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University of New South Wales Law Journal Student Series |
PRESUMPTION AGAINST BAIL IN NSW AND EXCESSIVE USE OF PRE-TRIAL DETENTION IN THE NETHERLANDS AND INDONESIA: A HUMAN RIGHTS ANALYSIS
MAIDINA RAHMAWATI*
Data from the NSW Bureau of Crime and Statistics and Research (‘BOCSAR’) indicates that 40% of incarcerated people are on remand.[1] This is higher than the global median rate of remand or pre-trial detention (hereafter ‘PTD’) which is just under 30%.[2] Bail is the mechanism by which people who have been charged with a crime can be released from police custody instead of incarcerated ‘on remand’ in prison. Bail is authorised and often conditional liberty.[3] In New South Wales (‘NSW’) bail is governed by the Bail Act 2013, replacing the Bail Act 1978.[4] The Bail Act 2013 entered into force in May 2014 and initially removed presumptions against bail (hereafter ‘PAB’), replacing it with two tests: unacceptable risk and mitigation.[5] A month into operation, following moral panic inflamed by the usual parties (Cohen’s ‘editors, politicians, bishops and other right-thinking people’),[6] the Attorney General announced re-introducing PAB for ‘show-cause offences’. The change came into force in January 2015.[7] For these offenses – such as personal violence and supply of a commercial quantity of a prohibited drug – the rebuttable presumption is incarceration on remand. The accused may be released by showing cause that detention is unjustified.
This paper analyses the unlawfulness of PAB in terms of human rights and the criminal process. There are three intersecting research sites: the impact of PAB on Aboriginal people in NSW, and the incarceration on remand of accused persons in the Netherlands[8] and Indonesia.[9] These jurisdictions have similar restrictive rules around refusing release for criminal charges and PTD rates above 30%. In the Netherlands, issuing a PTD order can be accelerated if the permanent residency of the accused cannot be identified,[10] leading to over-incarceration of foreign nationals.[11] The paper will compare inadequate PTD assessment processes in the Netherlands[12] with determinations of PTD in Indonesia, where the decision is administrative. The authority to detain is not judicial in character: it is police and prosecutors who determine PTD in Indonesia.[13] Australia, the Netherlands and Indonesia have all ratified the International Covenant on Civil and Political Rights (‘ICCPR’).[14]
The right to liberty has long been attached to democratic principle,[15] proclaimed the first and primary end of human law by William Blackstone.[16] It is acknowledged in the first Magna Carta of 1215[17] and inscribed under art 3 of the Universal Declaration of Human Rights (‘UDHR’). Curtailment of the right must be justified and proportionate; criminal process is routinely relied upon to justify curtailment.
In addition to ratifying the ICCPR, the Netherlands is party to the European Convention of Human Rights (‘ECHR’) (since 1954).[18] Of symbolic significance is the fact that the Netherlands is home to the International Criminal Court and International Court of Justice.
Under the ICCPR and ECHR, the right to liberty is not absolute. Despite the universal right to presumption of innocence under UDHR art 11, this too can be limited.[19] The law says that when someone is arrested or detained, they must be treated humanely, with respect for their dignity.[20] Considering the coercive character of the criminal process itself, this cannot be guaranteed. Essential safeguards include access to records of an arrest and detention,[21] and access to legal counsel.[22]
Art 9 of the ICCPR prohibits arbitrary detention.[23] Deprivation of liberty must be based on legitimate grounds and procedure prescribed by law.[24] In this way, international law creates an obligation to promptly bring a detained person before a court. The ‘Habeas Corpus Principle’ has long been settled in common law and UN Human Rights Committee jurisprudence reviewing deprivation of liberty matters.[25] Habeas corpus by writ is the means by which unlawful detention is remedied. A release must be ordered by the court, which may seek guarantees that the accused will appear for trial to determine guilt at a later date.[26] The ECHR art 5(1) also provides detailed conditions for curtailment of the right to liberty in the criminal process.
The prohibition of arbitrary and unlawful detention contains two elements: the arbitrariness, and the lawful ground and procedure tests.[27] The ECHR does not expressly mention arbitrariness, however, it is a confirmed element in the case law.[28] Violations of the right to liberty thus are tested by (un)due process, including arbitrariness and unlawfulness.[29] To compare incarceration of presumptively innocent persons in the Netherlands, NSW and Indonesia, this paper draws on respected sources of international law.
The UN High Commissioner on Human Rights (‘UNHCHR’) Working Group on Arbitrary Detention has stated that ‘arbitrary’ must be interpreted broadly to include inappropriateness, injustice, lack of predictability and due process of law.[30] The Working Group listed five categories as arbitrary: ‘deprivation of liberty based on discrimination of birth; national, ethnic, or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other [protected] status’. Deprivation of liberty must not be motivated by these forms of bigotry.[31] Bad faith and deception from the authority can also be considered as defining arbitrariness.[32] The broad test is that detention be reasonable in all circumstances,[33] which requires periodic review of necessity: for as long as the deprivation of liberty continues it must be justified.[34] The ICCPR art 9 also sets out conditions of reasonableness, necessity, and proportionality.[35]
Detention must be prescribed or established by law.[36] To be lawful, and prevent arbitrariness, procedures for arrest and detention must be sufficiently precise to exclude broad interpretation and application.[37] The law should not unreasonably or unnecessarily obstruct exercise or ‘enjoyment’ of the right to liberty.[38] The ground ‘public security’ is too vague and expansive.[39]
Related to the requirement for review is judicial independence (from the executive).[40] This jurisdiction must regulate impartial[41] authorities who arrest and detain.[42] The prosecutor in the criminal process is not institutionally independent when exercising the power to detain.[43] This is the focus of critique of the Indonesian system, where the authority to detain, and review the necessity of detention, is not independent. Neither executive nor legislative branches of government,[44] nor parties to the case[45], can be impartial, or seen to be impartial.[46] A review subject to judicial oversight by application is also insufficient.[47] A body with an advisory function is not exercising judicial independence.[48]
Human Rights Committee (‘HRC’) jurisprudence confirms that review of detention must apply to all criminal cases without exception and does not rely on the detainee's option to exercise it.[49] Failure to review is a violation of rights to liberty.[50] It is crucial to note in this context that even where review is conducted by judicial authority, there is still a potential violation. This can occur when judges act partially, such as under instructions from the executive authorities, and where hearings are held in secret.[51]
PTD for people under criminal investigation waiting for a trial is not mandatory and, in accordance with universal rights, should not be general practice.[52]
To accord with international law cited above, the authority must base PTD orders on factual evidence of necessity[53] and justify how detention proportionately meets the necessity.[54] Failure to present factual evidence is a violation of rights to liberty.[55] The reasons must be substantive and not mere assumption or narrative of risk. The authority must explain why another measure (such as conditional release) is insufficient.[56] The information must be sufficient, for example, a criminal record of the same, and a serious charge is evidence of factual risk.[57] The reasonableness of PTD is supposed to be assessed in all the circumstances, on a case-by-case basis, based on objective seriousness, flight risk, potential to influence witnesses or the likelihood of collusion with other suspects, and the complexity of the investigation.[58] Every PTD must be determined with adequate scrutiny,[59] based on cogent and individual assessment, reviewed periodically, seek the shortest duration possible and the least restrictive measure.[60] It is not lawful to deprive accused persons of liberty for reinscribed reasons, abstractions, or stereotypes.[61] The alleged risk must be assessed based on relevant factors that confirm the existence of the risk, with an assessment made to the person’s characteristics, moral condition, house, work, assets, family relationships and all connections with the state.[62] The justified explanation between the ground and the place and condition of PTD has to be presented.[63] The absence or lack of reasonableness is taken into account as unlawful.[64]
The ECHR and the general comment of art 9 of ICCPR specifically mentions PTD for the purpose of ‘security’: that the accused may abscond,[65] or present a threat.[66] However, this provision does not permit general preventive PTD directed against an individual. The law requires the authority to show convincingly that the person is ‘reasonably’ likely to be involved in a specific offense.[67] The onus showing reasonable threat lies on the authority.[68] PTD should not be mandatory: individual grounds must be presented.[69] The PTD is prohibited to be imposed based on the potential sentence of the offense.[70] Even on the serious crime allegation, the authority has to explain why an appropriate amount of bail or other conditions of release will not address the risk.[71] Specific status as a foreign national also does not necessarily legitimize the direct PTD.[72]
