NATIONAL COMMISSION ON HUMAN RIGHTS
REPUBLIC OF INDONESIA
Jl. Latuharhary No. 48 Menteng Jakarta Pusat 10310, Phone 6221-3825230, Fax 6221-3825227 Website: www.komnasham.go.id
Jakarta, 9th November 2012
Number : 2.758A/K/PMT/XI/2012
Disposition : Immediately
Subject : Recommendation on the Appeal against Anand Krishna
Komnas HAM (National Commission on Human Rights) have received an appeal regarding Krishna Kumar Tolaram Gangtani aka Anand Krishna, residing at Jalan Sunter Mas Barat Blok H 10/1 RT 002 RW 006 Kelurahan Sunter Jaya Kecamatan Tanjung Priok Jakarta Utara, the basis of the appeal being about striving to restore the justice which has been breached or violated in the process of the investigation and trial case of the criminal act charged against him as ruled in article 290 of Indonesian Penal Procedural Code (KUHPidana) juncto article 64 clause 1 and or article 294 clause 2 of KUHPidana juncto article 64 clause 1 KUHPidana.
The appeal is attached and espoused with supporting dossiers below:
- Copy of verdict of South Jakarta district court No: 1054/Pid.B/2010/PN.JKT.SEL;
- Copy of Indictment Letter , Case Register Number: PDM-1071/JKT.SLT/08/2010;
- Copy of Prosecution Letter, Case Register Number: PDM-1071/JKT.SLT/08/2010;
- Copy of Appeal Memoir Number: 1054/Pid.B/2010/PN.JKT.SEL.dated 22nd November 2011;
- Copy of Counter Appeal Memoir dated 9th February 2011;
- Copy of Indonesian Supreme Court Decision No: 691 K/Pid/2012
Komnas HAM, after studying the documents, has found/come to know matters as follow:
That during the investigation process by Police the complainant/accused went through following acts:
- 7th April 2010—during the investigation at Metro Jaya Police Office Anand Krishna (AK) was neither allowed to go to the toilet or eat dinner in spite of a health report and submitted health history which explains his acute diabetes and high blood pressure. Consequently, he had a heart attack and was immediately rushed to Rumah Sakit Polri hospital. His family then had him treated at Rumah Sakit Harapan hospital as there was no heart care service at Rumah Sakit Polri. The heart attack subsequently accounts for the Bigeminy–irregular heart beat which is 3 times faster than normal—that Anand Krishna now permanently suffers.
- As ruled in Article 72 Law No. 8/1981 of the Penal Procedural Code (KUHP) the defendant has the right to obtain a copy of the Investigation Report (Berita Acara Pemeriksaan or BAP), but neither he nor his lawyers was ever given any such copy.
That during the investigation process in the South Jakarta District Office of Prosecution, the complainant/defendant experienced the following:
- Never receiving a copy of the investigation report (BAP) which an accused is supposed to have in the interest of his/her court defense as ruled in Article 72 Bill No. 8/1981 KUHP
That during the investigation processes and court session in South Jakarta district court the complainant/defendant was subjected to the following treatment.
- 9th March 2011— the illegal, non-objective detention by the former judge panel Drs. Hari Sasangka. SH, M. Hum, even though during the investigation Anand Krishna had always been cooperative and never showed any indication to complicate matters, had no intention to flee and there being no indication found of him conducting the acts as alleged. The objection proposed by Anand Krishna’s family was also denied.
- 16th March 2011—Drs. Hari Sasangka, SH, M. Hum, the former chairman of the judge panel, went on with the court trial despite the poor health of Anand Krishna, while prosecutor Martha P. Berliana (NIP—official registry number of civil servant—19720416 199603 2 002) left Anand Krishna without treatment even though he was having a heart attack and fainted before entering the South Jakarta district court. A general practitioner then pleaded with the judge and prosecutor to immediately allow Anand Krishna be hurried to the emergency care unit of RS Fatmawati hospital so as to give him medical treatment. Clearly, Anand Krishna’s right to health treatment access was denied and his life threatened by the negligence of the law upholders.
- 30th March—under the instruction of prosecutor Martha P. Berliana, Anand Krishna was forcibly discharged from the hospital and taken back to an incarceration cell though in fact he was in dire need of medical treatment to regain his health. Consequently, Anand Krishna’s health condition deteriorated and he was again admitted to Rumah Sakit Polri hospital.
- During the trial process the prosecutor repeatedly followed incorrect procedures, but the judge panel let this happen. Thus, Anand Krishna did not have a fair and objective trial.
