PAHAM Papua has released the following statement on 12 October 2020 (originally in Bahasa Indonesia):
The transfer of defendants for trial outside of Papua with the argument that the security situation in Papua is not conducive is a judicial policy that contradicts the current security policy in Papua. The security in Papua is currently maintained by more than 13,000 military personnel with complete combat facilities (Imparsial research 2011). This number excludes thousands of members of the national police, which also fulfil their security duties in Timika. We estimate that more than 15,000 security force members are currently deployed in Papua. Again, this number does not include thousands of military members who are being mobilised and will be seconded to Papua; part of them will be deployed to Timika.
This ironic and contradictory policy deserves to be questioned. How can thousands of security forces be stationed in Papua but the security situation still be unconducive, including the concern that political trials are considered unsafe?
This is the current situation in the legal process against Indius Sambom (Ivan Sambom) and two of his colleagues. The trial shall be transferred from the district court in Timika, Papua to the North Jakarta District Court. The public prosecutor’s office in Timika has officially requested the transfer of this trial and has received the approval from the Supreme Court of the Republic of Indonesia. The prosecutor’s office in Timika is currently working on the transfer process.
Timika district police members arrested Indius Sambon and two of his colleagues on 9 April 2020. The police accuse them of being involved in a series of shootings in Tembagapra, Mimika Regency. The police investigator and the public prosecutor have charged the defendants with criminal provisions of treason and murder under Article 106 of the Indonesian Criminal Code (KUHP) in conjunction with Article 55 and 56 KHP, Article 338 KUHP in conjunction with Article 53 as well as Article 1(1) of Emergency Law 12/1951.
The transfer of the suspects/defendants Indius Sambom and his colleagues is a repetition of the practice of “illegally” transferring detainees which has repeatedly been conducted throughout 2019-2020, starting from the transfer of seven political prisoners and anti-racism protesters from Jayapura to Balikpapan, East Kalimantan. Similar cases were the transfer of “anti-racism protesters” from Wamena Town to the Biak Numfor Regency, the transfer of defendant Iris Murid from the Puncak Regency to Balikpapan and the transfer of eight anti-racism protesters from Wamena Town to Biak Numfor Regency.
The transfer of detainees from the district court where a legal process was initiated (*_locus delicti_*) to another district court is basically possible under applicable law. Under Indonesian law, the authority (*_relative power_*) for a transfer lies in the hands of the Chief Prosecutor and the head of the court. However, the transfer of detainees does not only depend on the will of the Chief Prosecutor or the Head of the Court or the mere fulfilment of administrative requirements. The law requires that the transfer of the trial location must be carried out based on the consideration of where most witnesses live (Article 84 (2) of the Criminal Procedure Code KUHAP) and considerations of regional security (Article 85 KUHAP).
Let us try to assess whether the transfer policy in the case of Indius Sambom and his two colleagues was following the legal provisions stipulated in the Criminal Procedure Code or not. Firstly, we can examine whether the transfer is conducted because the majority of number reside in a different location. This condition clearly does not apply to this case, because all witnesses reside in Timika; secondly, the justification for transferring the trial with security-based considerations is also very unreasonable, given the fact that a large number of security forces protects the security in Timika Town. The number of police and military personnel in Timika Regency is even higher than in other areas of Papua. The town of Timika, especially the location of the district court, is safe from any conflict disturbances. Thus other trials are held smoothly without any security disturbances.
The law assigns the authority to transfer hearings to the Chief Prosecutor and the Head of the Court to make the judicial process a legal institution that can truly uphold legal justice for those seeking justice or for people who have violated the law. It is a form of implementation of the principles *Fair trial* (*transparent, fast, low cost and protection of the rights of suspects and victims*) as a fundamental principle of the *rule of law*.
In the case Indius Sambom and his two colleagues, the Timika District Court has the full authority over the trial process as stipulated in Article 84 (1), (2) and (4) KUHAP.
*Our opinion*:
1. The transfer of the trial against Indius Sambom and his two colleagues from the Timika District Court to the North Jakarta District Court is a policy that does not follow the law. The transfer of this trial constitutes a violation of Article 84 KUHAP;
2. The transfer of the trial with the reason that Timika is not safe is imprecise and insufficient. The justification is not following the security policy of deploying more than 15,000 security force personnel to Papua, particularly concerning the security situation in Timika, which has the direct attention of the police and military headquarters.
3. The transfer of the trial in this case illustrates the disobedience to the law by the Mimika District Police, the public prosecutor’s office in Timika and the Timika District Court as law enforcement institutions. This measure reflects the terrible and discriminatory law enforcement in Papua which is continuously to be practised;
4. The transfer of the trial against Indius Sambom is a law enforcement effort by the public prosecution, the court and the police in Timika to keep legal justice away from the suspects (Indius Sambom and colleagues), their families as well as the Papuan people.
5. The transfer of Indius Sambom’s trial can hamper access to legal aid, increase court fees, neglect access for families and jeopardize the fulfilment of other rights.
*Recommendations*:
Based on the afore-mentioned explanation and opinion, in this case, PAHAM Papua recommends:
1. to the Indonesian Supreme Court, the chief of the high court in Papua and the head of the Timika District Court to cancel the transfer of the trial against Indius Sambon.
2. to the law enforcement supervisory agencies: The Indonesian Judicial Commission (Komisi Yudisial RI), the Indonesian Public Prosecution Commission (Komisi Kejaksaan KOMJAK RI), The National Police Commission (KOMPOLNAS), The Indonesian Ombudsman Office (OMBUDSMAN RI), the Ombudsman Papuan representative office to supervise the law enforcement of this case (Indius Sambom) and other cases;
Jayapura, 12 October 2020
*Association of Human Rights Lawyers for Papua (PAHAM) Papua*
Contact:
1. Gustaf Kawer, S.H, M.Si (Director/Lawyer), Phone contact: +62-8112958044
2. Yohanis Mambrasar, S.H (Lawyer), Phone contact: +62-81221611817
