Human Rights in Indonesia - Extrajudicial, Summary or Arbitrary Executions

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, then Bacre Waly Ndiaye, visited Indonesia and East Timor in July 1994. The report on his visit is E/CN.4/1995/61/Add.1.

Correspondence from 2007

The record of correspondence for 2007 is excerpted from the official United Nations report, A/HRC/4/20/Add.1.

Indonesia: Death Sentences of Amrozi bin H. Nurhasyim, Ali Ghufron, and Imam Samudera

Violation alleged: Non-respect of international standards relating to the imposition of capital punishment

The Special Rapporteur regrets that the Government of Indonesia has failed to cooperate with the mandate that he has been given by the General Assembly and the Commission on Human Rights.

Urgent appeal sent on 3 May 2006 with the Special Rapporteur on Human Rights and counter terrorism

In this connection, we would like to draw your attention to information we have received regarding three men who are reportedly at imminent risk of execution: Mr. Amrozi bin H. Nurhasyim, Mr. Ali Ghufron alias Mukhlas, and Mr. Imam Samudera.

Amrozi bin H. Nurhasyim, Ali Ghufron alias Mukhlas, and Imam Samudera have been found guilty of involvement in the 12 October 2002 bombings on the island of Bali, which killed 202 people and injured a further 209. They were sentenced to death by the Denpasar District Court between August and October 2003. The men and their families have declined to seek a pardon from the President. On 14 April 2006, the Attorney General’s office stated that the refusal to seek clemency would mean that they have exhausted all the legal remedies available to them and that, as a result, they would be executed immediately. On 25 April 2006, the Bali Prosecutor’s Office announced that it has "completed preparations" for the execution and stated that it was waiting for the Attorney General’s order to proceed with the executions.

It is our understanding that on 18 October 2002, six days after the Bali bombing, President Megawati issued two “'Government Regulations in lieu of law” (Peraturan Pemerintah Pengganti Undang-Undang, or “Perpus”), Perpus 1/2002 and 2/2002. Perpu 1/2002 provides that an act of terrorism, or the planning of or assisting in an act of terrorism, is punishable by death. Section 46 allows for its retroactive application if this is authorised by another Perpu or law. Perpu 2/2002 authorised that retroactive application “in relation to the [Bali] bombing incident”. Perpus 1/2002 and 2/2002 were subsequently approved by Parliament in March 2003 and converted into the Law on Combating Criminal Acts of Terrorism 15/2003. We have further been informed that on 23 July 2004, the Constitutional Court has ruled that the retroactive application of Perpu 1/2002 (i.e. Law 15/2003) violates Article 28I (1) of the Constitution and is therefore unconstitutional.

International law does not prohibit the death penalty per se as automatically violating the rights to life, but it mandates that it must be applied in the most restrictive manner. It is therefore crucial that all restrictions pertaining to capital punishment contained in international human rights law are fully respected in proceedings relating to capital offences. One such fundamental guarantee is that “the death penalty may be imposed only … in accordance with the law in force at the time of the commission of the crime” (Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia has become a party on 23 February 2006). This provision reinforces with regard to capital punishment the general principle that “[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.” (Article 15 ICCPR). We note that this principle is also enshrined in the Constitution of Indonesia, which in Article 28I(1) provides that “the right not to be prosecuted under retrospective laws [is a] basic human right that may not be diminished under any circumstances at all.” All of these provisions, or at least their core, represent universal standards and customary international law. Moreover, Article 4(2) ICCPR provides that the right to life as enshrined in Article 6 and the protection against retroactive criminal legislation in Article 15 are among those rights that cannot be derogated from even “[i]n time of public emergency which threatens the life of the nation”.

While we fully recognize your Government’s right and duty to forcefully combat heinous acts of terrorism such as those the three above-named men have been found to be complicit in, we recall that the fight against terrorism must be conducted within the framework of international law. In particular, we would like to recall UN GA Resolution 60/158 of 28 February 2006, which in its paragraph 1, stresses that “States must ensure that any measure to combat terrorism complies with their obligation under international law, in particular international human right, refugee and humanitarian law”

If the information we have received is correct, it would appear that the death sentence against Amrozi bin H. Nurhasyim, Ali Ghufron alias Mukhlas, and Imam Samudera is not compatible with Article 6(2) and Article 15 of the ICCPR. We accordingly urge your Government not to proceed to their execution until all doubts in this respect have been dispelled. In view of the urgency of the matter, we would appreciate a response on the initial steps taken by your Excellency’s Government.

Moreover, it our responsibility under the mandates provided to us by the Commission on Human Rights and reinforced by the appropriate resolution of the General Assembly, to seek to clarify all cases brought to our attention. Since we are expected to report on this case to the Human Rights Council, we would be grateful for your cooperation and your observations on the following matters:

2. Please explain the grounds on which your Excellency’s Government intends to proceed with the execution of Amrozi bin H. Nurhasyim, Ali Ghufron alias Mukhlas, and Imam Samudera notwithstanding Article 28I(1) of the Constitution, the ruling of the Constitutional Court and your Government’s obligations under Articles 6(2) and 15 of the International Covenant on Civil and Political Rights.

Violation alleged: Deaths due to the use of excessive force by law enforcement officials

The Special Rapporteur regrets that the Government of Indonesia has failed to cooperate with the mandate that he has been given by the General Assembly and the Commission on Human Rights.

I would like to draw the attention of your Excellency’s Government to information I have received regarding lethal force used against school children. According to this information, four students were shot dead by Indonesian security forces in the village of Waghete in West Papua and a fifth was injured. One of these students was Moses Douw, age 15, who was a close relative of one of the 43 refugees who landed at Cape York in Australia in a few days earlier. I have also received information stating that according to Indonesian authorities, only one student was killed and two others were injured, and that the incident was caused by a violent clash between civilians and police.

