Caveat - Volume November 2012-January 2013 - LBH Masyarakat

2,072 views

Published on

The Indonesian House of Representatives (DPR) has agreed to discuss the Draft of the Indonesian Criminal Code in its 2013 National Legislation Program (Prolegnas), together with other 69 Draft Laws. This, of course, is an encouraging development given that Indonesia has been trying for the longest time to enact its new Criminal Code. The current Indonesian Criminal Code is a legacy of the Dutch colonial
era. It is, therefore, essential to have an updated version of the Criminal Code to reflect modern development of criminal law as well as international human rights standards.

In 2006, it is estimated that 5,129 inmates in Indonesia are affected by HIV and AIDS, accounting for as much as 3% of the estimated total of people living with HIV and AIDS in the country. There is a growing concern of HIV transmission in prisons stemming from the relatively high percentage of AIDS-related deaths in prison. Although the overall mortality in prisons has decreased from 2007 to 2009, AIDS-related deaths have actually increased.

In its 2012 year end press release, the Indonesian National
Narcotic Board (BNN) stated that 71 drug offenders have
been sentenced to death in Indonesia. Twenty of them are
Indonesian nationals while the remaining 51 are foreigners.
One Indonesian national who was on death row for drug
offense is Meirika Franola or also known as Ola. President
Susilo Bambang Yudhoyono gave clemency to Ola in 2011 and commuted his sentence from death penalty to life sentence. The clemency given to Ola appears to be no longer valued when BNN exposed drug trafficking that dragged Ola again.

Published in: Education, Health & Medicine
  • Be the first to comment

  • Be the first to like this

Caveat - Volume November 2012-January 2013 - LBH Masyarakat

  1. 1. CAVEAT INDONESIA’S BIMONTHLY HUMAN RIGHTS ANALYSIS EDITOR’S NOTE LBH Masyarakat presents you the November 2012-January 2013 edition of CAVEAT. HUMAN RIGHTS, LAW, AND POLITICS The Indonesian House of Representatives (DPR) has agreed to Examining Definitions of Torture in International Human Rights Law discuss the Draft of the Indonesian Criminal Code in its 2013 National Legislation Program (Prolegnas), together with other 69 Draft Laws. This, of course, is an encouraging development given that Indonesia has been trying for the longest time to enact its new Criminal Code. The current Indonesian Criminal Code is a legacy of the Dutch colonial era. It is, therefore, essential to have an updated version of the Criminal Code to reflect modern development of criminal law as well as international human rights standards. In 2006, it is estimated that 5,129 inmates in Indonesia are affected by HIV and AIDS, accounting for as much as 3% of the estimated total of people living with HIV and AIDS in the country. There is a growing concern of HIV transmission in prisons stemming from the relatively high percentage of AIDS-related deaths in prison. Although the overall mortality in prisons has decreased from 2007 to 2009, AIDS-related deaths have actually increased. HUMAN RIGHTS, HIV, AND DRUG POLICY Assessing HIV Prevention Measures in Detention Settings In its 2012 year end press release, the Indonesian National FROM OUR ARCHIVE Narcotic Board (BNN) stated that 71 drug offenders have Indonesian National Narcotic Board: been sentenced to death in Indonesia. Twenty of them are Indonesian nationals while the remaining 51 are foreigners. One Indonesian national who was on death row for drug offense is Meirika Franola or also known as Ola. President Susilo Bambang Yudhoyono gave clemency to Ola in 2011 and commuted his sentence from death penalty to life sentence. The clemency given to Ola appears to be no longer valued In Between Enforcing Drug Laws and Fabricating Cases when BNN exposed drug trafficking that dragged Ola again. A Letter From Jember My memory goes back to my time in Jakarta some months ago. In July 2012, with few other students from University of Jember, East Java, I visited LBH Masyarakat Jakarta Office as part of Jember Holiday Internship 2012. Volume November 2012-January 2013 Lembaga Bantuan Hukum Masyarakat Tebet Timur Dalam III, No. 54A Jakarta 12820, INDONESIA P. +62 21 830 54 50 F. +62 21 8370 99 94 E. contact@lbhmasyarakat.org, caveat@lbhmasyarakat.org http://www.lbhmasyarakat.org
  2. 2. MANAGING EDITOR: Ricky Gunawan CONTENTS EDITOR’S NOTE ........................................... 3 HUMAN RIGHTS, LAW, AND POLITICS......... 5 Examining Definitions of Torture in International Human Rights Law HUMAN RIGHTS, HIV, AND DRUG POLICY.. 12 Assessing HIV Prevention Measures in Detention Settings FROM OUR ARCHIVE................................. 19 Indonesian National Narcotic Board: In Between Enforcing Drug Laws and Fabricating Cases A LETTER FROM JEMBER........................... 24 -- EDITORIAL BOARD: Andri G. Wibisana, Dhoho Ali Sastro, Ajeng Larasati, Antonius Badar, Magda Blegur, Ilkham Sofiar, M. Afif Abdul Qoyim, Riki Efendi. FINANCE AND CIRCULATION: Ahmad Zaki REVIEWER: Miki Salman ADDRESS: Tebet Timur Dalam III, No. 54A Jakarta 12820, INDONESIA Phone : +62 21 830 54 50 Fax : +62 21 8370 99 94 E-mail : contact@lbhmasyarakat.org, caveat@lbhmasyarakat.org Website : www.lbhmasyarakat.org DESIGN AND LAYOUT: haridesign CAVEAT is published by the Community Legal Aid Institute (LBH Masyarakat), Jakarta, Indonesia. All rights reserved. Neither this publication nor any part of it may be reproduced without prior permission of the LBH Masyarakat. This publication is supported by the Levi Strauss Foundation. The content of this publication does not necessarily reflect the opinion or position of the Levi Strauss Foundation. CAVEAT welcomes any feedback and contributions. If you are interested in contributing a guest editorial piece or article, please contact us at contact@lbhmasyarakat.org or caveat@ lbhmasyarakat.org LBH Masyarakat welcomes any financial contribution for the development of CAVEAT Name Bank Branch No. Acc. Swift Code 2 : Lembaga Bantuan Hukum Masyarakat : Bank Mandiri : Tebet Timur, Jakarta, Indonesia : 1 2 4 – 0 0 0 – 5 0 3 – 6 6 2 0 : B M R I I D J A CAVEAT | November 2012-January 2013
  3. 3. EDITOR’S N O T E LBH Masyarakat presents you the November 2012-January 2013 edition of CAVEAT. Initially, CAVEAT was to be published in early January as a November-December 2012 edition. However, due to New Year’s holiday, we needed to adjust the publication of that edition. Following this edition, CAVEAT will be published as usual, every two months. In this edition, Ricky Gunawan, LBH Masyarakat’s Program Director, writes an article summarizing the analysis on various interpretations of torture in international law. In Examining Definitions of Torture in International Human Rights Law, he explains a range of interpretations of torture found in the realm of international human rights law. This article finds its importance in the current Indonesian legal-political context where the Draft of Indonesian Criminal Code is included on the list of 2013 National Legislation Program (Prolegnas). Indonesia’s Criminal Code is a legacy of Dutch colonial era and for a time being now, Indonesia has been in dire need for a revised Code that reflects modern developments of criminal law as well as international human rights standards. The Draft Code has incorporated torture – a crime that has never been criminalized under Indonesian law, despite Indonesia’s ratification of the Convention against Torture in 1998. Gunawan’s article aims to provide an analysis that will help readers to assess the adequacy of torture definition in the Draft Code. In Human Rights, HIV, and Drug Policy column, we raise the issue of HIV treatment in prison settings. Ajeng Larasati, LBH Masyarakat’s Human Rights, HIV, and Drug Policy Reform Program Coordinator, writes an article entitled, Assessing HIV Prevention Measures in Detention Settings. Larasati argues that a number of HIV prevention measures in detention centers and correctional institutes are already available an important step and one that must be applauded. However, this fact alone does not say that it has been provided in an accessible manner with a good quality. She analyzes the current HIV prevention measures in detention settings and offers some recommendations in the hope to provide the Indonesian government with strategies to better improve the situation. In From Our Archive, Muhammad Afif Qayim, LBH Masyarakat’s Advocacy Staff, and Ricky Gunawan, write about the work of Indonesia’s National Narcotic Board (BNN) in revealing CAVEAT | November 2012-January 2013 3
  4. 4. alleged drug trafficking from inside prisons. Qayim and Gunawan suspect that in doing its work to enforce the Indonesian drug laws, BNN might have been fabricating drug cases. There are some indicators that support their claim. Their analysis can be found in Indonesian National Narcotic Board: In Between Enforcing Drug Laws and Fabricating Cases. Last but not least, in A Letter from Jember, Naila, an intern with LBH Masyarakat Jember Office, shares her interesting and enlightening experience when she came to Jakarta for an internship with LBH Masyarakat Jakarta and about her work in Jember. Her first interaction with drug user communities in Jakarta and her experience in providing legal and human rights education in East Java was an eye-opener for her. Her article Drug Users Are not Society’s Trash might be an important article for those who think otherwise. Your comments are, as always, welcome and appreciated. We hope this edition of CAVEAT will offer you insights on a different side of the human rights situation in Indonesia that may have been overlooked. ~ The Editor ~ 4 CAVEAT | November 2012-January 2013