The decision for PTD must be brought before the judge.[73] The accused has rights: to make a statement[74] and to legal counsel.[75] The judge assesses the lawfulness, necessity,[76] and reasonableness of PTD.[77] Even where PTD is ordered, the human rights committee seeks to limit police custody. The placement should be in a separate facility different from investigative authority to prevent the violation of rights.[78]
The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (‘the Siracusa Principles’) provides guidelines on how to limit rights under the ICCPR. It requires relevant authorities to analyse less restrictive measures for the achievement of the purpose of the limitation, in the context of criminal process, to minimise non-appearance at trial.[79] PTD is a serious measure, justified where other, less stringent measures have been considered and found insufficient to safeguard the individual or public interest.[80]
Also mentioned under the Siracusa Principles is the burden of justifying a limitation, which lies with the state; this is a protecting presumption in favour of release. The court must consider the availability of alternatives,[81] other measures such as bail,[82] and electronic monitoring as a priority.[83] The United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) also state that detention is a last resort, primarily to protect the public and victims.[84]
A 2012 NSW Law Reform Commission (‘LRC’) report noted that the Bail Act 1978 was the toughest in Australia,[85] in part due to PAB.[86] The Act was initially said to be intended as a simple and comprehensive statute,[87] however, by the time of the review it had been amended 85 times.[88] Largely as a function of ‘political football’ moral panics, politicians made the Act extremely cumbersome for legal practitioners and particularly the increasing number of unrepresented accused.[89] PAB also incarcerated many more people on remand, which reached 28% of all prisoners in 2013.[90] Being on remand in turn increases the likelihood of future bail refusal.[91]
The NSW LRC recommended a presumption in favour of bail in line with human rights principles. Indeed the Bail Act 2013 initially replaced PAB with the unacceptable and mitigation risk test. There was an exhaustive list of unacceptable risks in section 17(3). To decide whether an unacceptable risk existed, specific matters, including the accused person’s background, criminal history, circumstances and community ties, the type and seriousness of the offense, were considered.[92] More specific circumstances were also included, such as the use of weapons in sexual and other violent crimes, and the impact of the offence on victims.[93] Absent unacceptable risk, the Act provided that release on bail should be ordered. If an unacceptable risk was found, bail conditions must have been considered first,[94] with a reasonable, proportional and appropriate assessment.[95] Incarceration on remand was imposed if the bail authority showed that an ‘unacceptable’ risk could not be sufficiently mitigated.[96] With the two tests and clear conditions in line with human rights principles, the Act was relatively easy to administer. It was drafted to be precise, foreseeable, and clear, with incarceration on remand lawful and proportionate.
Within weeks of the operation of the Act, isolated cases were highlighted by corporate media outlets to campaign against the government as being ‘soft on crime’.[97] A review by former NSW Attorney General John Hatzistergos was established,[98] and it recommended re-instating PAB with a show-cause mechanism. The government accepted the recommendations and amended the Act, so general bail will not be presumed for show-cause offences.[99] The principle of presumptive innocence was moved from the purpose section to the (unenforceable) preamble, which is uncommon for a common law country.[100] Public safety was also added to the preamble, as a primary consideration over presumption of innocence.[101] The Act becomes complicated with three tests: show-cause, unacceptable risk and bail concerns.
Potential human rights violations are enabled by this restrictive Act. In one year of operation, the bail refusal rate increased by 20%, from 48.5% (2013–14) to 53.7% (2014 –15).[102] It has increased the likelihood of bail refusal.[103] From January 2015 to September 2023, the remand population in NSW rose from 33% to 41% of the prison population.[104] In a broader context, there was a 56% incremental growth in remand prisoners from 2011 to 2019.[105] Among the three main identified reasons is (statutory) denial of bail.[106] The creation of show-cause offences is also key: those accused of a show-cause offence are far more likely to be denied bail than other defendants.[107] This maintains a carceral cycle, as bail refusal is strongly correlated with custodial sentences.[108] The constantly growing population of people incarcerated on remand re-creates the problems identified by the NSW LRC over the previous 20 years.[109] It must be noted that increased denial of bail is not correlated with reduction in crime rates.[110]
As with all carceral policy settings, because carcerality is colonial,[111] refusal of bail is exercised more harshly against Indigenous people. Before the Bail Act 2013, bail refusal for Indigenous people was already three times higher compared to non-Indigenous people.[112] Aboriginal and Torres Strait Islander people face the structural barriers of poverty created by dispossession, including basic compliance costs such as transportation to meet bail conditions.[113] The Royal Commission into Aboriginal Deaths in Custody identified poverty, homelessness and unemployment are core factors in courts choosing to deny Aboriginal people bail.[114] After 2013, this same impacts remain. Refusal of bail, incarceration on remand and high correlation of remand with custodial sentences enables and accelerates imprisonment of Aboriginal people.[115] Even the conventional statistical criminologists at the Bureau of Crime Statistics and Research (‘BOCSAR’) have noted that when politicians yield to ‘tough on crime’ campaigns, police and courts enact the measures more harshly against Aboriginal people.[116] In September 2023, 30% of the remand population was comprised of Aboriginal people in NSW,[117] who are only 3% of the NSW population.[118]
In the ACT, where there is a Human Rights Act 2004 (‘ACT HRA’), PAB has been criticised as inconsistent with human rights. In the case of application for bail by Isa Islam, Penfold J declared the incompatibility of section s 9(c) of the Bail Act 1992 ACT (the PAB provision) with art 18(5) of the ACT HRA.[119] Under the ACT HRA s 32(2), the Supreme Court is authorised to declare certain laws in ACT as incompatible with human rights, and the Attorney General must respond. In the case of Re Application for Bail by Islam, the final Attorney General response in 2012 was to declare that more restrictive bail law for certain serious crimes were enacted based on the review.[120] The Attorney General stated that human rights concerns on bail should not be assessed in a hasty manner; and argued that PAB is not necessarily a human rights violation by highlighting its original practice in the United Kingdom and European human rights law.[121] His statement is questionable since in CC v United Kingdom, the European Commission of Human Rights decision declared an arbitrary deprivation of liberty in the application of s 25 of the Criminal Justice and Public Order Act 1994 of the United Kingdom.[122] The provisions were equivalent to PAB. The unlawfulness derived from excluding the risk assessment process for some particular circumstance.[123] The ECHR said statutory exclusion of the process removed judicial control required under art 5(3) ECHR.[124]
The PTD in the Netherlands is regulated by the Code of Criminal Procedure (CCP). Police can arrest for a period of three days and 15 hours.[125] After this arrest, the suspect must be brought to an investigative judge (rechter-commissaris) to decide whether the PTD (inverzekeringstelling) was lawful. Art 63 CCP allows the investigative judge to decide on an order for PTD (bevel-tot-bewaring). This detention can last up to 14 days.[126] A panel of three judges in raadkamer can determine the following order of PTD (bevel-tot-gevangenhouding) for the duration of up to 90 days.[127] After these 104 days (14 + 90 days), there will be a hearing to decide the continuation of PTD. The accumulation period of PTD will reduce the period of prison sentences. If the verdict is an acquittal, the defendant is eligible for compensation.[128]
The circumstances (gevallen) and grounds (groden) allowed for PTD are regulated in art 67-67a CCP. Detention can be ordered under at least one circumstance and ground. The circumstance is related to the offences accused (only allowed for offenses punishable with above four years imprisonment).[129] The grounds fall under two conditions: shows a serious risk of flight and reveals an important reason for community safety.[130] There are five grounds for the latter,[131] one of which is a suspicion of an offence carrying a prison sentence of at least twelve years and the legal order has been seriously shocked.
