What’s wrong with the Indonesian justice system? Trials in Maybrat provide an insight

On 2 September 2021, an armed group of the West Papua National Liberation Army (TPNPB) attacked a military post in the Kisor Village, Maybrat Regency. The incident marked the deadliest TPNPB attack in the Papua Province for ten years and claimed the lives of four soldiers. Two soldiers were seriously injured during the attack.

Indonesian security forces responded with violent raids in surrounding villages to trace down the perpetrators. According to local sources, more than 4,500 indigenous Papuans from the districts Aifat Timur, Aifat Timur Tengah, Aifat Timur Jauh, Aifat Timur Selatan and Moskona fled their villages between 2 September and 15 October 2021 in fear of being arbitrarily arrested or tortured by Indonesian security forces.

Following the attack, military members reportedly arrested Mr Maikel Yaam (see photo below) along with other villagers on 2 September 2021 and brought them to the Sorong Selatan District Police Station for further interrogation. Police officers reportedly tortured Mr Yaam, forcing him to provide the officers with the names of the suspects. In distress, Mr Maikel Yaam gave random names asking the police officers to stop the torture.

Security force members arrest Maikel Yaam (front) and another suspect in Kisor Village on 2 September 2021.

Shortly after, the police published a list of 11 suspects (see the image with names of suspects below) allegedly responsible for the attack on the Kisor military post. All names were affiliated with the West Papua National Committee (KNPB), a civil resistance movement that promotes the right to self-determination through peaceful means. The KNPB publicly denied that any of its members were involved in the attack, emphasising that their organisation only engages in peaceful action. This claim was reconfirmed through a later statement by the TPNPB claiming full responsibility for the attack.

Police search list in relation to the attack on the military post in Kisor Village. All persons on the list are allegedly associated with the KNPB. 

Torture during arrest and police detention

On the day of the attack on the military post in Kisor Village on 2 September 2021, military members reportedly arrested Mr Maikel Yaam along with other villagers and brought them to the Sorong Selatan District Police Station for further interrogation.

Police officers reportedly tortured Mr Yaam, forcing him to provide the officers with the names of the suspects. He was repeatedly electrocuted during detention. Police officers reportedly punched Mr Yaam in the face multiple times causing his temple to bleed. The perpetrator was wearing a jade ring. Being in pain and desperate, Mr Maikel Yaam gave random names asking the police officers to stop the torture.

Thereupon, the police issued a search list, mainly targeting members of the West Papua National Committee (KNPB), the largest movement organisation in West Papua, promoting the right to self-determination through non-violent means. The KNPB has denied any involvement in the attack.

On 28 September 2021, around 1:00 am joint security forces carried out a raid in Kokas Village, Aifat District, where many internally displaced persons (IDPs) from Kisor and the surrounding area had sought shelter. The officers arrested Mr Amos Ky, Mr Agustinus Yaam and minors Yakobus Worait, Maklon Same, Lukas Ky and Robianus Yaam. All were brought to the Sorong Selatan District Police headquarters. Their hands were tied behind the back and their eyes were covered with duct tape.

Mr Amos Ky, Mr Agustinus Yaam, Yakobus Worait, Maklon Same, Lukas Ky and Robianus Yaam shortly after being arrested at Kokas Village on 28 September 2021

Police officers named Arius and Jerry reportedly tortured the seven defendants during their detention at the district police station. An officer repeatedly pierced Mr Agustinus Yaam’s ear with a stapler, causing the ear to bleed. Subsequently, the other defendants were forced to lick the blood with their tongues from the floor.  The officers used the stapler to pin the seven defendants’ fingers to the door. One of the officers cut Robianus Yaam’s with scissors, causing a slash wound of about 10 cm on his thigh. The police officers repeatedly hit Amos Ky’s head with a rifle butt.

