INDONESIAN CRIMINAL PROCEDURES
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There are three levels of Indonesian Criminal Procedure based on the Indonesian Criminal Procedure Act (Law No. 8 Year 1981), to be referred to as “KUHAP”:
1. Police Level
2 .Prosecution Level
3. Court Level (Trial)
PROCEDURES AT THE POLICE LEVEL
Criminal procedures at the police level consist of reporting/complaining, arresting, investigation, detention as applicable, and completion for furtherance of case.
Reporting or Complaining
Procedures at the police level are initiated with the filing of a report or complaint by the persons/parties concerned, i.e., those who have suffered from the alleged offence being reported or complained about or who witnessed the alleged offence. The report shall be made to the Investigator.
Relevant provisions in KUHAP:
Article 1, paragraph 24:
“A report is the notification to a competent official submitted by a person by legally based right or obligation that a criminal event has occurred or is occurring or is about to occur.”
Article 1, paragraph 25:
“A complaint is the notification given to a competent official accompanied by a request from a concerned party that legal action should be taken against a person who has committed an offence which has caused him damage”
Article 1, point 1:
“An investigator is an official of the State Police of the Republic of Indonesia or a certain official of the civil service who, by law, is granted special authority to conduct investigations”
Article 7, paragraph 1, point (a):
“An Investigator ….. by virtue of his authority shall be competent to accept a report or complaint from a person about the occurence of an offence;”
Upon receiving the report or complaint from the party concerned, the Investigator shall immediately carry out an investigation.
Procedures of investigation consist of questioning, taking of the investigation minutes (Berita Acara), detention, and delivery of dossier to the Public Prosecutor.
Termination of investigation may become part of the procedures at the police level in the event of lack of evidence to warrant further investigation, or because the alleged offence in question does not constitute a crime or is terminated by the operation of the law.
Upon receipt of a report or complaint about the occurence of a criminal act or presumption of such an occurence, the Investigator shall immediately carry out an investigation. In the investigation, the Investigator conducts questioning to examine the case. In the course of this, the Investigator is authorised to summon every person, both suspects and witnesses, as well as to seize documents.
Article 7, paragraph 1 points (e) and (g), of KUHAP, stipulates that an Investigator, as intended by Article 6, paragraph (1), point a, by virtue of his authority, shall be competent to, among others, carry out the examination, seize documents and summon a person to be heard or examined as a suspect or a witness;”
“Witnesses” shall be persons who may provide information for the purpose of the investigation, prosecution and adjudication on a criminal case who have heard, seen and experienced matters first hand (Article 1, paragraph 26, of KUHAP).
“A suspect” shall be a person who, as a consequence of his/her actions or circumstance and based on the initial or preliminary evidence, is reasonably suspected to be the perpetrator of a criminal act or offence (Article 1, paragraph 14, of KUHAP).
At the level of investigation, a suspect may be arrested by the Junior Investigator, upon an order of the Investigator. The length of arrest is limited to a maximum of 1 (one) day only. The arrest warrant is served on a person who, based on sufficient preliminary evidence, is strongly presumed to have committed a criminal offence.
Taking of the Minutes of the Investigation (Berita Acara)
At the completion of the questioning in the investigation process, the Investigator write up the minutes of such an investigation - called Berita Acara Pemeriksaan or Minutes of the Investigation. This applies to the investigation of witnesses as well as to the investigation of suspects.
The Minutes of Investigation shall contain the following:
a .Date of the Minutes;
b. Details of the alleged criminal act: the time, place and the circumstances at the time the criminal act was committed;
c. Name and address of the witness (for the investigation of a witness) or suspect (for the investigation of a suspect);
d. Information/Testimony of the witness (for the investigation of a witness) or suspect (for the investigation of a suspect);
e. Notes regarding deeds and or goods;
f. Other information deemed necessary for the purpose of solving the case.
Detention means placement of suspect in certain places by investigators for the purpose of containment. (Detention may also apply at the prosecution level as well as at the court level (trial).
A suspect may be put in detention by the Investigator for maximum 20 days and, thereafter, the suspect must be released.
Detention may be applied by the legal authorities at any level, i.e., by the Investigator at the police level, by the Prosecutor at the prosecution level, and by the Judge at the court level (trial).
