Indonesia has made progress in addressing torture but the practice persists and must be criminalized, an independent United Nations expert just back from the country said today.
The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, was able to hold meetings in Jakarta and visit correctional institutions, pre-trial detention houses, police and military detention facilities as well as social rehabilitation centres during his visit from 10 to 25 November.
In a statement issued in Geneva, he voiced appreciation to the Government for having invited him but said in a number of instances, his unimpeded access to places of detention was compromised, including his ability to carry out private interviews with detainees.
Despite this, he was able to reach the broad conclusion “that given the lack of legal and institutional safeguards and the prevailing structural impunity, persons deprived of their liberty are extremely vulnerable to torture and ill-treatment.”
The Government said that the process of including the crime of torture in Indonesia's Penal Code is under way, but Mr. Nowak voiced regret that this has not yet been done “in spite of many recommendations to this effect by both national and international observers.”
He stressed that torture must be criminalized with several years of imprisonment without further delay, “as a concrete demonstration of Indonesia's commitment to combat this problem.”
Pointing out that “bringing perpetrators to justice is the strongest signal that torture and ill-treatment is absolutely unacceptable,” the Special Rapporteur said Government officials “could not cite one instance in which a public official was sentenced by a criminal court for committing torture or ill-treatment.”
Legal safeguards for detainees, in particular at the pre-trial stage, “are virtually non-existent, in violation of applicable international norms and standards to which Indonesia has subscribed,” he said, voicing particular concern about the prolonged period of police custody allowed under the law – at times up to several months and during which many detainees have no or very restricted access to courts.
Only very few detainees appear to have access to a defense lawyer, he said, noting that in this context, “given the lack of legal safeguards and doubts as to how confessions might have been obtained in a number of these instances,” use of the death penalty is inappropriate.
He also noted that the secrecy with which executions are handled violates international human rights standards.
Mr. Nowak, who serves in an unpaid, personal capacity, said he was not informed of any effective mechanism for determining the legality of detention or for evaluating a complaint about ill-treatment or torture. “On the contrary, several interlocutors from the penitentiary system, the Attorney General's office and also medical doctors indicated to the Special Rapporteur that if persons with marks of torture or ill-treatment are transferred to their authority, they normally hand them back to the police, apparently in order to avoid any additional administrative troubles.”
The Special Rapporteur commended the National Human Rights Action Plan, which foresees the ratification in 2008 of the Optional Protocol to the UN Convention Against Torture, which requires the establishment of an independent body to regularly monitor places of detention, with the authority to conduct unannounced visits.
The expert said detainees are more vulnerable to abuse while in police custody than in prison. “The problem of police abuse appears to be sufficiently widespread as to warrant immediate attention by the Government,” he added, citing reports, corroborated by expert medical analysis, of beatings by fists, rattan or wooden sticks, cable, iron bars and hammers.
In some cases, police officers had shot detainees in their legs from close range, or electrocuted them, according to the statement. Some detainees alleged to have had heavy implements placed on their feet. “In most instances, it appears that the purpose of this violence was to extract confessions,” Mr. Nowak observes.
The statement does note that he received only a limited number of allegations of ill-treatment and corporal punishment in both pre-trial detention houses and prisons, but cautions that there were allegations and evidence of several cases of beatings by guards.
Many of the prisons were very spacious, clean and well-maintained, and below maximum capacity. The Special Rapporteur welcomed the relative openness of detention places, most of which allow several visits per week by relatives and friends. He also commended the system for treating youth (persons between 18 and 21) as a separate category and holding them apart from adults when possible.
“Another best practice is the fact that pregnant women are often temporarily released from custody to be able to deliver their baby, and that women in police custody as well as in prisons can live together with their babies and are allowed to maintain very close contact with their older children,” he said.
At the same time, the Special Rapporteur said he is “extremely concerned that criminal responsibility in Indonesia starts at the age of eight and that therefore small children are put in detention facilities and prisons, very often mixed with much older children and adults.” Minors and children are at greater risk of corporal punishment and ill-treatment in detention.
While recognizing that positive steps taken by Indonesia to address problems, the expert recommended a series of steps, including official public condemnation of torture and ill-treatment and its criminalization. He also called for measures against impunity and the introduction of confidential complaints mechanisms. The Government, he said, should raise the age of criminal responsibility in accordance with international standards and abolish the death penalty.
The Special Rapporteur will submit a comprehensive report on the visit to the UN Human Rights Council.