Difference between revisions of "Indonesia"

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==== Arrest, detention, search of the person, house entry, seizure and examination of documents ===
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=== Arrest, detention, search of the person, house entry, seizure and examination of documents ===
  
 
These procedures and related acts concerning investigating any matter, following up on complaints and/or information in that regard, are set out in Chapter III of the Indonesian Criminal Procedure Act No. 8 of 1981, from Articles 16 to 49.
 
These procedures and related acts concerning investigating any matter, following up on complaints and/or information in that regard, are set out in Chapter III of the Indonesian Criminal Procedure Act No. 8 of 1981, from Articles 16 to 49.
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==Specific Rights of Suspects and Accused Persons==
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Chapter IV of the Indonesian Criminal Procedure Law sets out a number of specific procedural and other rights related to suspects and accused persons:
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'''Article 50'''
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(1) A suspect shall have the right to be examined promptly by an investigator and thereafter to have his case referred to the public prosecutor.
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(2) A suspect shall have the right to have his case promptly submitted to court by the public prosecutor.
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(3) An accused shall have the right to be promptly adjudicated by the court.
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'''Article 51'''
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In order to prepare a defense:
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(a) A suspect shall have the right to be clearly informed in language which he understands about what he is suspected of at the time an examination begins;
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(b) An accused shall have the tight to be clearly informed in language which he understands about what he is accused of.
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'''Article 52'''
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In examinations at the stages of investigation and adjudication, a suspect or an accused shall have the fight to freely give information to an investigator or judge.
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'''Article 53'''
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(1) In examinations at the stages of investigation and adjudication, a suspect or an accused shall have the right at any time to have the assistance of an interpreter as intended by Article 177.
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(2) In case a suspect or an accused is deaf and/or dumb, the provision as intended by Article 178 shall apply.
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'''Article 54'''
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For purposes of defense, a suspect or an accused shall have the right to obtain legal assistance from one or more legal counsels during the period of and at every stage of examination; according to the procedures stipulated by this law.
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'''Article 55'''
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In order to obtain the legal counsel referred to in Article 54, a suspect or an accused shall have the right to make hi$ own choice of legal counsel.
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'''Article 56'''
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(1) In the event a suspect or an accused is suspected of or accused of having committed a offense which is liable to a death penalty or imprisonment of fifteen years or more or for those who are destitute who are liable to imprisonment of five years or more who do not have their own legal counsel, the official concerned at all stages of examination in the criminal justice process shall be obligated to assign legal counsel for them.
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(2) Any legal counsel who is assigned to act as intended by Paragraph (1) shall provide his assistance free of charge.
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'''Article 57'''
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(1) A suspect or an accused who is subject to detention shall have the right to contact his legal counsel in accordance with the provisions of this law.
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(2) A suspect or an accused of foreign nationality who is subject to detention shall have the right to contact and speak with the legation of his country in facing the process of his case.
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'''Article 58
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'''
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A suspect or an accused who Is subject to detention shah have the right to contact and to be visited by his personal doctor in the interest of his health, whether or not this has any connection with the process of the case.
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'''Article 59'''
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A suspect or an accused who is subject to detention shall have the right to have his family or other people In the same house as the suspect or the accused or other persons whose assistance is required by the suspect or the accused to obtain legal assistance or guarantee for his release on ball notified of his detention by the competent official, at all stages of examination In the criminal justice process.
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'''Article 60'''
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A suspect or an accused shall have the right to contact and receive visits from persons who have family or other relationships with the suspect or the accused in order to obtain guarantees for the release from detention on bail or for purposes of obtaining legal assistance.
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'''Article 61'''
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A suspect or an accused shall have the right, directly or through the intermediacy of his legal counsel, to contact and receive visits from his relatives for matters which have no connection with the case of the suspect or the accused for occupational concerns or for family concerns.
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'''Article 62'''
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(1) A suspect or an accused shall have the right to send documents to his legal counsel, and to receive documents from his legal counsel and relatives at any time he requires, for which purpose stationery shall be provided to the suspect or accused.
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(2) Correspondence between a suspect or an accused and his legal counsel or relatives shall not be examined by an Investigator, public prosecutor, judge or official of a state house of detention, except when there is sufficient reason to presume that the correspondence is being abused.
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(3) In the event a document for a suspect or an accused is scrutinized or examined by an investigator, public prosecutor, judge or official of a state house of detention, the suspect or accused shall be informed about of such fact and said document returned to the sender after being stamped "scrutinized".
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'''Article 63'''
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A suspect or an accused shall have the right to contact and receive visits from a priest.
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'''Article 64'''
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An accused shall have the right to be adjudicated in a trial that is open to the public.
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'''Article 65'''
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A suspect or an accused shall have the fight to seek and call a witness and/or a person with special expertise to provide testimony that is favorable to him.
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'''Article 66'''
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A suspect or an accused shall not bear the burden of proof.
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'''Article 67'''
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An accused or public prosecutor shall have the right to appeal against a judgment of a court of first instance except against a judgment of acquittal, a dismissal of all charges which relates to a matter of the inappropriate application of law and a judgment under express procedures.
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'''Article 68'''
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A suspect or an accused shall have the right to claim compensation and rehabilitation as Governed by Article 95 and so forth.
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Revision as of 15:52, 10 June 2020

