A/HRC/WGAD/2019/49

GE.19-16062(E)



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-fifth session, 12–16 August 2019

Opinion No. 49/2019 concerning Mathias Echène (Indonesia)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution

60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 33/30.

2.

In accordance with its methods of work (A/HRC/36/38), on 20 May 2019, the

Working Group transmitted to the Government of Indonesia a communication concerning

Mathias Echène. The Government replied to the communication on 31 May 2019. The State

is a party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

United Nations

A/HRC/WGAD/2019/49

General Assembly

Distr.: General

19 September 2019

Original: English

A/HRC/WGAD/2019/49

2

Submissions

Communication from the source

4.

Mathias Echène, born in March 1970, is a French citizen who has lived in Bali,

Indonesia, with his family since November 2006. He operated a company working in the

field of land acquisition and construction, as well as the sale of villas.

(a)

Proceedings in Hong Kong, China

5.

The source states that, on 18 April 2012, four investors filed complaints with the

Commercial Crime Bureau of Hong Kong, China, against Mr. Echène, his spouse and his

company, alleging fraudulent overbilling. The complaints were in relation to real estate

transactions conducted six years earlier.

6.

On that basis, on 1 June 2012, Mr. Echène and his spouse were arrested at airport of

Hong Kong, China, and four charges of fraud were brought against them. On 4 June 2012,

they were released on bail.

7.

The source further reports that, owing to the lack of evidence to support the claim,

on 7 November 2012, the initial charges were abandoned in favour of one charge involving

allegations relating to property known or believed to represent proceeds of an indictable

offence.

8.

The source states that, although Mr. Echène and his spouse, unable to appear at the

trial, justified their absence and asked for adjournments, on 10 October 2013, the

authorities of Hong Kong, China, issued two international arrest warrants. In that context,

on 16 September 2014, the sub-bureau of the International Criminal Police Organization

(INTERPOL) National Central Bureau in China delivered an INTERPOL Red Notice

against Mr. Echène.

9.

The source submits that, at the same time as the criminal proceedings were opened,

the same investors filed a civil complaint against Mr. Echène before the High Court of

Hong Kong, China, concerning the same facts. In March 2015, the High Court awarded

damages to the investors on the basis of two default judgments dated 19 March 2015.

10.

On 12 June 2017, the request for enforcement of those judgments was rejected by

the Paris Court of First Instance on the grounds that they did not respect the adversarial

principle, violated the defendant’s right to a fair trial and therefore ran counter to the

French concept of international public policy. On 26 March 2019, the Paris Court of Appeal

confirmed the two judgments of the Court of Hong Kong, China, irrevocably refusing to

order enforcement in France of the decisions of the Hong Kong court.

(b)

Proceedings in Indonesia

11.

The source further states that, in parallel to the cases in Hong Kong, China, two of

the investors initiated civil proceedings before the District Court of Denpasar in Bali. On 12

February 2015, the District Court rendered a judgment for damages against Mr. Echène.

The decision was upheld by the Supreme Court of Indonesia on 30 March 2017, thus

exhausting Mr. Echène’s domestic remedies. Reportedly, he was not given the opportunity

to defend himself before the Supreme Court of Indonesia.

12.

The source submits that, on 29 July 2017, Mr. Echène was arrested at Bali airport on

the basis of the international arrest warrant of 10 October 2013, delivered by Hong Kong,

China, and the INTERPOL Red Notice dated 16 September 2014, without either the arrest

warrant or the Red Notice being presented to Mr. Echène at the time of the arrest.

Subsequently, on 14 September 2017, the Government of Hong Kong, China, issued a

request for surrender to Indonesia. The source specifies that the request was not supported

by any formal request for detention, in violation of the provisions of national legislation.

13.

The source states that, since his arrest, Mr. Echène has been detained in conditions

that may be qualified as constituting inhuman and degrading treatment. Having been first

incarcerated on the premises of the Bali regional police for seven months, he was then

A/HRC/WGAD/2019/49

3

transferred to Kerobokan State Penitentiary in Badung Regency on 28 February 2018,

where he remains to date.

14.

According to the source, the defence counsel of Mr. Echène sent letters to the

Attorney General of Jakarta on two instances. The first letter was sent on 27 February 2018,

after the dismissal of Mr. Echène’s request for release. The territorial incompetence of the

courts of Hong Kong, China, the civil nature of the case and the health conditions of Mr.

