COMMITTEE AGAINST TORTURE

Fortieth session

Geneva, 28 April-16 May 2008

 

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION

 

Concluding observations of the Committee against Torture

 

INDONESIA

 

1.  The Committee considered the second periodic report of Indonesia (CAT/C/72/Add.1) at its 819th and 822nd meetings, held on 6 and 7 May 2008 (CAT/C/SR.819 and CAT/C/SR.822), and adopted, at its 832nd meeting, on 15 May 2008 (CAT/C/SR.832), the concluding observations as set out below.

 

A.  Introduction

 

2.  The Committee welcomes the second periodic report of Indonesia, which, while generally following the Committee’s guidelines for reporting, lacks statistical data and practical information on the implementation of the provisions of the Convention and relevant domestic legislation.

 

3.  The Committee expresses its appreciation for the extensive written response provided to the list of issues (CAT/C/IDN/Q/2). The Committee also appreciates the expertise, size and high level of the State party delegation, the comprehensive and fruitful dialogue conducted and the additional oral information provided by representatives of the State party to questions raised and concerns expressed during the consideration of the report.

 

B.  Positive aspects

 

4.  The Committee welcomes the continuing effort of the State party to strengthen its institutions and legislation to safeguard universal human rights protection, including the establishment of the Constitutional Court, the National Law Commission, the Judiciary Commission, the Ombudsman Commission, the Prosecutorial Commission, the Police Commission and the Eradication of Corruption Commission, pursuant to articles 2 and 10 of Law No. 4/2004 on Judicial Authority.

 

5.  The Committee further welcomes the ongoing reform of the State party legal framework with the adoption of the following acts:

 

(a)    Law No. 21/2007 on Combating Criminal Acts of Trafficking in Persons;

(b)   Law No. 13/2006 on Witness and Victim Protection;

(c)    Law No. 39/2004 on the Placement and Protection of Migrant Workers;

(d)   Law No. 23/2004 on Domestic Violence;

(e)    Law No. 23/2002 on Child Protection;

 

(f)    Presidential Decree No. 40/2004 on the second National Plan of Action on Human Rights (2004-2009);

 

(g)    Presidential Decree No. 87/2003 on the National Plan of Action on the Eradication of Sexual Exploitation of Women and Children, No. 88/2002 on the National Action Plan to Combat Trafficking of Women and Children, No. 87/2002 on the National Action Plan to Combat the Commercial Sexual Exploitation of Children, and No. 59/2002 on the National Action Plan to Combat the Worst Forms of Child Labour, as well as Government regulation No. 9/2008 on Procedures and Methods for Integrated Services for Witnesses and Victims of Trafficking in Persons.

 

6.  The Committee welcomes the accession of Indonesia to the International Covenant on Civil and Political Rights in 2006.

 

7.  The Committee also notes with appreciation that Indonesia responded positively to the recommendation of the Committee to receive the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment and that a visit to the State party was made in November 2007.  The Committee further notes that the Government of Indonesia has also received other special rapporteurs of the Human Rights Council, including the Special Rapporteur on the human rights of migrants, the Special Representative of the Secretary-General on the situation of human rights defenders and the Special Rapporteur on the independence of judges and lawyers.

 

8.  The Committee further notes with satisfaction that specific reports were submitted to the Committee by the National Commission on Violence Against Women (Komnas Perempuan) and the National Human Rights Commission (Komnas HAM). The Committee regrets that the latter could not attend its meetings.

 

9.  The Committee also welcomes the efforts made by non-governmental organizations, especially national and local organizations, to provide it with relevant reports and information, and encourages the State party to strengthen further its cooperation with them with regard to the implementation of the provisions of the Convention.

C.  Subjects of concern and recommendations

 

Widespread torture and ill-treatment and insufficient safeguards during police detention

 

10.  The Committee is deeply concerned about the numerous, ongoing credible and consistent allegations, corroborated by the Special Rapporteur on torture in his report (A/HRC/7/3/Add.7) and other sources, of routine and widespread use of torture and ill-treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings.  Furthermore, there are insufficient legal safeguards for detainees, including:

 

(a)    Failure to bring detainees promptly before a judge, thus keeping them in prolonged police custody for up to 61 days;

 

(b)   Absence of systematic registration of all detainees, including juveniles, and failure to keep records of all periods of pretrial detention;

 

(c)    Restricted access to lawyers and independent doctors and failure to notify detainees of their rights at the time of detention, including their rights to contact family members (arts. 2, 10 and 11).