- There was out of court fraternization between former presiding judge panel Drs. Hari Sasangka, SH, M. Hum and one of the prosecutor’s main witnesses Shinta Kencana Kheng. This proves that the panel of judges had been influenced by the witness whose testimony was heard in the trial. The Judicial Commission called Drs. Hari Sasangka in for an investigation, and found it right to replace the panel of judges. This fraternization had resulted in negating the free, objective, open and impartial trial of Anand Krishna.
That the new judge panel of South Jakarta district court decided to acquit the defendant/complainant from the first and second indictment. Concerning the acquittal the prosecutor of the South Jakarta Persecution Office submitted an appeal, but, through his lawyers, the complainant/defendant has filed the objection/counter memorandum. The basis of his objection is as follows:
- Appeal to an acquittal goes against and violates Article 67 and 244 of Bill No. 8/1981 of the Indonesian Criminal Code (KUHAP). Consequently, as a citizen, Anand Krishna has been robbed of his Constitutional and Human Rights to obtain a guarantee and acknowledgment in the matter of the Certainty of Equitable Law as instructed in Article 28D (1) Constitution 1945, Bill No. 39/1999 and International Covenant on Civil and Political Rights.
- The term either Pure Acquittal Decision (Putusan Bebas Murni) or Impure Acquittal Decision (Putusan Tidak Bebas Murni), which is often seized on as an excuse to grant the appeal against an acquittal, is NOT KNOWN in Indonesian Penal Procedural Code (KUHAP)
- Jurisprudence of Supreme Court decision is not one of the legal orders stipulated in People’s Consultative Assembly’s Resolution (TAP MPR) No. III/2000, and such jurisprudence can only be used if there is no bill administering appeal towards an acquittal.
- The Ministerial Decree of the Ministry of Justice No. M. 14-PW.07.03 year 1983 on Supplement to Directive of KUHAP Implementation is not just contradictory to article 67 and 244 Bill No. 8/1981 on KUHAP, but it is also lower than KUHAP. Hence, the appeal to acquittal is against the Principles of Universal Law—Lex superior derogal legi lex inferiori (higher law ignores the one in lower position)
That in the examination process at the Supreme Court the complainant/defendant was subjected to the following:
- In the Indonesian Supreme Court’s verdict No. 691 K/Pid2012, the supreme judges have purposely used another person’s case for the basis of their legal consideration as read in page 38: “that as proof for Judex Juris on how careless was the West Java High Court judge panel towards legal fact enumerated in our criminal prosecution can be seen from decision of Judex Facti number 20/Pid/2006/PT. Bdg dated 21st April 2006 made by the high court of West Java Province”.
An investigation by Andi Saputra, a journalist of an online media Detik.com (14th November 2012) found out the verdict No. 20/Pid/2006/PT. Bdg dated 21st April 2006 is actually for a trade mark dispute case with Erik Wijaya as the accused and was indicted to have violated article 24 point 1 Bill No. 5/1984 on Industry. Supreme Court’s verdict sentenced 2 year jail term for Erik Wijaya for having used the same trade mark as his own as had been registered by another party.
- The Supreme Court’s verdict No. 691 K/Pid/2012 neither states nor describes the legal facts and conditions as well as evidence taken from the trial to be the basis of Judex Juris so as to prove indictment alternative II article 294 point (2) number 2 KUHPidana and article 64 point (1) KUHPidana. Therefore, the verdict does not comply with the stipulation required by article 197 point 1 letter d of KUHAP.
- The Indonesian Supreme Court’s decision No. 691 K/Pid/2012 has not explained the elements of the second (the alternative) charge related to Article 294 paragraph (2) sub-paragraph 2. The Supreme Court, which acts as the Trier of Law (Judex Juris) in Indonesia, has not taken the trial facts and evidence into consideration when making their decision. Also the Supreme Court as Judex Juris has not explained which trial facts and what evidence they use to support their argument that the elements of Article 294 paragraph (2) sub-paragraph 2 are proven and fulfilled, as suggested by Article 197 paragraph 1 sub-paragraph h in Criminal Code Procedure.
- One of the Supreme Court’s Panel of Judges who presided over Anand Krishna’s case, Ahmad Yamanie, has been dishonorably dismissed by the Judges’ Ethics Council on 11 December 2012. while the Chairman of the Supreme Court’s Panel of Judges has been reported to the Anti-Corruption Commission and Judicial Commission in relation to bribery allegations in the process of reviewing Misbakhun’s case. This provides strong evidence that the professionalism and integrity of the above mentioned judge is very questionable in investigating and making decisions regarding Anand Krishna’s case.
To further examine the above mentioned findings, the Human Rights National Commission has also taken the following steps:
- Conducting a study of the news broadcasts on television from February 2010 – April 2010 especially the news broadcast by one specific private TV channel on 18 February 2010.
