INDONESIA: Pretrial detention under the Criminal Law Procedure needs serious reform, having caused torture and ill-treatment

A Written Statement to the 46th Regular Session of the United Nations’ Human Rights Council by the Asian Legal Resource Centre

The Asian Legal Resource Center (ALRC) wishes to draw the attention of the UN Human Rights Council to the problem in the existing Criminal Law Procedure which at present still regulates pretrial detention in Indonesia.

Pretrial detention is still a serious problem for Law Enforcement in Indonesia. This is primarily because it is one of the main problems causing the practice of torture and other inhuman acts. It is certainly not in accordance with the standards of international Human Rights Law. Moreover, pretrial detention for a long period of time is part of the deprivation of liberty.

So far, Indonesia still enforces the Criminal Procedure Code Number 8 of 1981 (known KUHAP). It is a legislative product issued by the Soeharto regime. Although there have been efforts from various civil society groups to reform the Law of Criminal Procedure, these efforts have not been able to amend the Law of Criminal Procedure. The last bill was discussed in 2012, but nonetheless there has been no amendment since then.

Under the existing Law of Criminal Procedure, the Police and the Prosecutor have authority to detain suspects. Particular suspects can be charged under the provision of the Criminal Code (known KUHP) with more than 5 years imprisonment. In many instances, under pretrial detention, torture and other inhuman acts occur frequently. Under the existing Law of Criminal Procedure, the Police have the authority to detain suspects for 20 days. And with the permission of the Public Prosecutor, the detention period can be extended to a period of 40 days. Therefore, in total, under the Police investigation processes, suspects can be detained for as long as 60 days.

Subsequently, the Public Prosecutor has the authority to detain the accused for 20 days and can be extended for 30 days. Under this circumstance, the length of the detention period under the Police and Prosecutor, of course, become an opportunity to torture accused persons.

Meanwhile, look at the latest version of the new bill of the Law of Criminal Procedure, in particular under Article 58 and Article 60. It states that investigators are only authorized to detain suspects for a maximum of 5 days. It can be extended again with the permit of the examining Judge for a maximum time of 5 days. An extension of the detention shall be submitted to the examining Judge and copied to the Public Prosecutor.

The new Bill of Criminal Procedure is certainly better than the existing law of Criminal Procedure. Why? It significantly reduces the time period of the pretrial detention. It can be prescribed under the existing Law of Criminal Procedure. Pretrial detention under the Police is 20 days+40 days and it reduces to merely 5 days. Under the new bill the detention can only be extended for a period of 5 days (total 10 days) with the permission of the examining Judge.

Since 2014, the discussion in the Drafting Committee regarding revision of the Law of Criminal Procedure has been stopped–and as yet there has not been a decision to continue. Parliament has decided on two things. The first is, to prioritize the revision of the Criminal Code rather than the Criminal Procedure. The second is to replace the existing Criminal Code which is legacy of the Dutch colonial era.

Under the new bill of the Criminal Code, there is a specific provision which regulates the punishment of torture. It is promulgated under Article 267 of the new bill of the criminal code. However, the provision has yet to come in line with the element of torture under Article 16 of UNCAT. Article 267 of the new bill does not include provision for other cruel, inhuman or degrading treatments or punishments.

Under the existing law of Criminal Procedure, the Commission for the Disappearances and Victims of Violence (KontraS), a prominent national human rights organization, notes the following cases of torture. They occurred between 2019 and 2020. They consist of 48 cases committed by Police Officers, 9 cases by the Military and 5 cases by Prison Guards.

The total above-mentioned number is 62 cases. There were 220 victims recorded, with details of 199 injured and 21 people killed. The model of torture that often occurs is caused by irregular power relationships, which means that the victim is completely under the control of the perpetrator. According to KontraS in the last year, torture cases are still often dominated by wrongful arrests.

Torture is still occurring in Indonesia. There is a serious gap between national regulation and international human rights Laws. Indonesia is a State Party to two important international human rights instruments. They are the International Covenant on Civil and Political Rights (ICCPR) and the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). Up until now, Indonesia does NOT have a specific law which punishes torture.

In addition, the legacy of the New Order era, under the Soeharto regime, to some extent still exists in the culture of Law Enforcement Agencies. It is namely the existence of violence and coercion in examining suspects. In many instances, it is the elements of torture and forced acknowledgement that give evidence of criminal acts. After the political reform in 2002, the Police were separated from the Military and issued several legal instruments in favor of human rights. Examples are the Chief Police Regulation (Perkap) on human rights and the Chief Police Regulation on punishment of hate speech. In addition, the Military also issued a regulation on the prohibition of torture.

However, these regulations are not enough. In fact, the regulations at the national level still provide loopholes for acts of torture. One loophole is under the existing Law of Criminal Procedure which regulates pretrial detention. Unfortunately, access to legal aid is not fully available due to imbalanced budgets and unavailable, proper, legal-aid services.

In order to ensure that the Law of Criminal Procedure is completely reformed and pre-trial detention is abolished from Indonesian Law, the Council must urge the Government to:

1. Immediately reform the law of Criminal Procedure and make sure that pretrial detention is removed;
2. Immediately complete and enact the Amendment to the Law of Criminal Procedure.
3. Guarantee prosecution and punishment of torture cases by not allowing cases to go unpunished.
4. Ensure adequate compensation for victims of torture. Strengthen the oversight mechanism on Law Enforcement Agencies, ensuring that abuse of power and misuse of authority afforded by LAW, will not recur so easily.
5. Officially invite the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, to visit Indonesia as soon as possible. Let him or her appraise the grass roots problem on the ground for themselves and form their own opinion.

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The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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