Therefore, while I do not wish to prejudge the accuracy of these allegations, I would like to draw the attention of your Excellency’s Government to the relevant human rights standards. The U.N. Basic Principles on the Use of Firearms by Law Enforcement Officials provide that, even in the context of a violent protest or assembly, law enforcement officials may only use firearms when less dangerous means are not practicable and only to the minimum extent necessary (§14). In all circumstances, the intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life (§9) and only after a clear warning of the intention to use firearms must be provided (§10).

It is my responsibility under the mandate provided to me by the Commission on Human Rights and reinforced by the appropriate resolutions of the General Assembly to seek to clarify all such cases brought to my attention. Since I am expected to report on these cases to the Commission, I would be grateful for your cooperation and observations on the following matters:

Violation alleged: Impunity; Death due to attack or killing by security forces

The Special Rapporteur appreciates the information provided by the Government of Indonesia.

The SR regrets, however, that the information provided is not responsive to several of the issues that require clarification. In particular, the SR would renew his request for (1) a copy of the final report and recommendations of the Presidential Fact-Finding team established in December 2004 as well as a copy of the 3 October decision of the Indonesian Supreme Court overturning Pollycarpus’ conviction, (2) information on the current status of legal proceedings against individuals additional to Pollycarpus, and (3) information on why key recommendations of the Presidential Fact-Finding team appear to have been ignored by the police and the attorney general’s office.

I wish to bring to your Excellency’s attention information I have received regarding the recent decision of the Indonesian Supreme Court to acquit the only person convicted for the murder of Munir Said Thalib, a leading human rights activist, despite reported evidence of a conspiracy involving many suspects, some of whom are high-ranking intelligence officers.

According to the information I have received, Munir died of poisoning on Garuda flight 974 from Singapore to Amsterdam on 6 September 2004. This was investigated by an independent fact-finding team, Tim Pencari Fakta (TPF), established by presidential decree on 23 December 2004. However, I understand that the key recommendations and findings of the TPF have been ignored. Reportedly, the TPF identified Pollycarpus Budihari Priyanto, an off-duty co-pilot who was on Munir’s flight, as a primary suspect in the case. It also suggested the involvement of senior employees of the Garuda airline and of high-ranking intelligence officials in Munir’s death.

The trial of Pollycarpus opened 9 August 2005 at the Central Jakarta District Court. The primary charge was that he carried out, ordered, or joined in an intentional and premeditated killing, a crime under section 340 of the Indonesian Criminal Code. He was also charged with forgery under section 263, in connection with a series of internal Garuda letters enabling his presence on board.

Pollycarpus was convicted on both charges on 20 December 2005 by the Central Jakarta District Court and sentenced to 14 years in prison. The panel of judges noted in their verdict that the accused had not acted alone, and it was necessary to investigate who else had played a role in Munir’s death. Pollycarpus’ sentence was upheld on appeal in March 2005. The murder charge was then overturned by the Supreme Court on 3 October 2006 due to insufficient evidence. Pollycarpus remains in prison on the forgery charge, but may soon be released.

According to the information received, the effective investigation and prosecution of all persons responsible has been impeded by the failure of State Intelligence Agency officials to cooperate with investigations, by the lack of a vigorous effort by the police, and by the failure of the police to cooperate with the TPF.

Beginning in March 2005, the TPF turned its attention to the State Intelligence Agency (Badan Intelijen Negara, or BIN). The primary evidence of a link between Pollycarpus and the agency was a series of phone calls between Pollycarpus’ home and cell phone and an office phone and cell phone used by H. Muchdi Purwopranjono, a retired general who moved to BIN as Deputy V in 2001. The calls took place in the days around Munir’s death, and in the days after the autopsy results became public. In June 2005 the TPF disclosed that it had found BIN documents describing four scenarios to kill Munir, including the use of poison.

But BIN’s refusal to cooperate made it difficult to confirm the documents’ authenticity. A chief obstacle was the lack of a mechanism or agreement to ensure access to BIN officials and documents. After several meetings with the president, on May 2, 2005 the parties signed a protocol in which BIN agreed to cooperate. The May 2 protocol led to interviews with six low-ranking officials, but the information collected was incomplete and largely limited to general procedures.

Three senior officials refused to be interviewed: Muchdi, former BIN chief A.M. Hendropriyono and Col. Bambang Irawan (a retired Indonesian special forces officer who witnesses said was on the flight, but not the passenger list). These officials appeared to use delaying tactics until the TPF’s mandate ran out. Muchdi, Hendropriyono, and Irawan negotiated meetings and then failed to appear due to missed planes, unexpected travel, or other reasons. Hendropriyono was invited on three occasions, Muchdi four times, and Irawan twice. BIN also failed to provide numerous documents requested by TPF^.

The police investigation made little headway in building a case against Pollycarpus, and did not include an investigation of who planned and ordered the murder. Although the Indonesian government reportedly learned from the Dutch as early as 28 October 2004, about the cause of death, few actions were taken until later that year, despite the need to preserve crime scene evidence and to prevent the routine deletion of phone records. The police did question airline employees, family members, and others who came into contact with Munir. After the TPF found links to Garuda and BIN, police interviewed officials from both institutions. However, the police interviews were mostly brief and insubstantial, and resulted in a single weak indictment.

The police identified Pollycarpus as a suspect on 18 March 2005 and a warrant for his arrest and detention was issued the following day. No further action has been taken against other suspects, despite evidence and courtroom testimony indicating others’ involvement. The TPF found evidence that two Garuda senior officials, Vice-President for Corporate Security Ramelgia Anwar, and Executive Director Indra Setiawan had assisted Pollycarpus through the provision of documents. Anwar and Secretary to the Chief of Pilots Rohainil Aini were summoned by the police for questioning in March 2005. The two crew members, Oedi Irianto and Yeti Susmiarti, were also questioned at police headquarters on April 6, 2005, and later named as suspects, but never indicted.

Anwar and Aini were named in the forgery charges against Pollycarpus, and the two crew members were named in the murder charge. The participation of all four is described in the verdicts of the District Court and the Appeals Court. But police never submitted dossiers on either the crew members or the senior officials to prosecutors so that they could be charged.