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ACTS OF INDONESIA

LEGAL TRAINING RESOURCE CENTER

Background

Indonesia is the largest archipelago in the world. It consists of five major islands and about 30 smaller groups. There are total number of 17,508 islands of which about 6000 are inhabited. Straddling equator, the archipelago is on a crossroads between two oceans, the Pacific and the Indian Ocean, and bridges two continents, Asia and Australia. The largest islands are Sumatra, Java, Kalimantan (Indonesian Borneo), Sulawesi, and the Indonesian part of New Guinea (known as Papua or Irian Jaya). Indonesia comprises 30 provinces, 2 special regions (Aceh and Yogyakarta), and 1 special capital city district (Jakarta Raya). Indonesia’s first free parliamentary election took place in 1999. The country is now the world’s third-largest democracy, and home to the world’s largest Muslim population. Indonesia’s major language groups are Bahasa Indonesia (official language), English, Dutch, Javanese as well as other local dialects. The main religious groupings in the country are Islam (the majority group at almost 86%), Christianity, Hinduism and Buddhism. Ethnically the country is highly diverse, with over 580 languages and dialects although only 13 of these have more than one million speakers. The present day culture of Indonesia is an outcome of the interplay of old-age- traditions from the time of early migrants and the Western thought brought by Portuguese traders and Dutch colonists. The country’s main industries are fishing, petroleum, timber, paper products, cotton cloth, tourism, mining of petroleum, natural gas, auxite, coal and tin. The capital city is Jakarta and the country’s currency is the Indonesian Rupiah.

Court System Overview

There are approximately 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 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). Indonesia has a constitution and the Indonesian legal system is based on Roman-Dutch law, substantially modified by indigenous concepts and by new criminal procedures and election codes. Indonesia does not have a jury system and cases are not conducted before juries.

The Constitution

The Constitution of the Republic of Indonesia (1945) is in written form and codified in a single document. It has been amended four times: in October 1999, August 2000, November 2001 and August 2002. Indonesia is a unitary state in the form of a republic, as stipulated in Article 1 of the 1945 Constitution.


General constitutional features and system of governance

Based on the 1945 Constitution, Indonesia has a presidential system of government where the executive branch is led by a president who serves as both head of state and head of government.

Indonesia has a bicameral legislature. There are two legislative bodies, each with different authorities:

The People’s Consultative Assembly (Majelis Permusyawaratan Rakyat) (MPR). This is tasked to amend and enact the 1945 Constitution as well as inaugurate or dismiss the president and the vice president in accordance with the 1945 Constitution.

The People’s Representative Council (Dewan Perwakilan Rakyat) (DPR). This is assigned to issue laws and regulation, supervise the government, and to oversee and approve state budgeting.


Separation of powers

The 1945 Constitution provides for the separation of powers between three branches of government, namely the executive unit, the legislative unit and the judicial unit. The units have equal power and position in the government hierarchy for check and balance purposes. The checks and balances provided by the 1945 Constitution include:

• The executive unit, namely the president and vice president, can be dismissed by the legislative units for violation of the law or conduct of treason, corruption, bribery and so on (Article 7A, 1945 Constitution). The Constitutional Court must conduct and assess impeachment procedures (Article 7B, 1945 Constitution).

• The president has no authority to disband the legislative branch.

