Regulations Of The National Commission On Human Rights The Number 59A/komnasham/x/2008 In 2012

Original Language Title: Peraturan Komisi Nasional Hak Asasi Manusia Nomor 59A/KOMNASHAM/X/2008 Tahun 2012

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Read the untranslated law here: http://peraturan.go.id/inc/view/11e44c5117ad658098e5313233333130.html

Microsoft Word-BN 985-2012 REPUBLIC of INDONESIA No. 985, 2012 NATIONAL COMMISSION on human rights. Conduct Of The Mediation. The guidelines. Draft terbarmPERATURAN NATIONAL COMMISSION ON HUMAN RIGHTS A/59 NUMBER KOMNAS HAM/X/2008 ABOUT the CONDUCT of the MEDIATION GUIDELINES the NATIONAL COMMISSION ON HUMAN RIGHTS with the GRACE of GOD ALMIGHTY the NATIONAL HUMAN RIGHTS COMMISSION, Considering: a. that the compliance with the conditions as referred to in Article 76 and article 89 paragraph (4) of Act No. 39 of 1999 on human rights, the national human rights Commission has the functions and tasks in the field of mediation; b. that the National Human Rights Commission can set more things that are necessary for the smooth implementation of the functions, duties and authority; c. that for a smooth and orderly in exercising authority as mentioned in the letter a and letter b above, the need to set guidelines for conducting the mediation of the National Commission of human rights; d. that based on considerations as mentioned in the letter a, letter b, letter c and above, need to set Rules for national human rights Commission about the conduct of the Mediation Guidelines the National Commission of human rights; www.djpp.depkumham.go.id 2012, no. 985 2 Remember: 1. Act No. 39 of 1999 on human rights (State Gazette of the Republic of Indonesia year 1999 Number 165, an additional Sheet of the Republic of Indonesia Number 3886); 2. Act No. 8 of 1974 regarding the staffing of State trees as amended and supplemented, with Legislation – Law Number 43 in 1999 (Gazette of the Republic of Indonesia year 1999 Number 169, additional sheets of the Republic of Indonesia Number 3890); 3. Law number 26 of 2000 on Human Rights Court (Indonesia Republic Gazette year 2000 Number 208, an additional Sheet of the Republic of Indonesia Number 4026); 4. Presidential Decree Number 48 in 2001 about the Secretariat-General of the National Commission on human rights; 5. The decision of the President of the Republic of Indonesia Number 65/P in 2007 about the membership of Komnas HAM'S 2007-2012; 6. The decision of the Chairman of the National Commission on human rights the number 11/KOMNAS HAM/IV/2008 dated 01 April 2008 about Conduct Komnas HAM; Notice: the decision of the plenary meeting of national human rights Commissions, number: 33/SP/IX/2008, dated September 24, 2008, the passage of the Draft guidelines on the implementation of the mediation of the National Commission on human rights; DECIDED: Regulation Setting The NATIONAL COMMISSION Of HUMAN RIGHTS Of The ORGANIZATION Of The NATIONAL COMMISSION Of MEDIATION GUIDELINES On Human Rights. www.djpp.depkumham.go.id 2012 No. 9853 CHAPTER I General provisions article 1 In this regulation, the definition of: 1. Human rights are a set of rights which is inherent in the nature of human existence as a creature of God and his grace is required high esteem respected, and protected by the State, the law, Government, and any person for the sake of honor and dignity and the protection of human dignity. 2. Violations of human rights is every person or group of persons including the State apparatus either intentional or not intentional or gross negligence which is against the law of decrease, hinder, limit or revoke, and human rights of a person or group of people and not getting, or feared legal settlement won't get a just and fair mechanism, based on the applicable law. 3. Human Rights Mediation was settling the matter prolific human rights through: the peace both parties, consultation, negotiation, mediation, conciliation, assessment experts, advising to the parties to resolve the dispute through the courts, the submission of recommendations of a case of human rights violations to the Government, and the submission of recommendations over a human rights infringement case to the House of representatives to follow up. 4. The Mediator is a member of the National Commission of HUMAN RIGHTS agreed by the parties to the dispute or who is appointed by the National Commission of HUMAN RIGHTS to carry out the functions of mediation. 5. Komediator is Subkomisi the mediation and Staff or other Subkomisi Staff have qualified as a mediator was appointed and established by the Subkomisi Mediation Komnas HAM. 6. The parties are two or more subjects of the law to the dispute and agreement to obtain a settlement through mediation process by Komnas HAM. 7. Consultation is an activity in the process of mediation of Komnas HAM in the form of pertukarpikiran, the giving of advice, instructions, considerations, or advice made on request of a person or group with the aim of obtaining conclusion in order to resolve the violations of human rights. 