Since 2021, LBHM actively conducts regular assessments of new detainees in 3 detention centres in Jakarta (Cipinang Detention Centre, Pondok Bambu Detention Centre, and Salemba Detention Centre) to investigate incidents of torture and extortion. This assessment focuses on violations of three basic rights, which are the right to a fair trial, the right not to be subject to torture and ill-treatment, and the right to legal aid.  Unless specify, the data provided in this section are based of the information provided by the new detainees that LBHM able to talk to – meaning that there are other new detainees that we did not get to meet and talk.

From the LBHM assessment, it is clear that Indonesian law enforcement continues to use excessive force as part of the drug control strategy. This includes the massive practice of torture and ill-treatment. The number of reported incidents of torture and ill-treatment in drug cases has increased significantly in the past three years. This is of particular concern as drug cases remain the key contributor to detention. In the past three years, on average half of the new detainees in the facilities assessed are incarcerated for drug offences (57% in 2021, 47% in 2022, and 52% in 2023).

In 2021, LBHM data showed that 25% of new detainees assessed (89) claimed they experienced torture or ill-treatment during police investigations. Of these 89 people, 62%, or 55 people, were drug case detainees. The number rose in 2022, where data shows that there were 124 detainees who experienced torture, 62% of them drug case detainees (77). In 2023, The percentage of drug case detainees who reportedly experienced torture or ill-treatment rose to 72%, or 78 people.

In addition to that, LBHM assessment also shows extensive practices of extortion. In 2021, 20%, or 70 people assessed, testified that they were extorted during police investigations. Of these, 64% or 45 people are drug case detainees. On the following year, 66 detainees, where 70% of them are for drugs, were extorted; and in 2023, 63% of 54 people who testified that they were extorted were detained for drugs.

In its report, the government of Indonesia states that “the eradication of narcotic drugs is among the government’s topmost priority. The Government imposes heavy penalties on the drug dealers as points of drug’s distribution. Nevertheless, it is important to note that lethal force was not used against suspected drug traffickers after they had surrendered to the police.”

We reiterate LBHM findings detailed in our LOIPR submissions of dozens of suspected extrajudicial killings in 2017 in the context of drug-control operations; also supported by other NGOs and media reports. As mentioned in the earlier submission, In 2018, LBHM conducted a monitoring of media to accumulate news of police shooting in drug cases. There were 159 cases with the total number of victims 199 people. From 199 shooting victims, there are 68 people who are killed because of the shootings. These shootings of individuals who are implicated in drug cases demonstrates that there is a possibility of excessive force in law enforcement concerning drug cases. Law enforcement agencies usually justified the shooting by saying that the victims made attempts to fight the law enforcement agencies (59.3%), victim tried to escape (29.6%), and victims attacked the police (10%). However, it is not clear how threatening the suspects led the police to determine the use of shooting is necessary. Meanwhile, the police have an internal regulation that stated that the use of firearm is the last resort to stop criminals and could only be done if the suspects do immediate aggressive acts; acts fall into this category is “action conducted by criminals that can inflict serious wounds, threaten the honour of police force or the community, or pose threats to general security.”

We note the government’s failure to address, in its report, (a) allegations of arbitrary killings during police operations but before suspects “surrendered to the police”, (b) whether any steps to investigate such reports were made, and (c) whether anyone was held accountable for such killings.

Indonesia retains the death penalty for a range of offences, including some that do not meet the threshold of “most serious crimes”. Despite not carrying out executions since 2016, available information suggests strong reliance by authorities on this form of punishment. The Indonesian government does not provide updated, reliable and disaggregated figures on the use of capital punishment in the country but monitoring by local civil society reported by HRI in its “Global Overview: The Death Penalty for Drug Offences” indicates that most confirmed death sentences in the reporting period were imposed for drugs. More specifically: 77 out of 115 confirmed in 2020 (67%), 89 out of 114 in 2021 (78%). 122 out of 132 in 2022 (92%), and 114 out of 121 in 2023 (94%).

This is mirrored in available death row figures – also collected by local civil society absent official information. The minimum confirmed figures are the following:
– 2020: 355 persons, of which 214 for drug offences;
– 2021: 404 persons, of which 260 for drug offences;
– 2022: 452 persons, of which 266 for drug offences; and
– 2023: 479 persons, of which 249 for drug offences.

As shown by these figures, the number of people on death row in the country is regularly increasing, with drug control representing a driving factor. This puts a strain on already overcrowded and understaffed prisons, also raising concerns for the conditions of detention of people awaiting execution.

