Reparation for torture victims in theory and practice

The right of victims of human rights violations to remedy may be understood both in procedural and substantive senses. Under the former sense, the State has the obligation to ensure that an effective complaint mechanism is available and accessible for the victims. An expected outcome from such provision of remedy is the punishment of the perpetrators as well as the recognition of the State on what had happened thus fulfilling the victims’ right to the truth. The other side of remedy is that which is aimed at reparation for the victims, including the provision of rehabilitation or compensation.

The Criminal Procedure Code enacted in 1981 briefly regulates the provision of monetary damages for the victims of crime. Yet it was only after the establishment of the Witnesses and Victims Protection Agency (LPSK) one of whose tasks is to assist the victims of crime as well as human rights violations in applying for restitution or compensation, the issue on the right to remedy for torture victims is more widely discussed. This paper examines the reparation mechanisms in the Indonesian legal system. It highights two recent torture cases where a request for restitution has been submitted which demonstrates the practical challenges in providing substantive remedy for victims of torture.

Citing the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles), the General Comment No. 3 of the UN Committee against Torture emphasises that ‘the comprehensive reparative concept’ comprises of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. This paper will limit its discussion on the first three measures, since the current law in Indonesia only recognises and regulate these.

General Comment No. 3 defines ‘restitution’ as ‘a form of redress designed to re-establish the victim’s situation’ before she or he was tortured. In the similar document, the Committee points out that the term ‘compensation’ refers to monetary compensation paid to the victims for ‘any economically assessable damage resulting from torture or ill-treatment’. The Committee further emphasises that the concept of rehabilitation shall be understood as a form of redress in which medical and psychological care as well as legal and social services shall be made available for the victims of torture. Domestic law inconsistent

Domestic law inconsistent with human rights norm

Regulation and recognition on the rights of torture victims to restitution, compensation and rehabilitation exist in different laws and regulations. However, the concept of these three forms of redress under the Indonesian laws is not in accordance with international human rights standards. For instance, Indonesian Law No. 8 Year 1981 on Criminal Procedure Code and Law No. 26 Year 2000 on Human Rights Court, which accommodates provisions on rehabilitation, interprets such form of redress as recovery of one’s reputation instead of a set of measures to provide medical and psychological care as required by international law. The obligation of the State to provide medical and psychological care for victims of human rights violations is not understood as ‘rehabilitation’ but ‘medical and psychosocial assistance’ to be provided by the LPSK.

Under these laws, both terms ‘restitution’ and ‘compensation’ refer to payment of damages to the victims. The only difference between them lies in the party who will bear the cost of the payment: in restitution, it is the obligation of the perpetrators; in compensation, it is the State who bears the obligation. Compensation can be provided by the State only in cases where the actual perpetrators cannot afford to provide the victims with payment damages.

There are three legal venues which can be pursued by victims of individual torture case if they wish to pursue their right to restitution. The first mechanism is established under Articles 98 to 101 of the Criminal Procedure Code where the request for restitution should be submitted to the prosecutors who will demand the judges to give restitution order to the accused. Victims of torture or their families should submit the request before the accused delivers his or her defence plea. The judges will later decide whether such request should be granted and the accused should be ordered to pay for the restitution.

In addition to the mechanism provided by the Criminal Procedure Code, under the Government Regulation 44/2008 the victims and their family may submit a request for restitution to the LPSK. If the LPSK is of the view that the request is admissible and reasonable, they will forward it to the prosecutors. This mechanism is almost similar with the one provided under the Criminal Procedure Code apart from the fact that the request from LPSK can be submitted to the prosecutors either before the accused delivers his or her defence plea or after the court has delivered its final judgement on the case at stake.

Another legal remedy which can be pursued by torture victims or their families to obtain their right to restitution is under Article 1365 and/or 1367 of the Civil Code, which allows a civil suit against the perpetrators. However, the disadvantage of pursuing this legal venue is that it usually takes a long time and the proceedings are expensive. Unlike in criminal proceedings where the victims do not have to pay the court for a case to be examined or to the prosecutors to represent them, in civil suits they have to bear the costs for registration and perhaps for legal counsel.

