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UPDATE (Indonesia): Fair trial not guaranteed in the prosecution of killers of four villagers under military court

October 10, 2007

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Update on Urgent Appeal

11 October 2007

[RE: UA-175-2007: INDONESIA: At least 5 villagers allegedly shot dead by Navy force in Pasuruan, East Java]
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UP-135-2007: INDONESIA: Fair trial not guaranteed in the prosecution of killers of four villagers under military court

INDONESIA: Extrajudicial killing; fair trial; military court
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Dear friends,

The Asian Human Rights Commission (AHRC) has been informed that thirteen suspects of the earlier reported extra-judicial killings have been released as their detention period has ended. However, there are still concerns that this case will likely be brought to the military court and a light sentence will be given to those responsible. The AHRC demands that this case should be brought before the civil court.

UPDATED INFORMATION:

As the AHRC has earlier reported in our previous appeal, Navy Forces, which were safeguarding an area of land under dispute in trial in the High Court, shot at villagers who were trying to halt the cultivation process by the Rajawali Nusantara Corporation on 30 May 2007.

According to the updated information received, four persons were killed and one child, previously reported to have been killed, has managed to survive the bullet wound.

The investigation was initially conducted by the Pasuruan Resort Police immediately following the incident, but on the following day the Navy Military Police (POMAL) took up the case for the reason that the suspects were military officers. Thirteen marines have been detained by the POMAL since one day after the incident.

On September 24, they were released as the detention period had ended and they all were indicted under the Penal Code. The articles of the Penal Code which were applied to the suspects were Art 338 regarding murder, 351 jo. 55 regarding participation in maltreatment resulting death and 170 regarding persons who with united forces openly commit violence against persons or property. As of now, the records of all suspects are under the Military Oditur; prosecutor office in the military. However, the commander of the Navy Forces was exonerated from his liability in allowing the Navy forces to guard the Corporation and kill four persons. In the meantime, the nexus between the corporation and the Navy or the Commander in charge of has not yet been revealed.

It is reported that the ballistic test has been conducted by POMAL and Forensic Laboratory of East Java Regional Police. However, this test can only disclose which weapons were used for the shot and the report has been kept confidential.

After the incident, the Military Commander has announced that appropriate compensation would be given to the victims and their families, however, all medical expenses was paid for through the Askeskin (Asuransi Kesehatan Masyarakat Miskin) Programme which is targeted at members of poor families who become sick or injured. The assistance provided by the Programme should not be considered, and is not, compensation which is provided for on behalf of the Navy Forces, as it is subject to the criteria imposed by the programme, whereas the victims should be receiving compensation unconditionally. It is also reported that in practice, it is difficult to claim assistance under the Programme, as the family of victims have difficulties in gaining access to the hospitals and related institutions which require their submission of many certain documents.

The AHRC has previously expressed its concerns over the transparency and accountability of the investigations. In such cases involved in military officers, if the case is held in the military court, fair trial cannot be guaranteed as such those military personnel receive very light sentence which is contrary to a case from the civil court (UA-137-2005).

SUGGESTED ACTION:
Please write letters to the concerned authorities urging them to conduct a thorough and impartial investigation into this case. This case should be investigated and heard in the civil legal process, instead of the military procedure. The perpetrators, including their commander, should account for their actions if they are found guilty.

Sample letter:

Dear __________,

INDONESIA: Please ensure fair trial in the civil court not in the military court

Name of victims:
1) Ms. Dewi Khotidja binti Juma'atun, aged 21, 2) Ms. Mistin, aged 21, 3) Mr. Rohman bin Saumar, aged 17, 4) Mr. Sutam Saruyan, aged 45
[All of them are resident of Alas Tlogo Village, Pasuruan, East Java]
Alleged perpetrators: Group of Navy forces attached to Navy Eastern Fleet in Surabaya, which was guarding a dispute land in Alas Tlogo Village, Pasuruan, East Java
Date of incident: 30 May 2007
Place of incident: Alas Tlogo Village, Lekok, Pasuruan, East Java

I am writing this letter to voice my deepest concern regarding the improper level of investigation on the Pasuruan Case. In this case, the alleged perpetrators have all been released as they are at the end of their detention perid. Now, the evidential records are in the hands of the Military Oditur. I am concerned whether this case will be conveyed to the court in a timely manner or whether it will be handed back to the navy military police (POMAL) as the investigator of this case.