• The president must ask the legislative and judicial units for their advice or approval on certain matters:

o the president needs the approval of the People’s Representative Council (DPR) to declare war, enter into a peace treaty or other international agreement based on Article 11 of the 1945 Constitution; and

o the president must consider the advice of the Supreme Court when granting clemency and rehabilitation, and the advice of the DPR when granting amnesty and abolition (that is, that prosecution against a person is abolished or eliminated) (Article 14, 1945 Constitution).

• The DPR must discuss and require approval from the president when issuing or enacting a law (Article 20(2),1945 Constitution).

• The DPR holds the budgeting authority and represents the people in supervising the executive power by exercising the right to conduct interpellation, that is, questioning the executive on an aspect of government policy (Article 20A, 1945 Constitution).

• The Supreme Court is authorised to conduct judicial review of regulations or decisions made by the executive if they are against the law (Undang-Undang) (Article 24(A), 1945 Constitution).

The Constitutional Court has the authority to constitutionally review a law that may be contrary to the 1945 Constitution, settle disputes among government institutions, dissolve political parties and settle election disputes (Article 24C, 1945 Constitution).


Sources of Defendants' Rights

The Constitution 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 certain rights related to judicial proceedings, such as the independence of the judiciary, equality before the law, the prohibition of ex post facto laws the right to life and to be free from certain punishments. Although 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 death penalty is still administered in Indonesia.


The Indonesian Law of Criminal Procedure 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.


Constitutionally Protected Rights in Indonesia

Human rights are protected by Article 28 of the 1945 Constitution. This includes, among others:

• Right to life;

• Right to freedom from enslavement;

• Right to freedom of peaceful assembly and association;

• Right to freedom of speech and expression;

• Right to freedom of thought and conscience;

• Right to marriage and family;

• Right to protection from violence and discrimination;

• Right to develop oneself through the fulfilment of basic needs;

• Right to an education and to benefit from science, technology, art and culture;

• Right to improve oneself through collective struggle for one’s rights and to develop one’s society, nation and state;

• Right to recognition, guarantees, protection and certainty before a just law, and of equal treatment before the law;

• Right to work and to receive fair and proper remuneration and treatment in employment;

• Right to obtain equal opportunity in government;

• Right to citizenship status;

• Right to freedom of religion;

• Right to choose and to practice the religion of one’s choice, to choose one's education, to choose one's employment, to choose one's citizenship, and to choose one's place of residence within the state territory;

• Right to leave the state territory and subsequently return to it;

• Right to communicate and to obtain information;

• Right to seek, obtain, possess, store, process and convey information, employing all available types of channel;

• Right to protection of oneself, family, honour, dignity, and property;

• Right to feel secure against and receive protection from threats made in order to cause the individual to do or not to something that the individual is entitled to as a human right;

• Right to freedom from torture and inhumane or degrading treatment;

• Right to obtain political asylum from another country;

• Right to live in physical and spiritual prosperity, to have a home, to enjoy a good and healthy environment and to obtain medical care;

• Right to receive facilitation and special treatment and have the same opportunity and benefit in order to achieve equality and fairness (for example, as provided for disabled persons under Law No. 8 of 2016 concerning Persons with Disabilities);

• Right to social security;

• Right to own personal property; and

• Right not to be tried under a law with retrospective effect.

The protection, advancement, upholding and fulfilment of human rights are the responsibility of the state, especially the government. The protection of human rights and its implementation is further regulated in Law No. 39 of 1999 Concerning Human Rights.

In addition to the protections offered by the 1945 Constitution, other legislation exists to guarantee the recognition and respect of other person’s rights and freedoms based on morality, religious values, security and public order in a democratic society, such as:

• Law No. 8 of 2016 concerning Persons with Disabilities;

• Law No. 21 of 2007 concerning Elimination on Human Trafficking Crimes;

• Government Regulation No. 3 of 2002 concerning Compensation, Restitution, and Rehabilitation on Victim of Grave Human Rights Violation; and

• Government Regulation No. 56 of 2010 concerning Supervisory Procedure to Eliminate Race and Ethnic Discrimination.

The Legal System

Legal System

Indonesia has a constitution and adopts a civil law legal system, which is mainly derived from Dutch colonial law.