For all of the above factors, the TPF concluded that the police team was unwilling, rather than unable to solve the crime. A recent reshuffle of the investigation team underscores the problem. On 12 September 2006 President Yudhoyono promised to “revitalize” the investigation under police Brig. General Suryadharma. But Suryadharma had already served that role and been replaced due to his inaction.

I would like to commend your Excellency’s Government for establishing the TPF to conduct investigations into the killing of Munir Said Thalib. This is all the more important that, as your Excellency is aware, there are allegations that Munir —who was the director of the “Commission for Disappeared Persons and Victims of Violence (Kontras) and the director Jakarta-based human rights group imparsial — may have been targeted for his human rights activities, as suggested by evidence relating to the involvement of high-ranking intelligence officials in his death.

As you are aware, under human rights law, States have a legal duty to ensure as well as respect the right to life in all circumstances. (International Covenant on Civil and Political Rights, Arts. 2, 4, 6). States are legally responsible for extrajudicial executions that are committed by Government agents or that are committed by persons or groups operating with official knowledge or acquiescence. In addition, States are legally obligated to take all appropriate measures to deter, prevent and punish private persons and armed groups who commit extrajudicial executions. These obligations require States to investigate – with a view to prosecution – alleged violations of the right to life promptly, thoroughly and effectively through independent and impartial bodies. (CHR resolution 2004/37, paras. 4–6; Human Rights Committee, General Comment 31; E/CN.4/2005/7, paras. 65–76). The obligation to investigate extrajudicial executions is not a pro forma requirement. Depending on the manner in which it is conducted, an investigation either will play a critical role in ensuring the right to life in the face of violence or, instead, will contribute to impunity.

In light of the allegations received, I would like to call the attention of your Excellency’s Government to particular aspects of the duty to investigate.

Human rights law requires investigations to be conducted by independent and impartial bodies. (CHR resolution 2004/37, para. 5; Human Rights Committee, General Comment 31, para. 15). In this connection, I would like to draw the attention of Your Excellency’s Government to the standards provided by the United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. Principle 11 notes that normal investigative procedures may be inadequate when there are complaints regarding their impartiality and provides that in such circumstances, “Governments shall pursue investigations through an independent commission of inquiry or similar procedure”. Regardless whether an investigation is conducted through established investigative procedures or through an independent commission of inquiry, interference by individuals who are potentially implicated must be prevented, the investigation’s report must be made public, and the Government must bring to justice those found responsible. (Principles 15–18). It is important to emphasize that measures taken to ensure an investigation’s independence and impartiality do not reflect any pre-judgment of the allegations received in a particular case. Independence and impartiality are required in all cases out of respect for the rule of law.

The principal responsibility for investigating a murder case undoubtedly belongs to the organs of a State’s domestic criminal justice organs. However, there comes a point at which it may be necessary for national measures to be supplemented with international assistance. In the case of Munir Said Thalib, this point has been reached, and I would respectfully suggest that the Government seeks international assistance in conducting the investigation into his murder.

It is my responsibility under the mandate provided to me by the Commission on Human Rights to seek to clarify all cases brought to my attention. Without in any way wishing to pre-judge the accuracy of the information received, I would be grateful for a reply to the following questions:

The Government provided the following clarifications on the case concerning Munir Said Thalib and Pollycarpus Budhari Priyanto.

The Government of Indonesia must once again retiterates its commitment to the promotion and protection of human rights at all levels of society. The Government has, in this regard, taken various steps to ensure that the national human rights institutions adhere to constitutional modalities, as well as to ratified international conventions and national laws.

There have in fact been numerous efforts undertaken on the part of the Government, working within Indonesia and in collaboration with various experts to shed some light into the precise sequence of events leading to Munir’s death and on the genuine culprits who have so far evaded justice. This has incited a great deal of speculation and allegations relating to the investigative process. The legal integrity of the judicial proceedings have been scrutinized with deep suspicion and questioned while attempts have been made to exert international pressure on the investigations.

It must be understood that this process has been time consuming as layer upon layer of evidence has been gathered, verified and examined by various experts. At the same time this was happening, criminal proceedings whereby the main suspect in Munir’s death, Mr Pollycarpus Budihari Priyanto were being undertaken. The latter has since been prosecuted under the national judicial system, only to have yet again, question raised on the legal proceedings.

On the judicial proceedngs indicting Mr. Priyanto, his case was taken to the central Jakarta district court and then to the supreme court, who by virtue of a case review later rules by majority on 3 October 2006, that his conviction for premeditated murder under article 340 of the KHUP could not be upheld as there was insufficient evidence and no testifying witnesses proving his culpability. However, the supreme court reaffirmed that Mr. Priyanto’s conviction for violating article 263, section 2 of the criminal code, on the falsification of documents would be upheld and they maintained his two-year jail sentence.

The decision of the panel of judges is exempt from government interference. This is in accordance with law 14/1970, which clearly states that judges are independent and free from all influence emanating from governmental authorities. This independence is further reinforced by the Constitution, in which article 24 of the constitution of 1945, clearly guarantees that the judiciary is exempt from interference from the executive. In its decision-making process and while following the precepts of impartiality, the Supreme Court therefore also has the power to enforce law and justice as it deems fit. Nonetheless the legal proess has not been exhaustive since the possibility to reopen the case, with new evidence, is still possible. Our understanding is that the police is currently in the process of drafting a response to the decision by the supreme court.

On the international front, Indonesia has been working in collaboration with various international experts at various intervals from the beginning of this case. The President, as you may be aware, inititally set up an independent fact-finding team, the Tim Pencari Fakta (TPF) in December 2004 (by virtue of Presidential decree 111/2004) with the task of establishing and compiling a report on their findings. At the time, a large number of witnesses were interviewed, including among others, the personnel of the national carrier, Garuda. The final conclusions and recommendations were later presented to the President in June 2005, which was within months of the conviction of Mr. Priyanto at the High Court level for the murder of Mr. Thalib.