The Netherlands does not have a PAB, however, a more restrictive PTD rule is stipulated in art 67(2) CCP that a PTD order can be issued if the accused permanent place of residence in the Netherlands cannot be established, and he is suspected of a crime punishable with imprisonment. Even though this provision has to be implemented with the guarantee assessment of facts or circumstances that show serious objections against the accused stipulated in the following paragraph, it is considered to impact foreign nationals (hereafter FNs) disproportionately. The population of FNs in Dutch prisons in September 2020 was 23.1% of the total population.[132] At least for the ten years, the population remains more than 20%[133] while the actual percentage of non-Dutch nationality in the Netherlands is only 7.1%.[134]
In 2012, about 10% of all criminal processes referred to the prosecutor's office came from cases involving FNs.[135] They were 1.7–2 times more likely to be detained than the Dutch national.[136] It also increases the possibility of them receiving imprisonment to 2.7 times higher.[137] A study emphasised the three reasons for the FNs' overrepresentation: firstly, the legal norm for PTD is operated in ways that disadvantage them, secondly, the resident status affects the determination of PTD and thirdly, it is in line with the lack of access to an alternative to PTD.[138] The prosecutors and judges consider that the lack of permanent residents aggravates the risk of flight and makes an alternative to imprisonment doubtful to conduct.[139] It presents the different treatment from the authority for the FNs, which is not in line with the human rights principle that the PTD must not be conducted in a discriminatory manner, including based on the legal status, simply as a foreign national does not necessarily justify PTD.
It was reported that there was the element of racism in the implementation of PTD in the Netherlands for FNs; there were some labels for FNs who came to the Netherlands to commit crimes as ‘mobile bandits’ who are primarily Polish, Bulgarian, and Romanian.[140] They were tried in very swift trials and eligible for immediate PTD.[141] One judge explicitly expressed his hesitation that the offenders will not serve their sentences if they are not detained.[142] It contradicts the human rights principle that bad faith and stereotype-based PTD orders could be considered arbitrary. Worse, since 2014, the Netherlands has had a specific prison for convicted FNs, the program in this prison is a mere deterrent and incapacitation. There is no rehabilitation program, unlike for the Dutch-convicted.[143] Even after serving a sentence, FNs can have their resident status removed or declared undesirable and have to leave the country.[144] It was also reported that the FNS suffer from isolation, lack of resocialisation activities, and knowing the unequal treatment from Dutch citizen during their service in the dedicated prison facility for FNs.[145]
The human rights limitation has mandated the use of less intrusive measures to prevent the overuse of pre-trial detention. NSW LRC has responded to a similar problem of the absence of permanent residence, which could be solved by providing temporary accommodation working with the community.[146] Other measures could also be conducted, such as conditions to surrender passport or other identity documents that will prevent the accused from traveling, also the use of electronic monitoring, but there will be a problem with the maintenance of the electronic devices as the FNs tend to have lack access to stable housing with adequate facility, therefore, providing the mechanism of electronic monitoring for FNs must be equipped with access for device maintenance available at government offices such as probation office.[147]
The issues of FNs in PTD amplify the general problem of PTD in the Netherlands. The use of it was argued not as a last resort. Judges often insufficiently elaborate their decisions in a substantive individual manner.[148] The oral statement will be detailed, but the written decision is brief.[149] The judge tends only to consider the charge of the offense, which is above 12-year imprisonment, but neglects the mandatory cumulative condition about the shocked legal order which mandated by the law.[150] The hearing to determine PTD usually takes only 20–30 minutes.[151] The prosecutor does not initiate to consider the alternative to detention.[152] There is a lack of access to relevant information for defence lawyers to challenge applications from the prosecutors.[153] The judge did not respond to arguments raised by the lawyers.[154] To conclude, potential human rights violations continue to occur. Even with relatively more precise laws and seeking to comply with human rights principles,[155] the judge can still act partially and interpret the evidence not in a just manner.
The problem of PTD in Indonesia is a complex and worse human rights violation. Indonesia faces the problem of overcriminalisation[156] and prison overcrowding.[157] The majority of charges being prosecuted are drug use offences,[158] while the UN Special Rapporteur on the Right to Health has recommended decriminalisation.[159] In addition to becoming a party to ICCPR, Indonesia has a specific national bill on human rights[160] even though there is no provision for the right to liberty, there is a guarantee of presumptive innocence in the criminal law.[161] However, Indonesia never accepted international human rights instruments allowing any individual complaint[162] thus, Indonesia's human rights committee review is limited.