Echène were mentioned in the letter. The second letter was sent on 26 April 2018, in view

of the deterioration of Mr. Echène’s health owing to the conditions of his detention and the

lack of access to appropriate medical treatment.

15.

On 9 May 2018, following a brief hearing, the District Court of Denpasar approved

Mr. Echène’s extradition to Hong Kong, China. After his local legal counsel informed him

that the decision was not eligible for appeal, he chose to change his lawyers.

16.

On 13 July 2018, Mr. Echène’s new lawyers sent letters to the President of

Indonesia, who has the last say on extradition matters, as well as to four Indonesian

authorities that have to be consulted in extradition procedures, requesting dismissal of the

request for surrender against Mr. Echène, on the following grounds:

• the non-compliance of the request for surrender with both Indonesian law and the

agreement between Indonesia and Hong Kong, China, concerning extradition

• the civil, rather than the criminal, basis of the extradition request, which is thus

baseless

• the illegality of Mr. Echène’s prolonged detention

• the violation of humanitarian standards, in view of the deterioration of Mr. Echène’s

health and of the lack of access, in detention, to medical treatment in accordance

with international norms

17.

Furthermore, on 16 November 2018, Mr Echène’s new lawyers filed two appeals:

• a substantive action against the extradition decision before the Supreme Court of

Indonesia on the basis of its illegality

• a request for suspension of detention before the District Court of Denpasar, on the

dual grounds of the arbitrary nature of Mr. Echène’s detention and the deterioration

of his health, leading to a high risk of sudden death

18.

The source states that, despite the substantive action contesting the legality of the

extradition decision issued by the District Court of Denpasar on 9 May 2018, the

extradition process continues.

19.

It was for this reason that letters were reportedly sent by the lawyers of Mr. Echène

to the Indonesian authorities, aimed at drawing their attention to the irregular proceedings

and arbitrariness of the detention. As such, between 19 and 21 December 2018, letters were

sent to the Ministry of Justice, the National Human Rights Commission of Indonesia and

the Ombudsman of Indonesia.

20.

Subsequently, the National Human Rights Commission requested clarification as to

the legality of Mr. Echène’s detention and regarding his access to treatment from the

Director of Kerobokan State Penitentiary, where he is being detained. Furthermore, it is

reported that the Ombudsman has written to the Chair of the District Court of Denpasar, the

Ministry of Justice and the Public Prosecutor of Bali requesting clarification of the result of

the request for suspension filed in November 2018, the follow-up to the extradition process,

the grounds justifying Mr. Echène’s prolonged detention and the impediments to

extradition.

21.

The source states that, because the application for release introduced on 16

November 2018 was never examined, on 27 February 2019, Mr. Echène’s lawyers

submitted a request to the President of Indonesia for the dismissal of the decision regarding

extradition on the basis of the illegality of the extradition request and the fact that legal

recourse against the approval of the extradition on 9 May 2018 was still pending before the

Supreme Court of Indonesia.

A/HRC/WGAD/2019/49

4

(c)

Procedure before INTERPOL

22.

The source states that, on 17 April 2018, Mr. Echène’s lawyers submitted a petition

to INTERPOL to obtain withdrawal of the Red Notice dated 16 September 2014. It was

argued in the petition that the Red Notice should be withdrawn since it was based on

incorrect data concerning Mr. Echène contained in INTERPOL files. On 4 July 2018, the

Commission for the Control of INTERPOL’s files rejected the petition.

23.

The source further states that, on 7 March 2019, Mr. Echène’s defence filed an

application for judicial review of the decision before the Commission for the Control of

INTERPOL’s files, on the basis of new elements, namely the substantive action against the

extradition decision still pending before the Supreme Court of Indonesia and the request for

suspension of the detention.

24.

On 3 April 2019, the Commission for the Control of INTERPOL’s files informed

Mr. Echène’s defence that the application for judicial review was under review and that the

defence had one month to transmit new elements.

25.

On 12 April 2019, the defence reportedly sent to the Commission for the Control of

INTERPOL’s files the two decisions issued by the Paris Court of Appeal on 26 March

2019, in which the dismissal of the civil judgments of Hong Kong, China, in view of non-

compliance with the right to a fair trial was confirmed.

(d)

Legal analysis

26.