Main Domestic Sources of Law

The main domestic sources of law in Indonesia are the following:

• The 1945 Constitution;

• Decrees;

• Law, or government regulation in lieu of law;

• Government regulations;

• Presidential regulations;

• Provincial regulations and

• Regency or municipality regulation.


Applying International Law

International laws and treaties are not directly (or automatically) applicable in the domestic sphere in Indonesia. To have effect in Indonesia, an international law or treaty must be enacted in domestic law. This specifically applies to international treaties pertaining to:

• Politics, peace, defence and national security.

• Change of territory or determination of territorial boundaries.

• Sovereignty or sovereign rights.

• Human rights and environment.

• Formation of new legal norms.

• Loans or foreign grants.


General court structure and hierarchy

In general, Indonesian courts are divided into three tiers:

• District courts (or the first instance court) in each regional area;

• The high courts and court of appeal in each province; and

• The Supreme Court at national level.


Stare Decisis

The Indonesian legal system does not recognise the principle of stare decisis, therefore lower courts are not bound as a rule to follow the decisions of higher courts. However, in some cases the court may use or cite previous interpretations of an article, law or regulation.


Specialized Courts

Indonesia has a number of thematic specialized courts:

The Industrial Relations Dispute Court.

Established by Law No. 13 of 2003 concerning Employment and Law No. 2 of 2004 concerning Settlement of Industrial Relation Dispute, this court settles all employment-related disputes.

The Religious Court.

This court was established by Law No. 7 of 1989 concerning Court of Religion as lastly amended by Law No. 50 of 2009. The judicial authority of the Religious Court is carried out by the District Court of Religion located in municipalities and its appellate court, and it is established outside the General Court. The court has the authority to adjudicate matters among Muslims in the fields of:

o marriage;

o inheritance, wills and grants made in accordance with Islamic laws;

o wakaf (religious charitable trusts) and shadaqah (alms); and

o Syariah economy (Islamic finance).

The Administrative Court.

This court is established by Law No. 8 of 1986 concerning State Administrative Court, as lastly amended by Law No. 5 of 2002. It is the forum for challenging administrative decisions.

The Fishery Court.

The Fishery Court is established by Law No. 31 of 2004 concerning Fishery and further as lastly amended by Law No. 45 of 2009, as further regulated by Supreme Court Regulation No. 01 of 2007 concerning Fishery Court. The court has the authority to adjudicate fishery crimes, which include:

o exporting or importing fish without health certification;

o using illegal means of fishing such as explosives and chemicals; and

o using fishery tools which do not meet the required standards.

The Military Court.

The Military Court is established by Law No. 31 of 1997 concerning Military Court. The military court is established within the structures of the army and has the authority to adjudicate:

o crimes conducted by a soldier or other person in a position considered as soldier under the law, or another person determined by the commander of the army and approved by the minister of justice and human rights;

o administrative disputes within the army; and

o civil lawsuits related to military crimes.

The Taxation Court.

The Taxation Court is established by Law No. 14 of 2002 concerning Taxation Court. The court has the authority to adjudicate taxation disputes between taxpayers and the taxation authority, that is, the directorate general of taxation, directorate general of customs and excise, governors, mayors or other tax authorities. Matters subject to the Taxation Court’s jurisdiction include disputes arising from tax decisions and lawsuits over tax collection by compelling letter.

The Juvenile court.

The Juvenile court is established under Law No. 11 of 2012 concerning the Juvenile Court System. Juvenile courts are subject to the authority of the courts of general jurisdiction and they have the authority to prosecute children aged from 12 years to 18 years. All matters of the Juvenile courts are to be heard in a closed court to ensure the confidentiality of proceedings and to protect the identity of the child.

The Commercial court.

The Commercial court is authorized to settle all disputes related to:

o Bankruptcy and Suspension of Debt Payment under Law no. 37 of 2004;

o all intellectual property rights; and

o Indonesia Deposit Insurance Corporation under Law No. 24 of 2004.

The Human Rights Court.

The Human Rights Court is established by Law No. 26 of 2000 concerning Human Rights Courts. These courts only have jurisdiction over grave violations of human rights, as among others, genocide and crimes against humanity.

The Corruption Court.

The Corruption Court is established by Law No. 46 of 2009 concerning Criminal Corruption Courts. Article 5 of Law No. 46 of 2009 states that the Corruption Court is the only court in Indonesia that has the authority to examine, try and decide criminal corruption cases.


