Dear friends,
The Asian Human Rights Commission (AHRC) has come to learn of a case involving the unlawful criminal trial and arbitrary detention of an eight-year-old boy. On 10 March 2006, an eight-year-old boy named Muhamad Azwar (a.k.a Raju) was found guilty of assaulting his schoolmate by Judge Tiurmaida Pardede at Langkat District Court, North Sumatra, Indonesia. Raju had been charged with physical abuse under Article 351 of the Indonesia Criminal Act (KUHP) due to his fight with his schoolmate, Armansyah, aged 14, on 31 August 2005.
Even though Raju was found guilty, the sole judge of the Langkat District Court, Tiurmaida Pardede ordered him to return to the custody of his parents according to the 2002 Child Protection Law, which protects children between the ages of 8 and 12 from being jailed. The law says that children found guilty of criminal offenses must be placed either in the custody of their parents or the Social Services Department.
However, serious concerns have arisen regarding the legitimacy of the trial and its process.
First, according to the 1997 Juvenile Court Law of Indonesia, children between the ages of 8 and 18 can be taken to court for prosecution. Raju’s date of birth is 9 December 1997 according to his family ID document, which means that he was seven-years-old at the time of incident. However, rather than referring to this official document, the court unexplainably recognised 5 December 1996 as Raju’s date of birth based on his school data, and brought him to trial. Many local child rights groups challenged the court’s decision saying that the trial was illegal. Seto Mulyadi, the chairperson of the National Commission for the Protection of Children, also criticised the verdict and the trial saying that the court should have dismissed the case because the families of the two children had already reached an out-of-court settlement. Raju’s lawyer said that he would appeal the verdict.
Second, Raju was arbitrarily detained in the Detention Center of Pangkalan Brandan, Langkat, North Sumatra from 19 January to 2 February 2006 by an order issued by Judge Tiurmaida Pardede. The judge reportedly said that she ordered Raju’s detention “to make the trial go along smoothly”. However, the judge’s order breaches Article 37 (b) of the Convention on the Rights of the Child (CRC), which stipulates that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as “a measure of last resort” and for the shortest appropriate period of time. Indonesia is a state party of the CRC and has ratified the Presidential Decree No. 36 of 1990. This is also in violation of the 1997 Law on Juvenile Courts, which mentions that any child below eight years of age prosecuted for a crime must be returned to their parents or the Social Affairs Ministry.
It is also reported that Raju was detained together with adult detainees for a half day during his detention. This is a direct violation of Article 37(C) which specifies the separation of child detainees from adult detainees. In addition, Raju’s right to education was denied during his detention. Raju’s arbitrary detention is also of grave concern because jailing young children can cause trauma and psychological disturbance to them.
Third, the trial process violated Raju’s rights and was conducted inappropriately and against the law. The Child Trial Act (Number 12 Year 1995) says that during a trial the judge, prosecutor, investigator, counselor, and the other officers shall not wear any court uniform. However, during the trial, the sole judge, Tiurmaida H. Pardede, and the Prosecutor, AP Frianto Naibaho, wore their court uniform. The National Commission for Child Protection chairperson Magdalena Sitorus also accused Judge Tiurmaida of making improper remarks during the trial, such as: ‘from your face I know that you are a bad boy’. Ms Sitorus also claimed that Raju was denied legal counsel during the trial, despite this being mandatory under law. Right to legal counsel is also guaranteed under Article 37(d) of CRC.
Although Raju has been spared further jail time, his arbitrary detention and trial ordeal will no doubt leave a scar on the young boys life. He will be stigmatized by his community and will face an uncertain future as a result of this. His treatment by the judge and other authorities in the court and the police has caused trauma and psychological damage, for which the young boy will need treatment for to deal with.
Meanwhile, the Judicial Commission is investigating judge Tiurmaida Pardedes verdict.
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SAMPLE LETTER
Dear ________________,
INDONESIA: Unlawful criminal trial and arbitrary detention of an eight-year-old boy
I have recently learned of the unlawful criminal trial and the arbitrary detention of an eight-year-old boy in Indonesia and the complete injustice in this entire affair. Muhamad Azwar (a.k.a. Raju), at the age of only seven at the time of incident, was found guilty of assaulting his schoolmate by Judge Tiurmaida Pardede at Langkat District Court, North Sumatra, Indonesia.
Many concerns have arisen as a result of this case, particularly regarding the legitimacy of the trial and its process. Firstly, according to the 1997 Juvenile Court Law of Indonesia, children between the ages of 8 and 18 can be taken to court for prosecution. However, although Raju was only seven at the time of incident, as clearly stated on his family ID document, the court instead chose to recognise 5 December 1996 as Raju's date of birth based on his school data, and brought him to trial. Many local child rights groups challenged the court's decision saying that the trial was illegal and that the matter had already been settled between the families of the two children.
