In the last two years, under the government of President Joko Widodo (Jokowi) and Jusuf Kalla, the execution of death row inmates in Indonesia has occurred frequently. The government has said the executions are conducted due to the state of emergency cause by the narcotics problem. In 2015-2016, 19 prisoners were executed.
The implementation of executions after suspension of the death penalty is regressive, and has provoked strong reaction at the national level as well as in the international community. Activists and human rights organizations have voiced opposition to the executions and have demanded a moratorium on the implementation of the death penalty in Indonesia. Various efforts to stop execution through diplomatic channels have also been undertaken by the countries whose citizens have been on death row. Yet, massive opposition to the death penalty has not stopped executions.
The unfair trial problem for death row inmates has been a fundamental reason for the opposition to executions in Indonesia. Unfair judicial practices have made the process of the death penalty in Indonesia unfeasible. The application of the principle of fair trial does not negate the permissibility of the death penalty itself. Fair trial principles in cases of capital punishment are a protection system for the suspect/accused; the principles ensure suspects are tried under a process that is careful, fair, and proportionate.
This paper will focus on the situation of unfair trial in Indonesia, especially concerning the implementation of death penalty. Approximately 19 death row inmates have been executed within the last two years, and these cases show that unfair trial does not only occur in ordinary crimes, but also in the implementation of the death penalty, which mandate strict compliance to fair trial principles. This paper describes the situation of unfair trial faced by death row inmates.
In particular, this paper will address the following questions: What is the nature of unfair trial practices faced by death row inmates in Indonesia? Why does unfair trial faced by death row inmates happen?
Article 6 (1) of the ICCPR specifically emphasizes the protection of the right to life, and that torture and ill-treatment absolutely violates customary international law. Right to fair trial (justice and fairness) is a norm in international human rights law designed to protect individuals from illegal restrictions and arbitrary deprivation of basic rights and freedoms. Under Article 6, paragraph 2, and Article 14 of the ICCPR, in states that still apply death penalty, the principle of fair trial guarantee is to be absolutely enforced. All rights attached to the defendant in the judicial process should be given and guaranteed without any gaps.
Article 14 of the ICCPR guarantees that everyone is entitled to the right of fair trial before the court, with the trial conducted by competent, independent, and impartial judicial administration, determined by law. Standard compliance with the principle of a fair trial is regulated under Article 14 of the ICCPR.
(1) Equality before the law: In the determination of any criminal charge, or in determining the rights and obligations in the lawsuit, everyone shall be entitled to a fair trial and open for public, by a judicial body that is competent, independent and impartial and established by law. Media and the public may be excluded from all or part of a trial for reasons of morals, public order, or national security in a democratic society or when strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but every decision taken in criminal and civil cases must be pronounced in open sessions, except where the interests of children decide otherwise, or in trial with regard to marital disputes or the guardianship of children.
(2) Presumption of Innocence: Every person accused of a crime has the right to be presumed innocent until found guilty according to law.
(3) In the determination of any criminal charge, everyone is entitled to bail with the following minimum guarantees, in full equality:
a) To be informed, promptly and in detail in a language understandable, of the nature and reason for the charges levied;
b) To have adequate time and facilities to prepare a defense and to communicate with counsel of own choosing;
c) To be tried without undue delay;
d) To be tried in their own presence, and to defend themselves in person or through legal assistance of their own choosing, and to be informed of this right when they have no defense; and to have legal assistance in the interests of justice, and without pay if they do not have sufficient funds to pay for it;
e) To examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf with the terms of the same with the witnesses against them;
f) To receive the free assistance of an interpreter if they do not understand or cannot speak the language used in court;
g) Not to be compelled to testify against themselves or to confess guilt.
(4) In the case of juvenile persons, the procedure should take into account their age and the desirability of promoting their rehabilitation.
(5) Each of those sentenced are entitled to a review of the decision or sentence by a higher tribunal according to law.
(6) When a person has been sentenced by the judicial decision that has to have binding legal force, and when subsequently their conviction has been reversed or pardoned by a new fact or newly discovered fact shows conclusively that there has been a miscarriage of justice. Then the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact is wholly or partly attributable to them. (7) Nobody can be tried or punished again for an offense for which they have been finally convicted or acquitted in accordance with the law and penal procedure of each country.
Meanwhile, the Law No. 8 of 1981 on the Law Procedure of Criminal Code (KUHAP) also acknowledges fair trial principles. However, KUHAP has many weaknesses, both in the substance of the legislation and its implementation. As a result, the rights of suspects/accused are frequently violated.
The UN Human Rights Committee has stated that the imposition of the death sentence of a court that does not respect the provisions of the ICCPR is a violation of Article 6 of the Covenant. The UN Special Rapporteur on extrajudicial executions emphasizes arbitrariness to the death penalty when the trial is not guided by the highest standards of fair trial. An Amnesty International Report in 2015 showed that 12 convicted death row inmates to be executed by the Government suffered unfair trial practices. As a result, Jakarta Legal Aid and NGO coalitions advocated in relation to nine death row inmates, and found the same facts. Based on the Amnesty International Report, Indonesia has entered into treaties with several countries that still apply the principle of fair trial to ensure the rights of death row inmates, as well as other international regulations.