The source submits that Mr. Echène’s detention falls under categories I and III of the

Working Group.

27.

In relation to category I, the source argues that the authorities have violated article 9

(1) of the Covenant, as well as article 34 of Law No. 39 of 1999 of Indonesia on human

rights, which provides guarantees against arbitrary arrest, detention, torture or exile. The

source specifies that such violations arose from the fact that the authorities of Hong Kong,

China, did not send any request for detention, that the duration of detention is not limited

by any legal delay and that some periods of detention proceeded without detention

warrants.

28.

In support of the above, the source states that the initial detention of Mr. Echène

proceeded even though no request for detention had been sent by the Government of Hong

Kong, China, in breach of Indonesian law. The source cites articles 18.1 and 19.1 of Law

No. 1 of 1979 of Indonesia on extradition and articles 14.1 and 14.3 of Law No. 1 of 2001

of Indonesia on the ratification of an agreement between the Government of Indonesia and

the Government of Hong Kong, China, for the surrender of fugitive offenders. Accordingly,

to effect a temporary detention of a person for whom extradition is requested, a formal

application must be made by the requesting State.

29.

The source submits that the detention of Mr. Echène is based only on the

international arrest warrant, accompanied by an INTERPOL Red Notice, not on a request

for detention. It states that Mr. Echène’s detention is arbitrary because it has been carried

out in violation of the national provisions governing the detention of persons whose

extradition is requested.

30.

The source further states that Mr. Echène has been detained since 29 July 2017,

without any possibility of determining the foreseeable date of his release. It adds that Mr.

Echène has been detained not on the basis of a duly renewed order of detention, but on the

overlapping of different kinds of legal documents (four warrants, 13 orders and four

minutes of the judicial decree), two of which are allegedly forgeries formalized a posteriori

by the Indonesian authorities.

31.

Consequently, the source highlights that the absence of legal provisions, under

Indonesian law, stipulating the maximum duration of detention applicable to persons whose

extradition is requested constitutes a violation of the fundamental rights of the person

concerned. It argues that the uncertainty about the duration of the detention of Mr. Echène

constitutes a violation of his fundamental rights and breaches the terms of article 34 of the

A/HRC/WGAD/2019/49

5

law on human rights, according to which arbitrary detention is specifically prohibited, as

well as a violation of international covenants to which Indonesia is a State party.

32.

Furthermore, also in relation to category I, the source argues that there is a lack of

valid detention orders in support of an indefinite detention. According to article 34.b of the

law on extradition, detention must be limited to 30 days, except when the period is

extended by a court on the basis of a request from the Public Prosecutor. According to

article 35.1 of the law on extradition, any subsequent extension is limited to 30 additional

days.

33.

Despite those provisions, the source argues that the detention of Mr. Echène from 4

August to 2 October 2018 is devoid of any legal basis as it was not justified by any legal

document. It specifies that two orders for the extension of detention concerning both the

period from 4 August to 2 September 2018 and the period from 3 September to 2 October

2018 were eventually added to the case file. However, those orders were presented to Mr.

Echène and signed by him only on 28 March 2019.

34.

Furthermore, the source notes that the minutes of orders for the extension of

detention do not mention specific dates for the five periods of detention, making it

impossible to check how regular they were.

35.

The source concludes that, beyond the violations of national legislation noted above,

Mr. Echène’s detention is arbitrary, in violation of article 9 of the Universal Declaration of

Human Rights, article 9 (1) of the Covenant and principles 2, 32, 36, 37 and 39 of the Body

of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment.

36.

In relation to category III of the Working Group, the source makes reference to

articles 9 and 10 of the Universal Declaration of Human Rights, articles 9, 10, 11 and 14 of

the Covenant, articles 12 and 20 of the Human Rights Declaration of the Association of

Southeast Asian Nations and principles 2, 11, 24, 25, 32, 36, 37, 38 and 39 of the Body of

Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

The source argues that the authorities have repeatedly failed to observe the principles

established by the documents noted above, in violation of the international commitments of

Indonesia.

37.

More specifically, the source points out the violation of Mr. Echène’s right to be

tried without undue delay. It states that none of the pleas filed on 16 November 2018 have

been examined, whereas Indonesian legislation provides for a non-imperative delay of 250

days to examine the appeal in cassation.

38.