  5. 5. HUMAN RIGHTS, LAW, AND POLITICS Examining Definitions of Torture in International Human Rights Law By: Ricky Gunawan1 Introduction The Indonesian House of Representatives (DPR) has agreed to discuss the Draft of the Indonesian Criminal Code in its 2013 National Legislation Program (Prolegnas), together with other 69 Draft Laws.2 This, of course, is an encouraging development given that Indonesia has been trying for the longest time to enact its new Criminal Code. The current Indonesian Criminal Code is a legacy of the Dutch colonial era. It is, therefore, essential to have an updated version of the Criminal Code to reflect modern development of criminal law as well as international human rights standards. One of the new crimes that will be introduced in the new Code is torture. This is also a positive step. Human rights community, both in Indonesia and abroad, has repeatedly called the Indonesian government to criminalize torture under its criminal law following its ratification of the Convention against Torture (CAT) in 1998. In the 2010 version of the Draft of the Indonesian Criminal Code3, torture is regulated in Article 404. It reads as follows: “Every public official or other persons acting in an official capacity or at the instigation of or with the acquiescence of a public official, who committed any act which inflict severe pain or suffering, whether physical or mental, on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, is punishable with imprisonment of at least five years and a maximum of 20 years.” (Unofficial translation by author). The above definition is slightly different with the definition set out in CAT that defines torture as follows: 1 Ricky Gunawan is the Program Director of LBH Masyarakat. 2 http://www.hukumonline.com/berita/baca/lt50c9af022f35b/dpr-tetapkan-70-ruu-masuk-prolegnas-2013, accessed on 24 January 2013. 3 http://ditjenpp.kemenkumham.go.id/files/ruu/2010/ruu%20kuhp%20buku2.pdf accessed on 25 January 2013. CAVEAT | November 2012-January 2013 5
  6. 6. “[T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”4 The difference between the definitions enshrined in CAT and the Draft of Indonesian Criminal Code is that the latter does not recognize the element of consent from public official in the event of other persons committing torture. To insert the element of consent would not be something difficult given that almost all of the elements composing the article are essentially the same with the one in CAT. When discussing this article, the government and the parliament could have agreed to insert that one missing element easily. However, it would be more difficult to ensure that the Draft will be adequately discussed and enacted in time, hopefully, by 2014. To give a brief political background, Indonesia will hold its General Elections in 2014. There are serious concerns whether the parliament and the government will take it up upon themselves to seriously discuss the Draft in 2013. All political parties will focus their attention to the 2014 General Election and may disregard the discussion of this Draft of Indonesian Criminal Code. Therefore, there is a strong reason to believe that the Draft will be neglected again. Notwithstanding the aforementioned political backdrop, this article does not aim to provide an analysis of what strategies the Indonesian civil society can utilize to advocate for the enactment of the Draft of Indonesian Criminal Code. Rather, this piece shall provide an examination of various interpretations of torture in the realm of international human rights law. To ensure a definition of torture in the new Criminal Code that is consistent with the one in CAT is materially important. However, when the definition is discussed in the parliament, one must be aware of different possible interpretations and various rationales behind the definition set forth in CAT. Thus, one will not just copy and paste the definition from CAT into the new Criminal Code, but will also consider various understandings of it. At the end of this article, it is expected that one can satisfactorily appreciate the adequacy of the definition of torture introduced in the Draft of the Indonesian Criminal Code. Assessing the CAT definition, one can see that torture has three key elements: 1. intentional act which results in severe pain or suffering; 2. conducted for specific purposes, such as to obtain information or as a form of punishment; 3. involves a public official (directly committed or by instigation, with consent, acquiescence, or acting in). Article 16 of CAT states that State parties must prevent other cruel, inhuman, or degrading treatment or punishment (other ill-treatment) which does not amount to torture, when such acts involve public officials as meant in point three above. This means that if a conduct fulfils element 4 Article 1 of the UN Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (CAT). 6 CAVEAT | November 2012-January 2013
  7. 7. number three above but only fulfils either element one or two; such conduct may be categorized as other ill-treatment. It is crucial to identify criteria to characterize torture and its difference with other ill-treatment because both have different legal implications, although there are same legal obligations that are applicable for both. Professor Sir Nigel Rodley and Matthew Pollard argue that there is compelling evidence of international law which require a State to undertake the following measures where torture has taken place5: undertake an effective, prompt and thorough, investigation6; bringing perpetrators to justice7; provide the victims with reparation8; no information obtained by torture shall be used before the administrative or court proceedings9; and duty of non-refoulement10. The following sections shall explore different interpretations of torture as found in international law. On severe pain or suffering Rodley and Pollard classify variations of this element into three categories, regardless of its degree of severity11: 1) The cumulative approach. Combination or accumulation of various methods may constitute torture without distinguishing whether or not each particular method can be regarded as torture.12 2) Acts recognized as torture in and of themselves. Several acts have been recognized as methods of torture by various authoritative or judicial human rights bodies, for example: falanga13 and rape.14 3) Psychological torture. Severe psychological violence may be categorized as torture.15 Rodley and Pollard also cluster three approaches in observing the degree of pain or suffering to be considered as torture16: a. The first approach is what is called “severe-plus” approach. This approach constructed a vertical scale of severity of pain with inhuman treatment requiring a “severe suffering” 5 Nigel Rodley and Matthew Pollard, The Treatment of Prisoners under International Law 3ed. (OUP, Oxford 2009), p. 147. 6 Article 13 of the CAT; and Article 8 of the Inter-American Convention to Prevent and Punish torture (IACPPT). 7 General Comment No. 20 of the UN Human Rights Committee, paragraph 13. 8 Principles on Right to a Remedy (UNGA Res.60/147,16/12/2005); and Article 14 of the CAT. 9 Article 15 of the CAT. See also P.E. v. France, CAT Committee, CAT/C/29/D/193/2001, 21/11/2002, para. 6.3 and 6.6; and G.K. v. Switzerland, CAT Committee, CAT/C/30/D/219/2002, 7/5/2003, para. 6.10 and 6.11. 10 Article 3 of the CAT; Chahal v. UK, European Court of Human Rights (ECtHR), judgment dated 15 November 1996. The first three are applicable both to torture and other ill-treatment, while the latter two, according to the CAT, are only, written explicitly, applicable to torture. 11 Rodley and Pollard, pp. 92-98. 12 See Aydin v. Turkey, EctHR, judgement dated 25 September 1997; Akkoc v. Turkey, EctHR, judgment dated 10 October 2000; Tibi v. Ecuador, Inter-American Court of Human Rights (IACtHR), judgment 7 September 2004; Prosecutor v. Kvocka et.al., International Criminal Tribunal for the former Yugoslavia (ICTY), judgement dated 2 November 2001. 13 See the Greek Case (1969), 12 Yearbook of the European Convention on Human Rights. 14 See Aydin v. Turkey; Miguel Castro-Castro Prison v. Peru, IACtHR, judgment dated 25 November 2006; Prosecutor v. Furundzija, ICTY, judgment dated 10 December 1998. 15 See Estrella v. Uruguay, CCPR/C/22/D/D/124/1982, 25 March 1983. 16 Rodley and Pollard, pp. 98-99. CAVEAT | November 2012-January 2013 7
  8. 8. threshold and torture requiring “aggravated” degree of suffering more than “severe” inhuman treatment. This view first arose from European jurisprudence17 (Greek case and Northern Ireland case). In the latter case, the European Court of Human Rights (ECtHR) considers that five technique of interrogation committed by the United Kingdom did not amount to torture but constituted inhuman and degrading treatment.18 The Court’s view was different with the view of the European Commission on Human Rights19, which sought that such techniques constituted torture. Legal implication of this approach is that it may be difficult to punish the perpetrators whose acts have caused severe pain or suffering, but because such acts have not reached an aggravated level of pain, it cannot be interpreted as torture. Given that torture is a serious human rights violation and it carries the status of jus cogens, higher threshold, on the one hand, is required so that not every act can be considered as torture. However, a narrow interpretation, on the other hand, may drive perpetrators to commit acts that result in “just” severe pain without having to worry that they will be prosecuted for torture insofar those acts do not result in an aggravated pain. b. Second approach is that based on the CAT definition and modern jurisprudence, what Rodley and Pollard called as “severe-minus” approach. As quoted above, CAT “only” requires “severe” pain or suffering for an act to amount to torture. This view is adopted in Selmouni v. France.20 The ECtHRstates that “certain acts which were classified in the past as ‘inhuman and degrading treatment’ as opposed to ‘torture’ could be classified differently in the future.” In this case, beatings that have been experienced by Selmouni were interpreted as torture – something that may be construed as inhuman and degrading treatment in the past following Northern Ireland jurisprudence. This case has shifted the ECtHR’s paradigm in interpreting torture. Since Selmouni v. France, the ECtHR seem to adopt this approach firmly and interpret torture as “severe pain and suffering”.21 In Furundzija and Kunarac, the ICTY did not qualify torture as an aggravated form of inhuman treatment, while in Brdanin, the ICTY Trial Chamber referred to “aggravated” language to distinguish torture from other inhuman treatment.22 However, the Appeal Chamber applies the definition of torture as set forth in CAT and did not refer to the Trial Chamber’s approach in interpreting torture.23 The CAT Committee, for obvious reasons, follows the definition of torture as enshrined in CAT.24 The legal implication of this second approach in proving that torture has occurred 17 Ibid., p. 98. 