CRPD
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(Art. 13) Access to justice
(Art. 13) Access to justice
List of Issue
Please provide information on the measures taken:
To include procedural and age-appropriate accommodation in national
legislation regarding access to the judicial and administrative systems, including whether such measures cover all physical facilities and information and communications procedures used in the administration of justice;
To ensure that persons with disabilities are allowed by law to provide testimony or to act as witnesses in courts;
To provide appropriate training on the rights enshrined in the Convention to the personnel and officials working in the judicial system and law enforcement agencies, in order to ensure effective access to justice for persons with disabilities.
Please also inform the Committee about the number of persons with disabilities who have received free legal aid under the Law No. 16/2011 on legal aid.
Alternative Reports
DPOs Coalition Report (OHANA)
Access to justice is still not fully reflected in the criminal procedure law norms, nor in the procedures for handling cases involving persons with disabilities facing the law. Some of these include:
Law 8/1981 still disregards the way of testifying for those who are deaf and have visual sensory disabilities, such as the non-recognition of testimony through the sense of smell and touch.
The absence of a scheme for providing services and facilities to support the provision of reasonable accommodation for persons with disabilities in judicial institutions.
Interpreter services for the deaf, as stipulated in Law 8/1981 Article 178, are only intended for deaf individuals who cannot write.
The severe lack of officials in judicial institutions who have the understanding and technical skills to provide assistance to persons with disabilities.
Law 11/2016 concerning legal aid does not provide clarity regarding the mandate for the accessibility of legal aid for persons with disabilities.
The lack of such support makes it difficult for persons with disabilities to go through a fair process in judicial proceedings, from investigation to trial and judgment analysis. Moreover, indirectly, the lack of access and reasonable accommodation will greatly affect the substantive enforcement of equality before the law, as the lack of communication support for the Deaf and visually impaired, for example, results in their testimony not being accepted by law enforcement agencies.
This is the concern of DPOs currently pushing the Ministry of Law and Human Rights to immediately finalize the Government Regulation Draft (RPP) on Reasonable Accommodation in the Judiciary so that the rights of persons with disabilities who face the law can be guaranteed.
Several law enforcement agencies have started conducting piloting at the regional level, e.g., Gunungkidul Police, the Prosecutor's Office, and Wonosari District Court, accompanied by DPOs, pioneering inclusive judicial institutions. Likewise, Bone and Bulukumba District Courts in South Sulawesi. They have periodically started to improve the quality of services and physical facilities to be more accessible. However, this is still very case-specific due to the participation of DPOs in its formulation and implementation. It is important for the Government to expand the scope of the piloting implementation while also involving DPOs, both through the central and regional governments.
Regarding legal aid, Law No. 16 of 2011 concerning Legal Aid affirms legal aid for every person, including persons with disabilities. However, it does not further elaborate on the legal service facilities required by persons with disabilities, such as sign language interpreters, translators, and accessible infrastructure. This is because the agencies or bureaucratic process for providing the budget for legal aid for assistants and sign language interpreters for persons with disabilities is still unclear. Meanwhile, the legal aid data provided by the Government is not yet disaggregated, including the number of persons with disabilities receiving legal aid. In practice, sign language interpreters who usually accompany DPOs are generally afraid to accompany deaf persons with disabilities at the police station because they also do not understand legal language and are fearful.
Due to the incomplete implementation process of Law 8/2019, persons with mental/intellectual disabilities are still under curatorship in terms of testimony, because the judicial and legal system in Indonesia has not included the aspect of profile assessment as a means to determine the interests of persons with disabilities facing the law.
There is no access to justice for PWDs who suffer damage to their assistive devices, such as a damaged walking stick/cane, due to being hit by a vehicle or for other reasons that cause the PWD to lose access. There is no place for reporting cases, demanding claims, requesting compensation, and clear sanctions for perpetrators.
In a case of a woman with a disability who was a rape victim in Padang, West Sumatra, the case was resolved through customary law (kekeluargaan/family settlement) represented by the victim's uncle. All members of the victim's family were deaf. Unfortunately, this process did not provide any information to the victim. The victim was not involved at all in the resolution. The victim was subjected to social exclusion, for example being refused service when buying something in a shop, despite being the victim. The victim also had to pay a fine of one cow as a customary law decision.
Response List of Issue (Coalition/OHANA)
The Indonesian Government has just ratified the Government Regulation (PP) on Reasonable Accommodation in the Judicial Process for Persons with Disabilities. It is important to clarify how this PP will be implemented and the direction of changes the Government will make in the judicial system so that persons with disabilities can be served fairly and equally.