The advantage of using a civil suit which cannot be found in the two other restitution mechanisms is that it may be used to hold the State responsible for the torture and ill-treatment that took place. In restitution mechanisms under the Criminal Procedure Code and the LPSK, the obligation to provide restitution for torture victims lies exclusively on the accused as provided by the Government Regulation 44/2007. If the accused does not have adequate financial means the judgement cannot be executed.

Of equal importance is the question of the effect of the court orders. The fact that restitution in individual torture cases becomes the sole responsibility of the person accused thereby making the dispute only between citizens and not an issue of human rights violation where the State has the utmost responsibility. By not taking responsibility in providing restitution for torture victims, the government evaded from its obligation under international law to bear the responsibility in providing redress for the victims of torture.

Case study

Sijunjung and Erik Alamsyah torture cases

In the West Sumatra province, the torture cases of Sijunjung and Erik Alamsyah which happened in separate incidents wherein the victims’ family pursued restitution. These cases have in common: the victims were arrested on allegation on motorcycle theft; they were tortured and died in the police custody. An investigation was conducted in these cases, the court tried the case and victims’ family requested for restitution but they were all rejected by the court.

In the Sijunjung torture case, the victims were brothers Faisal (14) and Budri (17). They were tortured by the police in December 2011. The police first arrested Faisal on allegation of stealing money from a mosque, but later they accused him of stealing a motorcycle. Faisal was detained for a week before he was found dead on 28 December 2011 at the Sijunjung Sub-District Police Station. Under the Indonesian law, the brothers are considered children. They were supposed to be investigated as suspects under the juvenile law and criminal procedure which does not require detention.

Faisal’s family suspected that he had been tortured while in detention. In several visits to the police, he looked pale and had bruises all over his back. He asked his family not to visit him because he had been threatened that he would be tortured even more. In the last visit, Faisal’s family saw him visibly weak that he could not even stand up. His legs were wrapped with black plastic bags. Only later it was found out that the police wrapped his legs to cover the wounds.

After learning about Faisal’s death, his family immediately went to the police station. Here they were shocked to learn that it was not only Faisal who had died but also his brother, Budri, whose body was placed inside a cadaver bag labelled as ‘Gepeng’ not his name. The police claimed Faisal and Budri committed suicide while in detention. Instead of providing an explanation, the police forced the family to sign a letter declaring that they would not sue the police for their deaths. They had no choice but to sign because if they refuse to sign they could not claim the bodies. Yet after their bodies were taken home the families discovered the severity of injuries on the bodies and decided to have the bodies autopsied at a local hospital.

After the incident, LBH Padang and Komnas HAM conducted an investigation where they discovered more irregularities surrounding the victims’ deaths. The police version that Faisal and Budri had committed suicide by hanging could not have been possible because their feet were touching the floor when they were found dead. It is more plausible that the police had tortured them to death and to cover-up they hung their bodies to deliberately to give the impression they had committed suicide.

In another case, Erik Alamsyah was arrested on 30 March 2012 at 2pm for allegedly stealing a motorcycle. A few hours after the arrest, Erik was found dead at the Bukittinggi Sub- District Police Station due to torture. He died while being taken to the hospital. Before Erik’s arrest, his friend, Marjoni, who was allegedly involved in trading stolen motorcycles, had been tortured for about one week after his arrest. The police forced Marjoni to reveal the names of his friends who were also engaged in the crime. Based on the information given by Marjoni under torture, the police arrested Erik and Nasution Setiawan – all of them were subjected to torture. Erik died due to torture and his two friends, Marjoni and Nasution, who were arrested together with him witnessed how he was tortured. They saw Erik was in pain holding his stomach. Marjoni and Nasution saw blood stains on the floor when they were taken inside a room where Erik had been interrogated earlier.