To review these issues, this paper now takes five examples of cases where people were sentenced to death and suffered unfair trial. Some cases on death row in Indonesia were selected for being able to describe the pattern of unfair trial practices that occur on death row in Indonesia.
Mary Jane Veloso, a 30-year-old Filipino woman, is a domestic worker. She was convicted and sentenced to death for carrying drugs on her first visit to Indonesia in 2010. The execution plan of Marry Jane was stopped at the last minute, on 29 April 2015, by the consideration required on behalf of the testimony in the trial of people accused of manipulating her to become a drug courier.
Unfair Trial: When Mary Jane was arrested, the law enforcement agency never informed the family. The Philippines embassy learned about the case of Mary Jane after judges convicted Mary Jane sentencing her with the death penalty. Mary Jane did not access an appropriate language expert and one competent to assist her. She does not speak English; she merely speaks Tagalog. The court only provided an English translator, an English student. From the investigation to prosecution stages, the law enforcement agencies never provided a translator for her. Mary Jane has been found guilty by a panel of judges based on the evidence that cannot be considered as evidence, especially the evidence of witness testimony.
Based upon the investigation report of Mary Jane, legal counsel appointed by the police assisted her, but according to Mary Jane, a lawyer never assisted her during the investigation process. In the process of the trial, attorneys did not file a claim of charges, did not produce witnesses, or any other evidence. They filed pleadings that did not have the substance to aid her defense.
Zulfiqar Ali, a Pakistani citizen, aged 51 years, is a garment businessman. He was arrested at his home in West Java Province on November 21, 2004, and charged with possession of 300 gm of heroin. He was convicted and sentenced to death in 2005. The Supreme Court confirmed the verdict in 2006. However, the execution of death penalty was delayed at the last minute on July 29, 2016. Before the execution, 3rd President of the Republic Bacharuddin Jusuf Habibie also sent a letter to President Joko Widodo asking for the rejection of Zulfiqar Ali's execution.
Unfair trial: Zulfiqar's arrest followed improper procedures, and was not accompanied by legal counsel during the investigation by both the police and the prosecutor, and not accompanied by a translator during the investigation and trial in court. Furthermore, Zulfiqar was not given access to contact the embassy, and experienced abuse by unscrupulous police. The statement of key witnesses mitigating evidence was ignored as was a letter and statement from a hospital in Jakarta.
Rodrigo Gularte, a citizen of Brazil, was 43-years-old when he was executed. He was convicted and sentenced to death for importing cocaine to Indonesia in 2005. He was executed on April 29, 2015. He had a mental disorder and was diagnosed with paranoid schizophrenia.
Unfair trial: The right to an interpreter was denied. He should have been given a Portuguese language interpreter but the court only provided an English translator, despite Rodrigo Gularte not being fluent in English. Translator was not provided at the stage of the police examination. The right to obtain legal aid immediately during examination was denied. The law enforcement agency provided a lawyer for Rodrigo after five days of his being in custody; the lawyer was presented after he had been named as suspect. In this regard, Rodrigo faced unfair trial experiences; legal aid was not provided immediately, and when there was a lawyer to assist him, the lawyer did not protect his client during the investigation processes.
Moreover, the right to examine witnesses was negated. During the trial process, the court failed to present witness for Rodrigo; in this regard Fred Silva Guimaraes Maguenta Viera and Emerson were presented as witnesses against Rodrigo, presenting in the form of a written statement.
Despite suffering from a mental disorder, Rodrigo was never put into a mental hospital; he remained in prison until he was shot by a firing squad. Waiting for his execution, Rodrigo spent approximately 10 years in prison. A history of mental disorder that affects Rodrigo had never been discussed earlier in the inspection process from investigation to trial. Consequently, Rodrigo's rights as a person with mental disabilities were neglected. The right to a pardon and the right not to be executed until all legal remedies are extinguished were also neglected.
Zainal Abidin was 51-years-old when he was executed. He worked as a wood polisher. He graduated elementary school. He was arrested by the police in Palembang and charged with possession of marijuana (58.7 kg) on 21 December 2000. The District Court of Palembang sentenced him to 18 years in prison in 2001. But during the appeal process, he was convicted and sentenced to death in the case of drug trafficking in 2001. He was executed on April 29, 2015.
Unfair trial: He faced arbitrary detention. His detention violated the Criminal Procedure Code. The law enforcement agency did not issue a valid arrest warrant for Zainal. Legal counsel also did not assist him during the police examination. His confession was also allegedly obtained by his being tortured. The court merely referred to the Police Investigation Report (BAP). The judges did not issue clear considerations; moreover, there is insufficient evidence to convict.