Among those uniquely impacted by the death penalty for drug offences are women, and foreign nationals. As of 2021, five of the eleven women on death row in Indonesia had been convicted of drug offences; two of which are foreign nationals. One of them, Merri Utami, received an unprecedented presidential clemency in 2023, when her death sentence was commuted to one of life imprisonment. Despite being a small minority of those on death row for drug crimes, the experiences of women show unique traits, and illustrate the compounding discrimination faced on the basis of both gender and involvement with drugs. For example, of these five women,
“two have stated that they had no knowledge of the drugs that they were carrying, and another has said that she was under extreme duress at the time of the commission of the offense. The remaining two women were believed to have played a more substantial role in the drugs syndicate […], were arrested with multiple male co-defendants, and both were romantically involved with one of their codefendants. In total, three of the five women maintain that they were manipulated by drug syndicates and had no knowledge the crimes for which they have been convicted; another woman maintains that she acted only under extreme duress.375 Thus, at least four of the five women on death row for drug offenses claim that they were the victims of manipulation or coercion.”

HRI’s ‘The Death Penalty for Drug Offences: Global Overview’ tracks the number of foreign nationals sentenced to death for drug offences in the country; which, as of 2022, accounted to at least 96 people. Foreign nationals are disproportionately affected by the death penalty and are made more vulnerable by precarious socio-economic status, lack of fluency in the language of the host country, and lack of understanding of the laws or criminal process. Significant due process issues are reported in domestic trials, including failure to ensure foreign nationals are assisted by an interpreter or a lawyer in the police station when making a statement. When foreign nationals are unable to afford to appoint their own private lawyer, are without family and friends nearby, and/or have little or no assistance navigating a foreign justice system or clemency applications, they are exceptionally vulnerable and may spend years on death row. In addition to that, consular assistance is often not provided in a timely fashion.

Death penalty reform in the ‘new Penal Code’ and related concerns:

A new Penal Code (KUHP) was adopted by the Government in late 2022 which will take into effect in 2026, as part of an ambitious project to codify all criminal offences into one law. Article 67 of KUHP states that the death penalty is now an alternative punishment rather than a primary one, and Article 100 states that people sentenced to death under the new law would be given a probation period of ten years, during which the death penalty can be commuted to life imprisonment if the convict demonstrates ’commendable behaviour‘ – which definition is absent.

Although Indonesia has not fully moved towards abolition, this legislation can be a step towards that direction. This development should thus be welcomed as it signals efforts to reduce executions and limit the number of people receiving death sentences. It should be noted, however, that after the revision, the Penal Code still prescribes death as a punishment for many offences that do not constitute ‘most serious crimes’ as defined by this Committee, the High Commissioner for Human Rights, and Human Rights Council resolutions; such as treason and drug trafficking.

Further, at least two pressing issues remain. One is whether those sentenced to death before the law takes effect will also be eligible for commutation. Civil society organisations perceive that the principle of in favor reo – according to which if there is a change in the law, the law to be applied is the one that has the most benefit for defendants— should be applied in this context. This view is shared by the then-Vice Minister of Law and Human Rights, who said that there should be a postponement of executions, even for those who are sentenced before 2026. Nevertheless, the law is not clear on this point.

Second is the lack of guidelines on how, during the probation period, the commutation through the Presidential Decree will be given; who is responsible to develop the guiding criteria; and how to ensure transparency of the process. Learning from previous experience where the President applied a blanket rejection of clemency on death penalty for drug offences, efforts should be made to ensure that such guidelines emphasis the needs for each clemency request to be individually reviewed.

Legal aid/access to justice in death penalty cases, particularly issues on appeal:

Lack of access to justice is one of the factors that contribute to the widespread of torture and extortion. It gives rooms for police to torture people without worrying that there would be repercussion as the victims does not have anyone to help them hold the perpetrators accountable. Based on LBHM’s assessments of new detainees in 3 detention centres in Jakarta (Cipinang Detention Centre, Pondok Bambu Detention Centre, and Salemba Detention Centre), this hypothesis was supported by the high number of detainees who do not receive legal aid services (78%, or 273 people (55% were detained for drugs) in 2021; 89%, or 515 people (53% were detained for drugs) in 2022; and 63%, or 90%, or 459 people (54% were detained for drugs) in 2023).

Since 2008, LBHM has focused on providing both in-court and out-of-court assistance to individuals whose right to life is threatened by the potential imposition of capital punishment. As of February 2024, LBHM has provided free legal aid assistance in 59 cases involving the death penalty, with details as follows: 52 drug-related cases, 6 murder cases, and 1 terrorism case. Two LBHM clients were ultimately executed in 2015 and 2016 and two have died in prison due to health reasons; while LBHM successfully assisted 46 cases, resulting in them not receiving a death sentence. Currently, there are 11 ongoing cases being pursued to change the death penalty verdict on appeal.