In another case, Erik Alamsyah was arrested on 30 March 2012 at 2pm for allegedly stealing a motorcycle. A few hours after the arrest, Erik was found dead at the Bukittinggi Sub- District Police Station due to torture. He died while being taken to the hospital. Before Erik’s arrest, his friend, Marjoni, who was allegedly involved in trading stolen motorcycles, had been tortured for about one week after his arrest. The police forced Marjoni to reveal the names of his friends who were also engaged in the crime. Based on the information given by Marjoni under torture, the police arrested Erik and Nasution Setiawan – all of them were subjected to torture. Erik died due to torture and his two friends, Marjoni and Nasution, who were arrested together with him witnessed how he was tortured. They saw Erik was in pain holding his stomach. Marjoni and Nasution saw blood stains on the floor when they were taken inside a room where Erik had been interrogated earlier.

After Erik’s death, the police visited the family to inform them. The police, however, claimed that Erik died due to traffic accident. Erik’s family told the police that they could accept the death of their son, but the police insisted they must sign a letter declaring that they would not prosecute the police over Erik’s death. After they had Erik’s body autopsied they have discovered evidence that Erik’s death due to accident could not have been the case.

After Erik’s death, the police visited the family to inform them. The police, however, claimed that Erik died due to traffic accident. Erik’s family told the police that they could accept the death of their son, but the police insisted they must sign a letter declaring that they would not prosecute the police over Erik’s death. After they had Erik’s body autopsied they have discovered evidence that Erik’s death due to accident could not have been the case.

The restitution proceedings

In these two cases restitution requests have been submitted to the LPSK and the prosecutors prior to the judgement of the court. This mechanism was chosen because this process is quicker and more effective. Under this option, the judgement on the restitution would be received at the same time of the judgement on the criminal case.

In the case of Erik Alamsyah, the restitution request was submitted to the LPSK on 11 May 2012, one month after his death. The correspondence with the LPSK has been initiated since this case was revealed to the public. On 7 April 2012, LBH Padang lodged a request for witness protection for Marjoni and Nasution, the key witnesses. Responding to such request, the LPSK held a meeting with LBH Padang as well as the family of the victim. The request was later discussed by the LPSK internally who later provided a written notification to the family as well as LBH Padang that witness protection request has been granted.

In addition to the witness protection request, the family and LBH Padang also submitted a request for restitution. The LPSK asked LBH Padang and the family to prepare several administrative requirements which included the identity card of Erik, the death certificate as well as to verify the amount demanded for restitution. In the request, the family demanded for the return of Erik’s belonging which included money and a cell phone as well as reimbursement for expenses paid by the family for the autopsy, funeral expenses and religious ceremonies. All requirements have been completed by 2 July 2012. The LPSK submitted an official restitution request to the district prosecutor. But on 22 October 2012, the Bukittinggi District Court in its judgement on the case (Case No. 75/Pid.B/2012/PN.BT) dismissed the request only because there were no receipts to the expenses being claimed. The failure of the family to meet the requirements, however, was simply because they did not know it was required. They had no idea that for every expense they spent for the funeral and religious ceremony they were supposed to keep receipts to be produced in court. This is despite the fact the amount of money that the family were claiming were all related to expenditures on the death of the victim. The judges, however, did not consider this. The judges also did not order the return of Erik’s personal belongings to his family.

As the representatives of the victim and the family were before the court, the prosecutor was supposed to take all necessary measures to ensure that the restitution request will be granted. For instance, by presenting witnesses who could give testimony related to the expenses. However this is very challenging in Indonesia where law enforcement officials do not have any understanding on restitution as the right of the victims of human rights violations, coupled with the fact that restitution concept in Indonesia is still very weak and not in accordance with international standards.

Learning from the restitution issue in Erik’s case, LBH Padang attempted to perfect their restitution request in the case of Sijunjung. All the requirements established under the Government Regulation No. 44 Year 2008 on the grant of compensation, restitution and assistance to the witnesses and the victims have been met. The restitution request was submitted by LBH Padang to the LPSK on 4 June 2012 in a letter numbered 84/SK-E/LBHPDG/ VI/2012. In the request letter, it was described that the death of Budri and Faisal resulted in damages and loss suffered by their family.