Since then, the Government of Indonesia has not discarded the possibility of international assistance in furthering its investigative processes. In actual fact, and according to the National Police Chief, general Sutanto, the government has most recently requested the help of the US Federal bureau of investigation and the Dutch Police who will be providing input into certain forensic matters. The Government is well aware that in its investigations, the police may require foreign technical assistance where there are no local experts in a certain field. In connection with this, the government is still trying to overcome some administrative difficulties in obtaining mutual legal assistance from the Dutch authorities, and technical difficulties in investigating video-data items from Singapore.

Quite apart from these efforts, the President has also ordered another fact-finding team to recommence investigations into this case. The team will be headed by Brigadier General Suryadharma Nasution and the number of skilled investigators has also been increased. Contrary to some reports, the government has never replaced Brigadier General Suryadharma as chief of the investigation team.

The cooperation of all the independent experts, police and intelligence forces has ensured that various witnesses and suspects, were questioned and/or detained on their possible involvement in this crime. The house of representatives has since endorsed recommendations that there should be new investigations by an independent investigative team into Munir’s murder. The President has reaffirmed that the legal process into Munir’s death has never stopped and efforts to find the culprits have been reinvigorated with the creation of the new investigative team that will follow up the results of the old investigation and also work on new leads. The police spokesman, inspector general purwoko affirmed in September 2006, that this new team would not only focus on information provided by Mr. priyanto but would also look for new evidence.

Indeed, it has been the government’s task and focus for sometime now to uncover the masterminds behind this murder and who have for so long, have remained at large. Further, it should be clear that while this process may be painstakingly difficult, it in no way lessens the government’s commitment to human rights and justice, nor does it impige on the government’s intentions to honour its international obligations. In this regard, the usual law enforcement institutions should be left to carry out their normal functions of enquiry and prosecution, while the judicial institutions should be allowed to make rulings and prosecutions within the framework of national legal norms.

Correspondence from 2006

The record of correspondence for 2006 is excerpted from the official United Nations report, E/CN.4/2006/53/Add.1.

Indonesia: Death Sentences of Three Men

Violation alleged: Non-respect of international norms and standards for the imposition of capital punishment.

Subject(s) of appeal: 3 males

Character of reply: Cooperative but incomplete response

Observations of the Special Rapporteur

The Special Rapporteur appreciates the information provided by the Government of Indonesia.� The SR accepts that the Government may not be in possession of information that would confirm the veracity of the allegation that Sakak bin Jamak was tortured.� However, the SR would note that the State�s obligation to effectively investigate human rights abuses derives from its general obligation to ensure rights and is not dependent on the provision of a detailed dossier by a complainant or his attorney.� Therefore, the SR requests that the Government of Indonesia conduct an investigation into the allegation that Sakak bin Jamak�s confession was extracted through torture.� The SR would also note that it would in no way interfere with the independence of the judiciary for the Government to transmit to it this communication, especially inasmuch as the international responsibility of the State may be engaged by any of its organs.

Urgent appeal sent on 31 May 2005 with the Special Rapporteur on torture and the Special Rapporteur on the independence of judges and lawyers

Mr. Sakak bin Jamak, a 50-year-old illiterate farmer from South Sulawesi, and two males known only as Mr. Sahran, aged 52 and Mr. Sabran, aged 45, who are reportedly at risk of imminent execution, according to a recent announcement from the Attorney General�s office.

According to the information received, the three men were sentenced to death in May 1995 after they were found guilty of the premeditated murder of a family of three. Fears have been expressed that they were sentenced after trials that may have fallen short of international fair trial standards.

Concern has been expressed that, during his interrogation at the police station, Sakak bin Jamak was tortured for several days in order to extract a confession from him. For instance, it is alleged that he was once immersed in water for a period of around two hours. The police also allegedly beat him with sticks and whips and burned his feet, leading him to ultimately confess to the crime. He has reportedly been claiming his innocence since.

Concern is heightened by reports according to which Mr. Jamak didn�t have access to legal representation during the investigation as well as at the pre-trial stage. It is indeed reported that the State provided him with legal representation only when the trial started. Besides, it is alleged that he was not informed of his right to appeal the sentence, and there is concern that he may not have understood his right to do so.

If these allegations are correct there would be grounds for serious concern. We would therefore be grateful if your Excellency�s Government could provide us with information indicating whether or not the defendant in this case was given the right to formal representation by a lawyer, and providing details of any such access. Finally, we would like to receive information as to the nature of any right to an effective appeal which was applied in this case.

Moreover, in the absence of any indication that the allegations of torture have been adequately reviewed by the authorities, we would respectfully request your Excellency�s Government to suspend the implementation of the death penalty of Sakak bin Jamak, to review the procedures followed in his case, and to ensure that his trial complied with all applicable international standards and principles.

Finally, we have not been provided with detailed information on the trials of Mr. Sahran and Mr. Sabran, who were convicted for the same crime as Mr. Jamak.

Without in any way wishing to draw any conclusions based on the information received so far, we would respectfully request your Excellency�s Government to provide us with the details of the above-mentioned individuals� trials, with a view to establishing whether the proceedings complied with international standards relating to the imposition of capital punishment. In addition, we would like to receive information as to the nature of any right to an effective appeal which was applied in these cases.

Response of the Government of Indonesia dated 14 November 2005

Mr. Sakak bin Jamak, aged 50, Mr. Sahran aged 52 and Mr. Sabran aged 45, all from the Riau province in Central-eastern Sumatra, were found guilty of the premeditated murder of a family of three and sentenced to death in May 1995. They have since been in custody and awaiting the decision of the court as to whether or not their executions will take place.