In practice, persons with disabilities still face difficulties accessing justice. Among the problems that currently still arise are:
Sign language for various disabilities is not provided since the investigation process, so persons with disabilities often find it difficult to communicate or give statements. Sign Language Interpreters (JBI) are usually brought in by the persons with disabilities themselves or an assistant from a Disabled Persons' Organization (DPO), which in practice is sometimes constrained by the prosecution or court's request for a certified JBI.
Not many lawyers understand sign language and consequently cannot assist persons with disabilities facing the law. On the other hand, law enforcers do not ensure the presence of legal assistance for all persons with disabilities in the judicial process from investigation to verdict.
Guidelines within the judicial system are not fully accessible to various persons with disabilities, including their families, making it difficult for persons with disabilities to bring their cases to legal proceedings.
The high level of stigma and stereotypes from the public, including family members, results in disability cases not being brought to legal proceedings. Furthermore, cases that are brought to legal proceedings are often resolved through amicable means, without considering the rights of persons with disabilities.
Inaccessible buildings, facilities, and infrastructure for various persons with disabilities, both physically and in terms of information, technology, and communication, including the understanding and awareness of law enforcers about various disabilities and their needs (reasonable accommodation).
Access to legal aid is generally difficult to obtain by the public, especially the underprivileged, including for cases involving persons with disabilities facing the law. The Legal Aid Law has not specifically affirmed that persons with disabilities are entitled to legal aid.
Non-Inclusive Judicial System. Factually, many cases involve persons with disabilities facing the law, but few reach the investigation stage, let alone the verdict, except when the person with a disability is the perpetrator (suspect). An example case assisted by a DPO in East Kalimantan: 1 case was accompanied until the investigation report (BAP) process, but the trial process was not continued due to psychological violence experienced by the DPO assistant, so it could not be monitored until the District Court's verdict (East Kalimantan).
In one case assisted by a DPO in East Kalimantan, a woman with a hearing disability (initial R, age 17) requested assistance for indecent assault she had experienced by her own neighbor. When reporting to the police, the police did not seriously respond to the case when the victim gave a statement and seemed distrustful of the victim. The questions from the police investigators were very cornering to the victim, making the victim stressed and confused. The case stopped at the police station and the perpetrator fled.
In Maluku, a sexual violence victim with a deaf disability could not be legally processed because the prosecution required a certified sign language interpreter presented by the DPO, while the prosecution itself did not provide a certified sign language interpreter. This is currently under DPOs' advocacy process. Sexual violence cases against women with disabilities frequently assisted by DPOs are more often resolved in the non-litigation area even if the case has reached the investigation stage. Law enforcers always direct to "peaceful settlement" even though the victim's family sometimes wants the case to proceed to court.
The victim's family refused to proceed to court. In West Java, based on monitoring and assistance from disabled persons' organizations, most of the accompanied cases are not continued to legal proceedings because of the victim's unwillingness. Out of about 12 accompanied cases, only 1 case was reported to the Police and 1 case is currently being processed. The rest of the victims and families did not agree to legal proceedings. A similar situation also occurred in Yogyakarta when Disabled Persons' Organizations assisted victims.
Response List of Issue (HWDI)
The Indonesian Government is currently drafting the Government Regulation Draft (RPP) on Reasonable Accommodation in the Judiciary for persons with disabilities. Even though Law No. 8/2016 mandates that it should be issued 2 years after the enactment of the said law, as of 2020 the government has yet to issue this regulation. On the other hand, there are no independent and effective mechanisms that can serve as an alternative for women with disabilities in filing their cases and seeking justice, including claiming redress for violations.
To push law enforcers to commit in handling the cases of violence against women with disabilities, disabled people organizations (DPOs) have created MoUs to collaborate with State institutions. In October 2019, HWDI made an MoU with the Chief of the Indonesian National Police concerning the service and protection of the rights of women with disabilities. However, the biggest challenge is actually in implementing the MoU at the local level due to the lack of understanding and awareness on the protection of women with disabilities among law enforcers.
The Indonesian National Police already has a Women and Children Protection Unit, as stipulated in the Regulation of the Chief of Police Number 10 Year 2007 on the Organization and Management of the Women and Children Protection Unit within the Scope of the Indonesian Police Force. Special police personnel have been trained and are in charge of this unit, which was specially established to handle cases of violence against women and children. This unit can be found in 34 provinces across Indonesia. The problem, however, is that the mechanism to handle such cases has not fulfilled the requirements for reasonable accommodation for children and women with disabilities who are dealing with legal matters, including the proper facilities and infrastructure, physical and non-physical, such as an officer who understands sign language, accessible communication devices, and information media using Simple Language format.
