Indonesia

From Criminal Defense Wiki
Jump to: navigation, search
Globe3.png English  • español


ACTS OF INDONESIA

LEGAL TRAINING RESOURCE CENTER

Background

Indonesia comprises 30 provinces, 2 special regions (Aceh and Yogyakarta), and 1 special capital city district (Jakarta Raya). Indonesia’s first free parliamentary election after decades of repressive rule took place in 1999. The country is now the world’s third-largest democracy, and home to the world’s largest Muslim population.

Current issues include: alleviating poverty, improving education, preventing terrorism, consolidating democracy after four decades of authoritarianism, implementing economic and financial reforms, stemming corruption, and holding the military and police accountable for past human rights violations.

Type of System

The Supreme Court (Mahkamah Agung) is the final court of appeal, but only the Constitutional Court (Mahkamah Konstitusi) has the power of judicial review. Most disputes appear before the courts of general jurisdiction, with the court of first instance being the State Court (Pengadilan Negeri). There are about 250 State Courts throughout Indonesia, each with its own territorial jurisdiction. Appeals from the State Court are heard before the High Court (Pengadilan Tinggi), of which there are around 20 throughout Indonesia. The High Court is a district court of appeal. Appeals from the High Court and, in some instances from the State Court, may be made to the Supreme Court located in Jakarta.

The Indonesian legal system is based on Roman-Dutch law, substantially modified by indigenous concepts and by new criminal procedures and election codes.

Sources of Defendants' Rights

The Constitution was approved on August 1945, subsequently abrogated in the ‘50s and restored in July 1959. The Constitution was last amended in 2002. The document grants few rights related to judicial proceedings, such as the independence of the judiciary, the equality before the law, the prohibition of ex post facto laws, and the right to life and to be free from punishments. The death penalty, however, is still practiced. Articles 28I and 28G Constitution grant the right to remain free from torture or inhuman and degrading treatment and state that this is a “fundamental human rights that shall not be curtailed under any circumstance.”

The Law of Criminal Procedure was adopted in 1981, and it provides different rights to defendants in criminal proceedings.

Defendants' Rights

Pre-Trial

A warrant is requested in case of arrest, except in cases of flagrante delicto. An arrest can be made only when a person is strongly presumed to have committed an offense based on sufficient preliminary evidence. The arrest cannot last more than 24 hours. At the time of arrest the arrestee has a right to notice of the charges. This right also applies during court procedures.

During detention, a suspect or an accused has the right to contact his legal counsel, send and receive from him documents (Articles 57,62 Law of Criminal Procedure). He has also the right to be visited by a doctor, his family, and relatives.

During examinations, the accused has the right to have a counsel and be free from any pressure whatsoever.

Pre trial detention requires a warrant or an order from the investigator, prosecutor, or judge. The warrant can be executed when a person is strongly presumed to have committed an offense, when there is sufficient evidence and there is concern that this person will escape, damage, or destroy physical evidence and/or repeat the offense. The offenses that can justify such detention must be punishable with 5 years or more of imprisonment. The detention warrant is valid for 120 days at the most, depending on who ordered it first. The suspect, his family, or legal counsel may file objections to the detention with the investigator conducting the examination.

Trial

At the trial-phase, a notification to attend the hearing shall be made with a written summon which has to be received from the accused at least 3 days before the commencement of the trial. The prosecutor has to read his bill of indictment aloud, and the judge must ascertain that the accused has thoroughly understood.

The rights to be assisted by a defense counsel and to file motions and raise objections, are granted in Articles 198 and 156 of the Law of Criminal Procedure.

The testimony of the accused is considered a legal mean of proof, and leading questions cannot be used during his examination (Articles 148 and 166 Law of Criminal Procedure).

A judge must not impose a penalty upon a person except when, with at least two legal means of proof, he has come to the conviction that an offense has truly occurred and that it is the accused who is guilty of committing it.

Post-Conviction

The accused, his counsel, and the public prosecutor have the right to appeal against a judgment of a court of first instance, except against a judgment of acquittal or a dismissal of all charges which relates to a matter of the inappropriate application of law, and a judgment under express procedures (Articles 67 and 233 Law of Criminal Procedure). The accused or the public prosecutor may also lodge a petition for cassation to the Supreme Court with regard to a judgment in a criminal case, rendered at last resort.

Moreover, the Law of Criminal Procedure provides the possibility for a convicted person or his heirs to submit a request to the supreme court to reconsider a final judgment (except for an acquittal or dismissal of charges), on the following grounds: new circumstances which give rise to a strong presumption that if they would have been know at trial, the outcome would have been an acquittal/dismissal; the matter or the circumstances founding the judgment are evidently mutually contraddictory; or clear mistake of the judge or manifest error.


See Criminal Justice Systems Around the World and Legal Aid in ASEAN countries

QUICK FACTS

  • 2009 Prison Population: 140.740 with 61 detainees for 100,000 people, based on an estimated national population of 230 million. 41.5% of the prison population is composed of pre-trial detainees or remand prisoners.
Globe3.png English  • español