The source states that the order for extradition issued by the Government of Hong

Kong, China, has not been subject to any definitive decision of the Indonesian courts, and

the closing of the procedure remains uncertain, in view of the absence of any delay

provided under Indonesian law to examine the legal recourse made against decisions

authorizing extradition. It concludes that the national procedure thus disregards the right to

be tried without undue delay, in violation of articles 9 (3), 9 (4), and 14 (3) of the Covenant

and the Body of Principles for the Protection of All Persons under Any Form of Detention

or Imprisonment, in particular principle 38.

39.

The source further adds that that the lack of a maximum duration of detention in the

context of extradition proceedings in Indonesia is in violation of the principle of the

presumption of innocence and runs contrary to article 14 (2) of the Covenant.

40.

Finally, in support of a category III violation, the source submits that Mr. Echène’s

right to be treated humanely and with respect for the inherent dignity of the human person

has not been observed while he has been in detention in Indonesia. The source states that

Mr. Echène suffers from a chronic heart condition, putting him at risk of sudden death from

cardiac arrest. Potentially life-saving treatment is reportedly not possible while Mr. Echène

remains in detention. The French authorities in Indonesia have reportedly sent several

letters to the Indonesian authorities expressing concern for Mr. Echène’s lack of access to

regular and appropriate medical treatment.

A/HRC/WGAD/2019/49

6

41.

The source adds that, to protest against the inertia of the procedure, on 2 April 2019,

Mr. Echène began a hunger strike, which may lead to an irreversible deterioration of his

state of health.

Response from the Government

42.

On 20 May 2019, the Working Group transmitted the allegations from the source to

the Government of Indonesia under its regular communications procedure. The Working

Group requested the Government to provide, by 19 July 2019, detailed information about

Mr. Echène’s current situation and to clarify the legal provisions justifying his continued

detention, as well as its compatibility with the obligations of Indonesia under international

human rights law, in particular with regard to the treaties ratified by the State. Moreover,

the Working Group called upon the Government to ensure Mr. Echène’s physical and

mental integrity.

43.

On 31 May 2019, the Government submitted its response, in which it argued that

several crucial pieces of information about the offences committed by Mr. Echène, such as

the nature of the offences (both civil and criminal), the object of indictment and the location

in which the offences had taken place (locus delicti) had been omitted from the source’s

submission. For example, Mr. Echène’s tendency to abscond from one place to another was

not mentioned in the communication even after two courts had issued a binding verdict,

which then led to the issuance of an international arrest warrant and an INTERPOL Red

Notice by the authorities of Hong Kong, China.

44.

The Government further argues that the communication is convoluted and randomly

written with a non-chronological timeline. Important facts relevant to the case are diluted,

and gaps are created in the legal and logical reasoning behind the decisions made by each

court, namely the courts of Hong Kong, China, the French courts and the Indonesian courts,

which ultimately led to the deprivation of Mr. Echène’s liberty. The Government submits

that the communication has been written solely to support the case for arbitrary detention.

45.

The Government argues that Law No. 1 of 2001 on the ratification of the extradition

agreement between Indonesia and Hong Kong, China, contains articles in which ‘the

authority of Indonesia to detain Mr. Echène for his offences is acknowledged on the basis

of the INTERPOL Red Notice. The legality of Mr. Echène’s detention has even been

ascertained by the decision of the Supreme Court of Indonesia dated 4 October 2017, and

strengthened by Mr. Echène’s own track record, which speaks for itself, as he seems to be

continually on the run from Hong Kong, China, and from France, and finally fled to

Indonesia.

46.

Furthermore, the Government contends that the accuracy and comprehensiveness of

the facts presented in the communication need to be questioned seriously, as the decisions

of each court must be read thoroughly instead of partially and should be incorporated into

the narration of the case mentioned in the communication. Consequently, similar

communication must also be sent to the Government of China (Hong Kong Special

Administrative Region of China) and the Government of France, and their responses as

well as their court decisions must be included as annexes in the narration of the case in

order for all parties to have a clear and comprehensive understanding.

47.

Therefore, the Government submits that, as it stands now, one cannot help but

acknowledge that Mr. Echène and his lawyers are trying to divert attention from his crimes

to matters concerning the illegality of the detention, the humanitarian aspects linked to

condition of detention and the process of extradition. Mr. Echène himself seems to be very

hesitant to be extradited to Hong Kong, China, despite the decision of the Indonesian court,

which approved his extradition.