On the question of extrajudicial, summary and arbitrary executions, the Permanent Mission of the Republic of Indonesia would like to state at this point that contrary to any such allegations, Mr. Sakak bin Jamak, Mr. Sabran bin Jamak and Mr. Sahran bin Jamak were, under court ruling No. 158/G/200; tgl 2/8/2000, all sentenced to death for muder under article 370 of the Indonesian Criminal Code (KUHP). They were also sentenced for arson on May 17, 1995 by Tambilahan District court, in Riau. All three men have been in custody since 1995 and have been humanely trated during their incarceration on death row in Cipinang Prison. Their lawyers have sought to appeal the court ruling during their incarceration and subsequently requested presidential clemency in 1995 under clemency letter (Keppres) No. 03/Grasi/1995/PN.TBH. However their appeal was rejected in 2002.

On the question of the independence of the judges and lawyers, it is our understanding that the due process of law was applied to the court case for all the above mentioned individuals, and they received legal assistance during the trial and for their appeal. Their subsequent sentencing was within the boundaries of the legal norms of Indonesia�s judicial process and does not fall contrary to international legal standards. It is within the norms of national law to determine whether the severity of their crimes carries with it the death penalty. Indonesia therefore, resents accusations that they were not provided with the necessary legal assistance or that due process of law was not pplied and their habeas corpus was denied or infringed.

It is important to point out that Indonesia has an independent judiciary that functions under its own auspices. The decision of the court therefore- as is generally the case in most democratic countries- is not subject to outside intervention, including the government. Also their decision-making process is mandated under law No. 14/1970 and completely independent of the Exceutive. This independence has been safeguarded since the outset of national reforms. Similarly, it is within the jurisdiction of the court to determine the appropriate laws that applies and the requisite sentencing to be handed down for each individual case.

On the question of torture, Indonesia is opposed to torture as a signatory to the United Nations Convention against torture and other cruel, inhuman and degrading treatment or punishment, it has made provisions in its national law whereby freedom from torture is considered a non-derogable right under article 4 of law No. 39 of 1999 on Human Rights. Articles 9 and 39 of Law No. 26 of 2000 on the Human Rights Court guarantees that any violations of such rights will be brought to justice. In the case of Mr. Sakak bin Jamak, father of six children from South Sulawesi, he alleged that he never committed the crimes and was in fact the victim of torture while in police custody. We have no information to indicate the veracity of this allegation. However, he was arrested in November 2004 and taken to Reteh Police sector (Polsek), Indragiri Hilir District in Riau. He, like the two others accused of the crime, was given legal respresentation by the State during the trial and also had the right to seek legal advice and benefit from a legal defence.

Under Indonesia law, the death penalty is only applicable for murder if it was committed with deliberate intent and premediation. Even then, it is not irrevocable verdict as normal procedure allows for a person who has been sentenced to death in a lower court to appeal to the relevant high court and then to the Supreme Court. An appeal for clemency can only be sought once, except in cases where more than two years have passed since a clemency decision was rejected, in which case a new appeal may be lodged. Normally, those accused then have the right to seek judicial review from the Supreme Court and appeal for clemency under Law No. 3/1950 from the President.

Having said this, the Government of Indonesia wishes to clearly state that executions are not the inevitable consequence of a criminal sentence of this nature. In fact, they are rarely carried out and require the stringent application of various procedures before it can take place. It is a difficult process that is often long and frought with various complesities requiring that the facts os each case be meticulously scrutinized before the final verdict can be upheld. Since 1945, there have been approximately 15 executions,as most of those convicted of the various crimes against the State receive instead a commuted lighter sentence, either a fifteen year sentence of a life imprisonment sentence. In Indonesia, as in many other countries, we must reiterate that capital punishment is strictly imposed for the most serious crimes and only upheld after all the legal avenues have been exhausted. In this regard, Indonesia opposes any assertion to the contrary.

Correspondence from 2005

The record of correspondence for 2005 is excerpted from the official United Nations report, E/CN.4/2005/7/Add.1.

Type, date and summary of communication: Urgent appeal sent with the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 18 December 2003. On 5 December 2003, in Banda Aceh, Mr. Maarif, editor-in-chief of the biweekly "Beudoh� was interrogated for ten hours by military intelligence officers who allegedly molested and threatened to kill him if he did not change the newspaper's editorial line. It is alleged that Mr. Maarif�s interrogation is linked to the publication in �Beudoh�, in late November 2003, of an article entitled, "The Acehnese people do not need elections", which criticized the government's decision to maintain martial law in Aceh and questioned the legitimacy of elections scheduled for next year. It is also alleged that the army officers requested him to publish an apology and sign a letter recognizing that he had published false information.

Type, date and summary of communication: Urgent appeal, 28 June 2004. Mr. Ayodhya Prasad Chaubey, who was convicted of drug trafficking in September 1994, may face imminent execution after his request for a second case review was rejected by the Supreme Court. On 23 June, a spokesman for the Attorney General�s Office said that they were making preparations for the execution. Ayodhya Prasad Chaubey has reportedly exhausted the appeals process because his appeal for clemency to President Megawati Sukarnoputri was rejected in February 2003 and, most recently, becausehis request to the Supreme Court for a second case review was rejected. Reports further indicate that the date of the execution will not be publicly announced and that Mr. Ayodhya Prasad Chaubey and his family will only be informed of the date of execution the day before it is due to take place. The spokesman for the Attorney General�s Office is also reported to have said that at least three additional persons, Meirika Franola, Rani Maharani and Dany Maharwan, who were convicted of drugs charges in 2000, are now facing imminent execution since their appeals for clemency have been rejected.

