Children And Young Inmates In Indonesia

PAPER CHILDREN / YOUNG PRISONERS IN INDONESIA BY: DINA JULIANI JAKARTA, 2008 A.

Introductions Young people who offend pose a peculiar challenge to every criminal justice

system. Young people may commit “adult” crimes but their immaturity and lack of understanding mean that they cannot be dealt with as “small adults”. They are different for a number of reasons. Child and youth justice systems must take as their foundation the principles that uphold the rights of children and young people and develop systems that are qualitatively different to their adult criminal justice counterparts. The 1989 United Nations Convention on the Rights of the Child (“UNCROC”) is the starting point for such a principled approach and the foundation upon which a delicate balance between the “trial” and “treatment” can be achieved. B.

Descriptions of “Child” The United Nations Convention on The Rights of The Child (UNCROC) defines a

“child” as:1 “For the purpose of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

In Indonesia regulations, Child is every human being below the age of eighteen years old and unmarried. Regulation of Juvenile Justice stated a child under 8 years old, who did or was suspected of making criminal act, could be carried out by inspection by the investigators. If the investigator believed that this child could be still being re-educated 1 UNCROC, art 1

by his parents or the community or legal guardians, the Investigator handed again over this child to his parents, legal guardians and community. Also could be handed over to the Country to follow education, the management and the work exercise. If the Investigator believed that this child could not be re-educated again by his parents or the community or the legal guardians, then the Investigator handed over this child to the Social Department after hearing consideration from the Social Guider. So very clear that the Indonesian law arranged that the court was last consideration in giving the best act for him. C.

A Principled Approach to Children/Young People in Conflict With the Law

C.1. International Instruments C.1.a. UNCROC Key international conventions on youth justice contain a number of principles that are vital for a measured and dispassionate response to child and youth offending. The 1989 United Nations Convention on The Rights of the Child (UNCROC) sets out key principles on the maintenance of the rights of children an young people. UNCROC is the most universally accepted human rights documents in history and has been ratified by 192 countries, including Indonesia. It gives the rights of children and young people, at least in theory, a central place in international law. Article 40.1 UNCROC maintains that every child who was infringed the penal law is entitled to treatment “in a manner consistent with the promotion of the child’s sense of dignity and worth”. Factors such as taking into account the child’s age and the desirability of reintegrating the child back into a constructive role within society are some of the stated goals of the Article. Article 40 states a child must be afforded a fair trial and must be: •

Presumed innocent until proven guilty according the law;

•

Informed promptly of the charges against them and be afforded the appropriate assistance in the preparation of a defense;

•

Have the matter dealt with expeditiously by an impartial authority or judicial body with appropriate assistance and, where appropriate, the child’s parents or legal

guardians present; •

Given the right of appeal to a higher judicial authority;

•

Afforded respect for their privacy;

•

UNCROC also states that a minimum age must be established below which children should be found, though not at the expense of the child’s human rights and appropriate legal safeguards.

C.1.b. The UN Guidelines for the Administration of Juvenile Delinquency ("the Riyadh Guidelines") The Riyadh Guidelines insist that young people should have an active role and partnership within society and should not be seen as “objects of socialization or control. 2 Anti-Social behavior should be seen as “part of the maturation and growth process” that will disappear with the transition to adulthood. The Riyadh Guidelines stress that government should put child offending prevention plans in place that have been developed with the input of young people and should promote government involvement in strengthening the family, and in providing adequate education and community service. C.1.c. The UN Standard Minimum Rules for the Protection of Juvenile Justice ("the Beijing Rules") The Beijing Rules lay down clear guidelines for trial of young offenders emphasizing principles such as the need for a proportionate and timely response to offending, the safe guarding of basic procedural rights and the need for diversion rather than Court action. The UN Rules for the Protection of Juveniles Deprived of Their Liberty describe optimal custodial arrangements for young people. These include imprisonment in small open facilities with individualized treatment, contact with family members, and staff trained in child welfare and human rights. C.1.d. The UN Rules for the Protection of Juveniles Deprived of their Liberty. 2 The Riyadh Guidelines Art 3

There are an estimated 1 million children deprived of their liberty worldwide.3 UNICEF reports that these children often suffer deplorable and inhumane conditions, physical and sexual abuse and that parents are regularly denied visitation rights or information about their child’s whereabouts. In event to 37, the Human Rights Committee for the Child showed had the increase in the figure regarding the procedure and the protection for the child who was faced with the law, including the report concerning the torturing and the death rate in the prison, in the Brazil country and several other countries. C.2.