18 ECtHR’s view that torture is an aggravated form of severe pain or suffering of cruel and inhuman treatment was held in Tomasi v. France (1992), Ribitsch v. Austria (1995), and Tekin v. Turkey (1998). 19 Ireland v. UK (Commission), para. 794. 20 ECtHR judgment dated 28 July 1999. 21 See Elci and Others v. Turkey, ECtHR, judgment dated 13 November 2003, where four applicants suffered severe pain and suffering and were regarded as torture. See also Kemal Kahraman v. Turkey, ECtHR, judgment dated 22 July 2008. 22 Prosecutor v. Brdanin, ICTY Trial, judgment dated 1 November 2004. 23 Brdanin, ICTY Appeal, judgement dated 3 April 2007. 24 See General Comment No.2 of the CAT Committee, para.10: “...in comparison to torture, ill-treatment may differ in the severity of pain and suffering and does not require proof of impermissible purposes.” See also Ali Ben Salem v. Tunisia, CAT Committee, 7 November 2007; and Saadia Ali v. Tunisia, CAT Committee, 21 November 1998, where the Committee finds that severe pain and suffering constitutes torture. 8 CAVEAT | November 2012-January 2013
  9. 9. is to show that the degree of pain or suffering has reached the level of “severe” without having to reach “aggravated” level – which is relatively easier if compared with the first approach. c. “The purpose only approach.”According to this approach, cruel and inhuman treatment also reach the same degree of severity as torture, but views that the purposive element is the main distinguishing factor between torture and cruel and inhuman treatment. Manfred Nowak and Elizabeth McArthur25 argue that although severity of pain and suffering is one of the main elements that constitute torture, the key characteristic that distinguishes torture from cruel and inhuman treatment is the purposive element. Nowak also proposed this approach during his tenure as Special Rapporteur on Torture.26 The purposive element of torture may include, inter alia, obtaining information or confession. Further analysis shall be provided below. On purposive element A number of international and regional human rights instruments have noted thepurposive element as one of the elements of torture27, and judicial practices28 have also shown that purposive element is the main distinguishing factor to qualify an act astorture. In Selmouni v. France, the ECtHRargues that “the pain or suffering was inflicted on the applicant intentionally for the purpose of, inter alia, making him confess to the offense which he was suspected of having committed.”29Rodley and Pollard are of the view that such statement is “a clear articulation of the relevance of the purposive element” in the ECtHR’s jurisprudence. However, this does not seem to be the case for the UN Human Rights Committee (HRC) thattends to refrain from articulating the difference between torture and other ill-treatment.30 According to the HRC the distinction between both depends on “the nature, purpose and severity of treatment”.31 Meanwhile, as mentioned above, in his capacity as Special Rapporteur on Torture, Nowak stresses the purposive element as the decisive criterion to distinguish torture fromother ill-treatment.32 The Inter-American Convention to Prevent and Punish Torture (IACPPT) provides a slightly different definition of torture from the one articulated in CAT.33 Unlike CAT, which provides that severe pain or suffering can amount to torture, the IACPPT recognizes that torture does not have to be severe. Further, the IACPPT also states that even if an act does not cause “physical pain or mental anguish”, it can be interpreted as torture so long as “the use of methods upon a person 25 See Manfred Nowak and Elizabeth McArthur, “The distinction between torture and cruel, inhuman or degrading treatment” (2006) 16 Torture 3, pp.147-151; and Manfred Nowak, “What Practices Constitute torture?: US and UN Standards” (2006) 28 Human Rights Quarterly, pp. 809-841. 26 See Chapter IV, UN Doc.E/N.4/2006/6. 27 Article 1 of the CAT, Article 2 of the IACPPT, Article 8 para (2) letter (a) (ii) and 8 para (2) letter (c) (i) of the Rome Statute. 28 See for example Aktas v. Turkey, ECtHR, judgment dated 31 January 2008, para. 313; Aydin v. Turkey, para. 195; Ilhan v. Turkey, ECtHR, judgment dated 9 November 2004, para. 85. 29 Para. 98. 30 Rodley and Pollard, p. 118. 31 General Comment No.20 of the Human Rights Committee, para. 4. 32 UN Doc.E/N.4/2006/6, para. 39. Nowak and McArthur state that “the requirement of a specific purpose seems to be the most decisive criterion which distinguishes torture from cruel or inhuman treatment.” See Nowak and McArthur, United Nations Convention against Torture: A Commentary (2008), p. 74. 33 See Article 2. CAVEAT | November 2012-January 2013 9
  10. 10. intended to obliterate the personality of victim or to diminish his physical or mental capacities.” This definition provides a lower threshold for an act to be regarded as torture because it does not require severity of pain or suffering and even “just” physical or mental pain, insofar such act is intended to break down victim’s personality.34 It may be inferred that the IACPPT considers purposive element to be a determining factor of torture instead of the degree or pain or suffering. In line with Nowak’s view and the IACPPT approach, the Inter-American Court of Human Rights also deems that the purposive element is a crucial element for an act to constitute torture and distinguishes it from other ill-treatment.35 Meanwhile in the African human rights system, it appears that the African Commission on Human and Peoples’ Rights does not provide interpretation on the hierarchy of the degree of pain or suffering. This is so because they tend to decide cases as violation of Article 5 of the African Charter on Human and Peoples’ Rights (ACHPR) instead of determining whether an act is a specific violation of torture or other ill-treatment as mentioned in the Article 5.36 Under the international criminal law, the Rome Statute provides torture as part of crimes against humanity as well as torture as a war crime. Torture as a crime against humanity requires infliction of “severe physical or mental pain or suffering”, and no specific purpose is requisite – in addition to its “widespread and systematic” element.37 Meanwhile, as regards to torture as war crime38, torture requires severe pain or suffering as well as specific purpose, such as obtaining information.39 This purposive element of war crime of torture distinguishes it from the war crime of inhuman treatment.40 In practice, for example, in Kunarac case, the ICTY recognizes the purposive element of torture.41 The ICTY states that the fundamental difference regarding the purposes of torture is between “prohibited purpose” and “one which is purely private”. The former is usually already prohibited under the national law while the latter is not and is more “private”.42 However, such conduct can meet the purposive element of torture given that “purposive elements of intimidation, coercion, punishment or discrimination can often be integral components of behavior, thus bringing the relevant conduct within the definition.”43 In Furundjiza case, the ICTY, apart from recognizing the purpose of torture which is similar to the one that are described in CAT44, adds one more possibility for the purpose of torture as “humiliating the victim”.45 These judicial practices in the ICTY indicate that purposive element plays a central role in the notion of torture. If an act has reached severe pain or suffering, it may be categorized as torture or cruel and 34 Even the IACPPT provides broader scope of purpose which has wordings of “or for any other purpose.” 35 See Mejia v. Peru, IACtHR, judgment dated 1 March 2006, para.186-188; Cantoral-Benavides v. Peru, IACtHR, judgment dated 18 August 2000, para. 97; and Bamaca-Velasquez v. Guatemala, IACtHR, judgment dated 25 November 2000, para. 157-158. 36 See Murray, “The African Commission’s approach to prisons” in Jeremy Sarkin (ed.), Human Rights in African Prisons (HSRC Press, Cape Town 2008), p. 212. 37 See Art.7 para.2 letter (e) of the Rome Statute and Elements of Crime of the Rome Statute Art.7 para. 1 letter (f). 38 Article 8 para. 2 39 See Elements of Crime Article 8 para. 2 letter (a) (ii)-1. 40 Elements of Crime Article 8 para (2) letter (a)(ii)-2 for war crimes of inhuman treatment. Apart from the purposive element, both war crime of torture and war crime of inhuman treatment have the same elements. 41 Kunarac, ICTY Trial, judgment, para. 470-472. 42 Ibid., para. 471. 43 Ibid. 44 Furundjiza, ICTY Trial, judgement, para. 162. 45 Ibid. See also Brdanin, ICTY Trial Judgment, which states purpose of torture in the CAT is not an exhaustive list. 10 CAVEAT | November 2012-January 2013