In the process of assisting individuals whose right to life is threatened, LBHM has encountered numerous issues. Firstly, during the arrest process, many of them experience violations of their rights, such as: not receiving adequate legal assistance, being subjected to torture, and not being informed of the criminal charges against them, all impacting the right to defense. This also occurs due to the narratives/policies built by the government and adopted by law enforcement, such as the “war on drugs” narrative in drug-related cases.

Moreover, in Indonesia, the situation regarding the respect for human rights is still considered inadequate. Many law enforcement officers view respecting rights as hindering their work (in law enforcement). However, respecting rights is an unavoidable obligation regardless of the situation.

Out of the 11 ongoing cases, 5 are currently undergoing case review (PK), and all 5 involve individuals sentenced to death in drug-related cases. 1 out of the 5 individuals is a woman, and 4 out of the 5 individuals are foreign nationals. All defendants in these 5 cases have been in detention for 7-9 years. Interestingly, these five individuals have also been proven not to be the main perpetrators and have never committed new crimes during their detention, which means there is hope for rehabilitation. This method is also to test how the Supreme Court will implement the new KUHP rules that will take effect in 2026. In providing legal assistance at the PK stage, many arguments from examining judges need to be quoted, one of which is ‘the execution of death penalty often carried out by the Government always overlooks the detention issue, so the execution of death penalty has become unattractive and irrelevant to the public, although on one side the Indonesian public still considers the execution of death penalty as an interesting news.’ The Judge’s argument can be interpreted as the imposition of death penalty and the execution of death penalty are no longer appropriate for a change.

This effort shows that the right to legal aid is important not only in the investigation and trial process, but also in extraordinary legal efforts, such as submitting case review (PK). However, the cost for this legal effort is high, because the defendants should pay the lawyer and must cover the expense incurred in the process (such as accommodation for prison officials to take the defendant to the court). Up until now, there is no national grant that can support death row prisoners who are poor to access extraordinary legal efforts, such as PK.

As detailed in LBHM, ICJR and HRI joint submission ahead of the adoption of the LOIPR, Indonesia adopts a punitive approach to drug control, with harsh and disproportionate penalties envisaged not only for drug trafficking, but also for drug use and possession. People who use drugs are routinely arrested and detained in already overcrowded prisons.

The Human Rights Committee has repeatedly expressed concern over incarceration in the context of drug control, and its negative impact on detention conditions.  We also recall the recent OHCHR report on “Human rights challenges in addressing and countering all aspects of the world drug problem,” which identifies overincarceration and prison overcrowding as one of such challenges. Among other recommendations for States are to “adopt alternatives to criminalization, “zero tolerance” and elimination of drugs, by considering decriminalization of usage” and – absent decriminalisation policies – to ensure that “penalties are proportionate to the gravity of offences and take mitigating and aggravating factors into account.”

As of 31 January 2024, a total of 266,497 people were detained in Indonesian prisons, against an official capacity of around 137,000; translating in a 194% occupancy rate. Of those, roughly 48% (129,508) were imprisoned for drug offences. These figures suggest that the measures described in the State report to confront the issue of overcrowding (para.164-171) are not having the intended effect, and that more attention should be reserved to policies and practices which cause overcrowding in the first place. Among those is – according to these same figure – the overly punitive approach to drug control.

This Committee has clarified that State parties have a heightened duty to protect the life and bodily integrity of people deprived of liberty; and UN experts concluded that denial or discontinuation, in detention, of opioid substitution treatment to individuals with a drug dependence – or of other essential health services granted in the broader community – can amount to ill-treatment, or even torture. Accordingly, in previous Concluding Observations, this Committee has expressed concern for the lack of adequate health-care services, in detention facilities, including for persons with a drug dependence, and recommended State parties to “ensure that inmates have access to an adequate level of health-care services, including psychiatric services, and that harm reduction programmes, including opioid substitution therapy and needle and syringe programmes, are available to drug-dependent inmates.”

While some harm reduction services are available in the broader community in Indonesia, they are much more limited in detention: according to HRI’s the Global State of Harm Reduction 2022, there are no Needle and Syringe Programs, no condoms distribution, nor distribution of naloxone (an opioid-overdose reversal drugs) in Indonesian prisons. The only intervention reportedly present is Opioid Agonist Therapy (OAT), but only in a handful, mostly in big cities’ prisons (11 as of 2018). In other cases, people in prison who were enrolled in an OAT programme outside of prison reported accessing methadone only through their family members or lawyers.

Law Number 35 Year 2009 (Narcotic Law) criminalises drug use, and at the same time places rehabilitation as an obligation for people who use drugs, rather than a right. Imprisonment and mandatory rehabilitation are also upheld by new regulations on narcotics law enforcement. For example, in 2021, the Indonesian Police issued Police Regulation Number 8 of 2021 concerning the Handling of Criminal Acts Based on Restorative Justice. One of the stated objectives of this regulation is to reduce prison overcrowding by providing police with the ability to resolve narcotics cases through a restorative justice scheme – which provide rehabilitation as an alternative to imprisonment.

