Indonesian criminal procedure

Brief History of Criminal Procedure in Indonesia

Colonial Times (1910- 8th March 1942)

Before 1910, “Hakum Adat” or Adat laws applied in Indonesia. When the Dutch colonized Indonesia, they set up a civil law system that took precedence over the Adat laws.

In terms of the criminal procedure, for example, the Dutch enacted two statutes to govern different parts of Indonesia. The Herziene Inlandsch/Indonesisch Reglement (HIR) applied to Jawa and Madura, while the Rechtsreglement Buitengewesten (Rbg) applied to the rest of Indonesia. These two statues laid out the procedures and rights of individuals at all levels of investigation and trials.

The Adat laws applied to the natives only if it did not clash with the Dutch statutory provisions.

Japanese Occupation (9th March 1942- August 1945)

When the Japanese occupied Indonesia, they applied their Japanese Martial Law. This superseded all existing laws in Indonesia at that time.

Present (August 1945 - Present)

Indonesia’s current legal system is based on Dutch Colonial Law, Adat Law and National Law. Adat Law and National Law still apply today because Indonesia is a Muslim country.

After Indonesia gained independence, it adopted the Dutch HIR in 1951. It enacted the Kitab Undang-Undang Hukum Acara Pidana (KUHAP) to replace the HIR in 1981. The KUHAP improved the HIR to add adversarial features to the criminal procedure.

In 2000, a working group drafted a new statue to replace the KUHAP. Indonesians were dissatisfied with the formal procedures in the KUHAP because they did not sufficiently protect human rights and they were prone to abuse. However, these changes have not been adopted in Indonesia to date.

Steps Involved in an Ordinary Criminal Trial

1. Arrest

Unless the offender is ‘caught in the act’, a warrant is required in order to make an arrest when a ‘criminal act’ has been committed. A copy of such warrant must be delivered to the suspect’s family.

2. Detention

Suspects must be released within one day of arrest unless the investigator, prosecutor, or judge orders a detention. Detention is limited to offences liable to imprisonment of 5 years or more, and crimes under Art 21(4)(b). Suspects may be detained for a maximum of 60 days without judicial consent.

3. Investigation

When an investigator begins his investigation of the alleged offence, he must inform the public prosecutor of this. If the investigation is terminated due to insufficient evidence or said event did not constitute an offence, he must inform the prosecutor and suspect.

During investigation, the investigators have the authority to summon witnesses deemed necessary to be examined.

Upon completion of the investigation, he must promptly submit the dossier of the case to the public prosecutor. Where the public prosecutor believes that the said investigation remains incomplete, he will return the dossier of the case and order for a supplementary investigation. The dossier is then resubmitted.

4. Prosecution

After examining the dossier of the case, the public prosecutor shall determine if the case met the requirements to be brought to court. Where he decides to prosecute, he must prepare a bill of indictment and bring the action before a competent district court.# Where he decides to cease prosecution, he must produce a written decision to be sent to suspect, investigator, and the judge.

Summonses are then issued to the suspect and witnesses, if any, to attend trial.

5. Pre-Trial Proceedings

Pre-trial proceedings are limited to examining whether the arrest and/or detention was legal and to decide whether the district court has the jurisdiction to try the case.

6. Trial Procedures

At the outset of trial, the prosecutor will read out his bill of indictment.

The judge will then summon the accused and witnesses to give their testimonies, which are then examined. The head judge will lead the examination at trial. The prosecutor and the legal counsel may question the witnesses through the head judge.

Where an accused refuses to answer a question, the head judge shall suggest that he answer and thereafter continue the examination.# However, accused shall not provide answers involuntarily.

After examination, the prosecutor will submit his charges before the accused submits his defence. The prosecutor may reply to the defences put up provided that the accused shall always have the last turn.

The judges will then hold consultations to reach a decision.

7. Judgment

If the court concludes that guilt has not been legally and convincingly proven or that the acts do not constitute an offence, the accused shall be acquitted and charges dismissed.

If the court concludes that the accused is guilty of committing the offence, it will impose a penalty.

The public prosecutor then executes the judgment.

The Appeal Process

Ordinary Legal Remedies

Once a decision has been reached and read by the judge in a General Court of first instance, the aggrieved party may file an appeal to the relevant court of appeal in the jurisdiction within seven days.

No appeal can be filed against a:

1. Judgment of acquittal which relates to a matter on the inappropriate application of law; or
2. Judgment of dismissal of all charges which relates to a matter on the inappropriate application of law; or
3. Judgment under express procedure.
   

There are three grounds for appealing to the High Court:

1. Where there has been negligence in the application of the law of procedure;
2. Where a mistake is found in the examination at first instance;
3. Where something is incomplete in the examination at first instance.
   

Decisions made at the General Court level and appealed to the High Court in the criminal jurisdiction may be appealed to the Supreme Court as a matter of cassation.

There are three grounds for appealing from the High Court to the Supreme Court:

1. Where a legal rule has not been applied or has been applied in an improper manner;
2. Where the method of adjudication was not concluded according to the provisions of law;
3. Where the court has exceeded the limits of its competence.
   

Extraordinary Legal Remedies

Judgments deemed final and binding at the last appellate level may seek a final extraordinary remedy. A convicted person or his family may submit a request to the Supreme Court for reconsideration of a judgment which has become final and binding, except for a judgment of acquittal or the dismissal of charges. Such a request is not time-barred and may be made only once.

