Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 349, Mars 2008

1. 872. The complaint is contained in communication of the Federation of Construction, Informal and General Workers (FKUI) dated 18 July 2007.
2. 873. The Government sent its observations in communications dated 21 September 2007 and 31 January 2008.
3. 874. Indonesia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 875. In a communication dated 18 July 2007, the FKUI – an affiliate of the Confederation of Indonesian Prosperity Trade Union (KSBSI) and the Building and Wood Workers International (BWI) – provides the following chronology of events. On 1 May 2007, around 9.30 a.m., Sarta bin Sarim, trade union leader in the Tambun Kusuma company, joined eight persons who passed in front of his company, in order to hold a peaceful rally to celebrate International Labour Day in Tangerang City. The complainant explains that in Indonesia, since the political reform of 1998, and the ratification of Convention No. 87, all trade unions demand the recognition of May Day as National Labour Day and a national holiday. Rallies were not only held in Tangerang City on that day, but in all provinces of Indonesia, followed by thousands of workers.
2. 876. At 10 a.m., the group passed in front of the Sinar Makmu Integra (SMI) company. Sarta bin Sarim parked his motorcycle outside the company and went inside the open gate alone, asking security whether the workers had permission to leave work on Labour Day. After enquiring on this issue with the head of the warehouse and the chief of human resources of the company, permission was given to workers to stop work on that day. At 10.30 a.m., all workers of SMI stopped work and at least ten of them joined the rally. Sarta bin Sarim left the rally and went back to his company for around ten minutes and then back home. Meanwhile, the group continued their peaceful rally around Tangerang. After some time, the police intervened to disperse the rally, arresting five workers of the SMI company, namely Didit Fulmarizai, Arsudin bin Anwar, Rahmadi Tugimo and two others.
3. 877. At 5 p.m. on the same day, Sarta bin Sarim was arrested at his house by the police of Kabupaten Tangerang without any arrest warrant. The police brought him to the Tiga Raksa police prison at Kabupaten Tangerang. In this prison, Sarta bin Sarim was beaten to the point of vomiting blood.
4. 878. On 2 May at 11 a.m., the police arrested five other workers of the SMI company who had joined the rally at their houses, namely Messrs Parsono bin Seto Yuwono, Suwarno bin Sunarso, Asep Saefudin bin Masturodin, Sandi Gibran bin Martana and Heri Puranto bin Dwijo Santoso. These five workers gave witness statements to the police. They were released a few days later and are not going back to the SMI company to work.
5. 879. On 4 May, Sarta bin Sarim was moved from Tiga Raksa prison to the resort police of Tangerang prison. On 7 May, Sarta bin Sarim’s family sent a letter requesting his conditional release. The resort police of Tangerang rejected the request. On Friday, 11 May 2007, the Federation for Construction, Informal and General Workers of the Indonesia Prosperous Labour Union (FKUI–SBSI) came to the resort police of Tangerang to try to obtain clarifications from the chief on the reasons for Sarta bin Sarim’s detention and asking for his conditional release. The chief of resort police of Tangerang refused to explain the exact reasons for Sarta bin Sarim’s detention and only informed the union that he faced six years’ imprisonment under section 160 of the Criminal Law on “instigation” against the authority and one year imprisonment under section 335 of the Criminal Law on “unpleasant acts”. The complainant adds that section 160 on “instigation” was adopted in the nineteenth century during colonial times to arrest Indonesian independence fighters including Indonesia’s founding father and first President, Mr Soekarno, in 1945 and Muchtar Pakpahan, the first Chairperson of SBSI in 1996. The section has been used many times to imprison human rights and trade union activists. Section 335 on “unpleasant acts”, known as a “flexible” section, has been recently used by the Government to put human rights and trade union activists in prison for a short time, so as to intimidate them. If a trade union leader is convicted under these sections, the employer may dismiss him/her without severance pay or the normal procedure to be followed, based on sections 158 and 160 of the Manpower Act No. 13 of 2003. Thus, according to the complainant, the Government frequently uses these provisions to ensure that trade union leaders have difficulties finding another job and are effectively excluded from employment and society. The complainant adds that the resort police of Tangerang did not give the police investigation report to Sarta bin Sarim or his lawyer, as is the right of any person in custody.