  11. 11. inhuman treatment. Looking at the purposive element as the distinguishing factor will help to conclude whether or not torture has taken place. If the purpose of such act is to obtain information or confession or other reasons as stated in CAT, then torture has occurred. Conversely, if such purpose is absent, then the act does not amount to torture. This approach provides a simpler method to characterize torture. On perpetrators On the status of the perpetrator, CAT states that torture is “inflicted by, or at the instigation of or with the consent or acquiescence of a public official, or other person acting in an official capacity.”46 The IACPPT provides similar requirement that basically involves public officials.47 However, in contrast, international criminal law does not require particular status of perpetrator for torture.48 This difference is reasonable because “the characteristic trait of the offense in this context is to be found in the nature of the act committed rather than in the status of the person who committed it.”49 Although the status of the perpetrator is not specified, there are other elements required to prosecute perpetrators, for example, for torture to be regarded as a crime against humanity, it should be conducted as part of a widespread or systematic attack against a civilian population. The legal implication for this, Rodley and Pollard argue, is “to impose an analogous discipline in the selection of the accused.”50 I have now provided an examination of various interpretations of torture found in international law. I hope that this brief analysis is sufficient to assist us to attain a thorough understanding of torture. 46 Article 1. 47 See Article 3. 48 See Additional Protocol I of the Geneva Convention, Article 75 which states that torture shall remain prohibited whether committed by civilian or by military agents. See also Common article 3 of the Geneva Conventions; Article 7 (1) (f), 7 (2) (e), 8 (2) (a) (ii) and (b), 8 (2) (c) (i) and (e). 49 Kunarac, ICTY Trial Judgment, para. 495. 50 Rodley and Pollard, p. 91. CAVEAT | November 2012-January 2013 11
  12. 12. HUMAN RIGHTS, HIV, AND DRUG POLICY Assessing HIV Prevention Measures in Detention Settings By: Ajeng Larasati1 Background In 2006, it is estimated that 5,129 inmates in Indonesia are affected by HIV and AIDS, accounting for as much as 3% of the estimated total of people living with HIV and AIDS in the country.2 There is a growing concern of HIV transmission in prisons stemming from the relatively high percentage of AIDS-related deaths in prison. Although the overall mortality in prisons has decreased from 2007 to 2009, AIDS-related deaths have actually increased.3 A number of factors contribute to HIV transmission in prisons, including injecting drug use and high risk sexual encounters. Prison capacity is dominated by criminalized drug users, as indicated in many local newspapers during 2011-2012.4 Data from Directorate General of Correctional Institutions shows that, per December 2012, there are 22,128 inmates incarcerated for personal drug use.5 Evidence shows that drug users continue their behavior, including the injection of drugs, in prison. Apart from drug injecting behavior, sexual encounters, both between men (MSM) and heterosexual, are another factor contributing to HIV transmission. Lack of data notwithstanding, sexual encounters in prison is present, and when such encounters are unprotected, the threat of 1 Ajeng Larasati is Human Rights, HIV, and Drug Policy Reform Program Coordinator of Lembaga Bantuan Hukum Masyarakat (LBH Masyarakat). 2 See picture no.2 on page 8 of the 2010–2014 National Strategic Planning of HIV Prevention Measure in Prison Setting, http://spiritia.or.id/Dok/RANDitjenpas2010-2014.pdf. 3 Compare box on page 15 about “Populasi Napi dan Tingkat Kematian” with box on page 16 about “Penyebab Kematian Napi danTahanan Tahun 2007–2008” on the 2010–2014 National Strategic Planning of HIV Prevention Measure in Prison Setting, http://spiritia.or.id/Dok/RANDitjenpas2010-2014.pdf. 4 Some of the news regarding the domination of drugs cases are: http://www.equator-news.com/radar-timur/sintang/20110907/napi-narkoba-dominasi-lapas, http://koran-jakarta.com/index.php/detail/view01/90941, http://waspada.co.id/index.php?option=com_content view=articleid=212138:6047-napi-narkoba-di-sumutcatid=14:medanItemid=27, http://www.metrojambi.com/v1/metro/14538-ingin-tahu-jumlah-napi-narkoba-di-jambi-ini-angkanya.html, accessed on 30 January 2013. 5 Indicated by ‘NKP’ for drug users, http://smslap.ditjenpas.go.id/public/krl/current/monthly/year/2012/month/12, accessed on 30 January 2013. 12 CAVEAT | November 2012-January 2013
  13. 13. HIV transmission increases. To address HIV transmission, the National AIDS Commission has launched the 2010-2014 National Strategic Plan on HIV and AIDS Treatment. The Plan places HIV prevention and treatment measures in prison settings as one of the priority programs.6 To complement the National AIDS Commission’s commitment, the Ministry of Law and Human Rights also launched its 2010-2014 National Strategic Plan for HIV Treatment in Prison Setting. The plan envisions that 149 prisons will have HIV treatment programs by the end of 2014.7 This article will focus on assessing the provision of HIV prevention and treatment programs in prisons. Based on its review of HIV treatment in prison at the practical level and a number of national and international regulations, this article aims to provide an overview of the current situation of HIV treatment in Indonesian prisons. It will further try to offer recommendations for the government on measures to address this issue by describing the key factors that has lead to the spread of HIV in prison settings. Risk Behavior of HIV Transmission High risk behavior for HIV transmission in prisons is often related with the use of unsterile needles to inject drugs and tattooing. As of December 2012, there are 439 prison settings across the country, with the total number of inmates, including those awaiting trial, reaching 150,768 persons.8 About a third of that number is drug offenders, including 22,128 inmates who were arrested for personal drug use.9 Although the use of drugs in prison is strictly prohibited, indications show that drug use continues to occur within prisons. This situation happens because the Indonesian government has fallen short in fulfilling the right to health of people who use drugs. Instead of referring them to or providing them with proper drug treatment facilities, people who use drugs are criminalized, and as a result are more likely to be imprisoned. Putting them in prison does not treat their addiction and contributes to continued drug use inside the prisons. For people who are dependent on drugs, addressing their medical needs is crucial.10 Drugs can be administered in several ways, including by injection and oral admission. Injection of drugs is the one believed to be the cause of high HIV transmission in prison. Although inmates who injected drugs in the past have the choice to shift to oral methadone intake, many continue to inject drugs. Given that Needle and Syringe Program in prison is not regulated, in fact, prohibited, 6 Prison setting in this article refers only to detention center and correctional facilities, including those under police authorities. 7 The 2010 – 2014 National Strategic on HIV Treatment in Indonesia, National AIDS Commission, p. 9, http://www. aidsindonesia.or.id/strategi-dan-rencana-aksi-nasional-penanggulangan-hiv-dan-aids-tahun-2010-2014. 8 Source: Directorate General of Correctional Institute, http://smslap.ditjenpas.go.id/public/grl/current/monthly/ year/2012/month/12, accessed on 30 January 2013. 9 Indicated by ‘NKP’ for drug users, http://smslap.ditjenpas.go.id/public/krl/current/monthly/year/2012/month/12, accessed on 30 January 2013. 10 See for example IDPC Briefing Paper on Drug Policy Ed.2, which described some evidence-based research of the needs of medical approach to drug addicts, http://dl.dropbox.com/u/64663568/library/IDPC-Drug-PolicyGuide_2nd-Edition.pdf. CAVEAT | November 2012-January 2013 13
  14. 14. drug paraphernalia11 in prison are, hence, outlawed. As a result, there is no facility to bleach used needles in prisons, and this contributes to worsen the situation. Another activity that also contributes to HIV transmission involving the use of needles is tattooing, where unsterile needle are likely to be used. Although not as significant in scale, tattooing does contribute to HIV transmission in prison. Apart from injecting drugs, another high-risk behavior that is allegedly common in prisons is unprotected sex. Like injecting drugs, the fact that sex in prisons occurs, with or without consent, is not denied either by former inmates or wardens.12 In late 2010, a short video exposing the commercialization of sex in prison was aired on one national television stations that caused a stir among the public and government authorities.13 Same sex practices in prison are also common. The lack or sometimes the utter absence of condoms makes the practice of unsafe sex, either same sex or not, contributing to HIV transmission in prisons. HIV Prevention Measures in Prisons: Current Situation The 2010–2014 National Strategic Plan for HIV Treatment in Prison provides that as many as 101139 prisons will be designated as priority prisons for HIV treatment programs.14 The programs include measures such as Opioid Substitution Therapy (OST); Voluntary, Counseling, and Testing (VCT); and Palliative Care, to name but a few. To qualify for the designation as priority prisons a number of things are considered, including whether or not the prison is located in the ten provinces with the highest AIDS prevalence.15 Under the Voluntary and Counseling Testing (VCT) program, inmates can get their HIV status checked, and get counseled in prison. Access to HIV testing is available in 45 priority prisons.16 In 2012, as many as 1,989 inmates were counseled and had their HIV status tested in prisons.17 Knowing one’s own HIV status is the first step that can help reduce HIV transmission, as one is hoped to act more responsibly and take precautions to not transmit the virus to other people. An example of apriority prison implementing the VCT program is Salemba Detention Center in Jakarta. Salemba Detention Center is a male detention center which located in Central Jakarta. The capacity of this detention center is only around 800 inmates. However, the current population per January 2013 is 3,200 inmates; with one third of the population are drug offenders.18 In the clinic inside the premises, inmates can counsel in confidence with a counselor, and without fear, in a specially designed counseling room. A former inmate testified that when they first enter the 11 Drug Paraphernalia refers to any equipment, product, or material that are modified for making, using, or concealing drugs, typically for recreational purposes. Needle, syringe, and hashish bongs are some of the example of drug paraphernalia. 12 See http://metropolitan.inilah.com/read/detail/1796884/URLTEENAGE#.UP_IgfI0iSo, accessed on 31 January 2013. 13 The video is entitled “Bisnis Seks di Balik Penjara” (“Sex Business inside Prisons”). 14 The 2010–2014 National Strategic Planning of HIV Prevention Measure in Prison Setting, p. 31, http://spiritia.or.id/ Dok/RANDitjenpas2010-2014.pdf. 15 Ibid., p. 31. 16 Ibid. 17 Ibid. 18 See http://www.republika.co.id/berita/nasional/hukum/13/01/22/mh0anr-kapasitas-rutan-salemba-pemicu-rusuh, accessed on 5 February 2013, and http://smslap.ditjenpas.go.id/public/krl/current/monthly/kanwil/db5c8f20-6bd11bd1-ae4c-313134333039/year/2013/month/1, accessed on 5 February 2013. 14 CAVEAT | November 2012-January 2013