National Instruments Based on these matters on the foundation of the law for the implementation of

the management and the protection for the child became part of the Indonesian legal system those are: 1. Regulation RI No. 4 in 1979 about Welfare of the Child. 2. Regulation RI No. 12 in 1995 about the Correctional. 3. Regulation RI No. 3 in 1997 about the Juvenile Justice. 4. Regulation RI No. 39 in 1999 about Human Rights (in Part 10). 5. Regulation RI No.23 in 2002 about the Child Protection. 6. Regulation RI No. 20 in 2003 about the National Education System 7. Government Regulation No. 32 in 1999 about the Condition and the Conduct of the Implementation of Rights of Correctional Clients. 8. Government Regulation No. 57 in 1999 about the Co-operation of the Management and Guidance for Correctional Clients. 9. Government Regulation 58 in 1999 about the Condition and the Conduct of the Implementation of the Authority, Task and Treatment Responsibility of Resistance. 10. Government Regulation 31 in 1999 about the Management and Guidance for Correctional Clients 11. President Decisions No. 36 in 1990 about the Ratification of the Convention Child Rights. Until end 1992, administration of juvenile the Justice System who was special 3 Unicef website di http://www.unicef.org/protection/iles/Justice_for_Children_Detention.pdf (akses terakhir tertanggal 26 Oktober 2007).

and was separated, are unknown in Indonesia. There was no agency of the child's judicature; there were no criminal law and the law of criminal procedure that were allocated especially for the child. In Regulation RI No. 39 in 1999, about human rights, article 52 until article 66 stated about the Child's right. Regarding the concept of these discussions was the article 66, contained: 1) Each child to be not made the mistreatment target, the torturing or the dropping the inhumanity punishment 2) The Death Sentence or the lifelong punishment could not be passed for the child perpetrators of the criminal act 3) Each child had the right to be not seized by his freedom in a manner opposed the law. 4) The Capture, the detention or criminal the child's prison might be only done in accordance with the current law and only could be carried out as last efforts (the regulation that was more operational for police). 5) Each child who was seized his freedom, have the rights to receive the treatment humanely and by getting attention to the requirement for personal development in accordance with his age and must be separated from the adult. 6) Each child who was seized his freedom, have the right to secure the legal aid or other help effectively in each stage of legal efforts. 7) Each child who was seized his freedom, have the right to defend himself and received justice in front of the Child Court that was objective and equal treatment in the session that was closed for the public. The rights that were obtained by the child whose freedom was seized, there are: 4 1. Got the treatment humanely and separated from mature; -

In Court: there must be special room in Court especially for the Children. But until now, there is only one child court in Indonesia, placed in Bandung- West Java.

-

The Data showed, there are 16 Child Prisons in all over Indonesia. But still had found the child who ought to be placed in Child Prison, was mixed

4 Regulation about Child Protection 17

with the adult in Adult Prison. 2. Get the legal aid in each stage of legal efforts. 3. Defended himself and received justice in front of the child's objective court and equal 4. The status of the child must be kept in secret. Child / Juvenile Correctional Centre Child / Juvenile must be separated from the Adult Prisoners. There are 16 Child Correctional Centre in Indonesia: 5 No 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Child Correctional Centre Medan, Sumut Tanjungpati, Sumbar Palembang, SumSel Pekanbaru, Riau Muara Bulian, Jambi Kotabumi, Lampung Anak Pria Tangerang, Banten Anak Wanita Tangerang Kutoarjo, Jateng Blitar, Jatim Sungai Raya, Kalbar Martapura, Kalsel Tomohon, Sulut Pare-pare, Sulsel Gianyar, Bali Kupang, NTT TOTAL

Detainees M 475 1 163 0 6 282 0 0 10 34 10 9 0 0 0 5 995

F 0 0 0 0 0 6 0 0 0 0 0 0 0 0 0 0 6

Prisoners M 291 19 216 67 0 204 222 0 66 103 30 38 17 10 10 28 1321

F 0 0 0 0 0 5 0 12 1 0 2 0 0 0 0 1 21

Total Numbers of Child Detainees and Child Prisoners in Adult Correction Centers in all over Indonesia: TOTAL