Secondly, Raju was arbitrarily detained in the Detention Center of Pangkalan Brandan, Langkat, North Sumatra from 19 January to 2 February 2006 by an order issued by Judge Tiurmaida Pardede. The judge reportedly said that she ordered Raju's detention "to make the trial go along smoothly". However, the judge's order breaches Article 37 (b) of the Convention on the Rights of the Child (CRC), which stipulates that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as "a measure of last resort" and for the shortest appropriate period of time. Indonesia is a state party of the CRC and has ratified the Presidential Decree No. 36 of 1990. The judges actions are also in violation of the 1997 Law on Juvenile Courts, which mentions that any child below eight years of age prosecuted for a crime must be returned to their parents or the Social Affairs Ministry.
It is also reported that Raju was detained together with adult detainees for a half day during his detention. This is a direct violation of Article 37(C) which specifies the separation of child detainees from adult detainees. In addition, Raju's right to education was denied during his detention.
Thirdly, the trial process violated Raju's rights and was conducted inappropriately and against the law. The Child Trial Act (Number 12 Year 1995) says that during a trial the judge, prosecutor, investigator, counselor, and the other officers shall not wear any court uniform. However, during the trial, the sole judge, Tiurmaida H. Pardede, and the Prosecutor, AP Frianto Naibaho, defied this. It is alleged that improper remarks were also made by Judge Tiurmaida, such as: 'from your face I know that you are a bad boy'. It is also claimed that Raju was denied legal counsel during the trial, despite this being mandatory under law. Right to legal counsel is also guaranteed under Article 37(d) of CRC.
Although Raju has been spared further jail time, his arbitrary detention and trial ordeal will no doubt leave a scar on the young boys life. He will be stigmatized by his community and will face an uncertain future as a result of this. His treatment by the judge and other authorities in the court and the police has caused trauma and psychological damage, for which the young boy will need treatment for to deal with.
While I am aware that the Judicial Commission is investigating judge Tiurmaida Pardedes verdict, I call for much greater intervention in enquiring into this entire matter. The Attorney General should take immediate action in examining the role of the prosecutor, AP Frianto Naibaho; the Supreme Court must stop the process of the trial and ensure that the child remains in the custody of his parents; and the case in general should be investigated to ascertain why and how it was that a seven-year-old boy was treated in such a way.
Furthermore, as a result of this trial, it has been alleged that the law enforcers involved were not aware of or chose to dismiss the standard procedures to protect childrens rights. The Indonesian Commission for Child Protection has previously urged the Supreme Court to provide proper training to judges dealing with juvenile crimes. Only after the training should the judges be given certificates, authorizing them to issue verdicts in child courts. Until such action is taken, further denial of rights to children in Indonesia will no doubt continue to occur.
With these matters in mind, I call on your intervention to ensure justice not only in this case, but in the many others involving minors in Indonesia.
Yours sincerely,
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PLEASE SEND YOUR LETTERS TO:
1. Mr. Susilo Bambang Yudoyono
President
Republic of Indonesia
Presidential Palace
Jl. Medan Merdeka Utara
Jakarta Pusat 10010
INDONESIA
Tel: + 62 21 3845627 ext 1003
Fax: + 62 21 231 41 38, 345 2685, 345 7782
2. Prof. Dr. Bagir Manan
Chief Justice
Supreme Court
Jalan Merdeka Utara No. 11 - 13
Jakarta Pusat 10110
INDONESIA
Tel: +62 21 3811957 / 345 2223
Fax: +62 21 381 0357
3. Mr. Busyro Muqoddas
Chairperson of Judicial Commission
Jalan Abdul Muis No. 8
Jakarta
INDONESIA
Tel: +62 21 3865661
Fax: +62 21 3863147
Email: busyi_kyri@yahoo.co.id
4. High Court Sumatera Utara
Jl. Pengadilan No. 10 Medan
Sumatera Utara
INDONESIA
Tel: +62 61 4518805
5. Mr. Hamid Awaluddin
Minister of Justice and Human Rights
Menteri Kehakiman dan Hak Asasi Manusia,
JI. H.R. Rasuna Said Kav. 6-7
Kuningan, Jakarta Selatan
INDONESIA
Fax: + 62 21 525 3095
6. Mr. Abdul Rahman Saleh
Attorney General
Kejaksaan Agung RI
Jl. Sultan Hasanuddin No. 1
Jakarta Selatan
INDONESIA
Tel: + 62 21 7221337, 7397602
Fax: + 62 21 7250213
Email: postmaster@kejaksaan.or.id
7. Mr. Abdul Hakim Garuda Nusantara
Chairperson
The National Commission on Human Rights of Indonesia (Komnas HAM)
Jl. Latuharhary 4B
Jakarta Pusat 10310
INDONESIA
Tel: + 62 21 3925230
Fax: + 62 21 3925227
Email: info@komnas.go.id
Thank you.
Urgent Appeals Prgoramme
Asian Human Rights Commission (ahrchk@ahrchk.org)
