The International Coalition for Papua (ICP) and TAPOL are writing to inform you of a case concerning the criminal investigation initiated by Papua Regional Police against prominent Papuan human rights lawyer, Gustaf Kawer. He has received two summonses under accusations of coercion and rebelliousness under Articles 211 and 212 of the Indonesian Penal Code.
The criminal investigation against Mr. Kawer is based on a report filed by an administrative court judge who examined an indigenous land dispute in which Mr. Kawer’s client is a party. In a hearing held on June 12, 2014, Mr. Kawer protested against the judges who expressed partiality by dismissing his request for an adjournment and holding the hearing without the presence of Mr Kawer or his client. Whereas the judge had already accepted several requests for adjournment from the Prosecutor. As the judge’s partiality affected his client’s interests, Mr. Kawer’s protest is nothing extraordinary. This protest, however, was considered by the judges as ‘resistance against public officials’.
Mr. Kawer is an independent lawyer from Papua who has been involved in numerous human rights litigations. In 2012, Mr. Kawer represented five suspects in a high-profile treason trial involving the issue of freedom to express political opinion, during which he was threatened with prosecution. In 2013, along with Ms. Olga Hamadi, Mr. Kawer was shortlisted for the International Lawyers for Lawyers Award for his dedication to human rights.
We strongly believe that this criminal investigation is an excessive and unnecessary response to a reasonable protest posed by Mr. Kawer to the judges, and is designed to intimidate him. We believe that this investigation is intended to hinder Mr. Kawer in undertaking his human rights works in Papua. We are concerned that the investigation may also have a wider impact by discouraging other human rights defenders and lawyers in Papua to continue their work.
We therefore request you to intervene in this case, by urging the Indonesian police to halt the criminal investigation against Mr. Kawer. An investigation should instead be held by the Supreme Court and the Judicial Commission against the judge at stake, who has not only expressed partiality during a hearing, but also intimidated Mr. Kawer by filing an unreasonable criminal complaint against him. We further request you to communicate with other UN Special Procedures to investigate the allegations of intimidation of Mr. Kawer, who is both a lawyer and a human rights defender.
Facts of the case
Mr. Kawer received a witness summons in the evening of August 22, 2014. While the summons states that it is relates to a case of coercion and rebelliousness under Articles 211 and 212 of the Penal Code, the summons fails to provide any further details. It does not, for example, provide any details of the suspect of the case.
From his communication with the officer in charge, Mr. Kawer learned that the case in which he has been summoned as a witness is actually a case against himself. This was confirmed in the second summons sent by Papua Regional Police to the Indonesian Bar Association (Perhimpunan Advocat Indonesia, PERADI) – to which Mr. Kawer is a member – dated August 25, 2014.
The second summons explains that Mr. Kawer has been reported by an administrative court judge named Warisman Sotaronggal. The report was concerning Mr. Kawer’s protest against the judges in a hearing on an indigenous land dispute against the government, held on June 12, 2014. He protested as the judges were being partial by dismissing his request for adjournment and holding the hearing without his presence. Mr. Kawer was eventually asked to leave the court room. As he was leaving, he saw that a police officer was recording the incident.
National and international instruments
Articles 211 and 212 of the Indonesian Penal Code used by the police concern resistance against public officials by use of violence or threat of violence. The police decision to use the articles in conducting investigation against Mr. Kawer is therefore absurd, as there has been no violence committed nor threats posed by Mr. Kawer during the hearing on June 12, 2014. Mr. Kawer was merely questioning the partiality of the judges examining the case.
In addition to that, the Indonesian Law on Advocates No. 18 / 2003 establishes that a legal advocate shall not be subject to criminal or civil action in relation to the performance in good faith of his or her professional duties in defending a client in court. This provision was recently reaffirmed by the Constitutional Court in its judgment No. 26/PUU-XI/2013.
Several international human rights instruments also explicitly call for states to provide protection for lawyers and human rights defenders. Various articles of the UN Basic Principles on the Role of Lawyers call for states to ensure that lawyers ‘are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference’ and ‘enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority’.
Article 12(2) of the UN Declaration on Human Rights Defenders also clearly calls for states to ‘take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration’.
We are concerned about the safety of Mr. Kawer, and the wider impact of intimidation and investigation against him. Please write to the authorities listed below urging for
- To ensure the safety and protection of human rights lawyer Gustaf Kawer
- an end of legal intimidation Mr Gustaf Kawer
- an investigation into the attempted criminalisation against him
- protection of Papuan human rights defenders
Please do not hesitate to contact us should you require any further information.
The International Coalition for Papua, Germany
TAPOL, United Kingdom
Urgent Action Targets
Chief of the Indonesian National Police
Jl. Trunojoyo No. 3
Kebayoran Baru, Jakarta Selatan 12110
Tel: +62 21 384 8537, 726 0306
Fax: +62 21 720 7277
Mr Yotje Mende
Chief of the Papua Regional Police
Jl. Samratulangi No. 8 Jayapura
Tel: + 62 0967 531014
Fax: +62 0967 533763
Dr. H. Muhammad Hatta Ali
Chief Justice of the Indonesian Supreme Court
Jl. Medan Merdeka Utara No. 9-13
Tel: +62 21 384 3348
Fax: +62 21 381 0356
Mr Suparman Marzuki
Chairperson of the Judicial Commission
Jl. Kramat Raya No. 57
Tel: +62 21 390 5876
Fax: +62 21 390 6215
Mr Hafids Abbas
National Human Rights Commission
Jl. Latuharhary No. 4-B
Tel: +62 21 392 5230
Fax: +62 21 392 5227
Mr Ismail Baturante
Makassar High Administrative Court
Jl. A.P Pettarani No. 45
Jayapura High Court
Jl. Tanjung Ria No. 98, Base'G
Tel: +62 967 541248
Fax: +62 967 541045
Mr Kasim, SH, MH
Chairman of the Administrative Court of Jayapura
Jalan Raya Sentani – Waena
Tel-fax: +62 967 571639 / 571216
Dr. Otto Hasibuan, SH., MM
Chair of the Indonesian Bar Association (PERADI)
Grand Slipi Tower, Lantai 11
Jl. S.Parman Kav. 22-24
Jakarta Barat 11480
Tel: +62 21 2594 5192 / +62 21 2594 5193 / +62 21 2594 5195 / +62 21 2594 5196
Fax: +62 21 2594 5173
Budi Setyanto, S.H.
Chair of the Jayapura branch of the Indonesian Bar Association (PERADI)
Jl. Karang N0. 8, Kel. Waena, Distrik Seram Kota
Tel/Fax: +62 967 573970
E.S. Maruli Hutagalung, SH. MH
Head of the Papua High Prosecutor’s Office
Kepala Kejaksaan Tinggi Papua di Jayapura
Jl. Anggrek No.6 Tanjung Ria
Tel +62 967 542764 / 541130