Grounds that may justify detention:
1. Ground by virtue of the law (Gronden van Rechmatigheid)
Where the potential criminal sanction applicable to such a crime is 5-yearS imprisonment or more; and certain crimes, as specified in the KUHAP (Article 21, paragraphs 4 (a) and (b), of KUHAP), even though the imprisonment sanction is 5 years, such as torture, embezzlement, etc.
2. Any of the following technical considerations (Groden van Noodzaklijkheid):
The suspect is a flight risk (non-cooperative); and/or
The suspect would destroy/dispose of evidence; and/or
The suspect would repeat the crime.
Duration of Detention
During the entire criminal process from the Police level up to the Supreme Court level, an accused may be placed in detention for the maximum number of days as follows:
- Detention by Investigator : 20 days
- Extension by Public Prosecutor based on an Investigator’s request : 40 days
- Detention by Public Prosecutor : 20 days
- Extension by the Head of a District Court based on Public Prosecutor’s request : 30 days
- Detention by the Panel of Judges of a District Court examining the case in the first instance : 30 days
- Extension by the Head of a District Court based on a request by the Panel of Judges examining the case: 60 days
- Detention by the Panel of Judges of a High Court examining the case at the appeals level : 30 days
- Extension by the Head of a High Court based on a request by the Panel of Judges of the High Court: 60 days
- Detention by the Panel of Judges of the Supreme Court examining the case at the Cassation Level : 50 days
- Extension by the Head of Supreme Court based on a request by a Panel of Judges of the Supreme Court : 60 days
The maximum period of detention of a suspect/an accused in a criminal case is 400 (four hundred) days.
Three Types of Detention
a. Detention in the State Detention Facility (Rumah Tahanan Negara)
b .House Detention
c. City Detention
The suspect may request a change in the detention status by means of a Petition Letter for Change of Detention Status, which shall be submitted in person or by his/her family or his/her attorney to the Unit Head of the Investigator. Such a petition shall be acknowledged by the Village Head (RT/RW/Kepala Desa) where the suspect resides.
Suspension of Detention
The detention may be suspended through the following mechanism:
1. Personal Guarantee
The following procedure has to be followed in order to request a Suspension of Detention based on Personal Guarantee:
(a) The Investigator and the Suspect or his/her attorney shall enter into an agreement regarding the ability of the Guarantor to provide the amount of money based on the requirement and consideration determined by the Investigator;
(b) The identity of the Guarantor shall be mentioned in this agreement.
(c) In the event the Suspect absconds from detention, the Guarantor must pay the money into the state treasury account through the Registrar of the District Court where the Suspect is domiciled. If the Guarantor cannot pay the amount of money as stated in the agreement, the Bailiff of the District Court will seize his/her assets to be sold through a public auction. The proceeds of such sale should be paid into the State account through the Registrar of the District Court.
The procedure for requesting the Suspension of Detention based on Monetary Guarantee is as follows:
(a) The Investigator and the Suspect or his/her attorney shall enter into an agreement.
(b) The amount of the monetary guarantee shall be determined based on the discretion of the investigator.
(c) The guarantee shall be paid by his/her attorney or family to the Registrar of the District Court.
(d)The receipt for the payment shall be made in three carbon copies as follows:
1 copy to be filed by the Registrar of the District Court
1 copy for the person who has paid the guarantee
1 copy will be delivered by the Registrar to the Investigator
(e)Based on the receipt of payment from the Registrar of the District Court, the Investigator will issue the Letter of Suspension of Detention.
Termination of Investigation
The investigation by the Investigator at the police level may be terminated before such investigation is completed. In other words, the case may be closed because it is not string enough to be putting forward to the higher level.
The termination of an investigation shall be based on the ground of: insufficient evidence to warrant further investigation, the alleged act in question does not constitute a crime or the operation of the law (e.g. suspect dies, the complaint for such crime is withdrawn based on a judicial stipulation having attained permanent legal force and effect).
The Stipulation on the Termination of Investigation shall be signed by a Unit Head or the appointed investigator. The investigator shall submit the Stipulation on the Termination of Investigation to the Head of the Provincial Public Prosecutor’s Office advising of the termination of the police investigation.
