SPECIAL RAPPORTEUR ON TORTURE
CONCLUDES VISIT TO INDONESIA
23 November 2007
The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, issued the following statement today:
The Special Rapporteur was invited by the Government of Indonesia to undertake a visit to the country from 10 November 2007; he expresses his appreciation to the Government for this invitation. He further expresses his gratitude to the United Nations country team for the excellent assistance prior to and throughout the mission.
In addition to his governmental and non-governmental meetings in Jakarta, the Special Rapporteur visited correctional institutions, pre-trial detention houses, police and military detention facilities as well as a social rehabilitation centre in Jakarta, Papua, South Sulawesi, Bali, Yogyakarta and Central Java. A full list of meetings held and locations visited is appended to this statement.
The purpose of the visit was twofold: to assess the situation of torture and ill-treatment in the country, and to offer assistance to the Government in its efforts to improve the administration of justice, including the police and prison sector. No country in the world is immune to the crimes of torture and ill-treatment: in the opinion of the Special Rapporteur, the key element in effectively combating this problem is for each and every State to recognize this reality and confront the problem head on.
As all acknowledge, Indonesia has come a long way in overcoming the legacy of the Suharto era. Indonesia aspires to playing a leading role in promoting human rights in Southeast Asia and more broadly as a member of the United Nations Human Rights Council. It was made clear that it is in this spirit that the Special Rapporteur was invited to undertake a country visit. He interpreted this invitation as a sign that Indonesia is willing to open itself up to independent and objective scrutiny of the situation of torture and ill-treatment in the country.
As with any anti-torture monitoring mechanism, the Special Rapporteur’s fact-finding is fully effective only if he enjoys unrestricted freedom of inquiry including by conducting visits to places of detention without prior announcement and interviewing detainees in private. In this context, the Special Rapporteur regrets that in a number of instances, his unimpeded access to places of detention was compromised including his ability to carry out private interviews with detainees, in contravention of his Terms of Reference. While overall access was by and large granted, such interferences carry the risk of distorting an objective assessment of the day to day practices in places of detention.
With these caveats in mind, and on the basis of an analysis of the legal system, his visits to detention facilities, interviews with detainees, the support of forensic medical evidence, and interviews with Government officials, lawyers and representatives of NGOs, the Special Rapporteur concludes that given the lack of legal and institutional safeguards and the prevailing structural impunity, persons deprived of their liberty are extremely vulnerable to torture and ill-treatment. In his opinion, the absence of torture or ill-treatment in a given context is more the incidental consequence of the personal disposition of the management of a given detention place than the result of effective prevention mechanisms. This stands in contrast to the relatively good conditions that the Special Rapporteur found in prisons he visited outside of Jakarta.
In particular, the Special Rapporteur would like to share the following observations:
Although the Special Rapporteur was assured by the Government that the process of including the crime of torture in Indonesia’s Penal Code is under way, he regrets that this has not yet been done, in spite of many recommendations to this effect by both national and international observers. The criminalisation of torture with adequate sanctions – i.e. not less than several years of imprisonment – should be an absolute priority and should be subject to legislation without further delay, as a concrete demonstration of Indonesia’s commitment to combat this problem.
Bringing perpetrators to justice is the strongest signal that torture and ill-treatment is absolutely unacceptable. The Special Rapporteur regrets that in his meetings Government officials could not cite one instance in which a public official was sentenced by a criminal court for committing torture or ill-treatment. To the Special Rapporteur’s best knowledge no state official alleged to have perpetrated torture has been found guilty in spite of inquiries conducted by the National Human Rights Commission and others which identified the alleged perpetrators.