Indonesia does not have the PAB. The law on PTD is regulated in Law Number 8/1981 on the Criminal Procedural Code (Kitab Undang-undang Hukum Acara Pidana/KUHAP) (‘KUHAP’). KUHAP allows arrests to be conducted by the police for 24 hours.[163] In some laws, such as drug law and terrorism law, the arrest can be up to 6 days[164] and 21 days.[165] The wording of the provisions on detention is similar to the Dutch Code of Civil Procedure (‘CCP’) with some different limitations, in the CCP, PTD can only be ordered for offences punishable with imprisonment above four years; in Indonesia is five years imprisonment. Detention is allowed if there is a ‘strong allegation’ that a crime was committed, based on ‘sufficient evidence’ and ‘circumstances creating concern’ that led the accused to ‘abscond, destroy or dispose of evidence, or will repeat the crime.’[166]
The critical note in Indonesian KUHAP is that it does not include the mechanism to determine PTD before the judicial authority.[167] Unlike in the Dutch CCP, after police custody, the prosecutor must bring the accused to the examining Judge to determine the PTD. In Indonesia, the determination of PTD is a police discretion.[168] Police can solely continue their custody from arrest to PTD only by their assessment. In the PTD warrants, the police described the ground for PTD in templates, only saying ‘based on sufficient evidence is strongly alleged to commit a crime.’[169] There is no obligation for the police to describe the fulfillment of one of the grounds chosen for detention in an individual basis explanation. A study conducted on 40 police officers found that police could not explain the indicators to prove ‘circumstances creating concern’ as the ground for detention.[170] Indonesian Legal Aid Foundation (YLBHI) monitoring cases reported from 113 defendants in 19 provinces in Indonesia in 2019 found that 91.5% of them were detained, even 10% of which were juvenile. Only seven defendants were not detained because of police discretion not to. It was found that the investigators decided to order the PTD based on subjective assessment.[171]
The absence of judicial scrutiny in PTD practice in Indonesia was influenced by colonisation and the subsequent authoritarianism in Indonesia. During colonisation, an apartheid system of criminal procedure was implemented. The criminal process for Europeans proceeded with Reglement-op-de-Strafvordering (SV), similar to the Dutch CPC, with better protection of defendants’ rights. Meanwhile, the criminal procedure law enforced on Native Indonesians was Inlandsch-Reglement (IR)[172] (later changed to Herziene-Inlandsch-Reglement (HIR)), which was developed during the Dutch cultuurstelsel[173] era to maintain the exploitation of native Indonesians,[174] and it contained less protection defendants’ rights.[175] It allowed the intervention of the executive to judicial power.[176] Prosecutors for the Native Indonesians held the responsibility to regents and residents.[177] The militaristic culture of police and prosecutor was highly influenced by the Japanese colonisation afterward.[178] After independence, with the political tensions under the authoritarian Guided Democracy (1951–1965), Soekarno[179] continued the colonial practice of executive intervention in the judicial process, which worsened power imbalance between stakeholders.[180] In this period, the Indonesian principle of criminal procedure, ‘diferensiasi fungsional’[181] or three separate stages of the criminal process, was introduced.[182] Police have the power of investigation, prosecutor is only responsible for criminal charging ‘penuntutan’. This principle, ‘diferensiasi fungsional’ was introduced to the KUHAP[183] in the Soeharto[184] administration, who benefited from enormous police power.[185] In KUHAP, the Police have the sole authority to conduct investigations without supervision from prosecutors or judges.
With the influence of the police's solid political power,[186] the government failed to introduce the judicial scrutiny mechanism for coercive measures by the police, including PTD in KUHAP in 1974, even though the initial draft included judicial supervision.[187] Supervision of criminal process regulated under the mere mechanism of ‘pra-peradilan/pre-trial’ hearing. The defendant can submit a request to pre-trial court if they found their arrest or PTD unlawful.[188] This mechanism contradicts the human rights principle that mandates review from judicial authority must apply for all criminal cases and does not rely on the person’s choices. The pre-trial hearing has been proven ineffective in protecting defendant’s rights.[189] It is a ‘post-factum’ and complaint-based mechanism, meaning that human rights violations in PTD can only be reviewed if there is any complaint and the burden of proof lies on the accused, not the authority.[190] It brings problems with limited access to justice since most pre-trial hearings involve lawyers[191] dealing with technical levels to present proof of violations by the authority; however, access to lawyers across Indonesia is lacking.[192] A study examined 80 court decisions of pre-trial hearings found that judges tend only to examine administrative procedures, such as the existence of documents, rather than carefully looking at the fulfillment of ‘sufficient evidence’ and ‘circumstances creating concern’ ‘abscond, destroy or dispose of evidence, or will repeat the crime’ conditions.
The lack of accountability in the investigation process in Indonesia leads to numbers of violations by police, such as discriminatory practice of PTD[193], torture[194] and access to health treatment during police custody.[195] In the death penalty cases, torture from police was reported, but the judge insufficiently responded to the claim. The judge can still impose the severe punishment of life imprisonment to the defendant even after a torture claim.[196] Specific to drug use cases involving women, they experience gender-based violence during pro-longed arrest and PTD.[197]
Australia, the Netherlands and Indonesia are parties to the ICCPR, a law that clearly limits the use of pre-trial detention as in very exceptional condition. Australia and The Netherland also accept the optional protocol of ICCPR, obliging them to bring human rights violations under the ICCPR to the Human Rights Committee through individual complaint procedure. These arrangements, it seems, do not work to guarantee the protection of rights of the accused, especially the right to be free from unlawful and arbitrary pre-trial detention. NSW maintains the use of presumption against bail, that violates the human rights principle. The pre-trial detention or remand is supposed to be the exception, not the rule. It should only be imposed based on legitimate individual-basis grounds that ensure it is not proceeded on in arbitrary and generalised unlawful ways. The burden of proof to assess the need for pre-trial detention or remand lies on the authority. With the presumption against bail, the rights are violated and judicial independence is weakened.
However, even without the presumption against bail, human rights violations might still occur with the biased examination process of pre-trial detention or remand with discriminatory practice based on status. This occurs in the Netherlands against a high number of foreign nationals on remand. From NSW and the Netherlands practice, we can conclude that international law does not work to protect human rights, it remains subsumed to the rhetoric and racist narrative of public security and protection, as if the only way to make people safe is by locking ‘other’ people up.
The situation of violation of human right related to pre-trial detention is getting worse in Indonesia. Its history of colonisation and subsequent authoritarianism result in huge power of police without adequate mechanism to oversight them, making it easy-breezy for police and other law enforcement to order the pre-trial detention. And it takes a substantial privilege just to simply challenge any order of pre-trial detention under the flawed pre-trial/pra-peradilan mechanism. Even the judicial organ is irresponsive to human rights violation’s claim. It reinstate a huge problem here, about the political will of the states, willing to substantially work to protect human rights in responding to a criminal process, not just sending away people to prisons.
* The author would like to acknowledge the feedback and assistance of Dr Ingrid Matthews.
1 As of September 2023 there were 4,983 people on remand in NSW: see Bureau of Crime Statistics and Research (‘BOCSAR’), Custody Statistics (Web Page, November 2023) <https://www.bocsar.nsw.gov.au/Pages/bocsar_custody_stats/bocsar_custody_stats.asp>
[2] Roy Walmsey, World Pre-trial/Remand Imprisonment List: Fourth Edition (Report, February 2020) 2.
[3] Bail Act 2013 (NSW) s 7(1).
[4] As recommended by the New South Wales Law Reform Commission, Bail (Report No 133, April 2012) xvii.