The termination of investigation does not mean that the case cannot be reopened, since such termination may be rescinded. Termination could be annulled or the case could be resumed upon the stipulation of the court to reopen investigations into the crime. The letter annulling the termination of the investigation shall be signed by the Unit Head or an official appointed as investigator and shall be notified to the Register for Initiation/Termination of Investigation.
Delivery of dossier to the Public Prosecutor for Furtherance of the Case
When the investigation is completed, which means that the case is considered worthy of being brought forward to the next or higher-level process, the Investigator shall immediately submit the dossier of the case to the Public Prosecutor. This submission is just the first stage of delivery and only contains the dossier. However, if the Investigator finds that the criminal report under investigation has no grounds or is baseless, then he/she has to stop the examination and must issue a letter to halt the investigation (Surat Perintah Penghentian Penyidikan or best known as “SP3”).
Thus, submission of the case dossier by the Investigator to the Public Prosecutor constitutes an action of transferring the law enforcement responsibility from the Investigator to the Public Prosecutor or simply a furtherance of the processing of the case.
PROCEDURES AT THE PROSECUTION LEVEL
Criminal procedures at the Prosecution level consist of pre-prosecution and prosecution.
Pre-prosecution (Pra Penuntutan)
Prosecution is an act by the Public Prosecutor to bring an alleged criminal act before a competent district court in the matter and manner as stipulated by law, with a request that it be heard and decided upon by the judge at a trial.
The Public Prosecutor will examine and assess whether the dossier (that has been submitted by the Investigator) is sufficient to be used for the prosecution. The Public Prosecutor will be obligated to notify the Investigator within 7 (seven) days whether the result of the investigation, in the assessment of the Public Prosecutor, is complete or not. The investigation is deemed to be complete if the Public Prosecutor does not return the dossier (the result of the investigation) within 14 (fourteen) days, or if the Public Prosecutor notifies the Investigator that, according to the assessment of the Public Prosecutor, the investigation (that has been conducted by the Investigator) is considered to be complete, albeit before the lapse of the 14 (fourteen)-day period.
If the Public Prosecutor considers that the result of investigation as contained in the dossier is not sufficient or incomplete, the Public Prosecutor shall return the dossier within 14 (fourteen) days. The return of the dossier by the Public Prosecutor to the Investigator shall be accompanied by the Public Prosecutor’s instruction to the Investigator to conduct additional investigations in order to complete the dossier and later submit it to the Public Prosecutor within 14 days from the returning date.
After the Public Prosecutor receives the result of the completed investigation from the Investigator, the Public Prosecutor shall convey the dossier to the court (addressed to the Head of the competent District Court) and shall prepare, therefore, a Letter of Indictment (Surat Dakwaan) in order to take the case to next procedural level.
If, as the result of its examination of the case, the Public Prosecutor decides to terminate the prosecution process, the Public Prosecutor shall issue a termination of investigation stipulation (Surat Perintah Penghentian Penyidikan or SP3). Such SP-3 shall be delivered to the Suspect. The Suspect who is already put under detention must immediately be released from the detention when his/her case is terminated.
Legitimate bases for termination of the prosecution process by the Public Prosecutor are:
(i) insufficient evidence; or
(ii) the alleged criminal action cannot be categorized as a criminal act; or
(iii) the case is closed by law.
PROCEDURES AT COURT (EXAMINATION BY TRIAL)
Criminal procedures at the trial examination level consist of summoning, examination/adjudication, and judgment.
Upon receiving the case dossier from the Public Prosecutor, the Head of the District Court shall form and assign a Panel of Judges to adjudicate on the case. The Panel of Judges shall then determine the date of trial. For such purpose, the judge shall order the Public Prosecutor to summon the witnesses and the Accused.
There are 3 (three) types of examination procedures under Indonesian Criminal Procedure, namely:
a. Ordinary Examination Procedures (Acara Pemeriksaan Biasa);
b. Summary Examination Procedures (Acara Pemeriksaan Singkat);
c. Express Examination Procedures (Acara Pemeriksaan Cepat).
