Attempted Criminalization of Papuan Human Rights Lawyer by Law Enforcement Authorities

Urgent Appeal by the Civil Society Coalition for the Enforcement of Law and Human Rights in Papua

On August 22, 2014, Papuan Lawyer Gustaf Kawer received a letter from the Crime Department (DIT RESKRIMUM) of the Papuan Regional Police (POLDA Papua), dated August 19, 2014, which summoned him to testify as witness related to his protest on June 12, 2014 in trial number: 39 / G / 2013 / PTUN.JPR at the Jayapura State Administrative Court. At that time Gustaf Kawer requested the adjournment of the verdict, because he was not able to attend the hearing as attorney of a plaintiff, who wanted to cancel the issuance of a land certificate by the National Land Agency (BPN) of Jayapura Regency. The trial had proceeded smoothly until the verdict on June 12, 2014.

 

The letter from the Crime Department of the Papuan Regional Police refer to the criminal charges on "Crimes Against Public Authority", as defined in the articles 211 and 212 of the Indonesian Criminal Code (KUHP), as legal basis for the investigation. The case indicates that judges at the Jayapura State Administrative Court and the Papuan Regional Police are trying to criminalize Gustaf Kawer with the purpose to hinder his work as human rights lawyer.

Case Narrative
On 12 June, 2014, approximately at 10.30 East Indonesia Time the trial with the number: 39/G/2013/PTUN.JPR was scheduled to proceed with the verdict at the Jayapura State Administrative Court with the judges Emmanuel Jayapura Mouw as panel chairman, Jaya Ratna and Warisman S. Simanjuntak as panel judges, and Ade Rudianto as clerk substitute. Before the hearing Gustaf Kawer had communicated the request for the adjournment of the verdict for one week via text message to the clerk subtitute, because he had to represent another client at the Jayapura District Court. This trial was scheduled to proceed with the evidentiary hearing, which constitutes a crucial stage of any trial, and therefore shall be attended by any lawyer, paying serious attention to his client.

When Gustaf Kawer's adjournment request was rejected via text message with the reason that the principal plaintiff was already present at court, he directly went to the Jayapura State Administrative Court to urge the judges to stop the reading of the verdict. Gustaf Kawer considered this rejection as judges's unequal treatment towards him and his client, because past requests for the adjournment of hearings via text message by the other party had been approved by the judges for three times.

As Gustaf Kawer entered the court room, the judges were reading the verdict. While walking towards the judges, Gustaf Kawer insisted that the judges should not continue to read the verdict, and appreciate his adjournment request, as they had appreciated past adjournment requests from the other party. Nevertheless, the judges proceeded with the reading of the verdict and ordered Gustaf Kawer to leave the court room, if he disagrees with the judges' decision to continue the reading of the verdict. After the chairman's statement, Gustaf Kawer decided to leave the court room.

On Friday, August 22, 2014 at 18.00 East Indonesia Time a police officer from the Regional Police Papua came to Gustaf Kawer's house, and deliverd a letter, numbered Sp. Calls / 668 / VIII / 2014 / DIT Reskrimum, dated August 19, 2014, to Gustaf Kawer's wife. The letter summoned Gustaf Kawer for questioning on August 25, 2014, 10.00 East Indonesia Time, with allegation of "Crimes Against Public Authority", as referred to in articles 211 and 212 of the Indonesian Criminal Code (KUHP). Due to the lack of any detailed information in the summons, Gustaf Kawer called the investigator from the Papuan Regional Police, named Ahmad Erfan Muharya. Officer Muharya explained that the investigation is related to the Gustaf Kawer's protest against the judges during the trial hearing on June 22, 2014 at the Jayapura State Administrative Court.

Gustaf Kawer did not follow the summons dated August 19, 2014, because the letter was delivered directly to his personal address and not through the agency of the Indonesian Advocates Association PERADI, as stipulated in the MoU between the Indonesian National Police and the Indonesian Advocates Associations (No. B / 7 / II / 2012 and No. 002 / PERADI_DPN / MoU / II2012) on "Investigatory Procedures for Carrying Out The Profession As Advocate".