[5] Bail Act 2013 (NSW) ss 17, 19, 24–8.
[6] Stanley Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (Routledge, 1972).
[7] Bail Amendment Act 2014 (NSW) s 16(a)(b).
[8] The pre-trial detainees rate in the Netherlands was 33% in 2020. The average rate between 2000 and 2020 was 36%: World Prison Brief, ‘World Prison Data: Netherlands’ (Data, September 2020) <https://www.prisonstudies.org/country/netherlands> (‘Netherlands Prison Data’).
[9] The pre-trial detainees rate in Indonesia was 18% in 2023. This is also a reduction on the average: between 2000 and 2015 the reported PTD rate was consistently above 20%. See Sistem Database Pemasyarakatan [Corrections Database System] (Web Page) <https://sdppublik.ditjenpas.go.id/dwh>; World Prison Brief, ‘World Prison Data: Indonesia’ (Web Page, October 2013) <https://www.prisonstudies.org/country/indonesia>.
[10] Wetboek van Strafvordering [Code of Criminal Procedural] (Netherlands) art 67(2).
[11] 23% of total population: see World Prison Brief, ‘Netherlands Prison Data’ (n 8).
[12] Jan Crijns, Bas Leeuw and Hilde Wermink, ‘Pre-trial Detention in the Netherlands: Legal Principles Versus Practical Reality’ (Research Report, Universiteit Leiden, March 2016) 35.
[13] In Indonesia, under the Law Number 8/1981 on Criminal Procedural Law, the authorisation of pre-trial detention is decided by authority who conduct the detention itself, for example, the police or prosecutor: Kitab Undang-undang Hukum Acara Pidana [Indonesian Criminal Procedural Code] art 20(1)(2)(3).
[14] Australia on 13 August 1980, the Netherlands on 11 Dec 1978 and Indonesia on 23 Feb 2006: see OHCHR, ‘Ratification Status for CCPR: International Covenant on Civil and Political Rights’, UN Treaty Body Database (Web Page) <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?Treaty=CCPR&Lang=en>
[15] Jeremy Gans et al, Criminal Process and Human Rights (Federation Press, 2011) 103; Medvedyev and Others (European Court of Human Rights, Grand Chamber, Application No 3394/03) [76]; Ladent v Poland (European Court of Human Rights, Chamber, Application No 11036/03) [45].
[16] Sir William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1765) bk 1, 120.
[17] Magna Carta 1297, 25 Edw 1, cl XXIX, reproduced in Statutes of the Realm vol 1, 117. Note that the conventional understanding is that this appeared at paragraph 39 of the original document.
[18] Leo F Zwaak, ‘The Netherlands’ in Jörg Polakiewicz (ed), ‘Fundamental Rights in Europe: The European Convention on Human Rights and its Member States, 1950-2000’, (Oxford University Press, 2001), 595–6.
[19] Human Rights Committee, General Comment No. 35 Art 9 (Liberty and Security of Person), UN Doc CCPR/C/GC/35 (31 October 2014) [10] (‘Liberty and Security’); Lewis Graham, ‘Liberty and its Exceptions’ (2023) 72 International and Comparative Law Quarterly 277, 278.
[20] General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Resolution 43/173 of 9 December 1988) principle 1 (‘Protection of All Persons under Detention’).
[21] Human Right Committee, Bakhridin Kurbonov v Tajikistan, UN Doc CCPR/C/86/D/1208/2003 (2006) [6.5]; Kurt v Turkey, (European Court of Human Rights, Chamber, Application No 15/1997/799/1002) [125].
[22] International Covenant on Civil and Political Rights (‘ICCPR’) art 14(3)(d).
[23] Ibid art 9(1).
[24] Ibid art 9(1); General Assembly, Protection of All Persons under Detention (n 20) principle 2.
[25] ICCPR (n 22) art 9(3)(4); Human Rights Committee, Maksim Gavrilin v Belarus, UN Doc CCPR/C/89/D/1342/2005 (2007) [7.4].
[26] ICCPR (n 22) art 9(3); Human Rights Committee, Liberty and Security (n 19) [5]; Guzzardi v Italy (European Court of Human Rights, Plenary Chamber, Application No 7367/76) [95].
[27] ICCPR (n 22) art 9(1).
[28] Selahattin Demirtaş v Turkey (No 2) (European Court of Human Rights, Grand Chamber, Application 14305/17) [311].
[29] Human Rights Committee, Liberty and Security (n 19) [11].
[30] Working Group on Arbitrary Detention, About Arbitrary Detention (Web Page) <https://www.ohchr.org/en/about-arbitrary-detention>.
[31] OHCHR and International Bar Association, ‘Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers’ (Professional Training Series No 9, United Nations, 2003) 159, 167.
[32] European Court of Human Rights and Council of Europe, Art 5 of the European Convention on Human Rights: Right to Liberty and Security (Guide, 31 August 2022) 14.
[33] Human Rights Committee, Hugo van Alphen v The Netherlands, UN Doc CCPR/C/39/D/305/1988 (1990) [5.8].
[34] Human Rights Committee, Danyal Shafiq v Australia, UN Doc CCPR/C/88/D/1324/2004 (2006) [7.2].
[35] Human Rights Committee, Liberty and Security (n 19) [12]; Enhorn v Sweden (European Court of Human Rights (Chamber, Application No 56529/00) [36]; Simons v Belgium (European Court of Human Rights, Second Section Court, Application No 71407/10) [32].
[36] Human Rights Committee, Liberty and Security (n 19) [14].
[37] Ibid [22].
[38] Human Rights Committee, Robert John Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (2010) [7.3] (‘Fardon v Australia’).
[39] Human Rights Committee, Liberty and Security (n 19) [38].
[40] General Assembly, Protection of All Persons under Detention (n 20) principle 4.
[41] Human Rights Committee, Liberty and Security (n 19) [15].
[42] Human Rights Committee, Mr Tai Wairiki Rameka et al v New Zealand, UN Doc CCPR/C/79/D/1090/2002 (2003) [7.3], [7.4] (‘Rameka v New Zealand’).
[43] Human Rights Committee, Saida Musaeva v Uzbekistan, UN Doc CCPR/C/104/D/1914,191&1916/2009 (March 2012) [9.3]. See also Human Rights Committee, Munarbek Torobekov v Kyrgyzstan, UN Doc CCPR/C/103/D/1547/2007 (2011) [6.2].
[44] Human Rights Committee, General Comment No 32, Art 14: Right to Equality before Courts and Tribunals and to Fair Trial, UN Doc CCPR/C/GC/32 (23 August 2007) [18]–[19].
[45] See the decisions of the Human Rights Committee above at n 43.
[46] European Court of Human Rights and Council of Europe (n 32) 17.
[47] Rameka v New Zealand, UN Doc CCPR/C/79/D/1090/2002 (n 42) [7.3]–[7.4].
[48] European Court of Human Rights and Council of Europe (n 32) 17.
[49] Human Rights Committee, Zhanna Kovsh (Abramova) v Belarus, 107th sess, UN Doc CCPR/C/107/D/1787/2008 (March 2013) [7.3].