8. The negotiations in the mediation process is a Komnas HAM in order to dispute settlement through direct negotiations between the parties to the dispute. www.djpp.depkumham.go.id 2012, no. 985 4 9. Conciliation is to bring together the parties to the dispute to end the dispute in the mediation process carried out by Komnas HAM. 10. The caucus is the meeting between the mediator by one party without the other party was attended by. 11. Expert Assessment is the assessment of one or more experts in a particular field that is requested by the Mediator and/or Komediator as well as agreed by the parties to provide an explanation or consideration. 12. the Court is the district court located in the county/municipality where the process of dispute resolution through mediation. CHAPTER II the Mediator and Komediator of article 2 (1) in carrying out its functions, the Mediator and the mandatory Komediator comply with the code of conduct of mediators Komnas HAM. (2) the code of conduct of mediators as referred to in subsection (1) is set individually through the regulation of Komnas HAM once it is endorsed by the plenary session. CHAPTER III stage of Pre-trial Mediation article 3 (1) cases and/or something that is mediated by Komnas HAM can be derived from the decision of the plenary session, recommendation Subkomisi, Monitoring of communities through responsible work unit on receipt of a complaint, and Subkomisi on the initiative Mediation mediation. (2) cases and/or something that is mediated by Komnas HAM is a case or dispute and prolific human rights both in the field of civil and political rights as well as economic, social, and cultural. (3) the mediation by Komnas HAM as referred to in paragraph (1) and paragraph (2) made in order to respect, protection, promotion, fulfillment and the restoration of human rights. Article 4 (1) the Komnas HAM plenary meeting can decide that one case and/or matter assigned responses directly into the Subkomisi mediation. www.djpp.depkumham.go.id 2012 No. 9855 (2) against the decision of the plenary meeting as referred to in paragraph (1), Subkomisi Mediation follow up with the mediation team formed for reviewing the case. (3) if the results of the review of the mediation team referred to in paragraph (2) concluded that a case that mandated by the plenary meeting could not proceed with the mediation process, the team delivered the subject recommendations in writing to the plenary session through Subkomisi mediation. (4) in the event that the results of the study team concluded that mediation case that mandated by the plenary meeting may have to be settled through mediation, the team follow up in accordance with the stages of mediation contained in the mediation procedure. Article 5 (1) Subkomisi Monitoring can recommend to Subkomisi that one case of attempted Mediation settlement through the mediation process. (2) Recommendation Subkomisi Monitoring as referred to in paragraph (1) accompanied by a historical explanation of the handling of the case earlier by Subkomisi Monitoring, the affidavit's willingness to tackle the mediation process from one party or both parties reason together, reasons about the handling of the case of pelimpahan and/or details, and all related documents. (3) the case is Against the recommendations of the Subkomisi Monitoring, Mediation Subkomisi follow up by forming a team of mediation and do the stages of mediation contained in the mediation procedure. Article 6 (1) Subsections reception of Complaints can forward the application for community mediation are filed in writing or orally to the mediation so that the Subkomisi case and/or the matter can be settled through a mediation process. (2) the application for mediation from the public submitted to Mediation through the Subkomisi Subsections reception of a complaint referred to in subsection (1) is accompanied by a clear argument and an affidavit of a willingness to tackle the mediation process from one party or both parties reason together. (3) the case against and/or matter which is the application for mediation from the public submitted to Mediation through the Subkomisi Subsections reception of the complaint then the mediation Subkomisi www.djpp.depkumham.go.id


2012, no. 985 6 follow up by forming a team of mediation and do the stages of mediation contained in the mediation procedure. Article 7 (1) Mediation mediation is a Subkomisi on the initiative of action addressing the problems and/or case-based human rights violations has the potential occurrence of human rights violations even though no one has mengadukannya. (2) actions referred to in paragraph (1) above may include: being a neutral mediator when it started and/or, and/or, after the conflict happened, reviewing and/or referable of case based human rights violations has the potential occurrence of violations of human rights and then make a conclusion and then make recommendations which are then submitted to the Government and PARLIAMENT. (3) the mediation Team on the initiative set up by the Mediation meeting Subkomisi Subkomisi mediation. Article 8 (1) after the Komnas HAM received a complaint from one or more party litigants who allegedly violated by asasinya rights of the other party, then the Komnas HAM is obligated to check the material of the complaint submitted by the complainant for further stated it as material or not material problems and/or disputes based on