48.

In conclusion, the Government submits that Indonesia attaches great importance to

the transparency of legal proceedings and legal guarantee. This is part of the law reforms of

Indonesia, as part of which court decisions up to and including the courts of cassation can

be accessed publicly through the court websites. Moreover, the Indonesian judiciary system

guarantees all of Mr. Echène’s legal rights, and they have been fulfilled. The system also

enables him to use all available legal services provided to him, such as legal counselling

and translation, and allows him the possibility of exhausting all domestic remedies, namely

A/HRC/WGAD/2019/49

7

the highest appeal to the Supreme Court, judicial review and even the sending of letters to

the President of Indonesia for consideration.

Further comments from the source

49.

The Government’s response was transmitted to the source on 6 June 2019 for further

comments, which the source provided on 19 June 2019. In its further comments, the source

rejects the arguments presented by the Government of Indonesia and maintains that the

detention of Mr. Echène is arbitrary under categories I and III.

Discussion

50.

The Working Group thanks the source and the Government for their submissions

and appreciates the cooperation and engagement of both parties in this matter.

51.

As a preliminary matter, the Working Group wishes to address the argument raised

by the Government of Indonesia that the communication concerning Mr. Echène should be

sent to the Governments of China and France for their comments so as to provide the

Working Group with full details of Mr. Echène’s case.

52.

While it is true that the current detention of Mr. Echène is preceded by interventions

of the judiciaries of the three countries noted by the Government, the Working Group

wishes to highlight that its mandate is limited to the circumstances of alleged instances of

arbitrary deprivation of liberty.

53.

The Working Group notes that the allegations concern the current detention of Mr.

Echène in Indonesia. Indeed, the Government has not contested the fact that Mr. Echène is

currently in the custody of Indonesian authorities. The Working Group therefore observes

that the Indonesian authorities are solely responsible for ensuring that his detention remains

legal in accordance with international human rights law. No other country can interfere in

this sovereign domain of Indonesia and exercise control over the deprivation of liberty of

Mr. Echène. The Working Group therefore considers that it does not need to hear from the

Government of China or from the Government of France because, whereas the judiciary of

those countries has had dealings with Mr. Echène that are relevant to the case, the

authorities of neither of those States have custody of Mr. Echène and therefore would not

be able to furnish any explanations concerning the deprivation of his liberty in Indonesia.

54.

The source has argued that the detention of Mr. Echène was arbitrary under

categories I and III. While not addressing the categories specifically, the Government

dismisses those allegations. The Working Group shall proceed to examine the allegations

under each of the categories separately.

55.

The Working Group recalls that it considers detention to be arbitrary and falling

under category I if it lacks a legal basis. In the present case, the Working Group must

therefore examine the circumstances of Mr. Echène’s detention. In that regard, the Working

Group notes that the source has argued that Mr. Echène was arrested on 29 July 2017 at

Bali airport on the basis of the international arrest warrant issued by INTERPOL. The

source has argued that he was not shown any documents at the time of the arrest and that

the request for the surrender of Mr. Echène issued by Hong Kong, China, to Indonesia was

not accompanied by a formal request for detention, as required by national legislation.

56.

The Working Group’s initial observation is that the case has its inception five years

prior to the actual arrest of Mr. Echène and involves the authorities and judiciaries of three

different countries (Hong Kong, China; France; and Indonesia) as well as an international

organization, INTERPOL. The mandate of the Working Group is limited to the issues

pertinent to situations of alleged arbitrary deprivation of liberty, and therefore it will

examine the facts from the moment of Mr Echène’s arrest on 29 July 2017.

57.

Nevertheless, the Working Group considers that Mr. Echène was fully cognizant of

the proceedings prior to his arrest on 29 July 2017 and that he was fully aware that a valid

international arrest warrant had been issued against him on 10 October 2013. Since the date

of its issuance, he had the opportunity to contest it but chose not to do so. The Working

Group therefore cannot accept that the actions of the Indonesian law enforcement agents on

A/HRC/WGAD/2019/49

8

29 July 2017 violated Mr. Echène’s rights under article 9 of the Covenant because they

executed a duly issued and fully valid international arrest warrant.

58.