[50] Human Rights Committee, Vladimir Kulomin v Hungary, UN Doc CCPR/C/50/D/521/1992 (1996) [11.3].
[51] Human Rights Committee, Mikhail Marinich v Belarus, UN Doc CCPR/C/99/D/1502/2006 (2010) [10.3].
[52] Human Rights Committee, CCPR General Comment No. 8: Art 9 (Right to Liberty and Security of Persons), 16th sess (30 June 1982) [3]; Human Rights Committee, Liberty and Security (n 19) [38].
[53] Human Rights Committee, A (name withheld) v New Zealand, UN Doc CCPR/C/66/D/754/1997 (1999) [7.2]; Trzaska v Poland (European Court of Human Rights, First Section Court, Application No 25792/94) [64]–[65].
[54] Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (n 38) [7.4].
[55] Human Rights Committee, McLawrence v Jamaica, 60th sess, UN Doc CCPR/C/60/D/702/1996 (29 September 1997) [3.2], [5.5].
[56] Human Rights Committee, Eligio Cedeño v Bolivarian Republic of Venezuela, UN Doc CCPR/C/106/D/1940/2010 (2012) [7.10].
[57] Human Rights Committee, Munarbek Torobekov v Kyrgyzstan, UN Doc CCPR/C/103/D/1547/2007 (2011) [6.3].
[58] OHCHR and International Bar Association (n 31) 196.
[59] Ibid 175.
[60] Paul M Taylor, A Commentary on the International Covenant on Civil and Political Rights: The UN Human Rights Committee’s Monitoring of ICCPR Rights (Cambridge University Press, June 2020) 241.
[61] Piruzyan v Armenia, (European Court of Human Rights, Third Section Court, Application No 33376/07) [99]–[100].
[62] European Union and Council of Europe, Pre-trial Detention Monitoring Tool (Monitoring Tool, Partnership for Good Governance) 32. <https://rm.coe.int/assessment-tool-on-pre-trial-detention-en/16807823b7>
[63] European Court of Human Rights and Council of Europe (n 32) 14.
[64] Ibid.
[65] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1951) art 5(1)(c).
[66] Human Rights Committee, Liberty and Security (n 19) [15].
[67] European Court of Human Rights and Council of Europe (n 32) 17.
[68] Human Rights Committee, Liberty and Security (n 19) [15].
[69] Human Rights Committee, Concluding Observations of the Human Rights Committee Bosnia and Herzegovina, UN Doc CCPR/C/BIH/CO/1 [18]; Human Rights Committee, Concluding Observations of the Human Rights Committee, Sri Lanka, UN Doc CPR/CO/79/LKA (2003) [13].
[70] Buzadji v Moldova, (European Court of Human Rights, Grand Chamber, Application No 7367/76) [88]; Human Rights Committee, Liberty and Security (n 19) [38].
[71] Human Rights Committee, Aleksander Smantser v Belarus, UN Doc CCPR/C/94/D/1178/2003 (17 November 2008) [10.3] (‘Smantser v Belarus’).
[72] Human Rights Committee, Abdelhamid Taright et al v Algeria, UN Doc CCPR/C/86/D/1085/2002 (2006) [8.3]–[8.4].
[73] General Assembly, Protection of All Persons under Detention (n 20) principle 37.
[74] Ibid.
[75] Ibid principle 11(1).
[76] Human Rights Committee, Liberty and Security (n 19) [34].
[77] Human Rights Committee, Mansour Ahani v Canada, 80th sess, UN Doc CCPR/C/80/D/1051/2002 [10.2]; General Assembly, Protection of All Persons under Detention (n 20) principle 32(1).
[78] Human Rights Committee, Liberty and Security (n 19) [36].
[79] UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 41st sess, UN Doc E/CN.4/1985/4 (28 September 1984) [11].
[80] European Court of Human Rights and Council of Europe (n 32) 17; Smantser v Belarus, UN Doc CCPR/C/94/D/1178/2003 (n 71) [10.3]; Human Rights Committee, Liberty and Security (n 19) [38]; Ambruszkiewicz v Poland (European Court of Human Rights, Fourth Section Court, 23 October 2006), quoted in Jesca Beneder, ‘Pre-trial Detention in the EU (Conference Paper, Conference on ‘Alternatives to Detention’, 6–7 October 2016) <https://www.cep-probation.org/wp-content/uploads/2018/10/Ad165.-16-09-30-Presentation-PTD-1.pdf>.
[81] Human Rights Committee, Liberty and Security (n 19) [38].
[82] Smantser v Belarus, UN Doc CCPR/C/94/D/1178/2003 (n 71) [10.3].
[83] Human Rights Committee, Liberty and Security (n 19) [38].
[84] United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), GA Res 45/110, UN Doc A/RES/45/110 (14 December 1990) principle 6.1.
[85] NSW Law Reform Commission (n 4) 40–1.
[86] Alex Steel, ‘Bail in Australia: Legislative Introduction and Amendment Since 1970’ (Conference Paper, Australian and New Zealand Critical Criminology Conference, 8–9 July 2009) 228, 234.
[87] NSW Law Reform Commission (n 4) 269.
[88] Hayley Aldrich, ‘Australia: NSW Bail Laws and Indigenous Australians’, Mondaq (Art, 25 December 2014) <https://www.mondaq.com/australia/public-order/362780/nsw-bail-laws-and-indigenous-australians>
[89] NSW Law Reform Commission (n 4) xviii, 42.
[90] Australian Bureau of Statistics, Prisoners In Australia, 2013: New South Wales (Catalogue No 4517.0, 5 December 2013) <https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4517.0main+features392013>.
[91] Lucy Snowball, Lenny Roth and Don Weatherburn, ‘Bail Presumptions and Risk of Bail Refusal: An Analysis of the NSW Bail Act’ (Issue Paper No 49, NSW Bureau of Crime Statistics and Research, July 2010) 4–6.
[92] Bail Act 2013 (NSW) s 17(4), as at 27 May 2013.
[95] Ibid s 24(1).
[97] David Brown and Julia Quilter, ‘Speaking Too Soon: The Sabotage of Bail Reform in New South Wales’ (2014) 3(3) Crime and Justice Journal 74.
[98] New South Wales, Parliamentary Debates, Legislative Assembly, 13 August 2014 (Brad Hazzard, Attorney-General and Minister for Justice) <https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1323879322-57548/link/6>.
[99] Ibid.
[100] Brown and Quilter (n 97) 80.
[101] Bail Act 2013 (NSW) preamble.
[102] Don Weatherburn and Jacqueline Fitzgerald, ‘The Impact of the NSW Bail Act (2013) on Trends in Bail and Remand in New South Wales’ (2015) (Issue Paper No 106, NSW Bureau of Crime Statistics and Research) 5–6.
[103] Steve Yeong and Suzanne Poynton ‘Did the 2013 Bail Act Increase the Risk of Bail Refusal? Evidence from a Quasi-Experiment in New South Wales’ (2018) 212 Crime and Justice Bulletin 4–9.
[104] BOCSAR (n 1).
