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UPDATE (Indonesia): Court treats torture case as minor offence; police responsible are freed

October 14, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-060-2008

15 October 2008

[RE: UA-068-2007: INDONESIA:  Brutal torture and sexual abuse by the Banda Raya police]
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INDONESIA: Court treats torture case as minor offence; police responsible are freed

ISSUES: Torture; sexual abuse; fair trial; administration of justice; rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received updated information regarding the case of Mr. Hartoyo who was tortured and sexually abused in January 2007 in Aceh. The Banda Aceh District Court treated this case as a minor offence and let those responsible go free.

UPDATE INFORMATION:

Mr. Hartoyo and his partner were assaulted by about 16 civilians while they were at home in Banda Aceh on 22 January 2008. The reason being given is that they were homosexuals.  They were taken to the Bandaraya Aceh Sector Police at about 1:30am on January 23 where they were severely beaten and sexually abused by police officers. (for details, please see UA-068-2007)

Even though this incident took place in January 2007, it is reported that neither a proper investigation has been conducted nor has on-going adequate information been provided to the victim. The Bandaraya Aceh District Police, without notice, summoned Hartoyo to give testimony at the Banda Aceh District Court on October 8, the same day his trial was held.

It is reported that the police investigator earlier indicted the accused under article 170 jo. 422 of the penal code (jointly and openly commit violence against persons or property in relation to making use of it to force a confession). After the investigation process was set in motion, the prosecutor treated the case as a minor offence.

Sugeng Budiyanto was appointed as judge in charge of this case. Investigating officer Brigadier General Sudjono acted on behalf of the Public Prosecutor. The defendants are police officers Rahmat Hidayat, Wahyu Pratama, Wahyudi Saputra and Amrizal.

During the trial, the judge did not examine the perpetrated acts of torture but rather focused on the sexual orientation of Hartoyo. He further advised him to turn away from this sin. He gave the impression that the accused should be allowed to beat and assault the victim on the grounds of his different sexual orientation. In addition, the investigating officer failed to demonstrate exactly how the acts of torture were committed by the accused.

After Hartoyo gave his testimony, all of the accused accepted it without objection. When being asked by the judge to say something to the victim they apologized to him. Examination of the defendants followed and shortly thereafter the judge read out his verdict. The court decided that the four defendants be sentenced to three months' imprisonment, six months probation and a fine of IDR 1,000 (USD 0.1).

The court gave its reasons for such a light punishment. The perpetrators are police officers who are needed by their country, the perpetrators confessed their acts, both parties forgave each other, and the perpetrators committed a minor offence.

SUGGESTED ACTION:
Please write letters to the Supreme Court, urging them to annul the decision and deal with this case as a general criminal procedure. In this way those responsible for the acts of torture will be properly prosecuted and punished.

Please be informed that the AHRC has written separate letters to the UN Special Rapporteur on the Question of Torture, and independence of judges and lawyers calling for intervention in this case.

SAMPLE LETTER:

Dear ___________,

INDONESIA: Court handles torture case as a minor offence; police responsible are freed

Name of victim: Mr. Hartoyo, 32; local NGO worker at the Matahari Foundation in Aceh
Accused: Rahmat Hidayat, Wahyu Pratama, Wahyudi Saputra and Amrizal from Bandaraya Aceh Sector Police
Trial: Judge Sugeng Budiyanto, Banda Aceh District Court, 8 October, 2008
Date of original incident: 22-23 January 2007 at Bandaraya Aceh Sector Police

I am shocked to learn that police officers responsible for the torture and sexual abuse of Hartoyo at the Bandaraya Aceh Sector Police Station were freed due to improper investigation and failure of a proper prosecution which provides them with de facto impunity. These offenses took place in the early morning of January 23 2007.