  15. 15. prison, all drug offenders must pass a screening process. Methadone Maintenance Therapy (MMT), among the several options of Opioid Substitution Therapy (OST) treatment, is also available in prisons. MMT has been proven to be the most effective HIV prevention measure for people who inject opioids.19As of late 2008, only four prisons provided MMT, namely, Kerobokan Prison in Bali, Cipinang Narcotic Prison and Pondok Bambu Detention Center in Jakarta, and Banceuy Prison in Bandung.20 In 2012, this number has increased to nine priority prisons providing access to MMT.21 To show its seriousness in addressing the issue of HIV transmission in prison, the Directorate General of Correctional Institutions launched the Standard Operational Procedure for Methadone Maintenance Treatment in Prisons in 2007.22 The Ministry of Health records that by September 2012 as many as 180 inmates have been enrolled under MMT program.23 Although no clear evidence is available on how MMT has contributed to prevent HIV transmission in Indonesian prisons, in 2011the percentage of AIDS cases among injecting drug user among the general population has decreased to 16.3%. In 2006 this number was as high as 54.4%.24 This may suggest that MMT has brought about positive results, but in spite of that, the numbers are encouraging. Unlike risk behaviors arising from the use of unclean needles currently being addressed by the government, as elaborated above, risk behaviors from unprotected sex are yet to be systematically addressed. To date, only one prison clinic in all of Indonesia makes condoms available, namely, the clinic in Kerobokan Prison.25 It appears that the provision of condoms in Kerobokan prison was possible thanks to the discretion of the Head of Kerobokan Prison. The fact is that there is no regulation about the provision of condoms as part of harm reduction services in prison.26 In some prisons, condoms can be provided by prison staff upon request from the inmates, but inmates have to pay more than what condoms normally cost. There is also a stigma associated with the condom, and this further discourages inmates from accessing condoms for fear of being shamed. How Effective are HIV Prevention Measures in Prisons? There are many ways to assess the effectiveness of HIV prevention measures in prison. One such way is to review the rationales behind priority prison designations. Under the 2005–2009 National Strategic Plan on HIV Prevention Measures in Prison Settings, 95 prisons were designated as priority prisons for HIV prevention program.27 This number, along with the criteria for designating 19 The WHO, UNODC, UNAIDS Technical Guide for countries to set targets for universal access to HIV prevention, treatment, and care for injecting drug users mentioned OST as highly effective in reducing injecting behaviors that put injectors at risk for HIV (p. 6), https://www.unodc.org/documents/hiv-aids/idu_target_setting_guide.pdf. 20 The 2010–2014 National Strategic Planning of HIV Prevention Measure in Prison Setting, p. 23, http://spiritia.or.id/ Dok/RANDitjenpas2010-2014.pdf 21 Those nine prisons that have provided MMT are Lapas Klas I Cipinang, Jakarta, Lapas Klas II A Narkotika, Jakarta, Rutan Klas I Jakarta Pusat, Rutan Klas II A Jakarta Timur, Lapas Klas II A Pemuda, Tangerang, Lapas Klas II A Banceuy, Bandung, Rutan Klas I, Bandung, Rutan Klas I, Surabyaa, and Lapas Klas II A Kerobokan, Denpasar. 22 Lapas Klas II A Kerobokan, Lapas Klas I Cipinang, and Rutan Klas II A Jakarta Timur. 23 See Table H on the Ministry of Health’s Annual Report 2012, p. 44. 24 National AIDS Commission, Executive Report, p. 4, http://www.aidsindonesia.or.id/upaya-penanggulangan-hivdan-aids-di-indonesia-2006-2011.html. 25 Directorate General of Correctional Institute, ‘Kajian Kebutuhan LASS di Penjara’, 2010. 26 The provision of condom is not mentioned in the 2010–2014 National Strategic Planning of HIV Prevention Measure in Prison Setting. 27 Directorate General of Correctional Institute, ‘The 2010–2014 National Strategic Planning of HIV Prevention Measure in Prison Setting, p. 31, http://spiritia.or.id/Dok/RANDitjenpas2010-2014.pdf CAVEAT | November 2012-January 2013 15
  16. 16. priority prisons, was revised up in the 2010–2014 National Strategic Plan to 101–139 prisons in 25 provinces in Indonesia. The decision was based on the following criteria:28 1. A minimum prison population of 200 inmates, with at least 10% incarcerated for drug offences. 2. Prioritizing prisons in the top 10 provinces with highest AIDS prevalence. 3. Prisons prioritized under the GF-ATM program. The Directorate General of Correctional Institutions has listed 101 priority prisons spread across 20 provinces in Indonesia in the annex to the 2010–2014 National Strategic Plan. It is hard to try to criticize the selection of these 101 priority prisons as there is no comparison with other prisons in each province. The 20 provinces are West Java, DKI Jakarta, Banten, East Java, North Sumatera, Central Java, Riau Islands, Yogyakarta, Bali, West Sumatera, Riau Province, Bangka Belitung, Jambi, Lampung, South Sumatera, West Kalimantan, East Kalimantan, South Kalimantan, South Sulawesi, and West Nusa Tenggara.29 From the specified criteria, one can infer that the HIV prevention measures in prisons seem to be driven by harm reduction approach for injecting drug use. The first criterion specifies that the selection for priority prison designation requires that 10% of the prison population is drug offenders. This policy could reflect the trends of HIV transmission in the general population. By June 2009, AIDS cases among injecting drug users were still high. However, even in June 2009, the highest number of AIDS cases still occurred among the heterosexual group. This indicates that the highest mode of HIV transmission might no longer be through needle/injection, but through sexual encounters. As such, the 2010–2014 National Strategic Plan has become outdated now because the Directorate General of Correctional Institutions did not take any measures to anticipate the rise of new HIV infections through sexual transmission and accommodate HIV prevention on the basis of sexual transmission. Apart from reviewing the above rationales, one can also assess the effectiveness of HIV prevention measures in prisons by comparing between targets and reality. In annex 1 of the 2010–2014 National Strategic Plan on HIV Prevention in Prisons, the government has set targets for each HIV prevention measure. For instance, by end of 2012, 65 priority prisons are set to have VCT program for inmates, and 12 priority prisons will have access on HIV and Opportunistic Infection prevention material. When these targets are compared with the current reality, one can clearly see that they are yet to be accomplished. By 2012, only 45 priority prisons have VCT programs. For MMT program, the target was that by 2014 seventeen priority prisons will have the program available for inmates. No information is available as to which prisons will be the 17 priority prisons for MMT (ideally, it should be those with the highest number of drug user inmates). Notwithstanding the fact, the government must make sure that the provision of MMT is not only made available in prisons, it must also be accessible in an adequate manner. Problems about the availability of doctors and medical staff, space, and facilities are also important to address. The government must also anticipate problems stemming from administrative issues, such as those pertaining to relocation 28 There is another criterion, which is related with Balai Pemasyarakatan. Because this article concern on prison setting in terms of detention centre and correctional facilities, this last criteria is not put in the criterion list. 29 See Annex 2 of the 2010–2014 National Strategic Planning of HIV Prevention Measure in Prison Setting, pp. 77 – 78. 16 CAVEAT | November 2012-January 2013