[105] Don Weatherburn, ‘Is Tougher Sentencing and Bail Policy the Cause of Rising Imprisonment Rates? A NSW Case Study’ (2020) 53(4) Journal of Criminology 563, 566.
[106] Ibid.
[107] Ilya Klauzner and Steve Yeong, ‘What Factors Influence Police and Court Bail Decisions?’ (2021) 263 Crime and Justice Bulletin 11–20.
[108] Sara Rahman, ‘The Marginal Effect of Bail Decisions on Imprisonment, Failure to Appear, and Crime’ (2021) Crime and Justice Bulletin No. 224, NSW Bureau of Crime Statistics and Research, 11–12.
[109] NSW Law Reform Commission (n 4) xviii, 45.
[110] Ibid, xviii, 63.
[111] Crystal McKinnon, ‘Enduring Indigeneity and Solidarity in Response to Australia’s Carceral Colonialism’ (2020) 43(4) Biography 691.
[112] Ibid 59.
[113] Ibid 182.
[114] Royal Commission into Aboriginal Deaths in Custody, (National Report, April 1991) vol 3 [21.4.1]-[21.4.1.5].
[115] Australia Law Reform Commission, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017), 153.
[116] Evidence to House of Representatives Standing Committee of Aboriginal and Torres Strait Islander Affairs, Official Committee Hansard, Parliament of Australia, Canberra 4 March 2010 (Don Weatherburn, Director of BOCSAR)
[117] BOCSAR (n 1).
[118] Australian Bureau of Statistics, ‘New South Wales: Aboriginal and Torres Strait Islander Population Summary’, (Web Page, July 2022) <https://www.abs.gov.au/arts/new-south-wales-aboriginal-and-torres-strait-islander-population-summary>
[119] Re Application for Bail by Islam [2010] ACTSC 147, [403] (Penfold J).
[120] ACT Legislative Assembly, ‘Declaration of incompatibility’ (Human Rights Act, Declaration of incompatibility, 2011), <https://www.legislation.act.gov.au/Static/Notes/declarations.html>
[121] Ibid.
[122] ‘Report of the Commission Application’, C. C. v United Kingdom (European Commission of Human Rights, No. 32819/96, June 1998), [46]–[49].
[123] Ibid [49].
[124] Ibid [50].
[125] Wetboek van Strafvordering (n 10) art 56a, 57.
[126] Ibid art 63, 64.
[127] Ibid art 65.
[128] Ibid art 553.
[129] But some exceptions are applied for certain offences: see ibid, art 67(1)b.
[130] Ibid art 67(a).
[131] The other four grounds are: Strong suspicion that the suspect will commit another offence that (a) carries a minimum sentence of six years, (b) or an offence that threatens the health or safety of persons if released. A suspicion that a suspect has committed one of the listed offences in this paragraph (mainly assault, theft etc.) while having a prior conviction for a similar offence in the previous five years, Risk that the suspect will harm the investigation if released, Suspicion of an act of violence in a public space or against public servants while this offence will be tried within a period of seventeen days and fifteen hours after arrest. See ibid art 67a(2).
[132] World Prison Brief (n 8).
[133] Jelmer Brouwer, ‘Bordered Penality in the Netherlands: The Experiences of Foreign National Prisoners and Prison Officers in a Crimmigration Prison’ (2020) 22(5) Punishment & Society 706.
[134] Hilde Wermink, Michael T Light and Alicja P Krubnik, ‘Pretrial Detention and Incarceration Decisions for Foreign Nationals: A Mixed-Methods Approach’ (2022) 28(3) 367, 369.
[135] Ibid 373.
[136] Ibid.
[137] Ibid.
[138] Anthea Hucklesby, Miranda Boone and Christine Morgenstern, ‘Foreign Nationals in Pre-Trial Detention: A Neglected and Urgent Challenge’ in Christine Morgenstern, Walter Hammerschick and Mary Rogan (eds), European Perspectives on Pre-Trial Detention a Means of Last Resort? (Routledge Frontiers of Criminal Justice, 2024) 244 (‘European Perspectives’).
[139] Wermink, Light and Krubnik (n 133) 374.
[140] Miranda Boone, Pauline Jacobs and Joep Lindeman, ‘DETOUR: Towards Pre-trial Detention as Ultima Ratio: 2nd Dutch National Report on Expert Interviews’ (Report, 2017) 42.
[141] Ibid.
[142] Ibid 43.
[143] Brouwer (n 133) 101–2.
[144] Immigratie- en Naturalisatiedienst (IND),‘Pronouncement of Undesirability’, (Web Page, November 2023) <https://ind.nl/en/pronouncement-of-undesirability>
[145] Brouwer (n 133) 717.
[146] NSW Law Reform Commission (n 4) 214–15.
[147] Hucklesby, Boone and Morgenstern (n 138) 249.
[148] Boone, Jacobs and Lindeman (n 140) 37–48.
[149] Jan Crijns, Leeuw and Wermink, (n 12) 40.
[150] Boone, Jacobs and Lindeman (n 140) 48–9.
[151] Crijns, Leeuw and Wermink (n 12) 31–2.
[152] Boone, Jacobs and Lindeman (n 140) 55–6.
[153] Ibid 37–8, 56.
[154] Joep Lindeman, Pauline Jacobs and Miranda Boone, ‘Pre-trial Detention in the Netherlands: Absolutely Low, Relatively High Trial Detention in Europe’ in Morgenstern, Hammerschick and Rogan, European Perspectives (n 138) 152.
[155] Crijns, Leeuw and Wermink (n 12) 51.
[156] Anugerah Rizki Akbari,‘Controlling the Society through Criminalization: The Case of Indonesia’(MSc Thesis, Leiden University, 2015) 18–40
[157] The occupancy level is 196.4%: see World Prison Brief (n 9).
[158] Maidina Rahmawati, ‘Decriminalising Drug Use Would Help Stop Corrupt Police Narcotics Trafficking’ (Blog Post, 2 November 2022) <https://indonesiaatmelbourne.unimelb.edu.au/decriminalising-drug-use-would-help-stop-corruptpolice-narcoticstrafficking/#:~:text=In%20fact%2C%20recent%20data%20suggests,given%20%E2%80%9Ceducation%20and%20training%E2%80%9D.>
[159] UN Special Rapporteur on the Right to Health, ‘Drug Policy and Drug use’ (Web Page) <https://www.ohchr.org/en/special-procedures/sr-health/drug-policy-and-drug-use>
[160] UU No. 39 Tahun 1999 Tentang Hak Asasi Manusia, Law Number 39 Number 1999 on Human Rights.
[161] Ibid art 18.
[162] ‘UN Treaty Body Databse’, United Nations Human Rights Treaty Bodies (Web Page, October 2023) <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=80&Lang=EN>
[163] KUHAP [Indonesian Criminal Procedural Law] (Indonesia) art 19(1) (‘KUHAP’).
[164] UU No. 35 Tahun 2009 Tentang Narkotika [Law No. 35 2009 on Narcotics] (Indonesia) art 76(1)(2).