Ordinary Examination Procedures (Acara Pemeriksaan Biasa) are the most common and complete procedures for the adjudication of cases under the Indonesian Criminal Procedures. Below is the process of the Ordinary Examination Procedures (Acara Pemeriksaan Biasa).
a. Examination of Identity
At the first session, the Panel of Judges will order the Prosecutor to present the Accused and the witnesses before the court. The Panel of Judges will then examine the identity of the Accused for the purpose of verifying the identity of the Accused as contained in the Letter of Indictment, and as a means of checking for possible conflicts of interest between the Judges, the Prosecutor or the Clerk with the Accused or his/her lawyer (Article 157 of KUHAP).
b. Letter of Indictment (Dakwaan)
The Panel of Judges will order the Prosecutor to read out the Prosecutor’s Letter of Indictment. After the reading out of the Letter of Indictment, the Panel of Judges will ask the Accused whether he fully understands the Letter of Indictment.
c. Demurral (Eksepsi)
The Accused is entitled to raise objections (demure) against the Prosecutor’s Letter of Indictment. This objection must be forwarded prior to examination of the merit/substance of the case. Legitimate reasons for such an objection, among others, are:
(I) The Court has no competence to adjudicate on the case;
(ii) The Letter of Indictment cannot be accepted;
(iii) The Letter of Indictment is void;
(iv) Change of Letter of Indictment.
d. Prosecutor’s Response to the Demurral
The Prosecutor must provide responses to the demurral of the Accused.
e. Interlocutory Judgment
The Panel of Judges shall then come to a judgment or decision on the demurral. The decision may be one of the following:
(I) Acceptance of the demurral; or
(ii) Rejection of the demurral; or
(iii) Neither acceptance or rejection of the demurral, but a statement saying the matter of the demurral will be decided together with the merits of the case.
The Panel of Judges’ acceptance of the demurral will alter the further processing of the case. If the demurral concerns the court’s competence (and the Panel of Judges accepts the demurral), the Panel of Judges will then return the Letter of Indictment to the Prosecutor, in order for the case to be filed in another/competent district court by the Prosecutor.
If the demurral concerns the voiding of the Letter of Indictment (and the Panel of Judges accepts this), then the examination of the case in the district court is deemed completed. The Public Prosecutor may challenge this Interlocutory Judgment by filing a challenge (Perlawanan/Verzet) to the High Court.
If the Panel of Judges rejects or does not accept the demurral of the Accused, the Panel of Judges will then continue examining the case despite the challenge from the Accused. The District Court, however, shall terminate the examination of the case if the decision on the challenge has been issued in favour of the Accused.
f. Examination of Witnesses, Evidence and the Accused.
Examination of the case shall commence with the hearing of the witnesses. Witnesses will be called into the courtroom one by one.
For each testimony, the Panel of Judges shall ask the Accused for his opinion of the testimony. The Public Prosecutor, the Accused or the defence attorney will have the opportunity to cross-examine witnesses.
The Panel of Judges may also ask a doctor of forensic medicine, or medical doctor or other experts to give their testimony in court. In the examination process, the Panel of Judges shall give sight of any and all physical evidence to the Accused and shall ask him whether he recognises them.
g. Prosecutions (Requisitor/Penuntutan)
After the Panel of Judges has finished examining the witnesses, the evidence and the Accused, the Panel of Judges shall, thereafter, request the Public Prosecutor read out the prosecution against the Accused as contained in the Letter of Indictment. A copy of the Letter of Indictment shall be distributed to the Accused or his/her lawyer.
h. Defence (Pleidooi/Pembelaan)
The Accused is entitled to mount a defence against the prosecution.
i. Response against Pleidooi (Replik)
The Public Prosecutor shall give his response to the defence from the Accused.
j. Response to Replik (Duplik)
The Accused is entitled to forward his response against the Replik of the Public Prosecutor.
k. Deliberation Meeting of the Panel of Judges
When the examination of the case is deemed completed, the Panel of Judges shall declare that the examination is closed (but leave open the possibility of re-opening it should additional evidence become available). The Panel of Judges will then hold a meeting to discuss the content of the Letter of Indictment and identify and determine the outcome of the examination.
In principle, the Judgment of the Panel of Judges is a unanimous judgment. However, in case of non-unanimous opinion, the following rule shall apply:
(i) The judgment shall be made by a majority of votes;
(ii) The decision adopted shall be the most favourable to the Accused.
Rules of Judgment & Evidence
A judge may only impose a criminal sanction upon a person if:
1.they are of the conviction a criminal act has occurred, and
2.that it was the Accused who is guilty of committing it.