In the process of submitting the request for restitution there was a discussion on whether the restitution can only cover the expenses that had been spent or whether it can also cover other potential loss such as income which would have been obtained by the victims and their family had they continue to live. In the case of Sijunjung, Budri was the breadwinner and his death means huge loss of income to his parents. The parents are too old it is impossible for them to work and had been suffering from depression. After long discussion, it was finally decided that the restitution request will include potential loss will be suffered by the family. This was based on the consideration that the Indonesian judges have the authority to accept the petitioner’s request in part but not more than what is demanded.

One of the requirements the victims’ families found difficult to meet was a letter from the police confirming that Faisal and Budri were victims of crime since it was the police officer themselves who had perpetrated the crime on the victims. Though they did get a letter from the police, however, the content was very general and failed to mention which provisions of the Penal Code the victims rights have been violated. After the discussion was completed and all administrative requirements (victims’ identity, receipts of actual damages suffered, copy of the death certificate, confirmation letter from the police, and a letter confirming the family relationship between the victims and the complainants) were met, the LPSK submitted a restitution request to Sijunjung District Prosecutor on 15 January 2013 under a letter numbered S-220/4/LPSK/11/2012 dated 27 November 2012.

The victim’s family and their lawyer were confident the restitution request would be granted when the judges also ordered a negotiation of restitution payment between the accused and the family. The judges gave such order after the accused also expressed willingness to pay for restitution but offered they could afford only up to IDR 20 million (approximately USD 2028) which the victims’ family rejected since they were confident the court would satisfy their demand for restitution.

However, on 29 January 2013 the Sijunjung District Court held in its decision (Case No. 136/Pid.B/2012/ PN.MR) rejecting the request for restitution arguing that the death of Faisal and Budri was not due to torture. The court’s judgement gives rise to question on whether the restitution mechanism affords remedies for victims of torture. As for the restitution claim for the potential loss of income, the judges also rejected the request citing Article 99 of the Criminal Procedural Code which grants restitution only to actual expenses spent by the victims or the family.

At the moment, in support of Erik’s family, the LBH Padang would be filing a civil suit in Bukittinggi District Court against West Sumatra Regional Police, as well as six police officers, which have been found guilty for torturing Erik. The civil suit is based on a provision that is similar to tort under Articles 1365 and 1367 of the Civil Code. The West Sumatra Regional Police is being sued for failing to effectively investigate a motorcycle theft, in which Erik Alamsyah had been alleged to have been involved; whilst the six officers are being sued for causing damages to his family. The family is demanding that all defendants must provide restitution, both for pecuniary and non-pecuniary damages, as well as to deliver public apology in printed local and national media.

As for the torture case in Sijunjung, civil suit has not been filed because the Supreme Court is currently examining the appeal from one of the convicted police officers.

Conclusion

The struggle of the victims’ families to demand their rights is tedious. Reflecting from old cases of restitution, even if in the civil proceeding the judges come up with a judgement in favour of the victims, the implementation would be another challenge. The case of Iwan in 2006 (see cover photo) is a clear example to this. The police officers from Kinali Pasaman Barat Sub-District Police shot Iwan in his stomach. After the shooting, the lower part of Iwan’s body rots that caused his disability. He lost both his job and capacity to work. With legal assistance from West Sumatra PBHI, Iwan lodged a civil suit against the police as an institution as well as the officers in their individual capacity.

In 2010, the judges granted Iwan’s request and ordered the police to provide him restitution. However, until today Iwan has not received any restitution because the police have no budget for such purpose.

The above mentioned cases depict the difficulties and challenges met by victims of human rights violations in obtaining their right to restitution. It is challenging as the regulation on restitution is not in compliance with international standards. Along with the tendency of the judges who often prioritise law over justice, such imperfection leads to the difficulty in providing restitution for the victims in practice. (Answer Styannes contributed to this article)