 

 

As a matter of urgency, the State party should take immediate steps to prevent acts of torture and ill-treatment throughout the country and to announce a zero-tolerance policy on any ill-treatment or torture by State officials.

 

As part of this, the State party should implement effective measures promptly to ensure that all detained suspects are afforded, in practice, all fundamental legal safeguards during their detention.  These include, in particular, the right to have access to a lawyer and an independent medical examination, to notify a relative, and to be informed of their rights at the time of detention, including about the charges laid against them, as well as to appear before a judge within a time limit in accordance with international standards.  The State party should also ensure that all suspects under criminal investigation are registered, especially children.

 

The State party should also reinforce its training programmes for all law enforcement personnel, including all members of the judiciary and prosecutors, on the absolute prohibition of torture, as the State party is obliged to carry out such training under the Convention.  Furthermore, it should keep under systematic review interrogation rules, instructions, methods and practices with a view to preventing cases of torture.

 

Disproportionate use of force and widespread torture during military operations

 

11.  The Committee is also deeply concerned about numerous, ongoing credible and consistent allegations, corroborated by the report of the Special Rapporteur on torture and other sources, of the routine and disproportionate use of force and widespread torture and other cruel, inhuman and degrading treatment or punishment by members of the security and police forces, including by members of the armed forces, mobile police units (“Brimob”) and paramilitary groups during military and “sweep” operations, especially in Papua, Aceh and in other provinces where there have been armed conflicts (arts. 2, 10 and 11).

The State party should also ensure that all acts of torture are punishable by appropriate penalties which take into account their grave nature, as set out in paragraph 2, article 4, of the Convention.

 

Coerced confessions

 

14.  The Committee is concerned that the current investigation system in the State party relies on confessions as a common form of evidence for prosecution, thus creating conditions that may facilitate the use of torture and ill-treatment of suspects.  The Committee regrets that the State party did not sufficiently clarify the legal provisions ensuring that any statements that have been made under torture shall not be invoked as evidence under any proceedings, as required by the Convention, and did not provide statistical information on such cases (art. 15).

 

The State party should take the measures necessary to ensure that criminal convictions require evidence other than the confession of the detainee, and ensure that statements that have been made under torture are not invoked as evidence in any proceedings, except against a person accused of torture, in accordance with the provisions of the Convention.

 

The State party is requested to review criminal convictions based solely on confessions in order to identify instances of wrongful conviction based on evidence obtained through torture or ill-treatment, to take appropriate remedial measures and to inform the Committee of its findings.

 

Local regulations and breaches of the Convention

 

15.  The Committee is deeply concerned that local regulations, such as the Aceh Criminal Code, adopted in 2005, introduced corporal punishment for certain new offences.  The Committee is concerned that the enforcement of such provisions is under the authority of a “morality police”, the Wilayatul Hisbah, which exercises an undefined jurisdiction and whose supervision by public State institutions is unclear.  Furthermore, the Committee is concerned that the necessary legal fundamental safeguards do not exist for persons detained by such officials, including the absence of a right to legal counsel, the apparent presumption of guilt, the execution of punishment in public and the use of physically abusive methods (such as flogging or caning) that contravene the Convention and national law.  In addition, it is reported that the punishments meted out by this policing body have a disproportionate impact on women (arts. 2 and 16).

 

The State party should review all its national and local criminal legislations, especially the 2005 Aceh Criminal Code, that authorize the use of corporal punishment as criminal sanctions, with a view to abolishing them immediately, as such punishments constitute a breach of the obligations imposed by the Convention.

The State party should adopt all necessary measures to implement Law No. 23/2004, which includes the training of law enforcement officials, especially in cooperation with civil society organizations, to allocate adequate funding and collect relevant information to prevent and combat domestic violence.

 

Juvenile justice system

 

17.  While noting the State party’s intention to raise the minimum age of criminal responsibility to 12 years, the Committee is deeply concerned that it remains established at 8 years of age, that detained children are not fully segregated from adults, that a large number of children are sentenced to jail terms for minor offences and that corporal punishment is lawful and frequently used in juvenile prisons, such as in the Kutoarjo prison.  The Committee is also concerned at the lack of a comprehensive juvenile justice system oriented to education and the socialization of children in conflict with the law.  Further, there is inadequate protection of street children against violence (arts. 2 and 16).

