brother. However, neither the Tangerang District Court nor Tigaraksa District Attorney Office provided her with a copy of the judgments. The two institutions have also failed to give Yeni a clear summary on the results of the High Court’s examination.

Yeni only managed to learn of the High Court’s judgments on the afternoon of 3 October 2013 after they were found on the official website of the Supreme Court. The text of the judgements revealed that the Banten High Court agreed with the police officers’ claim that Yusli was attempting to wrestle a gun away from an officer. In the same judgment, the High Court revised the punishment given to the three police officers so that it is now even more lenient than what was decided at the District Court level. Whereas the Tangerang District Court sentenced Aan Triharianto to five years of imprisonment, the Banten High Court decided to reduce the punishment to three years. The High Court judges considered that ‘the accused is an executioner who performed state’s duty upon the order of his senior officer, the Chief of Cisauk Sub-District Police to arrest the victim Yusli who was included in the Wanted List’ in justifying their reasoning’. Similarly, whilst the Tangerang District Court previously sentenced Ricky Sembiring and Hermanto to two years of imprisonment, the Banten High Court disappointingly sentenced the two police officers to one year imprisonment. Yet as they had been held in detention during the course of the trial, which was of a similar period, they were released on the basis of time served.

According to the information received by Yeni from the Tigaraksa District Attorney Office, the case is currently pending at the Supreme Court. The official website of the Supreme Court also reveals that the High Court’s judgment is not final, indicating that there is an ongoing appeal examination at the Supreme Court.

Whereas the criminal case is ongoing, there has been no report that a disciplinary tribunal by the police’s internal monitoring mechanism, Propam, has taken place although Yusli’s family lodged a complaint over a year ago on 2 January 2012.

ADDITIONAL INFORMATION:

The AHRC has repeatedly expressed its concern on the lenient punishment given to state officials involved in torture. In its latest report ‘A facade of justice for torture victims in Indonesia’, the AHRC emphasises that one year imprisonment is an inappropriate punishment for torture with citing the decision of the UN Committee against Torture in Kepa Urra Guridi v Spain. The AHRC is therefore deeply disappointed with the reduction of punishment for the accused in this case.

The AHRC found the High Court’s judgment in reducing the sentence for Aan Triharianto equally disappointing. Although the Banten High Court sent him to over a year imprisonment, it repeated the mistakes made by the Tangerang District Court by failing to take into consideration the expert’s testimony against the police officers. The reasoning of the High Court judges in this case in reducing Aan Triharianto’s sentence also indicates their poor understanding on human rights. The judges did not treat the fact that the accused are state officials as an aggravating factor, but instead, as a mitigating one. This is in contradictory with the provision under Article 52 of the Penal Code which calls for more severe punishment for state officials who perpetrated crimes not in their personal capacity.

The AHRC is dissatisfied with the performance of the Banten Provincial Attorney Office which did not handle this case seriously by failing to counter the accused appeal submission. Under Article 237 of the Criminal Procedure Code, the prosecutor has the right to counter an appeal submission. Yet this right was not exercised by the Banten Provincial Attorney Office as mentioned by the High Court in the appeal judgment. As a consequence, the result of the High Court’s examination is heavily in favour of the accused police officers instead of Yusli and his family, the victims in this case.

The innocence of the three police officers has so far failed to be proven in the criminal proceeding, both at the district and high court levels. The criminal proceeding against them itself has not yet finished as the case is still pending at the Supreme Court. Bearing this in mind, the AHRC is deeply concerned that Ricky Sembiring (and likely the other convicted officers) have somehow returned to their office and continue their work for the Indonesian National Police. Putting them back in office does not only risk the safety and security of criminal suspects under their supervision but also sends the wrong message that torture is not a serious violation and that it is not worth the suspension of the perpetrators from their positions in state institutions.

SUGGESTED ACTION:
Please write to the listed authorities below informing them on the latest update on Yusli’s case as well as asking for their intervention in this matter. Below are specific interventions that we need to urge the relevant authorities to undertake:

1. Attorney General Office (AGO) – to properly represent the interests of Yusli and his family in the appeal process before the Supreme Court by, inter alia, highlighting all the facts that are in favour of Yusli and his family and encouraging the Supreme Court to take into account the expert’s testimony which claims that the killing of Yusli was premeditated. In presenting the argument, the AGO should also take into account the international human rights standards in which Indonesia is bound to; 
2. Indonesian National Police – to immediately conduct a disciplinary tribunal against the three police officers and proportionately punish them. As long as the criminal proceeding and the disciplinary tribunal against them are not finished, the police officers should be suspended from their office;
3. Supreme Court – to examine the case carefully and impartially according to the fact as well as law and human rights principles;
4. Judicial Commission – to conduct an investigation against the Banten High Court judges in charge of this case, based on irregularities during the appeal examination (i.e. judgment was concluded within less than 2 months and the result is heavily in favour of the police officers without proper reasoning according to the law);
5. State Attorney Commission – to investigate the prosecutors of Banten Provincial Attorney Office responsible for this case for their poor performance in the appeal examination and to monitor the performance of the AGO during the final appeal before the Supreme Court;
6. National Police Commission – to ensure a disciplinary tribunal against the three police officers who tortured and killed Yusli to be taking place and to urge the Indonesian National Police to suspend them from their office;
7. President of Indonesia, General Director of Human Rights and the National Human Rights Commission – to urge the relevant authorities to undertake the actions as mentioned above.

Please also urge all those institutions to make sure that Yusli’s family is promptly informed about any development on the case.

The AHRC is writing separately to the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment as well as the UN Special Rapporteur on the independence of judges and lawyers, asking for their intervention in this matter.

To support this case, please click here: SEND APPEAL LETTER