Quasi-Legal Authorities

Quasi-legal authorities are not commonly used in Indonesia. However, Indonesia does have an ombudsman, based on Law No. 37 of 2008 concerning the role, functions and resposibilities of the Ombudsman). The ombudsman has the authority to supervise the administration of public services, as administered by state officials and public officials, including services organised by:

• State-owned companies.

• Regional government-owned companies.

• State-owned legal persons.

• Private sector entities or persons assigned to administer public services that are funded in whole or in part from the state budget or regional government budget.

Indonesia also has a judicial commission under Article 24B of the 1945 Constitution. The judicial commission is authorised to assess the honour, dignity and behaviour of judges and may propose the dismissal of a judge to the Supreme Court if the judge is found in breach of the law or the judge’s code of ethics. In addition, Indonesia has the Business Competition Supervisory Commission (Komisi Pengawas Persaingan Usaha) (KKPU), which is a quasi-legal authority to enforce Law No. 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition, and to provide advice on competition policy, and review mergers and acquisitions in Indonesia. KPPU can assess and issue a decision regarding violations of Law No. 5 of 1999 conducted by private parties.

The Judiciary

The judiciary is independent and has the power to organise the judicature to enforce law and justice (Article 24(1), 1945 Constitution).

The eligibility criteria for appointment as a judge are stipulated in Article 14(1) of Law No. 2 of 1986 (as amended by Law No. 49 of 2009 concerning General Judiciary System) and encompass, in broad, the following:

• Indonesian citizenship;

• Belief in God (that is, the candidate must have a religion that is recognised by the Government of Indonesia);

• Loyalty to Pancasila (the official philosophical foundation of the Indonesian state and the 1945 Constitution);

• A Bachelor of Laws degree;

• Passed the judicial training course;

• Good physical and mental health;

• Charismatic, honest, fair and well behaved;

• Between 25 and 40 years old; and

• No criminal record (convicted and sentenced by a court of final instance).

Based on the regulations of the Supreme Court and Judicial Commission No. 01/PB/MA/IX/2012 and No.01/PB/PK.Y/09/2012, to be appointed as a judge, a candidate must register and participate in training, and pass written and oral tests regarding the judge’s code of ethics and attitude guidance. The training and tests are administered by a judge’s recruitment committee. After passing the training and tests, the judge-candidate is given a mentor and participates in an internship. After evaluation of the internship, the judge recruitment committee may propose that the candidate should be appointed as a judge by the president. It is not necessary to have experience as a lawyer to be appointed as a judge.

Litigation

The Indonesian courts use a non-adversarial system with judges taking a more proactive role during the proceedings.

Evidence is not independently examined before trial. All types of evidence are examined during the hearing.

All trials are open to the public unless otherwise stated by the law (Article 13 paragraph (1), Law No. 48 of 2009 concerning Judiciary Power). Examples of closed hearings are:

• Cases concerning morals, or where the accused is a minor (Article 153 paragraph (3), Criminal Procedural Law).

• If the case concerns public order or state security, it can be declared closed to the public by judges (Article 70 paragraph (2), Law No. 5 of 1986 lastly amended by Law No. 51 of 2009 concerning State Administrative Court).

• Divorce hearings in the Religious Court (Article 80 paragraph (2), Law No. 7 of 1989 lastly amended by Law No. 50 of 2009 concerning Religious Court).

• Cases concerning morality, military or state secrets (Article 141 paragraph (2) and (3), Law No. 31 of 1997 concerning Military Court).

• In principle, all cases concerning minors are closed to the public (Article 8 paragraph (1) and (2), Law No. 3 of 1997 concerning Juvenile Court).

Generally, all types of media are free to report all stages of a trial from pre-trial to post-trial. However, the media is prohibited from reporting content or material of the closed hearing and disclosing sensitive information, such as the identity of minors, victims of sexual offences or any related information that can identify the minor or victim.


Restrictions on evidence:

Civil cases

The court only recognises the following types of evidence (Article 164, Het Herziene Indonesisch Reglemen (HIR)):

• Documents.

• Witness statements.

