14 The Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment states that tt shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself
otherwise or to testify against any other person.
324
No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgement.
325
The duration of any interrogation of a detained or imprisoned person and of the intervals between interrogations as well as the identity of the officials who conducted the interrogations and other
persons present shall be recorded and certified in such form as may be prescribed by law.
326
A detained or imprisoned person, or his counsel when provided by law, shall have access to the
information on the interrogation.
327
Meanwhile, the UN Guidelines on the Role of Prosecutors states that when prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was
obtained through recourse to unlawful methods, they shall refuse to use such evidence against anyone other than those who used such methods.
“u h p o isio e ists e ause u la ful ethods a e a g oss iolatio agai st suspe t s ights, especially that involved torture or other cruel, inhuman or degrading treatment or punishment.
Prosecutors must inform such unlawful methods to the court and the Government, and take all necessary steps to ensure that those responsible for using such methods are brought to justice.
328
The United Nations Human Rights Committee further states that complaints about ill-treatment must be investigated effectively by competent authorities. Those found guilty must be held
responsible, and the alleged victims must themselves have effective remedies at their disposal, including the right to obtain compensation.
329
In the view of the Committee the prohibition must extend to corporal punishment, including excessive chastisement as an educational or disciplinary measure. Even such a measure as solitary
confinement may, according to the circumstances, and especially when the person is kept incommunicado, be contrary to Article 7 of ICCPR.
Moreover, Article 7 of ICCPR clearly protects not only persons arrested or imprisoned, but also pupils and patients in educational and medical institutions. Tt is also the duty of public authorities to
ensure protection by the law against such treatment.
330
G. Detention at the State Detention House
The main reference for the treatment of pretrial detainees is the Standard Minimum Rules for the Treatment for Prisoners, which was adopted byt the First United Nations Congress on the Prevention
of Crime and the Treatment of Offenders, held in Geneve in 1955, and approved by the Economic and Social Council under the Resolution 663 C XXIV on 31 July 1957 dan 2076 LXII on 13 May
1977.
324
Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment, Principle 21 1.
325
Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment, Principle 21 2.
326
Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment, Principle 23 1.
327
Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment, Principle 23 2.
328
Guidelines on the Role of Prosecutors, Article 16.
329
CCPR General Comment No. 7, paragraph 1.
330
CCPR General Comment No. 7, paragraph 2.
15 The Standard Minimum Rules contain detailed provisions that describe the condition of a person
during pretrial detention or imprisonment. Some of that provisions are implemented for pretrial detention that is based on presumption of innocence.
Further, in 1988, the United Nations General Assembly issued the Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment. This is the main reference
to implement the general principles under UDHR and ICCPR for pretrial detention. The basic p i iples detail the e essa easu es to p ote ts detai ee s hu a ights.
Just a few years after the Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment was issued, the United Nations General Assembly issued Resolution
No. 45111, on 14 December 1990, which adopted the Basic Principles for the Treatment of Prisoners, as a recommendation for all countries in the world to incorporate the elementary
principles for the treatment of detainees. In Indonesia, the Elucidation of Article 22 1 of KUHAP states that if there is no State Detention
House in a city or location, detention may be conducted in the police office, prosecutor office, in correctional facilities, hospitals, or in other places due to urgency.
As a response to international recommendations, the Government has issued Government Regulation No. 27 of 1983 on the Implementation of KUHAP, which stipulates that a State Detention
House will be formed in every regency and municipality. If it is necessary, a branch of State Detention House will be formed in a certain sub-district.
To implement the Government Regulation, the Minister of Justice then issued Minister of Justice Decree No. M.04 UM.01.06 of 1983 on the Determination of Certain Correctional Facilities as a State
Detention House. The Decree has two appendices:
i Appendix I, which lists the Correctional Facilities that may be used as a detention house;
ii Appendix II, which lists the Correctional Facilities that some of the rooms may be used as
a detention house. In regards to a person that may be placed at a State Detention House, such provision may be found
under Article 19 of the Government Regulation No. 27 of 1983 juncto Article 1 of the Minister of Justice Decree No. M.04.UM.01.06 Tahun 1983. Detainees placed in a State Detention House are
those that are undergoing investigation, prosecution, and examination at District Court, Court of Appeal, and the Supreme Court. Under these provisions, all detainees will be placed at the State
Detentio House without exception. However, the detention will be differentiated between sexes, ages, and the level of examination.
For crime committed by minors, Article 44 6 of the Law No. 3 of 1997 on Juvenile Court states that detention on children will be conducted in a specific place for children at State Detention House,
branch of the State Detention House, or in certain places. The Elucidation of this article states that,
e tai pla es a e dete tio fa ilities dedi ated fo i o s, sepa ated f o dete tio fa ilities fo adults.
If there is no State Detention House or a branch of the State Detention House in a region, or both places are full, detention against minors may be used in other places, by taken into consideration
the interest of the respective minor and the case examination.
16 Further, the Law No. 11 of 2012 on the Juvenile Criminal Justice System states that minor that are
detained must be placed at the Temporary Juvenile Correctional Facilities Lembaga Pemasyarakatan Anak Sementara
– LPAS. Article 33 4 and 5 of the Juvenile Criminal Justice System Law states that detention against a minor will be conducted at LPAS, and if there is no LPAS,
detention may be conducted at Social Welfare Institution Lembaga Penyelenggara Kesejahteraan Sosial
– LPKS. Dete tio agai st a i o ust also o side the i o s o ditio . A ti le of the Juvenile
Criminal Justice System Lawstates that a detention is conducted for the purpose of examination, but the dete tio ust o side the i o s i te est, pa ti ula l i ega ds to hishe ph si al a d
mental development, along with the social and public interest. Pursuant to Chief of the National Police Regulation No. 14 of 2012 on Criminal Investigation
Management, the treatment and placement against a detainee must be differentiated between male adults, women, and minors.
Treatment of male adults detainees are:
a. Must be treated humanly;
b. Based on presumption of innocence;
c. The detainee has the right to know the reason of detention and the charges;
d. May only be detained at State Detention House;
e. The family and his lawyer must be informed regarding the detention place;
f. Has the right to legal aid;
g. Has the right to meet his family and lawyer;
h. Has the right to medical treatment;
i. Has the right to interpreter, if he cannot speak Indonesian;
j. Must be separated from detention for women and minors;
k. Has the right to execute his beliefs; dan
l. The time for visit will be determined by the head of each state detentio house..
Treatment for women detainees are: a.
Must be placed in special detention room for women; b.
Has the right to special treatment; c.
Must be separated from detention for male adults and minors; d.
Special procedures for women protection. Treatment for minors are as follows:
a. The right to accompaniment from their parents or legal guardian;
b. The right to be accompanied by special officer for minors;
c. The right to privacy from the publication of hisher identity;
d. Must be placed in detention room for minors;
e. Must be separated from detention for male adults and women; and
f. Special procedures for child protection.
331
331
Article 54, Chief of the National Police Regulation No. 14 of 2012 on Criminal Investigation Management.
17
CHAPTER II Evaluation on the Pretrial Detention Necessity