  17. 17. of inmates. This is important to note bearing in mind the overcapacity of prisons, especially in big cities like Jakarta, Denpasar and Tangerang. These are likely to be prisons that have MMT services available. However, there is likelihood that during inmate transfers, some inmates who are MMT patients may be relocated to other prisons that may not have MMT services. In such events, the inmate will likely suffer from withdrawal symptoms again. The fact that HIV prevention measures in prisons appeared to be based on harm reduction approach might be the reason for why it does not cover condom provision. In many developing countries, the need to have sexual encounters is facilitated by the provision of conjugal visits.30 Unfortunately such right is unrecognized in Indonesian prisons. Although the space for conjugal visits sometimes exists in practice in Indonesian prisons, they are not legally provided. Moreover, in practice, sexual encounters also take place between inmates within same prison, which, not coincidentally, are same sex encounters.31 Both such sexual encounters pose a risk of HIV transmission when they are conducted without protection. The provision of condoms in prison is, therefore, critical. However, providing condoms in prison is not merely about making condoms available. It also means that there should be an enabling environment for inmates to access condoms, or other types of HIV prevention measures, and that they are not stigmatized. As long as stigma is present, and is not effectively addressed, condom provision would be a useless program, as inmates who need condoms will be discouraged to access it. Thus, a program aimed at reducing stigma of accessing condoms is needed along with condom provision program. One final note to consider in this context is that there is a striking absence of prisons in Papua on the above top-ten priority list. Not a single prison in Papua has HIV prevention programs, despite the fact that Papua ranks fourth as a place with the highest number of AIDS cases.32 If the approach of HIV prevention in prisons is limited only to HIV transmission through injecting drug use, this may explain why Papuan prisons are not on the list, because HIV transmission risk in Papua is mainly through sexual encounters. If the above assumption holds true, it will confirm that the Indonesian government undertakes a rather half-hearted policy. It is correct to address the 10 provinces with the highest AIDS prevalence. However, focusing only on HIV transmission through injecting drug use, and not addressing the sexual transmission of HIV leaves open a huge risk, particularly considering the current fact that sexual transmission is the number one mode of HIV transmission. Recommendations During his visit to Indonesia in late 2012, Michael Sidibe, the Executive Director of UNAIDS, appreciated the HIV prevention treatment in Indonesian prisons. During his visit to Cipinang Narcotic Prison, he appreciated the Indonesian government’s innovation for its remarkable harm reduction intervention program in prisons. It is true that the provision of VCT and OST in prisons is a major step by the Indonesian government. It shows how serious the government is in quelling 30 Some of these countries are Australia : http://www.nzherald.co.nz/world/news/article.cfm?c_ id=2objectid=10577199, Canada, Spain, Belgium : http://news.bbc.co.uk/2/hi/uk_news/812165.stm, and New York: http://www.nydailynews.com/new-york/conjugal-visits-allowed-inmates-partners-same-sex-marriages-civilunions-article-1.114818. 31 See the ‘Kajian Kebutuhan LASS di Penjara’, Directorate General of Correctional Facilities, 2010, pp. 19–20. 32 See Graphic 7 on the Ministry of Health’s Annual Report 2012, http://www.aidsindonesia.or.id/laporan-kementeriankesehatan-triwulan-iii-tahun-2012.html. CAVEAT | November 2012-January 2013 17
  18. 18. HIV transmission in prisons. However, whether inmates can meaningfully access HIV prevention measures in prison is another issue to address. It is not just about the availability that matters, but also accessibility and quality. In addressing the root cause of HIV transmission through injecting drug use, the government may need to consider decriminalizing personal use of drugs. This could, at least, solve two problems. The first is the overcapacity problem. Drug offense dominates the percentage of crimes committed in Indonesia, consequently swelling the number of inmates sent to prison. Decriminalizing personal use will indirectly address the overcapacity problem. Second, assuming that inmates who inject drugs have already been doing so prior to imprisonment, decriminalization of personal use will contribute to the reduction of the use of drugs in prison, including those who inject it. Although it may seem like an encouragement to use drugs, there is much evidence that decriminalization does not actually increase drug use.33 Decriminalizing personal drug use might also help reduce the percentage of drug use among inmates. However, it may not guarantee that there will be no inmates using drugs in prison. Therefore, other HIV prevention measures are critical to be undertaken. The provision of MMT has to be expanded and scaled–up. It is hoped that more inmates are encouraged to access MMT, and therefore the facilities and resources have to be available. Problems that might arise from the relocation of an inmate must also be addressed by the government. The government, perhaps, would also like to consider implementing NSP in prisons. In 2010, Directorate General of Correctional Institute of the Ministry of Justice and Human Rights conducted a study regarding the controversy of the idea of NSP provision in prison. The results were balanced in terms of those who support or reject it. Many of the respondents in the study acknowledge the practice of injecting drugs in prisons. Having NSP, therefore, might be an effective way to reduce the HIV transmission rate. On the other hand, some respondents are concerned that the provision of NSP will, somehow, encourage the use of drugs in prisons. As the result of the study, recommendations have been given to the government on how NSP can be best implemented in prison. One of the recommendations is to set a policy support from the Directorate General of Correctional Institutions, especially in terms of communicating the provision of NSP to the inmates as well as to the greater society.34 Notes: Lapas is the Bahasa Indonesian term for Correctional Institute, while Rutan is the Bahasa Indonesian term for Detention Center. 33 See the following publications, among others, that highlight the success of decriminalization of drugs: http://www. release.org.uk/downloads/publications/release-quiet-revolution-drug-decriminalisation-policies.pdf, http://www. forbes.com/sites/erikkain/2011/07/05/ten-years-after-decriminalization-drug-abuse-down-by-half-in-portugal/, and http://www.huffingtonpost.com/ernest-drucker/decriminalization-of-drug_b_1656045.html. 34 See Directorate General of Correctional Institute, ‘Kajian Kebutuhan LASS di Penjara’, 2010. 18 CAVEAT | November 2012-January 2013
  19. 19. FROM OUR ARCHIVE Indonesian National Narcotic Board: In Between Enforcing Drug Laws and Fabricating Cases By: Muhammad Afif Qayim and Ricky Gunawan1 Background In its 2012 year end press release, the Indonesian National Narcotic Board (BNN) stated that 71 drug offenders have been sentenced to death in Indonesia. Twenty of them are Indonesian nationals while the remaining 51 are foreigners.2 One Indonesian national who was on death row for drug offense is Meirika Franola or also known as Ola. President Susilo Bambang Yudhoyono gave clemency to Ola in 20113and commuted his sentence from death penalty to life sentence. The clemency given to Ola appears to be no longer valued when BNN exposed drug trafficking that dragged Ola again. Ola’s name came up again when West Java BNN provincial office arrested a woman, Nur Aisyah, in Bandung, October 2012. When questioned, Aisyah named Ola as being part of the trafficking ring and that Ola controlled the trafficking from inside prison.4 Clemency to Ola then triggered a huge debate in Indonesia. On the one hand, it seems that the death penalty (which was then commuted to life sentence in Ola’s case) does not carry the intended deterrent effect. On the other hand, it appears that the President has handed down a wrong decision. In separate operations carried out by BNN on drug trafficking controlled from inside the prison, there are seven other death row convicts who allegedly control drug dealing from prisons. On 27 November 2012, BNN “arrested” and transferred seven death row convicts from Nusakambangan Correctional Institute, Central Java to Jakarta. One of the seven people is Humphery Jefferson Ejike, also known as Jeff. Jeff was “arrested” by BNN as he was accused of being involved in the drug trafficking case of Brenda Mugathia (Kenyan national) and Yusnita Dewi (Indonesian national). LBH Masyarakat found out the information about Jeff’s “arrest” by BNN from online 1 Muhammad Afif Qayim is an advocacy staff at LBH Masyarakat. Ricky Gunawan is the Program Director of LBH Masyarakat. 2 BNN’s 2012 year end press release, pp. 16-17. 3 http://www2.tempo.co/read/news/2012/11/19/063442539/Kata-BNN-Soal-Grasi-Ola, accessed on 15 Januari 2013. It is stated in the news that President Susilo Bambang Yudhoyono gave clemency to Ola on 26 September 2011. 4 Ibid. CAVEAT | November 2012-January 2013 19
  20. 20. media.5 In the media, BNN stated that Jeff was arrested because he was mentioned by Brenda who had been arrested earlier in West Jakarta as well as by Dewi who had been arrested in Depok, West Java, on 13 September 2012. Both were caught with 97 capsules shabu-shabu, or approximately 1,250 grams.6 BNN said that, according Brenda and Dewi, Jeff had ordered both of them to traffic drugs via his mobile phone from Nusakambangan Correctional Institute. LBH Masyarakat conducted an investigation to confirm Jeff’s involvement as the main actor in this drug trafficking operation involving Brenda and Dewi as accused by BNN. Based on LBH Masyarakat’s investigation, it is found out that the person who ordered Brenda and Dewi was Koko.7The name Koko is on BNN’s List of Wanted Persons (LWP). Without any information about who Koko is, BNN concluded that Jeff is Koko, as stated in their LWP, who controlled drug trafficking by mobile phone from inside prison.8 Jeff was then made as a suspect by BNN. Obviously, BNN’s accusation of Jeff’s involvement in drug trafficking in the case of Brenda and Dewi, and that Jeff is also identified as Koko, cannot be accepted as truth without a comprehensive examination and convincing evidence to support such allegation. It cannot simply be claimed that Koko, as mentioned in Brenda and Dewi’s case, is indeed Jeff. Indications that BNN Violates Human Rights If we take a closer look, the timing of the “arrests” of seven death row convicts in Nusakambangan Correctional Institute was not too long after the time Ola was mentioned by another suspect