The research conducted by the Association of Women with Disabilities Indonesia (HWDI) in four regencies in Indonesia (2015) shows that sexual violence against women with disabilities continues to occur, due to the following causes: (a) Poor protection mechanism and the awareness among law enforcers. (b) The perpetrator is part of the family who has the authority to not proceed with the case. There is one case where the victim gave birth three times by the same perpetrator but there are no legal actions taken (c) Legal terms currently used are not in accordance with the needs of women with disabilities and children who are the victims of violence (d) Lack of infrastructure, support system and facilities for persons with disabilities, including a sign language interpreter, assistants to help them understand documents and forms to be filled, since the beginning of the investigation until the trial (e) Since victims may have communication difficulties, the law enforcers mostly would deny the case. (f) Indonesian law does not recognize testimonies from persons with intellectual and psychosocial disabilities.
The observations conducted by HWDI in 2019 in 10 regions in Indonesia show that from 35 cases of sexual violence against women with disabilities (from 2016 to 2019), only 4 cases received a court ruling and the perpetrators were sentenced. There are 4 cases that progressed very slowly, caused by hesitations and lack of trust from law enforcers on the testimony of persons with disabilities, in East Java and Aceh. Meanwhile, there are 7 cases that are still left hanging with no certainty of investigation, despite being reported. The observation also notes that there are 6 cases that were processed by law enforcers but eventually were settled amicably (usually by marrying the victim to the perpetrator) or were covered up. The remaining 14 cases, until this report was written, are still being processed or on trial.
The slow process of legal actions for women with disabilities who are victims of violence is because of the stigma and reluctance among police officers and family, who deem that the victim is not legally capable and unable to testify. Moreover, professional assistants such as psychologists or psychiatrists are not always available.
Several cases that can be collected are as follows:
The case in Pasuruan, East Java, on September 2018: a 20-year-old woman with an intellectual disability was repeatedly raped by three of her neighbors until she was impregnated. The victim's family initially settled the case amicably by marrying the victim to the perpetrator, but the perpetrator then fled. Once the case was reported, the police had problems with communication and the victim's testimony, so it took longer for them to work on it. The same case happened in Jember, East Java. The complaint case was filed with the police department in May 2019, but it was delayed for six months because they were still conducting a preliminary hearing on the case.
In Central Java, a deaf-mute woman in Surakarta was raped and mugged by six men. During the investigation process, the police hired a sign language interpreter. Unfortunately, the sign language used by the victim was different from that of the interpreter. Moreover, the victim was not allowed to be assisted by any other parties. As a consequence, the testimony was misinterpreted and the police concluded that it was not rape but consensual. The police only charged the perpetrator with robbery, which is lighter than it should have been.
A similar case also happened in Bireuen, Aceh, which is currently being handled by law enforcers in Aceh. It took place in May 2019, when the victim was playing with the perpetrator's child, at his home. When she was in the bathroom, the perpetrator pulled, undressed, abused, and raped her. It happened repeatedly at different locations. The case is still being processed, but the progress is slow because the victim is said to keep changing her testimony.
The poor legal protection for women with disabilities is also depicted in the Legal Aid Law, which does not prioritize women with disabilities. Moreover, the said law does not include women with disabilities as a special target group entitled to special treatment (affirmative action); the legal aid mentioned in the law is only dedicated to Perpetrators, while legal aid for victims is not regulated. According to LBH Apik, the legal aid most requested by women is legal aid for victims.
Committee Recommendations
The Committee recalls the International Principles and Guidelines on Access to Justice for Persons with Disabilities, and targets 16.3 of the Sustainable Development Goals, and recommends that the State Party:
Adopt an action plan on access to justice for persons with disabilities, including measures to eliminate physical and attitudinal barriers to all judicial facilities and to implement the necessary legal, administrative, and judicial measures for the effective participation of persons with disabilities at all stages of the judicial process;
Make procedural and age-appropriate adjustments, including individualized provision, to ensure that persons with disabilities can effectively participate in all aspects of the legal process;
Ensure access to alternative and augmentative means of information and communication for use during the legal process, such as Braille, sign language, Easy Read, and audio and video transcriptions;
Strengthen Convention training for law enforcement and justice officials, including in rural areas and remote islands.
ⓘ Indicators
National Action Plan (RAN) for access to justice and eliminating barriers to Information and Communication access in the judiciary sector, as well as strengthening the capacity of law enforcement officials