I am surprised that this alleged extra judicial killing might be heard in the military court and that the investigation and prosecution is conducted by the military bodies. It is aggravating to know that this case was taken over by the military authorities, as the investigation was initially conducted by the civil police, Pasuruan Resort Police. The suspects should not be excused from a fair trial in civil proceedings rather than the military court because of their position as military officers. Conviction of these perpetrators in a military court will only result in a lighter sentence in the form of disciplinary action. Moreover, Commanders of such suspected officers should also hold responsibility, and as yet, no superior officer has been brought into the investigation and prosecution.

I am aware that Komnas HAM has stated that this case is a violation of human rights, particularly deprivation of right to life, cruel and inhuman treatment, and violation to right to safety. Despite this fact, the progress of this case has been stalled and has not been given urgent status. I am also informed that ballistic test has been conducted by the POMAL and Forensic Laboratory of East Java Regional Police, but thus far the report has not been informed to public. Which it is contrary to the National Military Commander whom had stated before that the whole process will be conducted in a transparent manner.

I therefore urge you to ensure that the investigation, prosecution, and the hearing will be conducted in the civilian legal process, not in the military procedures. I also urge that the suspects' Commander also taken into account, since it can be deduced that they were not uninformed of the events. To my knowledge, the Navy forces do not open fire to any target unless the Commander has instructed them to do so. Furthermore, the Navy, as part of military should defend the people, instead of opening fire to civilians them and guarding private assets.

I understand that Indonesia is a member of the UN Human Rights Council; therefore I urge the government to show its sincerity to protect and uphold the highest standards on human rights for its citizens by proving to make its pledges into reality, in particular to guarantee that the victims and their family obtain redress. In addition, adequate compensation should be given to them without further delay, as opposed to just finance their medical and funeral expenses. Funding the victims' medical expenses through the Akeskin Programme, which is originally designed to help poor families, is not the appropriate approach to compensate the victims. I am also informed that the victims and their family have called for justice to be administered. This improper investigation has become extremely stalled. The perpetrators should be brought to justice without further delay. 

Mischief of military forces similar to this case had been taking places in numerous areas throughout Indonesia during the New Order regime. I urge that Indonesia will not turn back to such dark ages.

I look forward to your prompt and effective response in this matter.

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. 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

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

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

5. Air Chief Marshal Djoko Suyanto
Military Commander in Chief
Mabes TNI, Cilangkap
Jakarta 13870
Tel: +62 21 8459-1244, 8459-1243
Fax: +62 21 845-6805

6. Admiral Slamet Subijanto
Commander in Chief of Indonesian Navy Forces
Mabes TNI, Cilangkap
Jakarta 13870
Tel: +62 21 8459-1244, 8459-1243
Fax: +62 21 845-6805

7. Chief of Navy’s Eastern Fleet
Ujung, Surabaya
INDONESIA
Phone (031) 3294421, 3294151
Fax (031) 3284609

8. Head of Military Oditur III-12
Jl. Bundaran Tol Waru
Sidoarjo
East Java
INDONESIA
Phone (031) 8554263
Fax (031) 8554261

9. Mr. Philip Alston
Special Rapporteur on Extra-judicial, Summary, or Arbitrary Executions
Atten: Lydie Ventre
Room 3-016
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9155
Fax: +41 22 917 9006 (Attn: SPECIAL RAPPORTEUR EXTRAJUDICIAL KILLINGS)

Thank you.

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

Document Type :
Urgent Appeal Update
Document ID :
UP-135-2007
Countries :
Issues :
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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.