Government reply: Response dated 4 November 2004: Mr. Chaubey was arrested in February 1994 for smuggling 12 kgs of heroin into Indonesia . This criminal offence falls within the scope of capital offence and carries with the death penalty (according to law No. 22/1997 on narcotics and law No.5/1997 on psychotropic substances). According to the Government, it is clear that when Mr. Chaubey�s case was presented to the court, due process of law was applied exhaustively and his sentencing followed the legal norms of the country�s judicial process, including the procedural restrictions on the imposition of the death penalty which is in accordance with international standards such as fair trials, degree of proof, appeals, non-execution pending appeal and clemency as well as humane treatment. Mr. Chaubey�s family was informed of his forthcoming execution but refused to visit him. He was executed on 5 August 2004 by a firing squad. Therefore, nothing within its imposition was extrajudicial or summary in nature, nor can his execution in any way be considered arbitrary. According to the Indonesian Government, general international law does not yet prohibit the death penalty, although it does envisage a goal of abolition. As to Meirka Franola, Rani Maharani and Dany Maharwan, their sentences were upheld by the Supreme Court in 2001. Their second request for clemency was also rejected; however, they have not totally exhausted all their legal avenues. The Government also stated in its reply that the death penalty in Indonesia is no longer the main objective of the sentencing and it has become a last resort that is only applied in an extremely restricted manner. Since 1945, there have been around 75 death sentences imposed in Indonesia. However only 13 were executed and 4 died of natural causes before they were executed. The last execution of this sort took place in May 2001.

Observation of the Special Rapporteur: The Special Rapproteur thanks the Government of Indonesia for its comprehensive and substantive reply.

Type, date and summary of communication: Allegation sent with the Special Rapporteur on torture, 20 September 2004: Mr. Johan Calvin Werianggi was arrested on 4 September 2001 by a Police Mobile Brigade (Brimob) and taken to Windesi Police Sector (Polsek). It is reported that while being taken there he was punched, kicked and beaten with the butt of a gun. Later on the same day, he was taken to a boat by members of Brimob and has not been heard of since. Concern has been expressed that he may have been extrajudicially executed. The reasons of his arrested are not known. However, it is believed that he may have been targeted because he was a strong advocate of independence for Papua and had persuaded the local government, the police and military officials to allow the Morning Star flag to be raised in Windesi in the past.

Type, date and summary of communication: Urgent appeal, 14 September 2004: Ms. Meirika Franola, alias Ola, Ms. Rani Maharani, Mr. Dany Maharwan ( Indonesian national), Mr. Saelow Prasert, Ms. Namsong Sirilak (Thai nationals), Mr. Samuel Iwuchekwu Okoye, Mr. Hansen Anthony Nwaolisa (Nigerian nationals), Indra Bahadur Tamang (a Nepali national), Mr. Muhammad Abdul Hafez (a Pakistani national), and Namaona Denis (a Malawian national) would reportedly be at risk of imminent execution after their appeals for presidential clemency were rejected in June and July 2004 They were all reportedly convicted for drug-related offences. According to the information received, the Attorney General�s Office announced that Saelow Prasert and Namsong Sirilak were to be executed by 18 September 2004. Concerns have been expressed that the two men have been sentenced to death after going through trials that may have fallen short of international fair trial standards. It is reported that they did not have access to legal representation before their trial or to interpreters during the police investigation.

Correspondence from 2004

The record of correspondence for 2004 is excerpted from the official United Nations report, E/CN.4/2004/7/Add.1.

On 9 July 2003, the Special Rapporteur, jointly with the Special Rapporteur on the right to freedom of opinion and expression, the Special Rapporteur on torture, the Chairman-Rapporteur of the Working Group on Arbitrary Detention and the Special Rapporteur on the independence of judges and lawyers, sent an urgent appeal concerning information received regarding Gustaf Ayomi, John Hilipok, Welmus Asso and Elias Asso who were arrested on 7 July 2003 during a pro-independence demonstration in the town of Wamena, Jayawijaya District, Papua Province, by members of the police. The demonstration reportedly took place outside the local parliament building at which the Morning Star flag, symbol of support for Papuan independence, was raised. A police patrol arrived and tried to break up the demonstration. The police stated that they opened fire after the demonstrators attacked them. Iyut Heselo was allegedly killed during this incident. Welmus and Elias Asso were reportedly shot and taken to the local hospital. According to the information received, Gustaf Ayomi and John Hilipok were taken to the Wamena police camp where they were reportedly denied access to lawyers, and their families were too frightened to visit them. In view of the incommunicado nature of their detention, fears were expressed that they may be at risk of torture or ill-treatment and that their lives could be in danger.

On 4 June 2003, the Special Rapporteur and the Special Rapporteur on torture jointly sent allegations to the Government of Indonesia regarding the following individual cases.

M. Hamzah A. Jalil reportedly died as a result of the treatment he was subjected to by a detachment of the 100th Medan Air Defence on 2 January 1999 after he allegedly participated in a demonstration at the North Aceh Regency Office. According to the information received, he was hit with a riffle butt, repeatedly kicked, and stabbed with a traditional knife known as a rencong. His body reportedly bore signs of bruises.

Muktar Pawang Id, a 26-year-old man from Lhokseumawe, was reportedly arrested on 3 January 1999 and taken to the Komite Nasional Permuda Indonesia (KNPI, the Indonesian National Youth Council) by a detachment of the 100th Medan Air Defence and police from the Mobile Brigade (Brimob) of North Aceh Police Headquarters. He was allegedly accused of being a member of the Gerakan Aceh Merdeka (GAM, the Free Aceh Movement) and to have participated in a rally at the North Aceh Regency Office. According to the information received, he was kicked and beaten to death.

On 29 July 2003, the Special Rapporteur sent an allegation to the Government of Indonesia regarding the following cases.

Luther Hendrik Albert was reportedly shot dead and his companion, Elizabeth Margaret, was reportedly shot in the knee after troops opened fire in the West Aceh. It was reported that the couple was travelling on tourist visad but had not registered with police.

On 21 May 2003, Indonesian soldiers reportedly dragged a group of men and boys out of their huts in the village of Mapa Mamplam. The soldiers allegedly lined the victims up and shot each one dead. Among those killed were three boys, aged 11, 13 and 14. The military immediately rejected this reports and established a team composed of two soldiers and two Indonesian journalists to verify the allegation. After the investigation, the military reportedly claimed that all the villagers, including the three boys, were spies for the Free Aceh Movement. The Special Rapporteur wished to draw the attention of the Government to the fact that even if that were true, this assumption did not justify the summary executions of the villagers.