 

The State party should, as a matter of urgency, raise the minimum age of criminal responsibility in order to bring it into line with the generally accepted international norms on the subject and to abolish all corporal punishment of children.

 

The State party should take the necessary measures to guarantee the proper functioning of a juvenile justice system including, inter alia, by treating minors in a manner appropriate to their age, in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty.

 

Internally displaced persons

 

18.  The Committee is concerned at the situation of refugees and internally displaced persons as a consequence of armed conflict, especially children living in refugee camps, including Timorese children separated from their families, who are often subject to ill-treatment (arts. 14 and 16).

 

The State party should take effective measures to prevent violence affecting refugees and internally displaced persons, especially children, who should be registered at birth and prevented from being used in armed conflict.  The State party should also strengthen the measures taken to ensure safe repatriation and relocation of all refugees and displaced persons, in cooperation with the United Nations.

 

Violence against the Ahmadiyah and persons belonging to other minorities

 

19.  The Committee expresses its concern at incitement and acts of violence against persons belonging to minorities, in particular the Ahmadiyah and other minority religious communities.  Furthermore, there are persistent, disturbing allegations of a routine failure to investigate such violence and the reluctance on the part of the police and authorities to provide the Ahmadiyah with adequate protection or to conduct prompt, impartial and effective investigations into such acts.  The Committee is especially concerned that the Attorney-General has announced plans to make public a joint ministerial decree that will criminalize the activities of the Ahmadiyah.  The Committee notes with concern the report of the Special Rapporteur on freedom of religion or belief, which refers to the State party’s intention to prohibit Ahmadiyah activities (E/CN.4/2006/5/Add.1, para. 163); it reiterates the Special Rapporteur’s view that “there is no excuse for the use of violence against its members”.  The Committee is especially concerned that State party officials who may authorize a decree banning the Ahmadiyah, thereby putting members of that community at further risk of ill-treatment and physical abuse, also express the view that the Ahmadiyah must refrain from “provoking” members of the community, in effect blaming the group at risk (arts. 2, 12 and 16).

Recalling the Committee’s general comment No. 2 (CAT/C/GC/2, para. 21), the State party should ensure the protection of members of groups especially at risk of ill-treatment, by prosecuting and punishing all acts of violence and abuses against those individuals and ensuring implementation of positive measures of prevention and protection.

 

The State party should ensure prompt, impartial and effective investigations into all ethnically motivated violence and discrimination, including acts directed against persons belonging to ethnic and religious minorities, and prosecute and punish perpetrators with penalties appropriate to the nature of those acts.

 

The State party should also publicly condemn hate speech and crimes and other violent acts of racial discrimination and related violence and should work to eradicate incitement and any role public officials or law enforcement personnel might have in consenting or acquiescing in such violence.  It should ensure that officials are held accountable for action or inaction that breaches the Convention.

 

The State party should give prompt consideration to expanding the recruitment of persons belonging to ethnic and religious minorities into law enforcement, and to respond favourably to the request of the Special Rapporteur on freedom of religion to visit the country.

 

Trafficking and violence against migrant workers

 

20.  While noting the adoption of Law No. 21/2007 on trafficking in persons, the Committee remains concerned at the high estimates by the State party of victims of trafficking, as compared to the limited number of investigations of such cases, and at the absence of information on prosecutions and convictions.  The Committee is also concerned at reported cases of ill-treatment of migrant workers, especially women, reportedly abused by Indonesian recruiting companies, which often place them in situations that impair the enjoyment of their human rights while abroad, including debt bondage, forced labour and other ill-treatment, including sexual abuse (art. 16).

 

The State party should take all necessary measures to implement the current laws combating trafficking and provide protection for victims and their access to medical, social rehabilitative and legal services, including counselling services, as appropriate.  The State party should also create adequate conditions for victims to exercise their right to make complaints, conduct prompt, impartial and effective investigation into all allegations of trafficking and ensure that perpetrators are brought to justice and punished with penalties appropriate to the nature of their crimes.

