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Indonesia: Torture trial must be open to public
Asian Human Rights Commission News Release - July 11, 2011
TNI's members had taken Charles Mali (24) and his brother Hery Mali to the Tobir Army Post of the 744th Infantry (TNI Yonif 744) in East Nusa Tenggara (NTT). At the post, the members of the 744th Infantry tortured them, resulting in the death of Charles Mali on March 13, 2011. Four months after the incident, the closed military trial of the case is now alleged be held between 11-13 July 2011 according to information that KontraS and the AHRC has received..
As has been seen in previous internal military trials, such as that of the 1997-1998 activist disappearances or the torture of Tuanliwor Kiwo in Papua in 2010, these TNI conducted trials display a serious lack of fairness and impartiality.
First, law No. 31 of 1997 on the Military Judicature is outdated and requires review. It refers to overruled legislations such as, law No. 14 of 1985 concerning the Supreme Court, law No. 20 of 1982 concerning defense and security, and law No. 14 of 1970 regarding judicial power.
Second, the trial is referring to law No. 31 of 1997 on the Military Judicature according to which the jurisdiction in the case depends on the subject who committed the crime or offense. This law is contrary to the decree of the People's Consultative Assembly No.VII of 2000 concerning the role of the Indonesian national army and the police, which clearly stated that the army members have to abide by the public judicial power in cases where the Indonesian criminal code has been violated. The Indonesian criminal code prohibits forms of violence and murder.
Third, the judges of the military trial in the case of Charles Mali lack independence, as internal trials can certainly not be separated from the control of military Commander-in-Chief. The elements of command and rank play an important role in influencing the judicial process.
Fourth, law No. 31 of 1997 on Military Judicature makes several provisions for the judicial process and allow very wide interpretations. This provides for the possibility for serious violations of fundamental rights in a trial.
Based on international and national law, the trial against the perpetrators of the torture and murder of Charles Mali and the torture of his brother has to respect all aspects of a fair trial and ensure impartiality as mentioned in article 14 of law No. 12 of 2005 on the ratification of the International Covenant on Civil and Political rights.
KontraS and the AHRC urge the military Commander-in-Chief to ensure that:
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