On 21 May 2003, the Indonesian military was also reportedly responsible for the summary executions of 10 civilians in Bieureun district: two in Pata Mamplam, two in Pulo Raboe and six in Cot Raboe, including two 12-year-old boys.

On 23 May 2003, Tgk Radhi, from Synyeu village, Indrapuri subdistrict, was reportedly arrested by Indonesian army troops in Pasar Lama Indrapuri and taken to an unknown destination. His body was reportedly found on 25 May 2003 in Indrapuri.

On 25 May 2003, government troops reportedly killed three civilians in Peusangan and one civilian in Bukit Sudan. In addition, on 23 and 24 May, five men were reportedly shot and killed by Indonesian soldiers in the village of Seunade.

On 7 August 2003, the Government of Indonesia sent its response to joint communication jointly sent on 9 July 2003 concerning the injuring and fatal shooting of several people at a pro-independence gathering in Wamena, Papua. According to the Government, at approximately 3 a.m. on 7 July 2003, Jayawijaya police were informed that a number of people had gathered inside the compound of the regency�s legislative council, located at Jl. Yos Sudarso, Wamena, and were attempting to hoist separatist flags. It was reported that two police units were promptly dispatched to the area where they interrupted a ceremony involving several men armed with traditional weapons who were raising three New Melanesian flags to mark what they called the �New Melanesian� anniversary. The Government indicated that a number of other individuals were posted as lookouts and were gathered approximately 500 m away from the flagpoles.

According to the Government, efforts by the police to persuade the demonstrators to disperse failed and the latter instead gathered around the flagpoles in a show of defiance. Several policemen approached the group in order to persuade them to lower their flags peacefully. The Government further indicated that, after negotiating with the men, identified as Welmus Asso, Gustaf Ayomi, Hery Asso, Jean Hesegen and Yut Heselo, for about an hour, the latter became increasingly aggressive and eventually attacked their interlocutors using arrows and machetes, and forcing the police to fire three warning shots. In the ensuing melee, Yut Heselo, a 30-year-old man, was fatally wounded, while Hery and Whilelmus Asso were injured and evacuated to a hospital in Wamena for treatment.

According to the Government, the Papuan police did not arrest the two persons named Elias Asso and John Hilipok mentioned in the Special Rapporteurs� communication, and it also denied that the number of detainees quoted in the letter was accurate. The Government maintained that, according to police records, the five men taken into custody in the wake of the incident were Hery and Whilhelmus Asso, Gustaf Ayomi, Jean Hesegen and Mayus Togostli, all from Wamena. They were questioned by the police regarding their involvement in the case and subsequently charged with violating articles 106 and 110 (offences against the State), as well as article 212 (attacking the security forces) of the Penal Code and Law 12/1951 (possession of firearms and sharp weapons). The Government argued that the detainees were not held incommunicado and that they were accompanied by a lawyer throughout the investigation process. It was also stated that, during their detention, none of the men suffered any form of torture or cruel, inhuman or degrading treatment.

The Government further indicated that on its behalf, the Coordinator Minister for Political and Security Affairs, Susilo Bambang Yudhoyono, ordered a thorough investigation in order to shed light on the incident. In this respect, the separatists in custody informed investigators that the flags were raised following an order issued by Matias Wenda, a leader of the rebel Free Papua Movement (OPM), in an attempt to foster dissent and incite people to violence. The Government underlined that, while accepting the right of the people to protest peacefully and to voice dissent, it cannot tolerate armed resistance, especially directed against government officials and employees. The Government ordered the security forces to act firmly against anyone breaking the law. It also repeatedly made it clear that secessionist activity such as flag-raising ceremonies would not be tolerated and that any offender would be dealt with firmly by the police, in accordance with the law. Finally, the Government reported that police intervention is fully justified in such cases and that the Jayawijaya police had acted according to procedure in the case.

Correspondence from 2003

The record of correspondence for 2003 is excerpted from the official United Nations report, E/CN.4/2003/Add.1.

On 13 February 2002, the Special Rapporteur, jointly with the Special Representative of the Secretary-General on human rights defenders, sent an urgent appeal to the Government of Indonesia relating to death threats reportedly received by Johanes G. Bonay, Director of the Institute for Human Rights Studies and Advocacy (ELS-HAM) and John Rumbiak, an official of the same non-governmental organization. According to the information received, on 11 February 2002, a staff member of ELS-HAM received a phone call informing her that Mr.. Bonay and Mr. Rumbiak were among a group of people considered �dangerous� by the Indonesian Special Forces Command (Kopassus). It has been further reported that both staff members of ELS-HAM were on Kopassus�s black list and were to be eliminated by 7 March 2002. These facts are allegedly connected with the joint statement issued on 11 February 2002 by three Papuan human rights organizations, ELSHAM, the Legal Aid Institute Papua (LBH Papua) and the Commission for Anti-Violence and Forced Disappearance Papua (Kontras Papua), rejecting the establishment of the National Inquiry Commission (KPN) and the Central Military Police Inquiry Commission (Tim Puspom TNI) to investigate the killing on 10 November 2001 of Theys Eluay, an independence and human rights activist and Chair of the Papuan Presidium Council since February 2000.

On 23 May 2002, the Special Rapporteur on torture and Special Rapporteur sent an urgent appeal to the Government of Indonesia relating to Riki Muhammad, a 20-year-old farmer. He was reportedly arrested with two other men by soldiers in the village of Tumpok Blang in Aceh on 12 May 2002. It is reported that local human rights monitors have been told that all three were being held at a military post in Lhok Kuyuen, Sawang subdistrict, North Aceh. When relatives tried to see the men there, soldiers allegedly threatened to shoot them if they persisted and fired warning shots. The men were reportedly detained during military operations in Sawang subdistrict against the armed opposition group Free Aceh Movement (Gerakan Aceh Merdeka, GAM), which began on 11 May. The army is reportedly maintaining a cordon around Sawang subdistrict and people living there have to apply for permission to leave the area. Two other people detained during the military operations have reportedly been found dead. Security conditions are said to be preventing human rights monitors from entering the area to verify these reports. The Special Rapporteurs also brought to the attention of the Government information they have received concerning Si Bai, aged 20, Hasbi, aged 22, and M. Ali, aged 23, who were reportedly taken from police detention in Aceh Province by masked men believed to be from the Police Mobile Brigade (Brimob) and the military in mid-May. They have not been seen since. It is not known where they are currently being held. Fears were expressed that the above-named persons may be at risk of torture or other forms of ill-treatment in view of the incommunicado nature of their detention.