6. 880. On Monday, 14 May 2007, around 200 members of FKUI–SBSI organized a demonstration in front of the resort police of Tangerang. Without notice, the police sent Sarta bin Sarim on Monday afternoon to the youth prison of Tangerang for security reasons. In that prison, Sarta bin Sarim suffered once again physical abuse and mistreatment. The chief of this prison has admitted that, despite a capacity of 800 prisoners, the prison has been filled with 3,700 prisoners. Sarta bin Sarim was detained in a room with 300 prisoners, without enough room even to lay down for sleep. His head was shaved and he had to pay money to guards and other prisoners every time he received a visit – he had to pass six gates and pay around 2 to 3 euros at each gate. Each person who wished to visit him had to give him at least 14 euros, or otherwise he would be beaten at each gate on his way back to his room. On 16 May 2007, around 800 persons from FKUI and KSBSI joined a demonstration at the resort police of Tangerang, demanding Sarta bin Sarim’s release.
7. 881. On 21 May 2007, the resort police of Tangerang asked the court to extend the detention of Sarta bin Sarim from 22 May to 30 June 2007. This meant, according to the complainants, that the police did not yet have enough evidence to bring Sarta bin Sarim’s case to the court. Meanwhile, on 23 May 2007, the FKUI board met with the Indonesia National Commission of Human Rights which explained that it would warn the resort police of Tangerang and the youth prison of Tangerang with regard to the physical abuse of Sarta bin Sarim. On Thursday, 24 May 2007, about 800 members of FKUI–SBSI from Jakarta and Tangerang participated in a demonstration in front of the regional police of Jakarta.
8. 882. On 11 June 2007, the first court hearing was held on Sarta bin Sarim’s case at the Tangerang Court. Sarta bin Sarim obtained a copy of the police investigation report from the prosecutor, only in the morning of 10 June 2007 and, still, the document was only part of the police investigation report relevant to the charges brought under section 335 only, and not section 160. The rest of the document was given after the end of the court hearing at the insistence of Sarta bin Sarim’s side.
9. 883. According to the complainant, the Government has done nothing to solve this problem, despite protest letters and the urgent intervention of the ILO on this matter.

B. The Government’s reply

1. 884. In a communication dated 21 September 2007, the Government indicates that Mr Sarta bin Sarim was released on 1 August 2007 based on the decision taken by the District Public Court. However, the KSBSI appealed to the High Court at the provincial level of Banten. The Government adds that it will transmit the documents concerning his release in due course.
2. 885. In its communication dated 31 January 2008, the Government indicates that Mr Sarta bin Sarim is a worker at Tambun Kusuma Company (PT Tambun Kusuma) as a security officer. The company is located in the Jatake Industrial Area, Tangerang City, Indonesia. He is also the leader of the FKUI–SBSI.
3. 886. The Government adds that on 1 May 2007, around 10.30 a.m., Mr Sarta bin Sarim riding a motorcycle together with his group (around 50 persons), came to Sinar Makmur Integra Company (PT SMI), located at the Jatake Industrial Area of Tangerang City. He intended to persuade the workers to discontinue working and join May Day celebration, in compliance with the fifth resolution of the KSBSI and the instructions of the Executive Board of the Indonesia Prosperous Labour Union (DPP DEN–KSBSI). Meanwhile, some of the group members which were outside of the PT SMI fences made noise continuously with their motorcycles. After instructing the PT SMI workers to stop working, Mr Sarta bin Sarim followed by PT SMI workers (Sugito bin Kawi Harjo, Parsono, Suwarno, Asep Saefudin and Sandi Gibran), left the PT SMI premise.