human rights. (2) the examination of the above complaint is not performed or terminated if: a. do not have sufficient preliminary evidence; b. the material its complaint is not a problem of human rights violations; c. complaints filed in bad faith that contain intents and purposes are not good, for example a complaint accompanied by false data or information which is not correct, or it turns out that there is no seriousness of the complainant; d. There is a more effective remedy for the settlement of the complaint material; or e. completion of ongoing through the available remedy in accordance with the provisions of the regulations (3) in case the material the complaint referred to in subsection (1) is expressed by Komnas HAM as the material problems and/or things that a human rights-based, then the Mediator www.djpp.depkumham.go.id 2012 No. 9857 and/or examining the complaint Komediator stated that the complaint material may or may not be mediated by law Number 39 of 1999 on human rights. (4) in case the material a complaint as referred to in paragraph (4) is expressed can be resolved through the mediation process, then the Mediator and/or Komediator must first ask one party litigants expressed his consent in writing to mediated before is the mediation process; (5) if the Mediator and/or Komediator that checks referred to in paragraph (3) States that the complaint material can be mediated by law Number 39 of 1999 on human rights, then the Mediator further States of matter the complaint referred to in subsection (1) may be resolved through the mediation process. (6) If one of the litigants declare his consent to traverse the mediation process by Komnas HAM, then a Mediator is obligated to initiate the mediation process no later than thirty (30) working days since the approval of the parties is expressed. Article 9 (1) not later than 30 (thirty) working days since the approval of the parties, the Mediator stated and Komediator must have finished the preparation of mediation. When looked upon very necessary, can be done once the extension of time for 30 (thirty) working days. (2) preparation of the mediation referred to in subsection (1) include the following: a. review the material that has been previously complained of dispute by one or more party litigants directly and/or in writing to Komnas HAM; b. identification of the facts of the law (legal facts) and law (legal dispute); c. preparation of a neutral location, akseptabel and secure; d. the creation of psychological and sociological conditions for peace; e. determination of the participant (principal) and/or who represent him (competent) of the parties; f. preparation of the agenda of the meeting; g. preparation of the required administrative support. (3) no later than thirty (30) working days since the approval of the parties, the Mediator stated and Komediator should have determined the www.djpp.depkumham.go.id 2012, no. 985 8 days and the date of execution of the meeting that the first time. When looked upon very necessary, can be done once the extension of time for 30 (thirty) working days. Article 10 (1) in the first meeting, the parties are obliged to submit a photocopy of the required documents and other things related to the matter to the Mediator and Komediator. (2) a photocopy of the documents referred to in subsection (1) include, among others: a. the identity of the parties; b. the power of Attorney (if any of the parties, which was accompanied by the legal Authority and/or Companion); c. written evidence relating to material things; d. other documents required or requested by the Mediator and/or Komediator. (3) the Mediator and the mandatory Komediator check the interconnectedness of all documents submitted by the parties during the meeting that the first time. (4) the Mediator and the parties agreed on a joint Komediator the number of the members of the delegation of each party who attended the hearings further mediation. (5) the parties submit a list of the names of the Chairman and members of the delegation that will attend the hearings further mediation. (6) the parties agree that the number of delegates, the name of the President and members of the delegation should not be changed and not be replaced until the entire mediation process is declared complete. (7) the Mediator and the time required to provide Komediator selambat the latest fourteen (14) working days after the first meeting of the parties to be able to complete the necessary documents. Article 11 Subkomisi mandatory Mediation monitors the entire process of mediation the mediation stage of the CHAPTER IV of article 12 (1) of the entire mediation process is conducted confidentially, unless specified otherwise by the parties and/or the Komnas HAM. www.djpp.depkumham.go.id 2012 No. 9859 (2) Mediator and Komediator compulsory mediation meetings to determine schedules agreed by the parties. (3) the mediation can be held in one of the Komnas HAM, Office space or in the representative offices of Komnas HAM or in any other place agreed by the parties and mediators as well as Komediator. (4) the mediation process includes the following stages: a. introduction and development of trust among the parties; b. identifying the facts and limitations