On 2 October 2002, the Special Rapporteur jointly with the Special Representative of the Secretary-General on human rights defenders sent an urgent appeal to the Government of Indonesia regarding intimidation and harassment of activists working with the Institute for Human Rights Study and Advocacy (ELS-HAM) in Papua Province as well as in Jakarta. According to the information received, on 28 September 2002, the Jakarta office of ELS-HAM allegedly received an anonymous telephone call warning staff members to �be careful�. In addition, staff in the office of Jayapura and Mimika, Papua Province, allegedly said that their office was under surveillance by unknown people. These threats appear to be connected to a press release issued by ELS-HAM on 25 September in which the organization stated that there were indications that the military's Special Forces Command (Kopassus) may have been involved in an attack near the PT Freeport Indonesia gold and copper mine in Tembagapura, Mimika district, Papua Province, on 31 August 2002. As a result, the Indonesian military reportedly threatened to sue ELS-HAM for slander and accused them in the local media of being a political pro-independence organization.

On 14 October 2002, the Special Rapporteur jointly with the Special Representative of the Secretary-General on human rights defenders sent an urgent appeal to the Government of Indonesia regarding Alberth Rumbekwan. According to the information received, Mr. Rumbekwan, head of ELS-HAM. has been receiving death threats related to his activities as a human rights defender. On 9 October, he reportedly received a phone call in which he was told, �If you want to stay safe, don't make phone calls or send e-mails anywhere. If you want to stay safe, from now on don't get involved.� On 11 October, at around 12.30p.m., two men, reportedly carrying knives, forced open the gate in front of the ELS-HAM office and broke open the main door, which was locked. The two men reportedly entered every room and spent 30 minutes destroying books, documents and other items in the office. They also took computer discs and a number of documents. ELS-HAM activists, who hid in the bathroom, heard the two men saying that the person they were looking for was not there. Fear has been expressed that they were looking for Mr. Rumbekwan.

On 2 September 2002, the Special Rapporteur jointly with the Special Rapporteur on torture sent an allegation to the Government of Indonesia relating to the following cases.

Yoni Karunggu, a 17-year-old member of the Nduga tribe, reportedly died while in custody at Police Headquarters in Polres, Jayapura. An autopsy conducted by Jayapura General Hospital allegedly determined his death to be the result of beating and torture. Yoni Karrunggu was reportedly arrested along with 103 others, after a police post in Abepura was allegedly attacked by unidentified people on 7 December 2000.

Musa Kuluwa and Mandinus Yikwa, who allegedly suffered gunshot wounds, were reportedly kicked and beaten before being arrested along with 16 other persons on 3 May 2001 by members Brimob, whoallegedly opened fire as the two were boarding a boat in Wasior, Papua. Four other people are believed to have been killed during this incident. According to the information received, those arrested were brought to trial, accused of �attempting to commit separatism� and rebellion.

Murhaban Sulaiman, aged 28, Idris Muis, aged 30, Salem Arahman, aged 26, Muhammad Ismail, aged 16, Ansari Ramli, aged 15, Muhammad Nazar, aged 14, Fadli Maden, aged 13, Majnun Sami, aged 14, Fakri M Garu, aged 26, and three other young people were reportedly sitting at a coffee stall in Kuto Baru village when soldiers ordered them to show their identity cards. It is alleged that the military asked them questions about a GAM command centre. As they did not know the answers, the 12 young men were reportedly ordered to get on to a truck and their clothes and identity cards were burnt on the site. Three of them are reported to have managed to escape, while the others are believed to have been taken in the direction of Jambo Reuhat, Idi district. The Special Rapporteurs have been informed that on 20 August 2001 nine bodies were found in a grave at the base of a canyon in Kayu Tiga village. The bodies were reportedly identified as belonging to the above-named men.

On 18 September 2002, the Special Rapporteur sent an allegation to the Government of Indonesia relating to the following cases.

According to the information received, Lesi Iba was shot dead by Kopassus soldiers assigned to guard the PT Wapoga Mutiara Timber company. It appears that the woman was a treasurer at the company. A man, Martinus Maware, was reportedly injured in the incidents which occurred in the office of the company.

According to the information received, in the evening of 19 August 2001, some 114 soldiers left for the city of Idi. Upon reaching the bridge at Blang Siguci at around 9 p.m. they allegedly fired their guns in the air before proceeding into the city centre. On the way they arrived at Abdullah Yakob�s coffee-shop, where they rounded up a group of youths and other people from neighbouring houses. The soldiers reportedly tortured these persons and burned their clothes and identification documents. Wearing only their underwear, a group of 12 youths were ordered to board a truck. Three of them managed to flee as the truck headed towards Jambo Reuhat. On 20 August 2001, villagers reported that they had found a fresh grave inside the PT Bumi Flora Plantation, about 1 kilometre from the Yonif 203/AK garrison. The grave was reportedly exhumed. The remains of nine persons were found, namely Murhaba Sulaiman, Idris Muis, Salem Arahman, Muhammad Ismail, Ansari Ramli, Muhammad Nazar, Fadli Maden, Majnun Sami, Fakri M. Garu, who had been detained by the soldiers. It is reported that the corpses were brought to the village of Keude Pliek and buried.

Correspondence from 1983-2002

The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions has been corresponding with Governments regarding alleged violations since the mandate was established over two decades ago. While the Project on Extrajudicial Executions is making efforts to provide easily browsed versions of as many years as possible, much of the earlier correspondence is available only in the PDF versions of reports from 1983 to the present.

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