According to information I have received, Haryoto with his partner were taken to the police station by the accused at about 1:30am on January 23, 2007. They were made to strip down to their underwear, and were then viciously beaten and verbally abused by the accused. Hartoyo said that the officers forced his partner to perform oral sex on him. When he refused Hartoyo was again kicked and scolded. Then, the victims still in their underwear were dragged to the courtyard in the police station, made to squat on the ground and were sprayed with ice-cold water. When he asked permission to go to the toilet, the officers forced his partner to urinate on Hartoyo's head.

Addition information has it that Hartoyo was instructed by an officer to introduce himself to the other detainees. When he stated that he was a homosexual, the officer entered the cell and severely beat him. The victims had been denied access to legal representations or to visits by their relatives. Before their release on January 23, they were forced to sign a written statement not to be involved in 'homosexual actions again'.

When the investigation started, the accused were indicted under article 170 jo. 422 of the Penal Code which requires that the trial be carried out under general criminal proceedings.  But surprisingly, at the trial on 8 October 2008, this case was dealt with under article 352 of the Penal Code, 'minor maltreatment' which is only a minor offence.  As you are aware, the right to appeal by the victim is removed once the case is handled as a minor offence and not within general criminal proceedings.

I am informed that during the trial both the judge and the investigating officer failed to show how the acts of torture and sexual abuse were committed by the accused. Besides, the judge advised him to turn away from sin and gave the impression that the accused were allowed to beat and assault the victims on the grounds that they had a different sexual orientation.

Even though all of the accused acknowledged their acts of torture and sexual abuse and accepted the victim’s testimony without objection, they were given light sentences.  Three months' imprisonment, six months probation and a fine of IDR 1,000 (USD 0.1) The grounds were that the perpetrators were police officers whose services are still needed by the country, who confessed their acts, and who committed a minor offence. In addition, both parties already forgave each other.

I am particularly disturbed that the perpetrators of these acts of torture and ill-treatment received such lenient penalties. They are not in accordance with the grave nature of their crimes. Under these circumstances, I strongly urge you to denounce this trial process as a misleading one. Establish a new trial process which will be carried out under general criminal proceedings. This would ensure that the perpetrators are properly prosecuted and punished according to the law and in accordance with the norms of international human rights.

As shown in this case, lack of access to a lawyer, torture and ill-treatment, arbitrary arrest and detention, sexual abuse, improper investigation and prosecution, and lenient penalties constitute de facto impunity for the perpetrators and must be addressed. It will be not only a mockery but a perpetuation of acts of torture and ill-treatment if the perpetrators are not properly punished.

I also take this opportunity to remind the government of Indonesia of the fact that as a member of the UN Human Rights Council and a state party to the International Covenant on Civil and Political Rights (ICCPR) and Convention  Against Torture (CAT), it has the obligation to take specific actions. These are actions that will reinforce prohibitions against torture and ill-treatment through legislative, administrative, and judicial means. In the end these are the things that will be effective preventions.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

Chief Justice Bagir Manan
Chief Justice of the Supreme Court
Jalan Medan Merdeka Utara No.9-13,
Jakarta 10110
Tel: +62 21 384 35 57
Fax: +62 21 383 541

PLEASE SEND COPIES TO:

1. Mr. Hendarman Supandji
Attorney General
Kejaksaan Agung RI
Jl. Sultan Hasanuddin No. 1
Jakarta Selatan
INDONESIA
Tel: + 62 21 7221337, 7397602
Fax: + 62 21 7250213

2. Gen. Bambang Hendarso Danuri
Chief of National Police
Jl. Trunojoyo No. 3
Jakarta Selatan
INDONESIA
Tel: +62 21 721 8012
Fax: +62 21 720 7277

3. Mr. Andi Matalatta
Minister of Justice and Human Rights
JI. H.R. Rosuna Said Kav. 6-7
Kuningan, Jakarta Selatan
INDONESIA
Fax: +62 21 525 3095

4. Mr. Ifdhal Kasim
Chairperson
KOMNAS HAM
Jl. Latuharhary No. 4B Menteng
Jakarta Pusat 10310
INDONESIA
Tel: +62 21 3925230
Fax: +62 21 3151042/3925227

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrchk.org)

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-060-2008
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.