Unfair trials against the seven defendants

The police pressed criminal charges and initiated an investigation against the seven suspects.  The following law enforcement process and trial were characterised by a series of criminal procedure breaches resulting in violations of the defendants’ right to a fair trial. According to LBH Kaki Abu’s lawyers representing the defendants, their clients did not receive sufficient legal counsel by a lawyer during the police interrogations, as required under national[1] and international law[2]. A lawyer appointed by the police came only once to the Sorong Selatan police station. All other interrogations were carried out without the defendant’s lawyer being present. LBH Kaki Abu took over the case after receiving a letter requesting legal assistance from the defendants’ parents. The case files had already been submitted to the public prosecutor at that time.

The police pressed criminal charges against the seven villagers. Lukas Ky was processed under the juvenile justice system and charged with murder as prohibited under Articles 340, 338, 170 and 353 of the Indonesian Criminal Code (KUHP). The trial (Trial number: PDM – 06 / R. 2.11 / Eoh.2 / 11 /2021) was held at the Sorong District Court between 18 November and 3 December 2021. The other six defendants were processed under the adult criminal justice system in two separate trials. Both trials were moved from the jurisdiction of the Sorong District Court to the district court in Makassar, South Sulawesi Province (see the table with an overview of charges at the end).


[1] Article 56(1) of the Indonesian Criminal Procedure Code (KUHAP) stipulates that any suspects being investigated under charges which carry a potential penalty of five years or more must receive legal counsel from a lawyer

[2] Article 14 of the ICCPR recognizes the right of an accused in criminal proceedings to a fair trial. An element of this right, set out in subsection (3)(d), is the right of the accused to be represented by legal counsel of his or her choice

Trial against minor Lukas Ky (Trial number: PDM – 06 / R. 2.11 / Eoh.2 / 11 /2021)

Lukas Ky was charged with, among others, premeditated murder. Because he is a minor, the crime carries a maximum penalty of 10 years imprisonment, in accordance with Law No. 11/2012 on Juvenile Criminal Justice System (UU SPPA). The lawyers found multiple violations of his right to a fair trial during the law enforcement process.

The public prosecutor claimed that Lukas Ky participated in the planning of the attack and the killing of an army member. The police report states that the key witness, Mr Maikel Yaam, saw him cutting the soldier’s upper leg with a machete. However, autopsy reports indicated that the victim’s body did not show any wounds on the body parts described by the key witness and Lukas Ky’s fingerprints were not found on the murder weapon. The weapon, a major piece of evidence incriminating Lukas Ky, was never presented in court.

During the trial, Mr Maikel Yaam and Agustinus Yaam repealed the statements they made at the police station and explained that the police officers forced them to provide names and a false confession. Another witness confirmed that the juvenile defendant was not living in Kisor Village at the time of the attack, but in Susumuk Village, where he lived with his uncle to attend junior high school.

On 3 December 2021, judges found Lukas Ky guilty of premeditated murder under Article 340 KUHP and sentenced him to eight years imprisonment. The lawyers appealed against the verdict. The High Court (Bahasa Indonesia: Pengadilan Tinggi) and the Supreme Court (Bahasa Indonesia: Mahkamah Agung) later confirmed the verdict handed down by the district court.[1]


[1] The verdict by the High Court was published on 29 December 2021. The verdict by the Supreme Court was handed down on 16 February 2022.

Trials against Mr Maikel Yaam, Mr Amos Ky, Robianus Yaam (Trial number: Trial number: PDM-01/R.2.11/Eoh.2/12/2021) and Mr Agustinus Yaam, Maklon Same, Yakobus Worait (PDM-02/R.2.11/Eoh.2/12/2021)

Mr Agustinus Yaam, Mr Maikel Yaam, Mr Amos Ky as well as Robianus Yaam, Maklon Same, and Yakobus Worait (alleged minors) were processed in separate trials under the adult criminal justice system. They have each been charged with Article 340 of the Indonesian Criminal Code (KUHP) on premeditated murder, Article 338 KUHP on murder, Article 170(2)(3e) KUHP on collective violence against individuals or properties resulting in death and Article 353(3) KUHP on premeditated grievous bodily harm resulting in death.