- Conducting a study of newspapers / magazines, namely:
- Harian Suara Pembaharuan, dated 12 & 13 October 2012, with the title Note on Anand Krishna’s Legal Case (Catatan Perjalanan Hukum Anand Krishna);
- The Main Report of Tiro Magazine, February 2011 Edition;
- The Special Report of Tiro Magazine October 2011 Edition;
- Ombudsman Magazine 22 September – October 2012 Edition.
- Study of online news media:
- Article on TempoInteraktif on 25 February 2010;
- Article on TempoInteraktif 14 April 2010;
- Article on Kompas 16 March 2010;
- Article on Vivanews 6 March 2010;
- Article on Antaranews 12 February 2012;
- Article on The Jakarta Post 11 November 2011;
- Article on Antaranews 3 December 2012;
- Article on Rakyat Merdeka OnLine 9 November 2012;
- YouTube hyperlinks which can be accessed from www.freeanandkrishna.com;
- Article on detik.com 14 November 2012
In regard to the things mentioned above, the Human Rights National Commission concludes that:
- There are indications of human rights violations against the complainant/defendant/convicted which happened during the trial proceedings in court, especially violation against the rights for justice as stipulated in Article 17 to 19 The Human Rights Bill No. 39/99.
- That the Indonesian Supreme Court’s Decision Number 691 K/Pid/2012 contains a number of flaws:
- It contains neither the complete elements of the criminal charge as stipulated by Article 294 paragraph (2) sub-paragraph 2 nor the elements of the Judge’s decision as suggested in Article 197 197 paragraph 1 sub-paragraph h in Criminal Code Procedure. Therefore, the decision is legally flawed.
- It contains a judgment which is not related to the charges/accusations against the complainant/defendant/convicted. This irrelevant judgment found in page 38 of the Indonesian Supreme Court’s Decision Number 691 K/Pid/2012 completely ignores the constitutional rights of the complainant/defendant/convicted. It says: “the evidence for Judex Juris regarding the ignorance of the Panel of Judges in West Java High Court of the legal facts which are mentioned in our criminal charges, can be viewed in the decision made by Judex Facti Number: 20/Pid/2006/PT.Bdg on 21 April 2006 which was made by the Panel of Judges of the High Court.” There is also another one found in page 33: “This Appeal in Bandung Number: 20/Pid/2006/PT.Bdg on 21 April 2006 page 9 to 13.”
Therefore, in the interests of the rights of the complainant/defendant/convicted the Human Rights National Commission recommends the following:
- To the Supreme Court of Indonesia
- To give as much chance as possible to the complainant/defendant/convicted to use his rights in order to prove the material untruth of the charges against him.
- That the Supreme Court of Indonesia corrects the legal policy which enacts the interpretations of Article 244 of The Bill No 8/81 about Criminal Code Procedure and /or clarifies/strengthens the legal basis of such enactment with regulations that are equivalent to The Law. It is because the interpretations enacted have been detrimental to the justice and interests of the complainant/defendant/convicted.
- That the Supreme Court uses its authority as stipulated by the prevailing laws; to work together with all other institutions i.e. the Attorney Office and Police in order to delay the implementation of the Supreme Court’s Decision No. 691 K/Pid/2012 as long as the processes number 1 and 2 are ongoing.
- To The High Attorney of Indonesia
- That The High Attorney gives as much chance as possible to the complainant/defendant/convicted to prove the material untruth related to the charges/indictment/convictions against him through legal process as well as non-judicial process, e.g. through a national or international forum.
- That the High Attorney uses his or her authority as stipulated by the prevailing laws in order to delay the implementation of the Supreme Court’s Decision No. 691 K/Pid/2012 as long as the process number 1 is still ongoing.
- To the Indonesian Police
- To help and to work together with all parties, among others, the JUDGES AND PROSECUTOR to find the material truth concerning the charges/indictment/convictions against the complainant/defendant/convicted.
- To help and work together with all parties to ensure the fulfillment and/or protection of the rights of the defendant/convicted especially the rights for justice, rights to feel safe and secure as guaranteed by The Human Rights Bill No. 39/99.
Hereby we convey our opinions and recommendations with hope and we encourage them to be used as the material for judgment and reference in the attempt to provide justice for the complainant/defendant/convicted Mr. Krishna Kumar Tolaram Gangtani alias Anand Krishna.
NATIONAL COMMISSION ON HUMAN RIGHTS
Sub-commission on Monitoring and Investigation
JOHNY NELSON SIMANJUNTAK, SH.
Translators: Dominggus Minggu Koro, Sylvia Sucipto
Editor: Gerard Barrie (UK)
Related link (in Indonesian language): http://surabaya.okezone.com/read/2012/10/25/340/709351/komnas-ham-telusi-kasus-anand-krishna