Legal and Institutional Safeguards
The Special Rapporteur observed that legal safeguards for detainees, in particular at the pre-trial stage, are virtually non-existent, in violation of applicable international norms and standards to which Indonesia has subscribed. Of particular concern is the prolonged period of police custody allowed under the law, at times up to several months and during which many detainees have no or very restricted access to courts. Furthermore, it appears that the prosecutor’s office – and ultimately the judiciary – play no effective role in vetting cases brought to them, and that corruption in the criminal justice system is reported as widespread. Only very few detainees appear to have access to a defense lawyer. In this context, given the lack of legal safeguards and doubts as to how confessions might have been obtained in a number of these instances, the Special Rapporteur deems the continued application of the death penalty to be inappropriate. He also notes that the secrecy with which executions are handled is in violation of international human rights standards.
Moreover, the Special Rapporteur has not been informed of any effective mechanism by which the legality of detention can be reviewed by an impartial body or by which a detainee might file a complaint about ill-treatment or torture. On the contrary, several interlocutors from the penitentiary system, the Attorney General’s office and also medical doctors indicated to the Special Rapporteur that if persons with marks of torture or ill-treatment are transferred to their authority, they normally hand them back to the police, apparently in order to avoid any additional administrative troubles.
No national independent body regularly monitors places of detention. Since, in his experience, such monitoring mechanisms, possessed of the authority to conduct unannounced visits, are among the most effective means of preventing torture, the Special Rapporteur commends the National Human Rights Action Plan (2004-2009), which foresees the ratification, in 2008, of the Optional Protocol to the UN Convention Against Torture, which requires the establishment of such a mechanism. He considers that accession to this important instrument, and its effective implementation, would constitute a major step towards preventing torture and ill-treatment in the future. In this regard the Special Rapporteur expresses the hope that the Government views such independent monitoring mechanisms as allies in a collective effort of finding out the truth.
Torture and ill-treatment
(a) Police detention
In the opinion of the Special Rapporteur, detainees are more vulnerable to abuse while in police custody than in prison. The problem of police abuse appears to be sufficiently widespread as to warrant immediate attention by the Government. In several instances, the Special Rapporteurs arrived at police stations as beatings were ongoing. He was also concerned about the number of occasions in which intimidation prevailed in detention;
Types of abuse reported to the Special Rapporteur, and corroborated by expert medical analysis, include: beatings by fists, rattan or wooden sticks, cable, iron bars and hammers. In some cases, police officers had shot detainees in their legs from close range, or electrocuted them. Some detainees alleged to have had heavy implements (chairs, desks, and car jacks) placed on their feet. In most instances, it appears that the purpose of this violence was to extract confessions.
(b) Prison and detention houses
The Special Rapporteur notes that he has received only a limited number of allegations of ill-treatment and corporal punishment in both pre-trial detention houses and prisons. It is worthy to note that in the super maximum security prison of Lapas Pasir Putih (Nusa Kambangan), there was not one allegation of abuse; in several others, incidents of abuse appear to have been the exception rather than the rule. However, these positives should not detract from the fact that the Special Rapporteur found allegations and evidence of several cases of beatings by guards. He also heard credible reports of detainees, particularly in military prisons, forced to do exercises, sometimes under the sun in front of other detainees, apparently as a means of punishment and humiliation. Corporal punishment amounts to ill-treatment and is absolutely prohibited under human rights international instruments.
(c) Conditions of detention
Many of the prisons were very spacious, clean and well-maintained, and below maximum capacity. The Special Rapporteur further welcomes the relative openness of detention places (i.e. in most places several visits per week by relatives and friends are allowed); keeping contact with the outside world is a major component of successful rehabilitation and reintegration of detainees and also an important potential safeguard against ill-treatment. This openness was particularly apparent in prisons in Papua, including for those charged with political offences.
He also commends the system for treating youths (persons between 18 and 21) as a separate category and holding them separately from adults when possible. Another best practice is the fact that pregnant women are often temporarily released from custody to be able to deliver their baby, and that women in police custody as well as in prisons can live together with their babies and are allowed to maintain very close contact with their older children. In this regard the Special Rapporteur is concerned that the rules for persons detained under the Social Affairs Ministry appear to be more restrictive. He has received information about a case in which a mother was placed in detention only seven days after giving birth and allowed to see her baby only once per week.