4. 887. The Government indicates that due to his acts that created disturbance in the working environment, and caused the company great loss, the police office of Curug Sector, City of Tangerang, detained Mr Sarta bin Sarim and his group. After the examination proceeding, this case was delivered to the police office of Tangerang on 3 May 2007. Because of his acts, Mr Sarta bin Sarim has been subject to punishment of a maximum of one year imprisonment under section 335(1) of the Criminal Code. He was arrested by the police on 2 May 2007. On 10 May 2007, an officer of DPP DEN–KSBSI, Muchtar Pakpahan came and asked the release of Mr Sarta bin Sarim. On 24 May 2007, Rekson Silabin and members of the KSBSI led a demonstration to release Mr Sarta bin Sarim. During the court hearing, Mr Sarta bin Sarim was accompanied by his lawyer.
5. 888. Finally, the Government indicates that on 30 July 2007, the District Court of Tangerang decided that Mr Sarta bin Sarim was guilty of “unpleasant misconduct” and punished him with three months’ imprisonment. The court ordered that the three-month period in preventive detention be deducted from the sentence. As a result, the defendant was released. The court also ordered that the evidence (a motorcycle) be returned to PT Tambun Kusuma and that the defendant pay a court fee of 1,000 rupees. The Government attaches a copy of decision No. 978/PID.B/2007/PN of the District Court of Tangerang.

C. The Committee’s conclusions

1. 889. The Committee recalls that this case concerns serious allegations of violations of fundamental human rights during the arrest and detention of trade union leader, Sarta bin Sarim (arrest without judicial warrant for normal trade union activities, prolonged preventive detention by the police in degrading conditions, physical abuse during custody, refusal to inform him of the charges, obstacles in communicating with his lawyer and family, denial of conditional release by the police and not a court of law) and the possibility of him facing further adverse consequences (dismissal) in case he is found guilty of the charges placed upon him (instigation and “unpleasant acts” under sections 160 and 335 of the Criminal Code respectively).
2. 890. The Committee notes that, in its reply, the Government indicates that Mr Sarta bin Sarim was punished with three months’ imprisonment for having committed an “unpleasant act” (or “unpleasant misconduct” according to the Government) because on 1 May 2007 at 10.30 a.m. he visited the PT SMI company with the intention of persuading workers of this company to discontinue working and join May Day celebrations. This act followed up on the fifth resolution of the KSBSI and the instructions of the DPP DEN–KSBSI. The Committee notes that according to the Government, Mr Sarta bin Sarim and approximately 50 other persons made noise outside the company fences with their motorcycles and, after instructing the workers to stop working, left the company premises followed by five workers of the company (Sugito bin Kawi Harjo, Parsono, Suwarno, Asep Saefudin ad Sandi Gibran). Finally, the Government indicates that on 30 July 2007, the District Court of Tangerang decided that Mr Sarta bin Sarim was guilty of “unpleasant acts” (or “unpleasant misconduct”) and punished him with three months’ imprisonment. The court ordered that the three-month period in preventive detention be deducted from the sentence. As a result, the defendant was released on 1 August 2007. The KSBSI appealed the decision to the High Court.
3. 891. On the basis of the allegations and the Government’s reply, the Committee notes with regret that Mr Sarta bin Sarim was arrested and held in preventive detention for three months, by reason of his participation in a peaceful May Day rally. In this regard, the Committee recalls that measures designed to deprive trade union leaders and members of their freedom entail a serious risk of interference in trade union activities and, when such measures are taken on trade union grounds, they constitute an infringement of the principles of freedom of association [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 65]. The right to organize public meetings and processions, particularly on the occasion of May Day, constitutes an important aspect of trade union rights [Digest, op. cit., para. 136]. The Committee observes moreover, with regret, that the Government has not provided any reply to the allegations that Mr Sarta bin Sarim was arrested without judicial warrant. The Committee emphasizes that the arrest and detention of trade unionists without any charges being laid or court warrants being issued constitutes a serious violation of trade union rights [Digest, op. cit., para. 69]. Governments should adopt measures for issuing appropriate instructions to prevent the danger involved for trade union activities by such arrests [Digest, op. cit., para. 70]. The Committee urges the Government to issue appropriate instructions, to prevent the danger of trade unionists being arrested by the police for normal trade union activities, like, for instance, peaceful May Day processions, and moreover, without judicial warrants having been issued. The Committee requests to be kept informed of developments in this respect.
