A/HRC/16/48
248. This decision was not considered in many quarters to be an encouraging
development in the efforts to resolve the case. It must nevertheless be understood that the
legal and decision-making procedures of the Judiciary are exempt from interference by the
Executive branch of Government.
249. The Government informed the Working Group that, according to the legal process in
Indonesia, individuals can contest a court decision and appeal by submitting a cassation to
the Supreme Court that will decide on matters of law, including the issue of whether the
lower courts have properly applied the law to the case being adjudicated. This is in line
with the principle of “ne bis in idem” which states that no legal action can be instituted
twice for the same cause of action which is also provided in Article 14 (7) of the ICCPR. In
this case, as there was no such request made, there was no re-investigation into the case. In
this regard, the Attorney-General, on behalf of the Government, was tasked to reassess this
ruling by issuing a memorandum of cassation addressed to the Supreme Court which was
done on 16 January 2009. The Supreme Court process takes a significant amount of time
before a final and binding decision is issued.
Request for a visit
250. On 12 December 2006, the Working Group requested an invitation to undertake a
mission to Indonesia. The Government responded that it would not be possible to receive
the Working Group during 2007 and that greater benefit would be derived from a visit at a
later date. A reminder letter was sent on 16 August 2010; the Government has not yet
responded.
Observations
251. The Working Group reminds the Government of its mandate to draw the attention of
Governments and non-governmental organizations to different aspects of the Declaration
and to recommend ways of overcoming obstacles to the realization of its provisions.
252. The Working Group considers that the right to obtain redress (art. 19) cannot be
satisfied unless judicial decisions are properly implemented. In this sense it recalls that
effective decisions constitute an instrument through which States comply with their
obligation under the Declaration, "to contribute by all means to the prevention and
eradication of enforced disappearance" (art. 2). The Working Group further recalls that
enforced disappearances render their perpetrators and the State or State authorities which
organize, acquiesce in or tolerate such disappearances liable under civil law, without
prejudice to the international responsibility of the State concerned (art. 5).
253. The Working Group reminds the Government of its request for a visit; it would
appreciate receiving proposed dates as soon as possible.
254. The Working Group notes that the Government has signed the International
Convention for the Protection of All Persons from Enforced Disappearance and calls upon
the Government to ratify it and accept the competence of the Committee under articles 31
and 32.
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