However, some of the prisons that the Special Rapporteur visited are seriously overcrowded (especially Pondok Bambu and Cipinang in Jakarta), which clearly has repercussions in terms of hygiene and security. The Special Rapporteur received numerous complaints about the food, which is insufficient if it cannot be complemented by family; in Cipinang corruption appears so endemic that money must be handed over for virtually every basic amenity. Whereas in most prisons nurses, and sometimes doctors, provide day-to-day medical treatment, serious cases generally remain untreated if the detainee cannot afford to pay for it. The Special Rapporteur found several detainees in need of medical examinations and treatment. It was reported to the Special Rapporteur that HIV/AIDS is a major problem which needs to be addressed with targeted programmes.
The Special Rapporteur found that detention facilities and prisons have “orientation programmes” in which newly arrived inmates are placed in conditions of “quarantine” – often several days in small, dark and dirty cells as observed in Wamena prison – that are clearly incompatible with international standards. Likewise, the use of punishment cells is a source of concern. In Cipinang prison confinement in punishment cells for a prolonged period of time amounts to inhuman treatment.
Conditions are generally worse in police custody facilities, where there is often limited ventilation, no natural daylight and no possibility to exercise; the fact that many detainees are held there for up to several months exacerbates the situation. Also, the Special Rapporteur received many complaints about the quantity and quality of the food and about lack of access to medical care. He was informed that some detainees, once they were transferred to the authority of the prosecutor, stopped receiving food altogether, even though they remained in police custody.
Another major concern relates to high death tolls in places of detention (for instance, according to official figures, in Cipinang 166 deaths in 2005, 159 in 2006, 107 so far in 2007). Furthermore, in one case of an apparent suicide while in police custody the Special Rapporteur was able to confirm that, contrary to international standards, no autopsy was conducted.
(d) Women and Minors
The Special Rapporteur is extremely concerned that criminal responsibility in Indonesia starts at the age of eight and that therefore small children are put in detention facilities and prisons, very often mixed with much older children and adults. Moreover, in the Special Rapporteur’s assessment, minors and children are at greater risk of corporal punishment and ill-treatment in detention. At the juvenile detention centres in Pondok Bambu, Jakarta, and in Yogyakarta prison, many of the minors alleged that they had been beaten either by policemen or by co-detainees during police custody, often with the knowledge of the officers. At Kutoarjo juvenile prison, prison management openly admitted to the regular use of such punishment.
With regard to women in detention, the Special Rapporteur is concerned about the fact that in many cases there are no, or insufficient, female guards in police custody and even prisons, as required by international minimum standards. He is also concerned about the detention of alleged sex-workers in a social rehabilitation centre for up to 6 months without any access to review of their detention, again in contravention of international standards. Regarding domestic violence, the Special Rapporteur welcomes the adoption of the 2004 law banning violence in the household and establishing complaints channels. However, he was informed that many obstacles still hamper the implementation of this law, such as the lack of awareness about the need to address domestic violence and the insufficient number of appropriate police units to deal with such complaints.
Whereas he recognizes that positive steps taken by Indonesia in the last years to address some of the shortcomings, the Special Rapporteur would like to recommend that the Government take the following measures to comply fully with its obligations under both its constitution and international law:
· At the highest levels of Government, publicly condemn the practice of torture and ill-treatment by state officials, and that such practices will not be tolerated;
· As a matter of priority, criminalize torture in full accordance with the definition contained in article 1 of the Convention against Torture, and impose appropriate penalties;
· Establish an effective and independent criminal investigation mechanism against alleged perpetrators of torture and by bringing them to justice;
· Introduce accessible and confidential complaints mechanisms within all places of detention and ensure that any complaints are followed up by independent investigations, and that complainants do not suffer any retribution;
· Reduce the time limits for police custody to 48 hours in accordance with international standards;
· Improve safeguards against torture by introducing effective habeas corpus: by providing access to courts, lawyers and independent medical examinations to all persons in detention, whether under the penal law or not; ensure that detention in social rehabilitation centres is subject to judicial review;
· Ensure that independent autopsies be conducted following each death in detention;
· Support the National Human Rights Commission (and the National Commissions for Women and Children) in becoming an effective player in the fight against torture, in terms of their monitoring role as well as in addressing impunity;
· Ensure the separation of minors from adults and of pre-trial detainees from convicted prisoners;
· Prohibit corporal punishment;
· Establish effective mechanisms to enforce the prohibition of violence against women, including domestic violence;
· Raise the age of criminal responsibility in accordance with international standards;
· Accede to the Optional Protocol to the Convention against Torture, and establish effective national mechanisms to carry out unannounced visits to all places of detention; and,
· Abolish the death penalty.