4. 892. The Committee further notes that the Government has provided no reply to the allegations that Mr Sarta bin Sarim was placed under preventive detention for three months (from 1 May to 1 August 2007) in degrading conditions, was physically abused during custody, was not informed of the charges brought against him for 40 days (from 1 May until 10 June 2007, i.e. one day before the court hearing and, still, was informed of the charges in their entirety only after the court hearing), faced obstacles in communicating with his lawyer and family, and was on two occasions denied conditional release by the police (and not a court of law). The Committee recalls that preventive detention should be limited to very short periods of time intended solely to facilitate the course of a judicial inquiry [Digest, op. cit., para. 78]. It should moreover, be accompanied by safeguards and limitations: (1) to ensure, in particular, that it is not extended beyond the time absolutely necessary and that it is not accompanied by measures of intimidation; (2) to prevent it being used for purposes other than those for which it is designed and, in particular, to exclude torture and ill-treatment and give protection against situations where the detention is unsatisfactory from the viewpoint of sanitation, unnecessary hardship or the right to defence [Digest, op. cit., para. 80]. The Committee further emphasizes the importance of the principles according to which anyone who is arrested should be informed, at the time of the arrest, of the reasons for the arrest and should be promptly notified of any charges brought against her or him [Digest, op. cit., para. 99]. Detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular, the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority [Digest, op. cit., para. 102].
5. 893. While welcoming Mr Sarta bin Sarim’s release, the Committee considers that this decision in no way addresses the damages he may have suffered nor the reasons behind the preventive detention, which should be clarified in order to avoid recourse to such measures in the future. The Committee requests the Government to carry out an independent investigation into the allegations of grave human rights violations against Mr Sarta bin Sarim (arrest without judicial warrant for normal trade union activities, prolonged preventive detention by the police in degrading conditions, physical abuse during custody, refusal to inform him of the charges, obstacles in communicating with his lawyer and family, denial of conditional release by the police and not a court of law) and, if the allegations are found to be true, to take the necessary measures to compensate Mr Sarta bin Sarim for any damage suffered and to punish those responsible so as to prevent the repetition of such acts. The Committee requests to be kept informed of developments in this respect.
6. 894. The Committee further notes from the allegations, that Mr Sarta bin Sarim faced six years’ imprisonment under section 160 of the Criminal Law on “instigation” and one year imprisonment under section 335 of the Criminal Law on “unpleasant acts” (the Government only refers to the latter). The Committee notes with deep regret that the Government does not provide a reply to the complainant’s allegations according to which, these “flexible” provisions, especially that of section 335, have been used many times in the recent past to imprison human rights and trade union activists; upon conviction, trade union leaders face adverse consequences and, in particular, the prospect of losing their jobs, based on sections 158 and 160 of the Manpower Act No. 13 of 2003. According to the complainant, these provisions are used to ensure that trade union leaders face marginalization and social exclusion which, in addition to the harsh treatment faced during custody, may intimidate them into abandoning their trade union activities.
7. 895. In this respect, the Committee recalls that while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists [Digest, op. cit., para. 72]. Moreover, one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment. The Committee requests the Government to take all necessary measures to repeal or amend sections 160 and 335 of the Criminal Code on “instigation” and “unpleasant acts” so as to ensure that these provisions cannot be used abusively as a pretext for the arbitrary arrest and detention of trade unionists. The Committee requests to be kept informed of developments in this respect.
8. 896. Finally, the Committee notes that Mr Sarta bin Sarim’s release was due to his having served the sentence imposed by the District Court of Tangerang, having found him guilty of the charge of committing “unpleasant acts”. This has given rise to the appeal undertaken by the KSBSI. The Committee requests the Government to keep it informed of the outcome of the appeal lodged by the KSBSI against this decision and to communicate the text of the ruling handed down on appeal.
9. 897. The Committee also requests the Government to provide information on the current employment condition and trade union status of Mr Sarta bin Sarim.
10. 898. The Committee reminds the Government that ILO technical assistance is at its disposal if it so wishes.