E/CN.4/2000/4/Add.2
page 19
(the central police station in Jakarta) and at Becora prison, Dili, that they
had not been apprised of the prolongation of their pre-trial detention by the
police or by the public prosecutor.
74.
The Working Group considers that the length of the permissible delay
before presenting the accused before a prosecutor or a judge represents a
violation of the rights enshrined in article 9, paragraph 3, of the
International Covenant on Civil and Political Rights and that the relevant
provisions of the Indonesian Code of Criminal Procedure should be modified
accordingly.
Right to legal assistance
75.
This is, under the terms of article 11, paragraph 1, of the Universal
Declaration of Human Rights, one the guarantees necessary for the defence of
the accused and a right explicitly protected by article 14, paragraph 3 (b)
and (d), of the International Covenant on Civil and Political Rights.
76.
Under article 54 of the Code of Criminal Procedure, every detained
person has the right to obtain legal assistance. This assistance is
compulsory in the following instances: under article 56, paragraph 1, of the
Code of Criminal Procedure, the judicial authorities must appoint a legal
representative in cases in which the accused risks the death penalty or a
sentence exceeding 15 years, as well as for those who are destitute and cannot
afford to pay for legal representation and risk a prison term of five years or
more.
77.
Many of the detainees interviewed by the delegation confirmed that,
de facto, they had not been informed about their right to legal
representation. The Group noted that, indeed, many of them - and not only
common law prisoners - were uncertain about the meaning of the very term
“lawyer”. Many indicated that they had had no legal representation during
interrogation and the preliminary investigation, nor during pre-trial
detention. Several others indicated that even after they had been taken to
the magistrate's court and had requested legal assistance, the authorities
denied them access to a lawyer. One of the PRD detainees at Cipinang prison,
Mr. Pranowo, claimed that when he had requested legal assistance he had been
told that “he did not need any lawyer”. Two other detainees interviewed at
Baucau prison, East Timor, claimed that they had been unrepresented throughout
their respective trials. The Working Group considers that legal assistance
must be made available in such cases.
78.
In his meeting with the Group, Xanana Gusmao emphasized the serious
violations of the right to a fair trial of which he had been a victim.
He recalled that in his defence statement he had indicated: that his
representative, Mr. Sudjono, had been appointed by the Military Intelligence
Agency; that he wished to be represented by the Legal Aid Foundation
of Indonesia (YLBHI); that his letter conferring power of attorney upon YLBHI
had been intercepted by the military authorities and that he was forced to
withdraw it and to sign a letter appointing Mr. Sudjono as his legal
representative instead, in violation of articles 54 and 60 of the Code of
Criminal Procedure.
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