On August 25, 2014 the investigator resubmitted a second letter to PERADI which summoned Gustaf Kawer to the Papua Regional Police head quarters for questioning on September 1, 2014 related to allegations by one of the judges named Warisman S. Simanjuntak of "having threatened and insulted state officials in carrying out their duties". On August 27, 2014, the chairman of the executive board of the Papuan Branch of PERADI named Sefnat Masniffit, made the statement concerning the police summons, that Gustaf Kawer will not follow the summons as long as the PERADI board has not carried out an investigation. He also said that PERADI will communicate the results of its investigation within 14 days to the institutions in charge.

Analysis
The Civil Society Coalition for the Enforcement of Law and Human Rights in Papua is concerned that judges of the Jayapura State Administrative Court (PTUN Jayapura), as well as the Papuan Regional Police are intentionally attempting to complicate and hinder Gustaf Kawer in carrying out his profession as lawyer. The concern is based on the following facts.

The Civil Society Coalition for the Enforcement of Law and Human Rights in Papua shares the view that irregularities occured during the calling procedure. The incident took place on June 12, 2014, whereas the summons from Papua Regional Police, based on the allegations filed by Warisman Sotoronggal Simanjuntak, is dated August 19, 2014. Moreover, the complaint was filed by a single member of the panel of judges, whereas the reading of the verdict was attended by the entire panel of judges under direction of Emmanuel Mouw as the panel chairman.

Furthermore the Civil Society Coalition for the Enforcement of Law and Human Rights in Papua considers the conduct of the panel of judges in the trial with the number: 39 / G / 2013 / PTUN.JPR at Jayapura State Administrative Court not in accordance with the general trial principles that the verdict should be attended by all parties. As the judges began with the reading of the verdict, the hearing was only attended by the plaintiff himself, whereas Gustaf Kawer and the defendant were not present at court. Due to absence of members from both parties, Gustaf Kawer demanded the judges to stop the reading of the verdict. Although Gustaf Kawer interrupted the reading of the verdict, he did not undertake acts violence, threats of violence or coercion against the judges.

The Civil Society Coalition for the Enforcement of Law and Human Rights in Papua shares the common view that the Papuan Regional Police's utilization of the articles of "Crime of Crimes Against Public Authorities", as referred to in the articles 211 and 212 of the Indonesian Criminal Code (KUHP), is legally unreasonable and does not justify a criminal investigation. The legal essence of both articles refer to the criminal acts of violence, threats of violence or coercion against officials in carrying out their duties. The behavior of Gustaf Kawer does not fulfill the substantial elements of both articles. Moreover, the Civil Society Coalition for the Enforcement of Law and Human Rights in Papua considers the use of these articles by the Criminal Department of the Papuan Regional Police as inappropriate, because both parties, the panel of judges as well as the lawyers must be considerd as equal parts of law enforcement apparatus. Gustaf Kawer's behavior at court was still within the boundaries of defending his client's interests, and can neither be prosecuted under civil law, nor criminal procedures, as referred to in articles 14, 15 and 16 of law number 18/2003 about Advocates.

Furthermore, the Civil Society Coalition for the Enforcement of Law and Human Rights in Papua is of the opinion that the Papuan regional Police has violated several procedural requirements. Firstly, the letter dated August 19, 2014 does neither provide complete information of identity, nor a clear reason to summon Gustaf Kawer as witness for questioning. Moreover, the letter is not signed by the investigator in charge. Secondly, this police summons was not submitted in accordance with the procedures, stipulated in the MoU between the Indonesian National Police and the Indonesian Advocates Associations (No. B / 7 / II / 2012 and No. 002 / PERADI_DPN / MoU / II2012) on " Investigatory Procedures for Carrying Out The Profession As Advocate".