The Working Group notes the source’s argument that the execution of the

international arrest warrant did not comply with the provisions of the domestic legislation

of Indonesia. Nevertheless, the Working Group is unable to make any pronouncements on

the matter as it is not the mandate of the Working Group to determine whether the

stipulations of the national legislation have been complied with. The Working Group notes

that both the source and the Government have reported that the detention was reviewed by

judicial authorities in Indonesia. The Working Group reiterates that it has consistently

refrained from taking the place of the national judicial authorities or acting as a kind of

supranational tribunal when it is urged to review the application of domestic law by the

judiciary.1

59.

However, the source has argued that, since the arrest of Mr. Echène on 29 July 2017,

his continued detention has not been duly reviewed at set intervals and, in fact, on a number

of occasions, the renewals of the detention orders have been issued a posteriori. The source

also argued that Mr. Echène was presented with documents authorizing the extension of his

detention for periods that had already passed on at least two occasions (see para. 33 above).

The Working Group observes that the Government has chosen not to respond to these

specific allegations made by the source.

60.

The Working Group wishes to highlight that, even if the arrest of an individual has

been carried out in accordance with the provisions of article 9 of the Covenant, it does not

automatically mean that the continued deprivation of liberty also complies with that

provision. In other words, it is not only the initial fact of detention that must be in

accordance with article 9 of the Covenant, but it is also the duty of the authorities to ensure

that the continued detention respects that provision. In the present case, the detention of Mr.

Echène was extended post factum on a number of occasions. This means that, at least on

those occasions, Mr. Echène was effectively deprived of his right to challenge the legality

of the detention extension orders. The Working Group views that this constitutes a breach

of Mr. Echène’s rights under article 9 (4) of the Covenant.

61.

As the Working Group has consistently argued,2 in order to establish that a detention

is indeed legal, any detainee has the right to challenge the legality of his or her detention

before a court, as envisaged by article 9 (4) of the Covenant. The Working Group wishes to

recall that, according to the United Nations Basic Principles and Guidelines on Remedies

and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings

Before a Court, the right to challenge the lawfulness of detention before a court is a self-

standing human right, which is essential to preserve legality in a democratic society.3 That

right, which is in fact a peremptory norm of international law, applies to all forms of

deprivation of liberty4 and to:

all situations of deprivation of liberty, including not only detention for purposes of

criminal proceedings but also to situations of detention under administrative and

other fields of law, including military detention, security detention, detention under

counter-terrorism measures, involuntary confinement in medical or psychiatric

facilities, migration detention, detention for extradition, arbitrary arrests, house

arrest, solitary confinement, detention for vagrancy or drug addiction, and the

detention of children for educational purposes.5

62.

The Working Group further considers that judicial oversight of detention is a

fundamental safeguard of personal liberty6 and is essential in ensuring that detention has a

legal basis. Given that Mr. Echène was not able to challenge his continued detention, his

1 Opinions Nos. 40/2005, 15/2017, 16/2017 and 30/2017.

2 See, for example, opinions Nos. 1/2017, 6/2017, 8/2017, 30/2017, 2/2018, 4/2018, 42/2018, 43/2018

and 79/2018.

3 A/HRC/30/37, paras. 2 and 3.

4 Ibid., para. 11.

5 Ibid., annex, para. 47 (a).

6 A/HRC/30/37, para. 3.

A/HRC/WGAD/2019/49

9

right to an effective remedy under article 8 of the Universal Declaration of Human Rights

and article 2 (3) of the Covenant was also violated.

63.

The Working Group therefore concludes that the continued detention of Mr. Echène

violates articles 2 (3) and 9 (4) of the Covenant and therefore lacks legal basis, falling under

category I of the Working Group.

64.

The source has also argued that the detention of Mr. Echène falls under category III

owing to the violations of his right to be tried without undue delay, in violation of articles

14 (2) and (3) (c) of the Covenant. The Government dismisses those allegations, noting that

the Indonesian judiciary has always respected Mr. Echène’s right to a fair trial.

65.

The Working Group observes that Mr. Echène was arrested two years ago, on 29

July 2017. The basis for his arrest was the international arrest warrant, and neither the

source nor the Government has disputed the fact that the extradition of Mr. Echène is

sought by the authorities of Hong Kong, China. To date, he remains in detention without

any clear prospect of when he would be extradited or released or of obtaining knowledge of

any other resolution of his case.

66.