The State party should consider amending its legislation on human rights courts, since they face serious difficulties in carrying out their judicial mandate, which has lead to de facto impunity for perpetrators of gross human rights violations.

 

National Commission on Human Rights

 

24.  The Committee remains concerned about the difficulties the National Commission on Human Rights (Komnas HAM) has had in carrying out its functions owing in part to the lack of cooperation from other State party institutions, the failure of State officials to publish the reports on its investigations, its inability to challenge a decision of the Attorney-General not to prosecute a case, as well as the absence of security of appointment of its members. Since, according to Law 26/2000, Komnas HAM has the sole responsibility for conducting initial investigations of “gross violations of human rights”, including torture, these limitations can impede efforts to prosecute perpetrators of torture.  The Committee is concerned at the fact that members of the Government have stated that military officials should ignore the summons from Komnas HAM in connection with its investigations of gross violations of human rights, such as in the Talangsari, Lampung killing case (arts. 2 and 12).

 

The State party should ensure the effective functioning of Komnas HAM by adopting adequate measures, inter alia, by strengthening its independence, mandate, resources and procedures, and reinforcing the independence and security of its members.  Members of the Government and other high-ranking officials should fully cooperate with Komnas HAM.

 

Lack of effective investigation and prosecution by the Attorney-General

 

25.  The Committee is concerned by the absence of prompt, impartial and effective investigations into allegations of torture and ill-treatment by the Attorney-General’s office, including with regard to cases presented by the National Commission on Human Rights (Komnas HAM), such as in the Wasior, Wamena (1997/1998) enforced disappearances or Trisakti, Semanggi I and Semanggi II cases (art. 12).

 

The State party should reform the Attorney-General’s office to ensure that it proceeds with criminal prosecution into allegations of torture and ill-treatment with independence and impartiality.  In addition, the State party should establish an effective and independent oversight mechanism to ensure prompt, impartial and effective investigation into all allegations of torture and ill-treatment. The State party should also publish, without delay, the reports of Komnas HAM investigations.

 

Monitoring detention facilities and preventive mechanism

 

26.  The Committee is concerned about the absence of an effective independent monitoring mechanism on the situation of detainees, including unannounced visits to all places of detention or custody.  The Committee is further concerned that the State party’s intention to devolve to local authorities a variety of such mechanisms may lead to different standards of monitoring of detention facilities throughout the State party (art. 2).

The State party should establish consistent and comprehensive standards for independent monitoring mechanisms of all places of detention, ensuring that any body established, at the local or the national level, has a strong and impartial mandate and adequate resources.

 

International judicial cooperation

 

27.  The Committee is concerned with the State party’s lack of international judicial cooperation in investigating, prosecuting or extraditing perpetrators of acts of gross human rights violations, especially with regard to acts perpetrated in East Timor in 1999.  Furthermore, it is deeply troubled at evidence that alleged perpetrators of war crimes wanted by Interpol, such as Colonel Siagian Burhanuddhin, for whom Interpol has issued a red notice, are currently serving in the Indonesian military forces.  The Committee regrets the refusal of the State party to provide information on the result of its cooperation with United Nations and Timorese institutions, especially as full cooperation was recommended by the Committee in its previous concluding observations.  The Committee is further concerned that the Commission on Truth and Friendship between Indonesia and Timor-Leste has a mandate to recommend amnesties, including for those involved in gross human rights violations (arts. 5, 6, 7, 8 and 9).

 

The State party should fully cooperate with Timorese, United Nations and relevant international institutions, in particular by providing assistance in investigations or court proceedings, including affording full access to relevant files, authorizing visits and transferring suspects wanted by Interpol or other relevant authorized bodies.  The State party should investigate actively and secure alleged suspects of human rights violations, who should be extradited or prosecuted in the State party.

 

The State party should not establish nor engage in any reconciliation mechanism that promotes amnesties for perpetrators of acts of torture, war crimes or crimes against humanity.

 

Non-refoulement and risk of torture (art. 3)

 

28.  The Committee is concerned by the failure of the State party to clarify how it includes in its national laws or practice the prohibition on returning a person to a country where he or she faces a substantial risk of torture, and hence how the State party ensures that its obligations under article 3 of the Convention are fulfilled (art. 3).

 

Under no circumstances should the State party expel, return or extradite a person to a State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.