as the actor who controls drug trafficking from inside prison. One may suspect that BNN’s efforts to expose Ola’s involvement and “arrest” seven drug offenders who were already on death row is BNN’s getting into panic mode, where they seem to be infuriated in response to President’s clemency to Ola, which also created a huge public outrage. Fearing that the so-called “war on drugs” may be weakened by that clemency, BNN appears to be attempting to show that all drug offenders continue to control drug trafficking from inside prisons. In that panic mode, BNN’s efforts to expose illicit drug trafficking brings to question whether such efforts have been undertaken professionally and in accordance with human rights standards. In Jeff’s case for example, some human rights violations have occurred: a. Jeff’s access to legal representation was hindered. This is a violation of Articles 54-57, and 59 of the Indonesian Criminal Procedure Code (KUHAP); Article 14 paragraph (3) letter (b) and (d) of the International Covenant on Civil and Political Rights (ICCPR), which has been ratified by Indonesia through Law number 12 year 2005; Principles 17 and 18 of the UN Body of Principles for the Protection of All Person under Any Form of Detention or Imprisonment; and Principles 3 and 7 of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. b. Jeff was not promptly informed of his charges in a language that he understands. This is a violation of Article 51 of KUHAP; Articles 9 paragraph (2) and Articles 14 paragraph (3) 5 http://www.metrotvnews.com/metronews/newsvideo/2012/11/27/165159/BNN-Cokok-Napi-NusakambanganOtak-Peredaran-Narkoba/1, accessed on 28 November 2012. 6 http://megapolitan.kompas.com/read/2012/11/28/15104694/97.Kapsul.Isi.Sabu.di.Depok.Milik.Napi. Nusakambangan, accessed on 28 November 2012. 7 http://www.seputar-indonesia.com/news/7-aktor-narkoba-dari-nusakambangan, accessed on 21 Januari 2013. 8 Based on Indictment Letter number PDM-14/Depok/11/2012 of Yusnita Puspita Dewi, dated 28 November 2012. 20 CAVEAT | November 2012-January 2013
  21. 21. letter a of the ICCPR; Principles 10 and 12 of the UN Body of Principles for the Protection of All Person under Any Form of Detention or Imprisonment; Principle 8 of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. c. Jeff was not allowed to receive visits from his church friends. This is a violation of Articles 60, 61 and 63 of KUHAP; Article 16 number 1 and Article 19 of the UN Body of Principles for the Protection of All Person under Any Form of Detention or Imprisonment. Jeff was isolated from communicating with the outside world (also known as incommunicado detention), that can be categorized as one of the most serious human rights violations, because in situation like this, the risk of torture and other ill-treatment is very high. This is a violation of Article 9 of the ICCPR; Articles 15 and 19 of the UN Body of Principles for the Protection of All Person under Any Form of Detention or Imprisonment. LBH Masyarakat fully respects BNN’s role as the leading agency in eradicating illicit drug trafficking and supports its efforts to do so. However, as a human rights organization, LBH Masyarakat strongly believes that such efforts have to be undertaken in conformity with the human rights standards. Therefore, LBH Masyarakat hopes that BNN, in undertaking its tasks and in the exercise of its authority, is guided by international human rights standards. However, what is happening at the moment, Jeff is accused of involvement in drug trafficking as well as controlling it from inside prison despite no convincing evidence to support the allegation. This is not the first time Jeff has suffered from unjust treatment. Before, Jeff was sentenced to death by the Central Jakarta District Court in 2003 on a racially-biased consideration in the verdict which explicitly mentioned that he is black and a Nigerian national. Allegation of Case Fabrication From the beginning, BNN has never provided clear information regarding the identity of Koko. Clear information of Koko’s identity is important to avoid wrongful arrest against Jeff or anyone else. Because, it could be that the identity of Koko who is perceived by BNN will be addressed to an innocent person. If that is the case, BNN would have wrongly arrested a person and this person may have undergone an unjust legal process. This may amount to case fabrication – where a noncase becomes a case. As explained in the Black’s Law Dictionary, to fabricate means “to invent, forge or devise falsely.” It can be loosely interpreted that case fabrication is an attempt to create, forge or falsely devise a case.9 Such efforts undermine the objective that the law enforcement agencies had set out to achieve. Additionally, if we are to accept the lies made by law enforcers, not least police or BNN, despite arguments about the greater public good, we may be more lenient in accepting other misconduct by law enforcers, though next time it could be on a bigger scale. A legal system, which is supposed to be built on integrity, will be corrupted by these acts, and ultimately it is the society who bears the injury caused by the tainted legal system.10 BNN’s Information as the Single Truth? There have been many reports of how BNN has managed to expose drug trafficking operations controlled from inside prisons. For example, a case in Kerobokan Correctional Institute, Bali, in 9 Ricky Gunawan, “Putusan Ket San: Menelusuri Fenomena Penjebakan Dalam Kasus Narkotika” (Ket San’s Decision: Tracing the Phenomenon of Entrapment in Drug Cases), Dictum, Ed.1- October 2012, LeIP, p.20. 10 Ibid, p. 21. CAVEAT | November 2012-January 2013 21
  22. 22. mid of 201111 and another one in October 2012, when BNN exposed drug trafficking from prison that implicated Ola.12 The most recent one is, of course, the seven drug offenders already on death row who were “arrested” in Nusakambangan Correctional Institute and taken to Jakarta. From these cases, there are some notable points: 1. This phenomenon indicates that death penalty does not deter people from drug trafficking. 2. The effectiveness of both BNN and correctional institutes in eradicating illicit drug trafficking has to be questioned. Assuming that those inmates really control drug trafficking from prisons, one has to question why such cases recur frequently. Are there any evaluation mechanisms about sentencing those who are convicted of drug trafficking? 3. It seems that BNN is bent on demonstrating that clemency to drug traffickers, as in the case of Ola, is a wrong decision – irrespective of substantive facts of the case. This is precarious because every convict, no matter the crime, has the right to request clemency. Assuming that they have reasonable and justified grounds to request for clemency, any campaigns or actions to deny them from doing so is not acceptable. 4. In regard to point three above, it also appears that BNN intends to block approval of clemency for those death row convicts even if they may actually be genuinely innocent, or, perhaps, have been wrongly or unjustly convicted, as in the case of Jeff. This way, when someone like Jeff does file a request for clemency, the President is already conditioned to reject his request because of the case involving such persons. If Jeff did control drug trafficking from prison, the President may have strong grounds to reject Jeff’s request for clemency. But if the case involving Jeff is fabricated and the President is not aware of it, rejecting Jeff’s request for clemency is utterly deplorable. There is another interesting fact that can be further elaborated. Exposing illicit drug trafficking syndicates controlled from inside prisons is obviously pertinent to BNN’s role as the leading agency in eradicating drug trafficking. Because of their work, BNN will by default be the reference or resource information for the media. Interestingly, any information presented by BNN seems to be accepted wholly as a single truth, and rarely verified or questioned as truth. The risk here is that the public is prone to be less critical in finding the truth behind every case, swallowing whatever piece of information is fed to them by BNN. In situations like this, BNN can exploit misguided public support to legitimize any action in exposing illicit drug trafficking. Worse, when BNN pursues its objectives aggressively, the public actually endorses it. In Jeff’s case, BNN accused him as Koko. Brenda and Dewi mentioned the name of Koko, but whether Jeff and Koko are the same person has never been corroborated. It is important that BNN proves Koko’s identity first and then proceeds to match it with Jeff’s to prove that Jeff is indeed Koko, not the other way around. BNN’s use of blind public support to legitimize their action cannot be tolerated. Against this backdrop, media’s role to oversee state’s power is crucial. This is in line with the principle of a democratic state, which underscores the importance of journalistic freedom. Journalistic freedoms ought to be utilized to protect public interest, in this case, the protection of human rights. In any news reportage, not least in exposing drug trafficking, the media must not 11 http://news.detik.com/read/2011/06/27/123617/1669405/10/gubernur-bali-lp-kerobokan-sarang-narkoba-sudahsinyalemen-lama?9911032, accessed on 21 Januari 2013. 12 See http://news.okezone.com/read/2012/11/06/339/714507/redirect, accessed on 21 January 2013. 22 CAVEAT | November 2012-January 2013