The Special Rapporteur appreciates that the implementation of a justice system in full accordance with international law is costly. In this regard, he requests the international community to support the reforms outlined above.
The Special Rapporteur will submit a comprehensive written report detailing his findings and recommendations on the visit to the United Nations Human Rights Council.
Mr. Nowak was appointed Special Rapporteur on 1 December 2004 by the United Nations Commission on Human Rights. As Special Rapporteur, he is independent from any government and serves in his individual capacity. The Commission first decided to appoint a special rapporteur to examine questions relevant to torture in 1985. The mandate, since assumed by the Human Rights Council, covers all countries, whether or not they have ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Mr. Nowak has previously served as member of the Working Group on Enforced and Involuntary Disappearances; the UN expert on missing persons in the former Yugoslavia; the UN expert on legal questions on enforced disappearances; and as a judge at the Human Rights Chamber for Bosnia and Herzegovina. He is Professor of Constitutional Law and Human Rights at the University of Vienna, and Director of the Ludwig Boltzmann Institute of Human Rights.
For further information on the mandate of the Special Rapporteur, please visit the website: http://www.ohchr.org/english/issues/torture/rapporteur/index.htm
The Special Rapporteur held meetings with: His Excellency, Mr. Agung Laksono, Speaker of Parliament; His Excellency, Mr. Hassan Wirajuda, Minister of Foreign Affairs; His Excellency, Mr. Andy Mattalatta, Minister of Law and Human Rights; His Excellency, and Mr. Hendarman Supandi, Attorney-General.
In addition, the Special Rapporteur met with the Director-General for Corrections and the Director-General for Human Rights; officials from the Ministry of Home Affairs, from the Coordinating Ministry for Political, Legal and Security Affairs and from the Social Affairs Ministry; and senior commanders from the Headquarters of the Armed Forces, and from the National Police.
Outside of Government, the Special Rapporteur met with Commissioners and staff of the National Human Rights Commission and the National Commission on Violence Against Women. He also had discussions with non-governmental organizations and other civil society representatives. In addition, the Special Rapporteur held meetings with the United Nations country team and the diplomatic community. He also participated in a seminar, together with Government officials, to discuss Indonesia’s anticipated accession to the Optional Protocol to the Convention against Torture.
(b) Locations visited
· Social Rehabilitation Centre Pasar Rebo
· Pondok Bambu pre-trial detention facility for women and minors
· Cipinang Prison
· POLRES Jakarta East
· POLRES Jakarta South
· Abepura Prison
· Military detention facility in Abepura
· Wamena Prison
· Wamena POLRES
· Wamena POLSEK
· Wamena airport POLRES
· Jayapura POLDA
· Abepura POLSEK
· Kurulu POLSEK
· Makassar Prison
· Makassar Military detention facility
· Makassar POLDA
· POLSEK Sidemen
· POLRES Gianyar
· Yogyakarta Prison (Lapas Wirogunan)
· Juvenile prison Kutoarjo
· Lapas Batu (Nusa Kambangan)
· Pasir Putih Maximum Security Prison (Nusa Kambangan)
· Yogyakarta POLTABES