Obsolete Practices of Torture in the Criminal Justice System: Exclusionary Rules and the Collapse of the Fair Trial Principle

Yayang Nanda Budiman, SH

Contributor

02 May 2025 · 12:47 02 May 2025 12:47 WIB 8 minutes reading time: 8 minutes 88 read

This paper criticizes the continued prevalence of torture practices in the Indonesian criminal justice system, which injures the principle of fair trial.

Obsolete Practices of Torture in the Criminal Justice System: Exclusionary Rules and the Collapse of the Fair Trial Principle

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Table of Contents

Unpacking the Perpetual Cycle of Torture by State Apparatus
Torture Methods in the Framework of Exclusionary Rules
Application Exclusionary Rules Through the Preliminary Examining Institution
Independence of the Court and the Validity of Evidence

Legal Literacy - Within the criminal justice ecosystem, there is one thing that is very fundamental, namely justice. The existence of the principle of “fair trial” is the basis of every case examination, which ensures that every individual is treated fairly, non-discriminatory, and without abuse of power.

However, in recent decades, we have increasingly heard news spread on digital platforms regarding torture practices in the examination process by law enforcement officials. Is this just a technical error, or is it an indication of increasingly severe system damage?

Like comparing apples to oranges, efforts to eliminate torture practices in the case investigation process are still far from expectations. Although Indonesia has ratified the Anti-Torture Convention through Law Number 5 of 1998, which regulates cruel, inhuman, or degrading treatment or punishment, in fact torture continues to occur.

Fulfillment of the principle of fair trial (fair trial) is a central foundation in law enforcement so that there is no room for arbitrariness. Fair trial is an integral part of Indonesia's identity as a state of law, as well as a manifestation of human rights in an integrated criminal justice system (integrated criminal justice system).

Within the framework of the Universal Declaration of Human Rights (UDHR), the concept fair trial includes the right to be free from extrajudicial executions (extra judicial execution), enforced disappearances, torture, and arbitrary arrests (freedom from torture and arbitrary arrest).

Torture of civilians by law enforcement officials has increased in recent years, with a clear irony: most of the perpetrators are dominated by members of the Indonesian National Police. This is an emergency signal that requires serious attention.

Responding to this condition, the Government should immediately strengthen the monitoring and accountability mechanisms of the apparatus, if it wants to stop the cycle of torture practices that continue to occur.

Amnesty International recorded a significant escalation in the number of torture cases committed by law enforcement officials over the past three years. In the 2021-2022 period, there were at least 15 cases with 25 victims, which then increased in the 2022-2023 period to 16 cases with 26 victims. Even more risky, in the 2023-2024 period the number jumped drastically to at least 30 cases with 49 victims.

The data contained in Amnesty is in line with the findings of the National Human Rights Commission (Komnas HAM), which revealed that complaints related to torture were received from all regions in Indonesia. Based on Komnas HAM complaint data between January 1, 2020 and June 24, 2024, 282 cases of torture were identified, with the majority of reported perpetrators being police officers in 176 cases.