[165] UU No. 5 Tahun 2018 Tentang Terorisme [Law No. 5 2018 on Terrorism] (Indonesia) art 28(1)(2).
[166] KUHAP (n 163), art 21(1).
[167] Ibid, art 21–24; Robert R Strang, ‘More Adversarial but not Completely Adversarial: Reformasi of the Indonesian Criminal Procedure Code’ (2008) 31(1) Fordham International Law Journal, 196–7.
[168] Simon Butt, ‘Indonesia's Criminal Justice System on Trial: The Jessica Wongso Case’ 2021 24(1) New Criminal Law Review 3, 13.
[169] For an example of detention warrant from the police, see Lampiran Peraturan Kepala Kepolisian Negara [Annex of Head of Police Regulation on Management of Criminal Investigation] (Indonesia) 48, <https://peraturan.go.id/files/bn118-2010lmp.pdf>
[170] Institute for Criminal Justice Reform, Potret Penahanan Pra-Persidangan di Indonesia: Studi tentang Kebijakan Penahanan PraPersidangan dalam Teori dan Praktek, [Portrait of Pre-Trial Detention in Indonesia: A Study of Pre-Trial Detention Policy in Theory and Practice] (Report, 2012) 216–18.
[171] Indonesian Legal Aid Foundation (YLBHI), Praktik Penahanan di Indonesia, [Pre trial detention practice in Indonesia] (Report, 2021) <https://ylbhi.or.id/informasi/kegiatan/peluncuran-laporan-penelitian-tentang-praktik-penahanan-di-indonesia/>
[172] Anugerah Rizki Akbari, et al, AUDIT KUHAP: Studi Evaluasi Terhadap Keberlakuan Hukum Acara Pidana Indonesia, [AUDIT KUHAP: Study on the evaluation of Indonesian Criminal Procedural Law] (Research Report, 2022) 43–8.
[173] This was the era when the Dutch Colonial issued a force labour and cultivation policy in Java. People were required to result certain amount of cultivation and their land to cover the Dutch damages after war with Belgium.
[174] Ibid.
[175] Sebastiaan Pompe, The Indonesian Supreme Court: A Study of Institutional Collapse (Cornell University Press, 2018) 27–31.
[176] Fachrizal Afandi, ‘Maintaining Order: Public Prosecutors in Post-authoritarian Countries, the Case of Indonesia’ (PhD Dissertation, Leiden University, 2021) 18–40.
[177] Ibid 40–42.
[178] Ibid 44–46.
[179] Indonesia’s first president.
[180] Pompe (n 175) 52–64.
[181] This involves three distinct and successive stages of investigation, prosecution and adjudication, each of these processes are independent, without intervention of each other.
[182] Jayson Lamchek, ‘Arresting a Due Process Revolution: The Reform of Indonesia’s Code of Criminal Procedure and the Persistence of History’ in Russell Hogg and John Scott (eds), Criminal Legalities in the Global South (Routledge, 2020) 174.
[183] Fachrizal Afandi, ‘The Indonesian Prosecution Service at Work The Justice System Postman’, in Melissa Crouch (ed) The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia (Cambridge University Press, 2019) 100.
[184] Indonesia’s second president.
[185] Lamchek, (n 182) 175.
[186] Afandi, (n 176) 60–61.
[187] Supriyadi W Eddyono et al, Pretrial Hearing in Indonesia: Theory, History, and Practice in Indonesia, (Research Report, 2014) 27–38.
[188] KUHAP (n 163) art 77–83.
[189] Lamchek (n 182) 170.
[190] Eddyono et al (n 186) 69.
[191] From 80 decisions examined, 77 petitions were represented by legal counsel, and only 3 petitions were filed by the suspect/accused himself, it showed the highly influence of lawyer: see ibid 52.
[192] Yunita and Linda Yanti Sulistiawati, ‘Access to Justice in Indonesia: Searching for Meaning’ in Helena Whalen-Bridge (ed), The Role of Lawyers in Access to Justice: Asian and Comparative Perspectives (Cambridge University Press, 2022) 56–72.
[193] There is a case of women public figure as suspect to pornography law was not detained because of she is the caregiver of her child. The public compare it to the detention of another woman suspect, Rismaya. who still breastfeeds her child but the detention was ordered to her: see Yan Yusuf, Gisel Tak Ditahan, Netizen Bandingkan Kasus Ibu dan Bayi di Bone, [Gisel not Detained, Public Compare Mother and Baby Cases in Bone], Sindo News (online, 29 January 2021) <https://metro.sindonews.com/read/316684/170/gisel-tak-ditahan-netizen-bandingkan-kasus-ibu-dan-bayi-di-bone-1611810089>
[194] Institute for Criminal Justice Reform, ‘Police Violence and Criminal Procedure Law Issues’, Submission to the United Nations Universal Periodic Review Indonesia in Session 41st of the Working Group on the UPR Human Rights Council, 2022, paras 11, 14, 18, 19, 26. https://uprdoc.ohchr.org/uprweb/downloadfile.aspx?filename=10221&file=CoverPage; In July 2023, 4 police were prosecuted with the allegation of conducting violence during the arrest of a suspect who were found dead in police detention, Kristi Dwi Utami, [Four Police Become Suspects in the Death of a Prisoner in Banyumas], Kompas (online, 17 July 2023) https://www.kompas.id/baca/nusantara/2023/07/17/empat-polisi-jadi-tersangka-dalam-kasus-tewasnya-tahanan-di-banyumas, KontraS reported during June 2022 – May 2023, there were 54 incidents of abuse, torture and cruel treatment or punishment, 34 of them commiteed by the police: see KontraS, Launch of Report on the Situation of Torture Practices for the Period June 2022 – May 2023 Lack of Commitment and Normalisation of Violence: Eliminating Torture is Just a Dream?, (Report, 27 June 2023) <https://kontras.org/2023/06/27/peluncuran-laporan-situasi-praktik-penyiksaan-periode-juni-2022-mei-2023-minim-komitmen-dan-normalisasi-kekerasan-penghapusan-penyiksaan-hanya-angan/>
[195] FNS, a drug offence suspect, was passed away in police custody, his friend claimed that he frequently complaint about his pain: see Institute for Criminal Justice Reform, Police Custody: Massive Practice of Torture: Stop Detention in Police Stations, Revise the Criminal Procedure Code and the Narcotics Law Now! (Blog Post, 17 January 2022) <https://icjr.or.id/rumah-tahanan-polisi-ladang-penyiksaan-hentikan-penahanan-di-kantor-kantor-kepolisian-revisi-kuhap-dan-uu-narkotika-sekarang/>
[196] Adhigama Andre Budiman et al, ‘Series 2: ICJR Thematic Report on Death Penalty Torture in the Cases of Death Penalty in Indonesia: “One Too Many”’ (Research Report, 2023) 20–24.
[197] Girlie L A Ginting and Maidina Rahmawati, ‘Advocacy for Equity in Service Responses for Women who Use Drugs as Survivors of Gender Based Violence Based on TPKS Law’ (Research Report, 2022) 5–7.
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