In late November 2021, the Papua Barat Prosecutor’s Office applied for a transfer of the six defendants to the Sulawesi Selatan Regional Police (Polda Sulawesi), citing concerns over public order. The defendants were transferred to the Polda Sulawesi Selatan in Makassar on 29 December 2021, before the Supreme Court approved the transfer application. Neither the lawyers nor the relatives were informed aforehand of the defendants’ transfer to Makassar. The trial was subsequently moved from the district court in Sorong to Makassar, South Sulawesi Province. While the Indonesian Criminal Procedure Code (KUHAP) provides the possibility to shift trials to the jurisdiction of a different district court[1], the defendants’ lawyers argue that the trial was moved to impede their work and manipulate the outcome of the trial.

While all expenses of public prosecutors are covered by the state, the non-profit lawyers of LBH Kaki Abu must cover their expenses and the witnesses’ travel expenses out of their own pockets. The costly travel by aeroplane from Sorong to Makassar prevents the lawyers and relatives from visiting the defendants during the detention and trial. The defendants’ lawyers see the transfer as a deliberate attempt to block them from providing effective legal counsel and presenting witnesses. They argue that the transfer was unwarranted, given the trial against Lukas Ky (Trial number: PDM – 06 / R. 2.11 / Eoh.2 / 11 /2021) took place at the Sorong District Court without any disturbances.

Robianus Yaam, Maklon Same and Yakobus Worait’s parents claimed that their children were still below the age of eighteen years. The lawyers submitted multiple documents[2] to the court confirming the defendants’ legal status as minors. They called upon the judges to initiate an investigation and determine the defendants’ biological age. However, the panel of judges rejected the call, arguing that the documents provided by the family were insufficient to prove the defendants’ status as minors. According to the lawyers, the police and public prosecutor processed the case files without attaching identity documents confirming the defendants’ age.

The judges’ decision to reject an examination of the defendants’ age may also be related to a lack of understanding of the geographical conditions and the inaccessibility of population documentation in West Papua. Identity cards in West Papua, particularly those issued in remote areas, lack accuracy as births often take place without the presence of health workers to provide them with birth certificates and related documents. Accordingly, many indigenous peoples in West Papua arrange identity documents at a later stage once they attend school. Birth dates of indigenous peoples on identity cards are often fictive as there are no birth certificates available. 

In late March 2022, lawyers expressed concerns regarding the alleged intimidation and manipulation of Maikel Yaam, Amos Ky, and Robianus Yaam. According to the lawyers, police officers brought the three defendants from their cells to another room on 27 and 28 March 2022, where police officers tried to convince them to make a confession. The officers allegedly intimidated the minors and later promised them to be transferred back to Sorong if they confess their involvement in the killings in court. The lawyers were surprised as the three minors all of a sudden made a confession during the court session on 30 March 2022. Prior to the date, Maikel Yaam, Amos Ky, and Robianus Yaam repeatedly testified in court, saying they were neither involved in the planning nor the attack against the military post in Kisor.

On 31 May 2022, the Makassar District Court sentenced the six defendants, including the three defendants who are allegedly still children, to 20 years and 18 years in prison. The panel of judges declared the six defendants guilty of jointly committing premeditated murder, as regulated in Article 340 of the Criminal Code in conjunction with Article 55 Paragraph (1) 1 of the Criminal Code. Maikel Yaam, Amos Ky, and Robianus Yaam were sentenced to 20 years in prison, while Maklon Same, Yakobus Worait and Agustinus Yaam were sentenced to 18 years in prison. Although the verdict was lighter than the prosecutor demanded, the attorney for LBH Kaki Abu Sorong, the legal advisor for the six defendants, stated that his party objected to the verdict. He attended the online sentencing hearing from Sorong, West Papua and highlighted the status of Same, Worait and R. Yaam as minors being tried in a public court. The attorney also considered that the panel of judges ruled out the statements of several witnesses that had been presented by the legal advisory team of the six defendants.