YusmanTelaumbanua hails from Riau Province, Indonesia. He worked as a farm laborer. He dropped out of primary school and cannot read or write. According to the police, he was born in 1993, but Yusman claims he was born in 1996; it means that he was still less than 18 years of age at the time when the crime was committed, and when he was sentenced to death. He was convicted and sentenced to death for the murder of three people in April 2013 in North Nias Regency, North Sumatra Province, Indonesia. He did not appeal because his lawyers did not inform him that he had the right to appeal.
Unfair Trial experienced: He did not obtain the right to legal assistance. Yusman's lawyer had requested the judges to punish Yusman, his client, with the death penalty. Yusman was reported on by a policeman, who later became an investigator in the case. The police tortured Yusman to obtain a confession from him. Yusman is illiterate and could not speak Bahasa Indonesia, but was not accompanied by a translator.
Merry Utami is a female migrant worker in Taiwan. Merry was asked by her friend to take bags of unknown contents after being invited to holiday together in Nepal. Merry was arrested at the airport of Soekarno-Hatta, Jakarta, in October 2001, for carrying 1.1 kilograms of heroin. The Tangerang District Court sentenced Merry to death, on July 18, 2003. She had filed an appeal on January 20, 2006. But the Supreme Court rejected the appeal. Then she also filed a judicial review (PK) but it was rejected on March 14, 2016. After various pressures and massive public campaign in favor of Merry Utami, finally her execution by firing squad was delayed at the last minute on July 29, 2016.
Under human rights principles, suspects/accused have the right to get information about what rights they have when dealing with the law: the right to information including the right of suspects to obtain information about the alleged criminal acts. Further, the suspect also has the right to legal counsel of their own choosing, as well as the right to qualified legal assistance. When she was arrested in October 2001, the National Police Headquarters appointed legal counsel for Merry. However, the legal counsel never accompanied Merry when the investigation report (BAP) was prepared, and never provided legal advice, and never explained the legal process. Legal counsel only appeared a few times in court without doing anything. The lawyer merely assisted merry in appealing, but without making a memorandum of appeal.
Various violations against fair trial principles faced by death row inmates can be detailed as follows:
Unfair trial in cases involving inmates who end up on death row indicates structural problems in the implementation of the death penalty. The structural problem can be described as follows:
In legal substance: No doubt there are still many weaknesses under the Law of Criminal procedure; the procedure includes the substance of law as well as its implementation. In Indonesian criminal procedure, law does not distinguish between standard proceedings for people and people accused of the death penalty. Almost all the provisions contained in the criminal procedure law in Indonesia provide the same standards of justice between the proceedings for suspects / defendants threatened with the death penalty and the suspect / accused in other cases. There should be setting of specific standards that apply to death row inmates.
In the structure of law: The problem of supporting instruments for upholding the principle of fair trial in the criminal justice process in Indonesia is still minimal. In the case of Yusman, the police should have been able to use the help of science such as forensics, to prove a person's age; moreover, it is important to have institutions that are able to control the work of the investigator or advocate their duties. The absence of supervision of investigations and forceful measures by the police were concerning. Pretrial mechanisms failed to prevent violations of fair trial principles. Additionally, there are many cases where the police or prosecutor did not provide proper translators to help the defendants.
In the absence of Legal Aid: There are also other serious problems, like absence of legal aid for defendants. The absence of a complaint mechanism for the suspect/defendant; this violates Law No. 16 of 2011 and the Supreme Court Degree No. 1 of 2014 on Free Legal Aid.
Practice of seeking recognition through torture: According to the Institute for Criminal Justice Reform (ICJR) of 47 death row inmates, there are 11 death row inmates who indicated persecution and intimidation committed by law enforcement officers. Further, of the 11 death row inmates, only one decision has been then taken into consideration by the judge: the decision of final review or PK No. 45 PK / Pid.Sus / 2009, with the applicant being P.K. Hillary K. Chimezie. Although many national laws and regulations in Indonesia prohibit torture or other ill-treatment, Amnesty International remains concerned that these practices are not criminalized by the Indonesian Criminal Code. UN and other experts indicate the absence of criminalization of torture allows regular and widespread torture during police investigations.
The main problem in combating torture and other cruel treatment in Indonesia is the lack of independent mechanisms that are effective and impartial in their investigation of complaints of torture or other ill-treatment that can entrap perpetrators with criminal charges. The absence of such mechanisms, in line with the fact that torture is not defined as a specific criminal offense under national law, fosters impunity for perpetrators of torture and other ill-treatment.
Up until present, torture or other ill-treatment committed by the police merely has been brought to the internal police mechanism and in many cases has resulted in light punishment and impunity. The mandate of agencies such as the National Commission on Human Rights (Komnas HAM), the National Ombudsman of Republic of Indonesia, as well as the National Police Commission (Kompolnas), has been merely to receive and investigate cases reported by the public, but they are not authorized to submit these cases directly to the Public Prosecutor's Office. If they believe that a case should be prosecuted, this demand can only be done through the police, which is the only body that can manage the case and file a criminal prosecution.