The Civil Society Coalition for the Enforcement of Law and Human Rights in Papua suspects that the Papuan Regional Police is attempting to criminalize Gustaf Kawer by using the articles 211 and 212 of the Indonesian Criminal Procedure Code (KUHP), with the aim to hinder Gustaf Kawer in carrying out his work as human rights lawyer. The prosecution of Gustaf Kawer under the mentioned articles would constitute a negative precedent, which could be used to limit future legal space for lawyers and human rights defenders in Papua.

Background
A first attempt to hinder Gustaf Kawer in performing his work as human rights defender and lawyer occurred in 2012. On February 21, 2012, the public prosecutor Yulius Teuf threatened to raise legal charges with the allegations of defamation against Gustaf Kawer. The threats were based on an argument between the public prosecution and Gustaf Kawer, who represented six defendants with a team of lawyers in a treason trial at the Jayapura District Court, which was related to the third Papua Congress. During one court session the public prosecutor repeatedly interfered, although it was the turn of the defendants' legal counsil to question the witnesses. Gustaf Kawer finally protested against Yulius Teuf' s misbehavior at court, because he did not appreciate the defendants' legal counsil. The public prosecutor's threats to o raise legal charges against Gustaf Kawer were finally not put into practice.

Urgent Appeal
Based on the above mentioned concerns and with regard to the current human rights situation in West Papua, the Civil Society Coalition for the Enforcement of Law and Human Rights in Papua launches this appeal, and urge human rights organizations, civil society organizations, and human rights activists to send letters of concern to the following public figures and state institutions:

PRESIDEN INDONESIA
Jl. Veteran No. 16
Jakarta Pusat
Indonesia
Tel:. (+62 21) 345 8595
Fax: (+62 21) 3483 4759

POLDA Papua
Jl. Samratulangi No. 8 Jayapura
INDONESIA
Tel: + 62 0967 531014
Fax: +62 0967 533763

Perserikatan Hakim Indonesia
Jl Medan Merdeka Utr 9-13 Ged MA Lt 2
Gambir, Gambir
Jakarta Pusat 10110 DKI Jakarta
Tel: +62 21 3813027
Fax: +62 21 3454546

Mahkamah Agung
Jl. Medan Merdeka Utara No 9-13
Jakarta -10110
Tel: +62 21 3843348,3810350;
Fax: +62 21 3457661;

Komisi Yudisial RI
Jl. Kramat Raya No. 57, Jakarta Pusat
INDONESIA
Tel: +62 21 3905455;
Fax: +62 21 3905455;
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

KAPOLRI
Markas Besar Kepolisian Indonesia
Jl. Trunojoyo No. 3
Kebayoran Baru
South Jakarta 12110
Indonesia
Tel: +62 21 3848537, 7260306, 7218010
fax: +62 21 7220669
email : This email address is being protected from spambots. You need JavaScript enabled to view it.

OMBUDSMEN
Jl. HR. Rasuna Said Kav C-19
Kuningan, South Jakarta
Indonesia
Tel: +62 21 3510071
fax : +62 21 3510081

KOMNAS HAM
Jalan Latuharhary No.4-B,
Jakarta 10310
Indonesia
Tel: +62 21 392 5227-30
fax: +62 21 392 5227
email : This email address is being protected from spambots. You need JavaScript enabled to view it.

KOMPOLNAS
Jl. Tirtayasa VII No. 20 Komplek PTIK Jakarta Selatan
INDONESIA
Tel: +62 21 739 2352
Fax: +62 21 739 2317

Menteri Hukum dan HAM
Jl. H.R. Rasuna Said Kav. 6-7
Kuningan, Jakarta 12940
Indonesia
Tel: +62 21 5253006, 5253889, 5264280
fax: +62 21 5253095

PENGADILAN TINGGI TUN Makassar
Jl. Raya Pendidikan No. 1, Makassar
Tel: +62 411 868784
Fax: +62 411 885720