• Presupposition (Persangkaan or vermoeden) are using information derived from the laws, general events or other issues known to the public to clarify other events in the hearings that are currently unclear (Article 1915, Indonesian Civil Code). The judges can only apply presupposition to settle the case when it is very pertinent, exact, relevant, and corroborates another fact (Article 173, HIR).

• Confessions.

• Oaths.

The nemo in propria causa testis esse debet principle applies to witness statements, meaning that no one can be a witness in their own cause. Further, no testimony can be heard from (Article 145, HIR):

• Family related by blood, or relatives by marriage.

• The wife or husband of one of the parties, even if they are divorced.

• Children less than 15 years old.

• A person suffering from a mental illness.

Witnesses must provide information on how they know what they claim to know. A witness’ opinion or presumption is not acceptable witness testimony.

Criminal cases

The court only accepts the following types of evidence (Article 184, Criminal Procedural Law):

• Witness testimony.

• Expert witness testimony.

• Documents.

• Hints or indications (Petunjuk). These are acts, events or situations that, because of their occurrence with each other, or with the criminal act itself, indicate the occurrence of a criminal act. These indications can only be obtained from the testimony of a witness, a letter, or a statement by a defendant.

• Statements by the accused.

Witness testimony cannot be heard from the following people:

• Family related by blood or kinship directly to the third degree (ascendants or descendants) to the accused or to someone who is also accused.

• A sibling of the accused or of someone also accused, a sibling of the mother or sibling of the father, and those who are related by marriage and the children of siblings of the accused to the third degree.

• The husband or wife of the accused or of someone who is also accused, even if they are divorced.

Hearsay evidence is inadmissible in criminal courts, as Article 185 of the Criminal Procedural Law states that witness testimony should not include information learned from another party or testimonium de auditu. (that is, hearsay evidence).


Burden of Proof

Civil cases

Those who claim or assert a right, or assert a fact to justify the right or deny another’s right, must prove such right or the fact (Article 1865, Indonesian Civil Code; Article 163, Het Herziene Indonesisch Reglemen (HIR)). It is further elaborated in Supreme Court Case No. 3164 K/Pdt/1983 that the applicant will have the burden of proof. The HIR does not clearly regulate the standard of proof in civil cases, but in practice the judge will assess the validity of all evidence presented by the parties.

Criminal cases The burden of proof is on the prosecutor to prove that the defendant is guilty beyond reasonable doubt (Article 66, Criminal Procedural Law).


Court verdicts

Civil law

There are three types of decision (Article 185 paragraph (1), Het Herziene Indonesisch Reglemen (HIR)):

Condemnatoir. A verdict requiring the losing party to meet performance or pay a certain amount of money. A condemnatoir decision gives the right to an executorial ruling, which means it is binding and can be enforced.

Constitutive. A decision which negates or nullifies a certain legal condition or produces a new legal condition. An example is a decision that declares a person bankrupt.

Declaratoir. A decision declaring what is lawful, or affecting rights. For example, a decision stating that the defendant or the plaintiff is entitled to the goods in dispute.


Criminal law

Judges can issue the verdicts that the defendant is acquitted, that the case is dismissed, or that the defendant is guilty (Article 191, Criminal Procedure Law).


Penalties and relief

Civil law

In civil cases, the range of penalties or reliefs available is not regulated by laws and regulations. However, Article 1365 of the Indonesian Civil Code states that "every illegal act, which causes damage to third party and punish the party at fault to pay the damage caused."

The type of damages or compensation that must be paid by the party at fault to the injured party are (Article 1243, Indonesian Civil Code):

• Costs, that is, expenses actually incurred.

• Damages sustained as a direct and immediate result of the default or the action of the party at fault.

• Lost profits that were foreseeable as a result of the default or the action of the party at fault.

• Statutory interest of 6% annually or interest as agreed by both parties.

If requested by the parties to the case, the court can determine and calculate the amount of damages or compensation based on principle of what is fair and just (ex aequo et bono). Judges usually award compensation to put the injured party in the position they would have been in had no unlawful act occurred.

Criminal law

The following types of sentence can be imposed in criminal cases (Article 10, Indonesian Criminal Code):

• Capital punishment – including the death penalty;

• Imprisonment ranging from short periods of imprisonment up to life imprisonment; and/or

• Fines.

