-9- emotional, inflicted on an individual person to obtain information or knowledge from that person or from a third party, by punishing an individual for an act carried out or suspected to have been carried out by an individual or third party, or by threatening or coercing an individual or third party, or for reasons based on discriminative considerations, should this pain or suffering arise as a result of provocation by, with the approval of, or with the knowledge of any person or public official whosoever”. Article 4 of the Law Number 39/1999 states that torture is non-derogable rights. Nevertheless, the Law does not provide any effective mechanism of enforcement dealing with individual complaint. 20. As mentioned in paragraf 3 of this submission, Komnas HAM does have statutory function to monitor the implementation of human rights including the right not to be tortured. Nevertheless, this function has a limitation. In dealing with individual complaint, including complaint on torture, Komnas HAM is only mandated to make a recommendation to institution concerned (such as the police) without any legal power to force the institution concerned to implement the recommendation. 21. It should be remarked that in 2006 Komnas HAM has made a Memorandum of Understanding with National Police to cooperate in handling human rights cases in Indonesia. In January 2008 Komnas HAM has also met with the Directorate General of Correction Institutions and the meeting has concluded the mechanism between two parties related to case that submitted to Komnas HAM. In this regard, Komnas HAM will be able to visit any correction institutions in Indonesia. It should noted, however, that, up to now, Komnas HAM does not have an acess to conduct unannounced visits to all detention center. 22. The Law 26/2000 on Human Rights Court contains a provision on torture (Article 9 of the Law Number 26/2000). The definition of torture in this provision conforms to CAT. This provision, however, states that torture is a part of ‘crimes against humanity’, which should be perpetrated systematically or widespread as part of attack directed against any civilian. The Law 26/2000 states that Komnas HAM is the only institution to conduct the inquiry on the alleged cases of crimes against humanity.4 Up to the writing of this submission, Komnas HAM has completed inquiries on ten cases in which torture allegedly were perpetrated. 5 4 Under the Law 26/2000, the Human Rights Court has jurisdiction on crimes which are crimes against humanity and genocide. 5 The cases, among others, and the detailed information as follows: (a) The Case`of Timor Timur (East Timor/Timor Leste) • The inquiries conducted by Komnas HAM concluded that torture as part of crimes against humanity were committed. The alledge perpetrator were the police, the military and the militia. The victims were civilian who can be identified as students and members of CNRT. The report of the inquiry said that torture were comitted as a means of terrorizing civilian.5 • It should be noted that, although, the report of Komnas HAM concluded that the act of torture was committed, on the case of Timor Timur, none of the defendant were accussed of committing and/or responsible for torture. (b)The Case of Tanjung Priok • • The report of Komnas HAM on Tanjung Priok concluded that torture was comitted as crimes against humanity. Alledgely torture was perpetrated by the military and the police. The torture took place at the District Military Command (Kodim) of Central Jakarta , Laksusda V Jaya, Pomdam V Jaya and Military Detention House (RTM) Cimanggis. The method of torture were inflicting of physical pain or suffering by act of physical violence by hitting with the gun and kicking. 5 The result of Komnas HAM inquiry on gross human rights violations of Tanjung Priok incidents in 1998 had been submitted to the Attorney General in 2001. The case had been investigated and determined 14 defendants.