at issue; c. identifying alternative resolution; d. the parties negotiate the issues and decision making over the negotiations; e. clarification towards dispute resolution; f. the formulation of legal documents as a result of the agreement; g. implementation of the deal. (5) during the mediation process the parties may be accompanied by the legal authority and/or companion. (6) if deemed necessary, the Mediator and Komediator can do a caucus. (7) the Mediator and the parties are obliged to encourage Komediator to browse and dig their interests and find a wide selection of the best resolution for the parties. (8) With the final results of the achievement of agreement or disagreement, a mediation process lasts longest-120 (one hundred twenty) working days since the first meetings took place or who was agreed upon by the parties. Article 13 the parties or upon approval of the legal authority and/or companion, Mediator and Komediator can invite one or more experts in the particular field to provide an explanation or consideration that may assist the parties in resolving the differences. Article 14 (1) if the mediation agreement, the parties with the assistance of a Mediator and the mandatory Komediator formulate in writing the agreement that was reached, and signed by the parties and confirmed by the Mediator or the Komediator that gets power from the Mediator. www.djpp.depkumham.go.id


2012, no. 985 10 (2) Before the parties sign an agreement, the Mediator and/or the mandatory Komediator checking material written agreement to avoid agreements that is contrary to law. (3) the Mediator and/or Komediator may request the assistance of one or more legal experts to conduct an examination of the material written agreement referred to in subsection (2). (4) the written Agreement referred to in subsection (1) is the decision legally binding mediation. (5) the Mediator is obligated to declare in writing if the mediation process does not produce an agreement, and thereafter the Mediator suggested to the parties to tackle the other remedy, and/or pass on recommendations to Governments, and/or to the Representatives of the Republic of Indonesia. (6) the advice and recommendations of a Mediator referred to in paragraph (5) was conducted in the framework of protection, fulfillment, promotion and respect of human rights. Article 15 compulsory Mediation Subkomisi monitors the entire mediation process Mediation Pasal16 chapter V Post (1) Mediator is obliged to register and submit the original decision sheet or a copy of the authentic decisions mediation to the clerk of the District Court. (2) if the decision of the mediation is not executed by either party within the period set out in the decision of the mediation, then the other party may memintakan to the local District Court in order that the decision be declared enforceable (fiat execution) and wrapping with the sentence "for the sake of Fairness Upon the divinity of the one true God". (3) a request for the execution to the State Court fiat, as referred to in paragraph (2) was conducted by a Mediator. (4) the Court may not refuse the request as referred to in paragraph (3). (5) if the parties concerned do not implement the decisions that have been declared enforceable by the Court, then the Court is obligated to carry out the decision. www.djpp.depkumham.go.id 2012 No. 98511 article 17 Subkomisi mandatory Mediation monitors the entire process of the post-war mediation Article 18 third party who feels aggrieved by a decision of the mediation carried out by Komnas HAM can file a lawsuit through the courts. CHAPTER VI article 19 Fees (1) the entire cost used by the Mediator and/or Komediator and/or Subkomisi Mediation charged to Komnas HAM is sourced from the budget of the State Expenditures and Revenues. (2) the entire cost of the expert services incurred by Komnas HAM using funds of the budget of the State Expenditures and Revenues. CHAPTER VII miscellaneous article 20 (1) the entire process of the Administration and management of the mediation carried out by Komnas HAM coordinated by Subkomisi mediation. (2) in case there is a mediation activities conducted by members of Komnas HAM and the staff of Komnas HAM outside the Subkomisi mediation before the establishment of guidelines for Conducting this Mediation, then the whole process of document and deed of agreement of the parties must be submitted to the Subkomisi Mediation not later than 3 (three) months after the holding of this established Mediation Guidelines. (3) other matters that are not yet provided for in this regulation will be further regulated through decisions of the Komnas HAM plenary meeting and/or meeting of CHAPTER VIII PROVISIONS of Mediation Subkomisi COVER Article 21 this Regulation comes into force on the date specified. www.djpp.depkumham.go.id 2012, no. 985 12 so that everyone knows it, ordered the enactment of regulations of national human rights Commissions is with its placement in the news of the Republic of Indonesia. Established in Jakarta on October 01, 2008 the NATIONAL HUMAN RIGHTS COMMISSION Chairman, IFDHAL KASIM Enacted in Jakarta on 8 October 2012, MINISTER of LAW and HUMAN RIGHTS Republic of INDONESIA, AMIR SYAMSUDDIN www.djpp.depkumham.go.id