Further arrests in 2022 and legal process against Mr Melkyas Ky and Mr Abraham Fatem Te

This year, while the legal process of the seven defendants arrested in September 2021 was ongoing, the police arrested 22-year-old Mr Melkyas Ky and 24-year-old Mr Abraham Fatem Te. Mr Ky was arrested in January and Mr Fatem Te in March 2022. The police pressed criminal charges against them for their alleged involvement in the attack on the military post in Kisor in September 2021. The investigators submitted both case files to the public prosecutors (see photo below) without considering exculpatory evidence and alibis. They have each been charged with Article 340 of the Indonesian Criminal Code (KUHP) on premeditated murder, Article 338 KUHP on murder, Article 170(2)(3e) KUHP on collective violence against individuals or properties resulting in death and Article 353(3) KUHP on premeditated grievous bodily harm resulting in death. The trials will be held at the Sorong District Court.

The lawyers state that both defendants were arbitrarily arrested, detained and prosecuted despite a lack of sufficient evidence. Mr Fatem Te’s says he and his wife were in Tual City, Maluku Province, as the attack in Kisor took place. He had accompanied his wife to Tual in April 2021, where the couple stayed until his wife gave birth. The family returned to Sorong in December 2021. The lawyers criticised the police and the public prosecutor in Sorong for processing the case against Abraham Fatem Te despite the lack of two pieces of incriminating evidence, as required under Article 17 of the Indonesian Criminal Procedure Code (KUHAP).

Mr Melkyas Ky at the public prosecutor’s office in Sorong (source: Paham Papua)

[1] Article 85 of the Indonesian criminal procedure code (KUHAP) states that the trial of a criminal matter can only be moved from one district court to another if certain conditions and requirements are met: (1)the application for the transfer must come from the head of the relevant district court or prosecutor’s office; (2) such application must be made to the Supreme Court who, in turn, (3) makes a recommendation to the Law Minister to decide or appoint another district court to hear the matter. The transfer can be done only if the “situation of the region does not allow” the relevant district court to hold the trial.

[2] The parents provided the following documents: (1) Official documents issued by the YPK Fito Kisor Elementary School. The documents state that Robianus Yaam was born on 23 May 2006. (2) A baptismal certificate and documents issued by SMP Negeri (State Junior High School) 2 Aifat. The documents state that Maklon Same was born on 13 March 2005. (3) Graduation certificate issued by the YPPK Aisawait Kamat Elementary School. The document states that Yakobus Worait was born on 10 June 2006.   

Criminalisation against LBH Kaki Abu lawyer Mr Leonardo Ijie

Disappointed with the irregular transfer of Mr Agustinus Yaam, Mr Maikel Yaam, Mr Amos Ky, Robianus Yaam, Maklon Same and Yakobus Worait to the South Sulawesi Regional Police in Makassar, the defendants’ lawyer Mr Leonardo Ijie and three of his colleagues from LBH Kaki Abu carried out a peaceful protest in front of the Sorong District Court and the Provincial Prosecutor’s office in Sorong on 3 January 2022 (see photo below).  

Lawyers of LBH Kaki Abu launch a peaceful protest in front of the Sorong District Court and the Provincial Prosecutor’s office in Sorong on 3 January 2022.

One day after the protest, another lawyer named Mr Kariad Husni filed a complaint against Mr Leonardo Ijie to the Sorong police, accusing him of making blasphemous statements against Islam during the oration, allegedly violating Article 156(a) KUHP on religious blasphemy. Mr Leonardo Ijie denies the accusations, arguing that his speech was about his clients’ right to a fair trial.