Unfortunately, the restorative justice model for people who use drugs still presents a number of challenges. First, the regulation allows police to put people arrested for drug offences in a rehabilitation institution, either government-owned or private, on which the individual cannot refuse – practically making it a compulsory ‘rehabilitation’. This is a particularly problematic point as UN bodies, including the UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has highlighted that “the requirement of informed consent, including the right to refuse treatment, should be observed in administering any treatment for drug dependence”.

Second, in order to be eligible for the scheme, an individual must satisfy certain criteria, including having undergone an integrated assessment by the National Narcotics Agency team—a test that is administered at the discretion of the police; hence, opening rooms for extortion. Furthermore, it also imposes additional burdens to the individual as they will have to bear the rehabilitation costs. Not to mention that most of the individuals sent to rehabilitation might not need to be rehabilitated. The corruptive practice surrounding restorative justice scheme for drug offences are believed to be widespread. In a news report, a rehabilitation centre in Bogor called Rakit Foundation states that since its initiation in 2016, they had handled approximately 1,500 people; 35-40% of these clients came from the police. A client who underwent rehabilitation there after he was arrested by the police stated that his family paid three million IDR (approx. 190 USD) for 2-weeks treatment.

Thirdly, there is no human rights standard that is applied to the private rehabilitation centres, leading in many instances of violence and confinement. In January 2022, a rehabilitation patient in North Sumatera died after refusing to be chained in the process of detoxification. The violence perpetrators were other patients and workers in the rehabilitation centre. The same confinement in one small room with dozens of other clients, even in the midst of pandemic, also happened in another rehabilitation centre in West Java.

UN agencies and experts and international human rights organisations and mechanisms have called upon governments to close mandatory drug detention centres and establish community-based voluntary treatment measures, as it violates multiple rights of people who use drugs. Many studies have also found that compulsory treatment leads to faster relapse, demonstrating its ineffectiveness as an intervention to address drug dependency.

The International Narcotics Control Board in its 2017 report highlighted the need for treatment and rehabilitation as a significant component of reducing the demand for drugs. It also stated that access to drug rehabilitation should be considered a human right. Furthermore, the report affirmed that delivery of drug rehabilitation services should be undertaken in a manner compliant with human rights standards and principles observed in other areas of health-services. Thus reiterating “the right to autonomy and self-determination for patients and the principles of beneficence, non-maleficence and confidentiality on the part of care providers”.

• Ensure pre-trial detention applies only in necessity.
• In situations where pre-trial detention is deemed a necessity, ensure that detention should not be carried out in places of detention administered by authorities responsible for the investigation of the person held in detention. If no possible alternative is available, detention should last for a very short period.
• Ensure legal provision is made available for the person held in detention, and legal mechanism is put in place for the person held in detention can have the detention decision reviewed by a neutral judicial authority.
• Revise the Criminal Procedural Code to apply strict measures to prevent torture and ill-treatment, including through monitoring.
• Strengthen the work of the Partnership for the Prevention of Torture (Kerjasama untuk Pencegahan Penyiksaan),
• Redress the right of torture victims, and ensure that torture perpetrators are held accountable.
• Evaluate the use of firearms in arresting drug case suspects.
• Collect and publish updated and comprehensive figures on the number of death sentences imposed each year in the country, the number of people on death row, and the number of pardons and commutations requested and granted; disaggregated by offence, gender, nationality, and age.
• Declare a formal moratorium on the death penalty;
• Remove the death penalty as a potential punishment for drug-related offences, as a first step towards full abolition of capital punishment;
• Develop a standard procedure for commutation and clear guiding criteria, that takes into account economic status, gender issues, disability status, and other background that might be relevant for determining the commutation decision; including guarantees that all people on death row, including those who are sentenced before 2026, will be eligible for commutation.
• Adopt measures to ensure quality legal aid is available and accessible to all those facing the death penalty; as well as those sentences to death who wish to appeal their sentence or apply for clemency/commutation.
• Undertake a comprehensive review of domestic drug control policy with the aim of fully aligning to international human rights and health standards; including by considering decriminalisation of drug use
• Review convictions and/or sentences and, where appropriate, quash, commute or reduce convictions and/or sentences
• Ensure access to adequate, acceptable, gender-sensitive harm reduction and health services for people who use drugs in prison and other detention settings; including opioid substitution therapy and needle and syringe programmes.
• With a view of reforming it, undertake a comprehensive review of all procedures that allows the practices of compulsory rehabilitation.
• Ensure the availability of oversight mechanism on drug rehabilitation