Legal Aid System

Indonesia’s legal aid program was established under Law No. 16 of 2011 on Legal Aid. The national legal aid program was formally launched in 2013 and in terms thereof legal aid must be provided to all poor people for criminal, civil and administrative matters. Despite the introduction of this program, many low-income people still do not have access to legal representation.

Under the 2011 Legal Aid Law, the government decided to accredit existing civil society legal aid organisations and then reimburse them for any free legal assistance provided. This contrasts with the system used in many other countries, where a single government-funded body coordinates and provides legal aid. While this approach is a wise strategy to prevent budget funds being corrupted, the existing system has not been able to meet public demand. The budget funds allocated and strict accreditation requirements for legal aid providers has created a justice gap between legal needs and the resources available to meet those needs. The Ministry of Law and Human rights has allocated Rp 53 billion to the 524 accredited legal aid organisations between 2019-2021. This means that, on average, the state can only reimburse about six cases per organisation per year. One of the most prominent local legal aid organisations, the Jakarta Legal Aid Institute (LBH Jakarta) receives more than 1,000 cases per year.

Private legal representation remains very expensive for most. Legal fees are often equivalent to more than two months average income, even for simple cases, and way beyond the reach of most Indonesians.

Pre-Trail Matters

Complaint, Information, Investigations

These procedures and related acts concerning investigating any matter, following up on complaints and/or information in that regard, are set out in Chapter III of the Indonesian Criminal Procedure Act No. 8 of 1981:

Article 4

A junior investigator shall be any official of the state police of the Republic of Indonesia.

Article 5

(a) A junior investigator as intended by Article 4, by virtue of his authority shall be competent:

1) to accept a report or complaint from a person about the existence of an offense;

2) to seek information and physical evidence;

3) to order a person of whom he is suspicious to stop and to ask for and inspect his identification;

4) to take other responsible acts in accordance with law.

(b) By order of an investigator may take such acts as:

1) arrest, restriction, of movement, search and seizure;

2) inspection and seizure of letters;

3) fingerprinting and photographing of a person;

4) taking and bringing a person before an investigator.

(2) A junior investigator shall prepare and submit reports to the investigator on the results of the acts as stated in Paragraph (1) point (a) and point (b).

Article 6

(1) An investigator shall be:

a. an official of the state police of the Republic of Indonesia;

b. an official of the state police of the Republic Indonesia

c. a certain official of the civil service who is granted special authority by law.

Article 7

(1) An investigator as intended by Article 6 Paragraph (1) point a by virtue of his authority shall be competent:

a. to accept a report or complaint from a person about the existence of an offense;

b. to take the first steps at the place of occurrence;

c. to order a suspect to stop and examine the suspect's identification;

d. to carry out arrest, detention, search and seizure;

e. to carry out the examination and seizure of documents,

f. to fingerprint and photograph a person;

g. to summon a person to be heard or examined as a suspect or a witness;

h. to call in an expert required in connection with the examination of a case;

i. to terminate an investigation;

j. to take other responsible acts in accordance with law.

(2) An investigator as intended by Article 6 Paragraph (1)(b) shall have the authority as vested by the pertinent underlying law and shall in carrying out his duties be under the coordination and supervision of the investigator referred to in Article 6 Paragraph (1) point a.

(3) In carrying out the duties as intended by Paragraph (1) and Paragraph (2), the investigator shall be obligated to hold the prevailing law in high respect.

Article 8

(1) The investigator shall prepare minutes of the execution of acts as intended by Article 7 without detracting from the other provisions of this law.

(2) The investigator shall deliver the dossier of a case to the public prosecutor.

(3) The delivery of the dossier of a case as intended by Paragraph (2) shall be accomplished as follows:

a. at the first stage, the investigator shall deliver only the dossier of a case;

b. where the investigation is deemed to have been completed, the investigator shall cede responsibility for the suspect and the physical evidence to the public prosecutor.


Arrest, detention, search of the person, house entry, seizure and examination of documents

These procedures and related acts concerning investigating any matter, following up on complaints and/or information in that regard, are set out in Chapter III of the Indonesian Criminal Procedure Act No. 8 of 1981, from Articles 16 to 49.

Specific Rights of Suspects and Accused Persons

Chapter IV of the Indonesian Criminal Procedure Law sets out a number of specific procedural and other rights related to suspects and accused persons:

Article 50

(1) A suspect shall have the right to be examined promptly by an investigator and thereafter to have his case referred to the public prosecutor.