  23. 23. neglect the principle of ethical journalism: cover both sides. This value stresses the importance of inquiring information from two different or contradictory parties. It would be very useful if the media can scrutinize the accuracy of information provided by BNN so that every bit of information conveyed to the public can be held accountable. Conclusion Violations of law and human rights in drug law enforcement are not uncommon. One such example is the case of Jeff, a Nigerian citizen who was arrested and sentenced to death on racially prejudiced grounds and whose trial ignored comprehensive evidence and examination. This situation could have been avoided if the investigation and prosecution were carried out in a professional manner, respecting the rule of law and human rights. The effects of improper conduct that goes unchecked at the investigation level will extend into trial. If hearings are conducted based on incorrect evidence and there is no redress to rectify the situation, it can amount to a miscarriage of justice. It looks like Jeff will experience another case fabrication in connection the case of Brenda and Dewi – where BNN accuses Jeff as Koko and Koko’s identity has never been clearly revealed. BNN must put a stop to case fabrication. If this practice continues, the drug law enforcement conducted by violating laws and human rights will undermine and delegitimize the objective of law enforcement itself. In the end, this piece is not just about Jeff who is on death row. It is but one example to accentuate the practice of drug law enforcement that often is grounded on violation of laws and human rights. Such violations will result in an extremely fatal outcome if the enforcement ends up in an actual execution of the death sentence. It is human life that ultimately suffers the consequences. If human life is toyed with as if it has no value, our civility and respect of humanity must be seriously questioned. CAVEAT | November 2012-January 2013 23
  24. 24. A LETTER F R O M JEMBER Drug Users Are not Society’s Trash Dear friends, My memory goes back to my time in Jakarta some months ago. In July 2012, with few other students from University of Jember, East Java, I visited LBH Masyarakat Jakarta Office as part of Jember Holiday Internship 2012. One of my memorable experiences was when I went to Tebet Puskesmas (Community Health Centre) where the Methadone Treatment Centre is based. I came there to meet people who use drugs who are undertaking methadone therapy as to treat their drug addiction. Speaking of drugs, it is actually not a new topic for me. Since I was a kid, my parents had always told me that I should keep away from drugs. Drugs are something that we have to fight. Drugs are dangerous; it is illegal, as well as a sin, if we use it. Such thought is common in the society too, and it has created a bad stereotype of drug users. Most members of the society see drug users as sinners. The term “sampah masyarakat” (society’s trash) is a common label for drug users. This stigma also terrified me. “What should I do if I face drug users?” Such a question haunted my mind when I was told that I had to visit Tebet Puskesmas to meet with drug user community there. Coming to the community preoccupied with prejudice and then see the reality was an eye-opening experience for me. It was memorable in a sense that my heart and mind struggled to overcome my fear. At that time, I was a second year law student. I was already familiar with the concept of human rights. However, I have to admit that I did have the prejudice of seeing other human beings as trash and I, therefore, did not want to interact with them. It would seem discriminatory of me. Discrimination in this sense to me seemed as a form of human rights violation. In theory, it may seem easy to understand that we should not discriminate other people. But, in practice, even for someone like me who is aware of the issue of human rights, it was difficult to dispose of such stigma and prejudice. That day, I still remember how conversing with drug users a nerve-racking interaction was at first. However, it turned out to be an exciting talk. Often, I raised my eyebrows, fascinated by how ridiculous they could be when they share their stories. It became more interesting when we started to discuss about their legal problems. My first encounter with drug user communities was truly a memorable experience. 24 CAVEAT | November 2012-January 2013
  25. 25. First experience is a crucial start A few months later, I had another opportunity to interact with drug user communities. This time it looked more frightening for me. My first encounter in Jakarta was just meeting and discussing their legal problems. But this time, I had to provide information on legal issues and become a facilitator in a paralegal training for drug users. That training took place in Malang and Pasuruan, both in East Java. When I got the offer, I immediately accepted it, as though I have already forgotten of my first experience of being preoccupied with fears. With Wanda, a colleague from LBH Masyarakat Jember Office, I participated in this training as one of the resource persons and a facilitator. Although I was excited at first in accepting the offer, as I went on my way to the training venue, my fears returned. Speaking in front of lay people is difficult, but it is manageable. This one, it was different. I was worried that I could say bad things to them – stigmatizing them instead of providing them with correct information on their legal rights. I was afraid that my mind would be occupied with prejudicial thoughts and I would descend into lecturing them about “morality”. To make things worse, Dhoho Ali Sastro, our Director, said that he would not accompany us in that training. That made me worries even more. To calm my nerves, we discussed the trainings topics on our way. Once we arrived in Malang, the organizers from East Java Action (EJA) – a local NGO working to fight for drug users’ rights – picked us at the bus terminus. We still had time to get some rest before heading to the training venue. Once we entered the room, I was immediately overcome by nerves again. We also learned that they had just had their methadone, which means that they would become sleepy and less concentrated. One of the staffs from EJA opened the training and introduced us. When we were just about to start our presentation, Dhoho, came out of nowhere. I felt relieved that our Director came to accompany us, but it was not enough to calm my nerves. I opened my presentation with very formal remarks. After a little while, around 15 minutes, I could relax myself. I started to explain about police arrest, detention, and seizure. The session became more alive when a participant shared his experience of police violence and torture. It then turned out to be a strategy discussion of how the communities could advocate for themselves regarding human rights violations they often experience. Their determination to struggle seemed to provide more energy for them to understand the topic that we provided. We heard a lot of stories. Some of them were interesting, but most were quite depressing. We heard stories of how they had been tortured, arbitrarily arrested or detained, denied their right to legal counsel or access to health services, and many more. We explained to them about pretrial mechanism where they can file a complaint regarding the illegality of arrest or detention they often suffer. Given that most of the participants were still undertaking methadone therapy, we also explained how to obtain their right to medical treatment or rehabilitation, if they are caught by the police for drug offenses. When we touched this issues, at first there were smiles on their faces, but it quickly changed when one of them said that, “in practice, police officers always threaten us! We never CAVEAT | November 2012-January 2013 25
  26. 26. get to think that we have these rights, or those articles that you already mentioned. I don’t think it really works for us!” I felt a sense of despair immediately in the room. But we kept convincing them that there are rights that they have and that the police have the obligation to protect their rights. “It might be difficult for us to claim our rights, but if we keep silent, we will always end up like this. We don’t want to be like this forever, right?” I rhetorically asked the participants. Our first day of training for paralegal did not seem to go quite right. However, that experience motivated us to become even better for the training in Pasuruan on the following day. We changed our approach in presenting our topics. Once I opened our session, we tried to become part of them by not positioning us as speaker-participant, but rather as equal resource persons. We learn from them and they learn from us. We asked about their experiences when they face legal process, how the police have treated them so far. These sorts of questions made them more enthusiastic to share and voice their concern. In the middle of our responses, we inserted information about what their rights are. An interesting moment came when one of the participants, let’s call him Adam, who is HIV positive, told his story. One day he was arrested and during questioning he was tortured. His nose bled in. Because of the severe pain he experienced, he desperately wiped his bleeding nose with his hand and then right away extended his hand to the police. He then said to the police, “I can’t stand this pain anymore. You should know that I’m HIV positive.” The police were angry and complained that he did not tell them from the beginning that he was HIV positive, and as a result, the police did not torture him again. It might be a good way to escape from police torture to say that one is HIV positive; however, we tried to convince them that that is not an appropriate way. We have human rights, we have legal rights, and the police have the obligation to respect that. It would be more appropriate to invoke our legal rights to argue that the police torture is unacceptable and wrong. At the end of the training we felt more positive energy coming from them. I really do hope that they will be willing to fight for their rights. One of them said, “we now want to fight for our rights. We don’t want to be like this anymore.” From this entire experience, I can now confidently say that drug users are not the society’s trash. They are human beings who have all the good qualities to be human. In this opportunity, I would like to thank drug user communities whom I have met, for the enlightening experience. Regards, Naila. 26 CAVEAT | November 2012-January 2013

×