Mr Ijie understood the reporting by other lawyers as an act of intimidation to deter him from providing legal support to the six defendants. He suspects that Mr Kariadi filed the complaint on behalf of another party, to discredit him in public and damage his professional reputation as a lawyer.  

Table with an overview of charges and current trial status for each defendant (as of July 2022)

NoDefendantsCriminal chargesAdditional info
1Mr Maikel Yaam, Mr Amos Ky, Robianus Yaam1) Article 340 KUHP in conjunction with Article 55(1)1 KUHP or Article 338 KUHP in conjunction with Article 55(1)1 KUHP
-premeditated murder or murder
2) Article 170(2)3 KUHP
-collective violence against individuals or properties resulting in death
3) Article 353(3) in conjunction with Article 55(1)1 KUHP
-Premeditated grievous bodily harm resulting in death
(Trial number: PDM-01/R.2.11/Eoh.2/12/2021) Convicted on 31 May 2022 for premeditated murder under Article 340 KUHP in conjunction with Article 55(1) KUHP. Sentenced to 20 years imprisonment.  The trial was held at the Makassar District Court.  
2Mr Agustinus Yaam, Maklon Same, Yakobus Worait1) Article 340 KUHP in conjunction with Article 55(1)1 KUHP or Article 338 KUHP in conjunction with Article 55(1)1 KUHP
-premeditated murder or murder
2) Article 170(2)3 KUHP
-collective violence against individuals or properties resulting in death
3) Article 353(3) in conjunction with Article 55(1)1 KUHP
-Premeditated grievous bodily harm resulting in death
(Trial number: PDM-02/R.2.11/Eoh.2/12/2021) Convicted on 31 May 2022 for premeditated murder under Article 340 KUHP in conjunction with Article 55(1) KUHP. Sentenced to 18 years imprisonment. The trial was held at the Makassar District Court.  
3Lukas Ky1) Article 340 KUHP in conjunction with Article 55(1)1 KUHP or Article 338 KUHP in conjunction with Article 55(1)1 KUHP
-premeditated murder or murder
2) Article 170(2)3 KUHP
-collective violence against individuals or properties resulting in death
3) Article 353(3) in conjunction with Article 55(1) 1 KUHP
-Premeditated grievous bodily harm resulting in death
Convicted for premeditated murder under Article 340 KUHP in conjunction with Article 55(1) KUHP. Sentenced to eight years imprisonment under the juvenile criminal justice system. The trial was held at the Sorong District Court between 18 November and  3 December 2021. The lawyers had appealed against the verdict. The High and Supreme Courts confirmed the verdict. (Trial number at Sorong District Court: PDM – 06 / R. 2.11 / Eoh.2 / 11 /2021)

Detailed Case Data
name of the location: POLRES Sorong Selatan (-1.436594, 132.073490)
administrative region: Indonesia, Papua Barat Province, Maybrat Regency, Aifat Selatan District, Kisor Village
total number of victims: nine
period of incident: 02.09.2021 – 31.7.2022
perpetrator: police, military, judicial
perpetrator details: unknown
Issues: torture, arbitrary detention, indigenous peoples, administration of justice & fair trial
Sources:
Further HRM News:

 

NumberName, DetailsGenderAgeGroup AffiliationViolations
1Maikel Yaammaleunknownindigenousill-treatment, arbitrary detention
1Amos Kymaleunknownindigenousill-treatment, arbitrary detention
1Robianus Yaammaleunknownindigenousill-treatment, arbitrary detention
1Agustinus Yaam,maleunknownindigenousill-treatment, arbitrary detention
1Maklon Samemaleunknownindigenousill-treatment, arbitrary detention
1Yakobus Woraitmaleunknownindigenousill-treatment, arbitrary detention
1Lukas Kymaleunknownindigenousill-treatment, arbitrary detention
1Melkyas Kymale22indigenousarbitrary detention
1Abraham Fatem Temale24indigenousarbitrary detention