(2) A suspect shall have the right to have his case promptly submitted to court by the public prosecutor.

(3) An accused shall have the right to be promptly adjudicated by the court.

Article 51

In order to prepare a defense:

(a) A suspect shall have the right to be clearly informed in language which he understands about what he is suspected of at the time an examination begins;

(b) An accused shall have the tight to be clearly informed in language which he understands about what he is accused of.

Article 52

In examinations at the stages of investigation and adjudication, a suspect or an accused shall have the fight to freely give information to an investigator or judge.

Article 53

(1) In examinations at the stages of investigation and adjudication, a suspect or an accused shall have the right at any time to have the assistance of an interpreter as intended by Article 177.

(2) In case a suspect or an accused is deaf and/or dumb, the provision as intended by Article 178 shall apply.

Article 54

For purposes of defense, a suspect or an accused shall have the right to obtain legal assistance from one or more legal counsels during the period of and at every stage of examination; according to the procedures stipulated by this law.

Article 55

In order to obtain the legal counsel referred to in Article 54, a suspect or an accused shall have the right to make hi$ own choice of legal counsel.

Article 56

(1) In the event a suspect or an accused is suspected of or accused of having committed a offense which is liable to a death penalty or imprisonment of fifteen years or more or for those who are destitute who are liable to imprisonment of five years or more who do not have their own legal counsel, the official concerned at all stages of examination in the criminal justice process shall be obligated to assign legal counsel for them.

(2) Any legal counsel who is assigned to act as intended by Paragraph (1) shall provide his assistance free of charge.

Article 57

(1) A suspect or an accused who is subject to detention shall have the right to contact his legal counsel in accordance with the provisions of this law.

(2) A suspect or an accused of foreign nationality who is subject to detention shall have the right to contact and speak with the legation of his country in facing the process of his case.

Article 58

A suspect or an accused who Is subject to detention shah have the right to contact and to be visited by his personal doctor in the interest of his health, whether or not this has any connection with the process of the case.

Article 59

A suspect or an accused who is subject to detention shall have the right to have his family or other people In the same house as the suspect or the accused or other persons whose assistance is required by the suspect or the accused to obtain legal assistance or guarantee for his release on ball notified of his detention by the competent official, at all stages of examination In the criminal justice process.

Article 60

A suspect or an accused shall have the right to contact and receive visits from persons who have family or other relationships with the suspect or the accused in order to obtain guarantees for the release from detention on bail or for purposes of obtaining legal assistance.

Article 61

A suspect or an accused shall have the right, directly or through the intermediacy of his legal counsel, to contact and receive visits from his relatives for matters which have no connection with the case of the suspect or the accused for occupational concerns or for family concerns.

Article 62

(1) A suspect or an accused shall have the right to send documents to his legal counsel, and to receive documents from his legal counsel and relatives at any time he requires, for which purpose stationery shall be provided to the suspect or accused.

(2) Correspondence between a suspect or an accused and his legal counsel or relatives shall not be examined by an Investigator, public prosecutor, judge or official of a state house of detention, except when there is sufficient reason to presume that the correspondence is being abused.

(3) In the event a document for a suspect or an accused is scrutinized or examined by an investigator, public prosecutor, judge or official of a state house of detention, the suspect or accused shall be informed about of such fact and said document returned to the sender after being stamped "scrutinized".


Article 63

A suspect or an accused shall have the right to contact and receive visits from a priest.

Article 64

An accused shall have the right to be adjudicated in a trial that is open to the public.

Article 65

A suspect or an accused shall have the fight to seek and call a witness and/or a person with special expertise to provide testimony that is favorable to him.

Article 66

A suspect or an accused shall not bear the burden of proof.

Article 67

An accused or public prosecutor shall have the right to appeal against a judgment of a court of first instance except against a judgment of acquittal, a dismissal of all charges which relates to a matter of the inappropriate application of law and a judgment under express procedures.

Article 68

A suspect or an accused shall have the right to claim compensation and rehabilitation as Governed by Article 95 and so forth.



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

QUICK FACTS

  • 2020 Prison Population: 224, 522 with 83 detainees for 100,000 people, based on an estimated national population of 271.4 million. 24.9% of the prison population is composed of pre-trial detainees or remand prisoners.
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