List of legal evidence in Indonesian Criminal Procedural Law (Article 184 of KUHAP):
(i) factual witness;
(ii) expert witness;
(iii) written evidence;
(iv) an indication; and
(v) the testimony of the Accused.
l. Promulgation of the Panel of Judges’ Judgment
The Panel of Judges will pronounce their judgment in a public hearing attended by the Accused.
Various kinds of judgment:
The Accused is acquitted for the reason that the Panel of Judges is of the opinion that the trial has failed to establish the guilt of the Accused.
If the court is of the opinion that, even though the acts of the Accused have been proven, that such acts, however, do not constitute a criminal act, all charges against the Accused shall be dismissed.
(iii) Imposition of Criminal Sanction
If the court believes that the Accused is guilty of having committed the criminal act of which he has been accused, the court shall impose a criminal sanction.
(iv) Judgment that the Court has no competence to adjudicate the case
The court realises that, after examining the case, the court has no competency to examine and adjudicate the case.
(vi) Judgment that the Indictment cannot be accepted
The Indictment cannot be accepted when the court decides that the Public Prosecutor’s indictment is not clear or is not precise.
(vii) Judgment that the Indictment is void
The indictment is void if the court finds and determines that the indictment does not observe the requirements stipulated in the KUHAP.
The promulgation or pronouncement of the Judgment of the Panel of Judges concludes the process of the case at the court of first instance.
The Rights of the Accused upon pronouncement of Judgment
a. The right to promptly accept or reject the judgment;
b. The right to study the judgment before accepting or rejecting the judgment within the time limit determined by law;
c. The right to request postponement in the execution of the judgment for a period determined by law, in order to seek a pardon (Grasi) where the judgment is accepted;
d. The right to request the examination of his case on appeal within the time limit determined by law, where the judgment is rejected; and
e. The right to withdraw a statement by the Accused that he rejectsk the court’s judgment (as referred in point (a) above) within a time limit determined by law.
The Judgment of the Panel of Judges at the court of first instance shall become final and binding if each party accepts it.
The parties or a party may decide not to accept a court’s judgment, in which case a party may challenge the Panel of Judges’ decision which has been made against it, by exercising the “Legal Remedies” available under the law.
Legal Remedies can be divided into: Ordinary Legal Remedies and Extraordinary Legal Remedies.
Ordinary Legal Remedies comprise of appeals to the High Court and appeals (sometimes referred to as ‘cassation’) to Supreme Court.
Extraordinary Legal Remedies comprise of appeals in the interests of the law and case reviews.
Ordinary Legal Remedies
Appeal to the High Court (Banding)
Petition for appeal may be submitted to the High Court by the Public Prosecutor or the Accused no later than 14 days from the District Court’s pronouncement of the judgment. Such petition may be, but it is not a legal requirement, accompanied by a Memorandum of Appeal.
Upon receiving the appeal from the appealing party (the appellant), the District Court shall, on the filing of the appeal notify the other (the non-appealing) party.
In response thereof, the non-appealing party may submit a Counter Memorandum of Appeal to the High Court at any time before the High Court commences the examination of the case.
The appellant may revoke its Petition of Appeal at any time before the High Court issues its judgment.
Exempted from Appeal
The following kinds of judgment may not be appealed against:
a. A judgment of acquittal;
b. A dismissal of all charges on the grounds of inappropriate application of the law; and
c. A judgment in cases examined under the Express Examination Procedures, excluding a decision related to the curtailment of someone’s freedom.
The Panel of Judges at the High Court shall examine the case of appeal based on documents of the case received by the High Court. If it considers it necessary, the Panel of Judges at the High Court shall hear the testimony of the Accused, witnesses or the Public Prosecutor.
If the High Court is of the opinion that there was negligence in terms of the application of the procedural law, a mistake or an incomplete process during the trial before the District Court, the High Court may issue an order to the District Court to correct these matters or the High Court may make such correction itself.
On the appeal, the High Court may decide as follows:
(i) to uphold the judgment of the District Court, or
(ii) to amend the judgment of the District Court; or
(iii) in case of annulment of the judgment of the District Court, the High Court shall render its own decision.