A request for reconsideration of a judgment may be made where:

1. New circumstances which give rise to a strong presumption that had such circumstances been known at the time the trial was still in progress, the outcome would have been a judgment of acquittal or dismissal of all charges or the charges of the public prosecutor would not have been acceptable or that less severe criminal provisions would have applied to the case.
2. Matters or circumstances which form the basis and reasoning of the judgment, declared to be proven, are mutually contradictory.
3. A judgment clearly displays a mistake made by the judge or a manifest error.
4. An alleged act which has been declared proven in the judgment, but has not been followed up by the imposition of a penalty.
   

Role of the Judge

The role of judges in the Indonesian criminal justice system is to impose a proper punishment on offenders based on sufficient legal means of proof. Judges are generally only involved in the trial proceedings.

When a judge receives a Bill of Indictment from the Public Prosecutor, he will determine a trial date and order the latter to summon the accused and witnesses to attend the trial.[1]

During the trial proceedings, the judge is obliged to ensure that the defendant or witness remains free in answering questions posed. If the judge fails to do so, his decision will be annulled.[2]

At the end of the trial proceedings, the judge can only convict a person if he has at least two pieces of legal evidence supporting the conviction.[3] Based on the evidence presented, the judge can punish, acquit or dismiss the charges against the accused.

If the accused is convicted and he is sentenced to a punishment that deprives him of his liberty, the judge will assists the head judge to supervise the execution of the punishment.[4]

Role of the Prosecutors

The Prosecution Service of Indonesia is the only agency that has state powers to prosecute offenders. As such, there is no private prosecution in the Indonesian criminal justice system. They are involved in the whole trial process, from the investigations, to trail proceedings and the execution of punishment.

At the investigation stage, the prosecutor supervises the police’s investigations. The prosecutor only personally investigates cases when there are special crimes, such as corruption.[5] Once the police complete investigations, they hand the evidence to the prosecutor.[6]

If the evidence is satisfactory,[7] the prosecutor will prosecute the offender at an appropriate court.[8] He will prepare a Bill of Indictment for the judge[9] to begin the trial proceedings.

During the trial proceedings, the prosecutor must ensure that the defendant, witnesses and experts are all present. The prosecutor must also present all evidence concerning the crime.[10] In practice, the prosecutor usually presents three or more pieces of legal evidence to support the defendant’s guilt.

After the judge has passed judgment on the case, the judge’s clerk will send a copy of the execution of punishment to the prosecutor. The prosecutor will then execute the punishment.[11]

Legal Protections for the Accused

Rights to counsel

A suspect has a right to obtain legal assistance from one or more legal counsels at every stage of the examination. At the start of the investigations, the police will inform the suspect that he has a right to receive legal assistance during examination at trial.

If the suspect does not have legal assistance, he will receive free legal aid if he faces the death penalty, or imprisonment of fifteen years or more. The suspect will also receive free legal aid if he is destitute and faces imprisonment of five year or more.

Once the suspect obtains legal assistance, the counsel has a right to contact him from the moment he is arrested or detained. The counsel also has a right to be present at, and listen to, interrogations. This ensures that the police do not carry out unfair interrogation techniques.

Rules of evidence

General

The court only admits five types of legal evidence. They are:

1. The testimony of a witness
2. The testimony of an expert
3. A document
4. An indication
5. The testimony of the accused

An indication is an act, event, or situation that is consistent with other facts. It can only be obtained from the testimony of a witness or accused, or from a document.

To hold an accused guilty, a judge must have at least two means of legal proof to support the conviction. This ensures that a suspect cannot be convicted merely because he confessed his guilt.

Treatment of witness’ testimony

The judge compares a witness’ testimony against other witness testimonies or other means of proof to determine whether the testimony is true. In the process, he also considers all other factors that affect the witness’ credibility.

A witness usually makes a testimony under oath. However, a testimony not made under oath can still be admitted as supplemental legal evidence if it is consistent with a testimony made under oath.

Current Controversies and Debates

Limitations on admissible evidence

Indonesian courts only accept five types of legal evidence. They do not accept electronic evidence and physical evidence. This restricts the types of evidence prosecutors and defense attorneys can present at trial. They also do not have a specific provisions on evidence gathered abroad. This creates uncertainties when a cross-border crime is tried.

Impeded rights to counsel

Counsel has a right to contact his client “at every moment.” However, this right is undermined because a 1983 Ministry of Justice regulation interprets it to mean that the client has a right to communicate with his counsel ‘at every moment during office hours’. Based on this, police stations mysteriously close when lawyers visit their clients. This prevents the counsel from communicating with his client, undermining the suspect’s right to counsel.

Potential for abuse of detention powers

The police have powers to detain a suspect under Art 24(1). The police can abuse these powers because they can use threats of detention to pressure a suspect to confess that he is guilty.

In addition, the suspect can be detained for up to 60 days without judicial intervention. For example, if the police office detains the suspect for 20 days under Art24(1), a prosecutor can extend this detention for another 40 days under Art24(2). This highlights that KUHAP does not ensure that detainees are brought to court promptly.

Fictional right to silence

It is unclear whether an accused has a right to remain silent during examination. Although an accused “shall not be burdened with the duty of giving evidence”, Art 175 seems to undermine this right. Under Art 175, the Head Judge can suggest that the accused answers the question. The examination will continue after the Head Judge makes this suggestion. Since there is a high respect for authority in Indonesia, the Head Judge's “suggestion” will probably persuade the accused to answer the question. This undermines the right to remain silent during examination.