DETAINEES M 1705

F 125

PRISONERS M F 1431 33

The numbers of child prisoners and child detainees in Adult Correctional Centers was bigger than the number child prisoners and the child detainees in Child Correctional 5 Data from Directorate Registration and Statistic, Directorate General of Correction, Jakarta March 2008

Centers. This showed the child's right to get the placed was separated from the adult was not yet fulfilled. The numbers of Child Prisoners and Child Detainees according to the criminal act kind all over Indonesia late January 2008 (top 5) Criminal Act Drug Abuse Burglary/Theft Violence Sexual Harassment Murder D.

Prisoners 1195 498 264 152 149

Criminal Act Burglary/Theft Drug Abuse Violence Sexual Harassment Murder/Gambling

Detainees 548 417 183 82 41

Friendly Based Juvenile/Child Corrections

General problems that can find in Child Correctional Centers in Indonesia, such as:  Education & training as rehabilitation implement the active programs as the control for the prisoners and effort refined “punishment” terminology.  Programs management and education curriculum were not matched with the conditions and characteristic of the juvenile.  We don’t have pattern of assessments systems and classifications for juvenile, which can use for making education programs and special training for the juvenile.  Each child correction centre has different programs, based on the policy and resources in each place.  We need the systems which are planed and integrative for the implementation treatment programs for the juvenile.  We don’t have pattern treatment programs was made special for the juvenile à pattern of treatment programs is still using the pattern of treatment for adult prisoners.6 The stage of process of treatment that still carried out until now: 1) Acceptance, child was received from attorney general’s office/family based on court’s decision, including all his crime documents. 6 Government Regulations Number 31 and 32 year 1999

2) Place arrangement, child was placed in special cell at least for 14 days or more. 3) Admission Orientation, child was given by information in written about their rights and obligations in Correctional Centers. 4) Management and Treatment Process, every children (based on his background research), being included in various activities such as school (formal or informal), work exercises, etc. 5) Upper Level of Management and Treatment Process: giving the assimilation, parole, pre-release or other free recommendation for the country’s child. In Indonesia there are several cooperation activities with the third parties in toward the fulfillments of the child's rights, but there weren’t equitable for all Child/Juvenile Correctional Centers all over Indonesia, Such as: 1. Cooperation with Department of National Education and PKBM 2. Cooperation

with

Department

Social,

Department

Religion

and

Cities

Government. 3. Cooperation with National Narcotics Bureau, with handling advocacy about Narcotics Prevention and Eradication of Drug Trafficking for the Correction Officers and Juvenile (P4GN), such as held in Blitar Child Correctional CenterEast Java Indonesia. 4. Declared Centre House of Community Involvement (PPM) in February 2008 that was vehicle and also partner from Correctional Centre of Boys Juvenile in Tangerang, in making continuously treatment programs, the existence of the Centre House of Community Involvement (PPM) increased the network as stakeholder, managing the Clever House Program that was build under cooperation with Solidarity of Cabinet Wives Indonesian Community (SIKIB). 5. Cooperation with PLAN and Indonesia of Family Planning Organization: made Friendly Based Juvenile Correctional Centre. This kind of Correction Centre already started in Boys Correctional Centre in Tangerang. Few changes happened until now: •

Children got addition food calories;

•

Cells looks like barracks, not like normal cells that apparently

closed and stressed in security problems. Someday, we hope that the physical condition of building for Child Correctional Centre were made like pavilions, using attractive colors for the wall, there’s no need special room for family visiting, family could freely met their children around the pavilion; places to study and create, worked, health facilities, the showroom for produced things made by juvenile, etc., was provided adequately; reduced the use of the fence of the high wall •

The officers don’t use formal uniforms;

•

We hope not only Tangerang Boys Correctional Centre that has get the opportunity to be a Friendly Child Correctional Centre, but others Child Correctional Centers get the same opportunity.

The Condition of Friendly Child Correctional Centre, which was hoped for, must fill with the elements as follows: •

Education & Training as part of the whole programs that has been integrated in an effort to return the prisoners to community.

•

Education & Training was made core-activities

•

Balance between education programs and training programs

•

Basic Life Skills approach

•

Vocational skills that give support for successful efforts to bring on the prisoners to community.

•

Prisoners as human resources, not liabilities.