A copy of the High Court’s Judgment and documents relating to the case shall then be delivered to the District Court to be further notified to the Accused and Public Prosecutor.
Appeal to Supreme Court (Cassation or “Kasasi”)
The Supreme Court will accept an application or petition of cassation submitted by the Public Prosecutor or the Accused for all judgments in criminal cases issued by a court other than the Supreme Court, except in the case of an acquittal.
Legitimate reasons for appeal of cassation to the Supreme Court:
(i) a regulation has not be applied or has been applied in an improper manner;
(ii) the method of adjudication was not conducted according to provisions of the law;
(iii) the court has exceeded the limit of its competence.
Application shall be submitted through the clerk of the court whose decision is being appealed against. Application must be submitted within 14 (fourteen) days from the date of the Accused's notification of the judgment. The clerk shall then notify the application of cassation to the non-appealing party.
The appealing party must submit its Memorandum of Cassation within 14 (fourteen) days after the application was made, which will be forwarded by the clerk to the non-appealing party.
In response thereto, the non-appealing party may, but is not legally required, submit its Counter Memorandum of Cassation.
The appellant may withdraw its Petition of Cassation at any time before the Supreme Court issues its judgment.
The clerk shall then deliver the relevant documents of the cassation to the Supreme Court. The Supreme Court shall examine the case with at least 3 (three) judges based on documents delivered to the Supreme Court along with decisions of the relevant court at the lower levels. However, if it is deemed necessary by it, the Supreme Court shall itself hear the testimony of the Accused, witnesses and Public Prosecutor at the cassation level.
In the cassation, the Supreme Court may decide as follows:
(i) to refuse the petition, which means that the Supreme Court upholds the previous judgment of the lower level court; or
(ii) to accept the petition, which means that the Supreme Court overturns the previous judgment of the court at the lower level.
Case Review (Peninjauan Kembali)
Case Review is a remedy available for a judgment that has become final and binding (i.e. having attained permanent legal effect). The Accused or his/her heirs may file a petition for a Case Review (Peninjauan Kembali). Case Review, however, does not apply acquittals or where charges have been dismissed.
A request for the Case Review may be made at any time on the following grounds:
a. On the discovery of new circumstances which give rise to a strong presumption that if such circumstances had been known at the time of the trial, the outcome would have been an acquittal or dismissal of all charges, or the charges of the public prosecutor would not have been accepted or a less severe criminal provision would have been evoked;
b. If, in the various judgments, there are found statements that something has been proven; but where the circumstances which form the basis of the reason for the judgment are evidently contradictory with one another;
c. If the judgment clearly shows negligence of the judges or a manifest error.
Petition for Case Review shall be submitted to the clerk of the district court for whose decision a request for Case Review is being made. The Head of District Court shall then appoint a judge, who was not previously associated with the case, to examine whether the petition has met the requirements that are the basis for a Case Review request. In this examination, the Petitioner and the Prosecutor may attend and provide their opinions. The Head of District Court shall immediately deliver the petition, along with the documents of the case, to the Supreme Court, with copies to the Petitioner and Prosecutor.
The Supreme Court shall then examine and render an opinion on whether the Case Review request submitted by the Petitioner has met requirements as stipulated by law. If not, then the Petition shall be declared unacceptable.
If the petition is accepted for further examination, the decision of the Supreme Court could either : (i) reject the petition, which means upholding the previous court’s decision; or
(ii) accept the petition, which overturns the previous court judgment.
When the Supreme Court accepts the petition of a Case Review, the judgment that is issued (by the Supreme Court) may be in the form of any of the following:
a. A judgment of acquittal; or
b. A judgment of dismissal of all charges; or
c. A judgment that cannot accept the Public Prosecutor's prosecution; or
d. A judgment that will apply a lighter criminal provision.
Execution of a Judgment with Permanent Legal Effect.
The final process of the criminal procedure is the execution of the court’s judgment that has permanent legal effect.
Criminal sanctions recognised under the Indonesian Penal Code (KUHP) and that may be contained in a judgment with permanent legal effect consist of the following:
a. Capital Punishment;
d. Additional sanctions in the form of seizures;
e. Conditional Sanctions.
Execution of the criminal sanction is carried out by the Prosecutor.
The above has been kindly provided free of charge by the law firm, Telaumbanua & Partners, for OpenTrial
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