The Working Group also observes that the source has alleged that, on 16 November

2018, Mr. Echène’s lawyers filed two appeals against the extradition proceedings but that

neither of those applications has been heard. The Working Group is mindful of the failure

of the Government to respond to that allegation.

67.

The Working Group recalls that the right of the accused to be tried without undue

delay, provided for by article 14 (3) (c) of the Covenant, is not only designed to avoid

keeping persons too long in a state of uncertainty about their fate and, if held in detention

during the period of the trial, to ensure that such deprivation of liberty does not last longer

than necessary in the circumstances of the specific case, but also to serve the interests of

justice.7 However, what is reasonable has to be assessed in the circumstances of each case,

taking into account mainly the complexity of the case, the conduct of the accused and the

manner in which the matter was dealt with by the administrative and judicial authorities.

68.

The Government has chosen not to provide any explanation for the continued delays

in the extradition proceedings of Mr. Echène, noting only that he “seems to be very hesitant

to be extradited to Hong Kong, China, despite the decision of the Indonesian court, which

approved his extradition” (see para. 47 above). Mr. Echène remains in detention, and the

Government has not given any indication as to when his case might be resolved, through

either extradition to Hong Kong, China, or release.

69.

Equally, the Government has provided no explanation as to why the two appeals

brought by Mr. Echène’s lawyers have not yet been heard or why they have not even been

given an indicative date as to when they might be heard. The Working Group also has not

been presented with any evidence that the behaviour of Mr. Echène has contributed to the

delay in considering the appeals brought by his lawyers.

70.

The Working Group therefore concludes that there has been a breach of article 14

(3) (c) of the Covenant in the case of Mr. Echène. The Working Group also regards that the

breach of Mr. Echène’s right to a fair trial has been of such gravity as to render his

continued detention arbitrary, falling under category III.

71.

The Working Group wishes to express serious concern about the source’s allegations

concerning the health and well-being of Mr. Echène, which have not been addressed by the

Government although it had the opportunity to do so.

72.

The Working Group observes that initially, following his arrest, Mr. Echène was

held in a police station for seven months. Police stations are places for temporary

deprivation of liberty, normally equipped to hold individuals for a matter of days, and those

held for longer periods should be held in facilities appropriate for longer periods.8 The

7 General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial

(CCPR/C/GC/32, para. 35).

8 A/HRC/39/45/Add.1, paras. 40 and 83 (g).

A/HRC/WGAD/2019/49

10

Working Group recalls that, in accordance with article 10 of the Covenant, all persons

deprived of their liberty must be treated with humanity and with respect for the inherent

dignity of the human person.

73.

Furthermore, the source has reported very serious health conditions that Mr. Echène

suffers from, as well as the fact that he has gone on a hunger strike to protest against his

continued detention. Once again, the Working Group reminds the Government that, in

accordance with article 10 of the Covenant, all persons deprived of their liberty must be

treated with humanity and with respect for the inherent dignity of the human person and

that denial of medical assistance constitutes a violation of the United Nations Standard

Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), in particular

rules 24, 25, 27 and 30.

Disposition

74.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Mathias Echène, being in contravention of articles 3, 8,

9 and 10 of the Universal Declaration of Human Rights and articles 2 (3), 9 (4) and

14 (3) (c) of the International Covenant on Civil and Political Rights, is arbitrary and

falls within categories I and III.

75.

The Working Group requests the Government of Indonesia to take the steps

necessary to remedy the situation of Mathias Echène without delay and bring it into

conformity with the relevant international norms, including those set out in the Universal

Declaration of Human Rights and the International Covenant on Civil and Political Rights.

76.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mathias Echène pending the outcome of

the extradition proceedings and accord him an enforceable right to compensation and other

reparations, in accordance with international law.

77.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Mathias Echène and to take appropriate measures against those responsible for the violation

of his rights.

78.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

79.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether Mr. Echène has been released pending the outcome of the

extradition proceedings and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Echène;

(c)

Whether an investigation has been conducted into the violation of Mr.

Echène’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of Indonesia with its international obligations in line

with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

80.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

81.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

A/HRC/WGAD/2019/49

11

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

82.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and has requested them to take account of its

views and, where necessary, to take appropriate steps to remedy the situation of persons

arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have

taken.9

[Adopted on 15 August 2019]

9 See Human Rights Council resolution 33/30, paras. 3 and 7.