 

When determining the applicability of its obligations under article 3 of the Convention, the State party should examine thoroughly the merits of each individual case, ensure that adequate judicial mechanisms for the review of the decision are in place and sufficient legal defence available for each person subject to extradition, and ensure effective post-return monitoring arrangements.

Universal jurisdiction

 

29.  The Committee regrets the lack of clarity and information on the existence of the necessary legislative measures establishing the State party’s jurisdiction over acts of torture (arts. 5, 6, 7 and 8).

 

The State party should establish its jurisdiction over acts of torture in cases where the alleged offender is present in any territory under its jurisdiction, either to extradite or prosecute him or her, in accordance with the provisions of the Convention. Truth and Reconciliation Commission

 

30.  The Committee acknowledges that the Constitutional Court has repealed Law No. 27/2004 on the Truth and Reconciliation Commission because it would have sanctioned amnesty for non-derogable offences.  Nonetheless, the Committee remains concerned about the mandate of a future commission, as cited in the State party’s reply to the Committee’s list of issues (arts. 2, 12 and 14).

 

The State party should consider carefully the mandate of the future Commission of Truth and Reconciliation, in the light of other similar international experiences and in compliance with its obligation under the Convention. Such a commission should, inter alia, be empowered to investigate gross human rights violations and compensate victims while proscribing amnesties for perpetrators of acts of torture.

 

Witness and victim protection

 

31.  While welcoming the adoption of Law No. 13/2006 on Witness and Victim Protection, the Committee remains concerned about the absence of implementing regulations, the mistreatment of witnesses and victims, and the insufficient training of law enforcement officials and allocation of Government funds to support the new system (arts. 12, 13 and 14).

 

The State party should, without delay, establish a witness and victim protection body, with all relevant measures required to implement Law No. 13/2006, including the allocation of necessary funding for the functioning of such a new system, the adequate training of law enforcement officials, especially in cooperation with civil society organizations, and an appropriate gender-balanced composition.

 

Compensation and rehabilitation

 

32.  The Committee expresses its concern about the lack of compensation for victims of torture and other cruel, inhuman or degrading treatment, and at the limited measures for the rehabilitation of victims of torture, ill-treatment, trafficking and domestic and sexual violence (art. 14).

The State party should ensure that adequate compensation is provided to victims of torture and ill-treatment and that appropriate rehabilitation programmes are provided to all victims of torture, ill-treatment, trafficking and domestic and other sexual violence, including medical and psychological assistance.

 

Legal aid

 

33.  The Committee expresses its concern about the difficulties persons, including members of vulnerable groups, experience in their efforts to exercise the right to make complaints and to obtain redress and fair and adequate compensation as victims of acts of torture (arts. 13 and 14).

 

The State party should take measures to provide an effective free legal aid system, in particular for persons at risk or belonging to groups made vulnerable.  It should ensure that the system is adequately resourced to guarantee that all victims of acts of torture and ill-treatment can exercise their rights under the Convention.

 

Human rights training

 

34.  While acknowledging a variety of programmes and manuals prepared by the State party, the Committee regrets the insufficient training with regard to the provisions of the Convention for law enforcement, military and security personnel, as well as for judges and prosecutors.  The Committee also notes with concern the lack of specific training of medical personnel in detention facilities to detect signs of torture and ill-treatment (arts. 10 and 11).

 

The State party should reinforce its training programmes for all law enforcement and military personnel on the absolute prohibition of torture, as well as for all members of the judiciary and prosecutors on the specific obligations under the Convention.

 

The State party should also ensure adequate training for all medical personnel involved with detainees, to detect signs of torture and ill-treatment in accordance with international standards, such as those outlined in the Istanbul Protocol.

 

Data collection

 

35.  The Committee regrets the absence of comprehensive and disaggregated data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment by law enforcement and military personnel, as well as on trafficking, enforced disappearances, internally displaced persons, violence against children, ill-treatment of migrant workers, violence against minorities and domestic and sexual violence.

 

The State party should compile statistical data relevant to the monitoring of the implementation of the Convention at the national level, including data on complaints, investigations, prosecutions and convictions of cases of torture and ill-treatment, trafficking, enforced disappearances, internally displaced persons, violence against children, ill-treatment of migrant workers, violence against minorities and domestic and sexual violence, especially in military conflict areas, as well as on compensation and rehabilitation provided to the victims.