Indonesian Criminal System

INDONESIA CRIMINAL COURT SYSTEM AND ITS INFLUENCE TO FOREIGN NATIONALITY ESPECIALLY IN REGARDS TO FOREIGN NATIONALITY CRIMINAL SUSPECT IN CUSTODY

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I. PREFACE Criminal Law has an important role in a law system of a state in order to arrange one legal order community. Every state has its own law to manage its criminal matters. Criminal law is a public law, whereas the private law is related to person-to-person matter. As in Europe, in the beginning Indonesia did not make separation between the private law and the public law. Gradually, we recognized the public law, including the criminal law as the law that aims for community interest. If there is a wrongful act committed by a person, then the state will use its authority to take action against it. Personal interests such as compensation will be put aside, while the public interest is a priority, that is criminal sanction is sentenced. Subject of Matter: The question is, how if a foreign nationality commits a wrongful act or suspected/accused for a crime in Indonesia. What are the rights of the foreign nationality criminal suspect under Indonesian law?

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II. THE LAW AND LAW SYSTEM IN INDONESIA II.1. General Definitions on Law and Law System in Indonesia Indonesia is a law basic state (rechtsstaat), not a power basic state (Machtsstaat). This means that the state, including the government and the government institutions, has to perform its duties based on law and that perform could be accounted by law. Before going any further, it is best to know the definition of the law itself. Abdulkadir Muhammad, S.H. defines law as: “Law is both written and unwritten act that has a distinct sanction for those who break it.” According to J.C.T. Simorangkir, S.H. and Woerjono Sastropranoto, S.H., law is: “Law is a forcing regulations, which determine the human behavior in a community, made by the official body, violations which subjected to certain law act.” In general, law can be interpreted as a compilation act, which made by the state authority to rule the community. Law has a forcing power by dropping a sentence for those who break it. The form of law can be in materiel as well as procedural law (formal), final decisions with legal effects (inkracht) that will be collected on The Compilation of Supreme Court Jurisprudence and government policies. These regulations above are backing one another concerning lex specialist derogate lex generale principle. Due to the above explanation, the elements implied on the definition of law are as follows: 1. Laws are made by the authority;

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2. Has the purpose to social life; 3. Has the element of commanding and forbiding; 4. Has the forcing power and must be obeyed. Indonesia are known as a nation based on law and submitted to the European Continental Judicial System. According to the third edition Indonesian Dictionary 1990, system is an ordered assemblege of elements that are tide each other which could form a totality. Indonesian law principle commits itself to a particular system from all the systems in the world, which is a European Continental System that historically adopted the Dutch Continental European System in 1512, when the Dutch spread its power to Indonesia. Due to the above cause, Indonesia recognizes the Compilation of Criminal Law (KUHP) and the Compilation of Civil Law (KUHPer/Burgerlijke Wetboek) whose system and principles adhere to the European Continental System or Civil Law. This system submits to legality principal as other countries whose system is similar. The definition of the legality principle is “one could not be charged without existing regulations”. Hence, the authority or the government could not adhere their decisions only based on the power delegated for them but must made the law as their first priority. Then in a making of a decision will not overlaping with the existing laws. Each system has the negative and positive points, whereas Indonesia had adjusted the system, the negative points had been lessened with a shift in its system. Whether it is only a slight shift but for the sake of justice it must be taken in order to balance the globalisation.

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II.2. Purpose of Law and the Law System in Indonesia viewed from the Criminal Law in Indonesia After discussing the law and the law system in general in our previous chapter, we have known the definition of law and the law system. In general could be also known what is the law system which applied in Indonesia. Furthermore, we are going to review the general purpose of the law itself from the law scholars’ point of view. According to Apeldoorn “purpose of law is to regulates the social life in peace and justice.” While Prof. Soebekti defines the purpose of law as, “the purpose of law is to commit to the purpose of the state where in essential could invite a prosperity and the happiness of the nation.”1 From those theories above we could concluded that the purpose of law itself was one of the reason why Indonesia is one of the country based on law, in order for the government or the authority could adhere themselves to law in their function as the regulated of the state in every aspect of life to create the orderly nation. If this aim has been achieved, then the final purpose of the state could be achieved as well in every form of goodness in a fair distribution. That means, a country (including its government and its institution in conducting its task and function) must be accorded to law. Indonesia also has the Constitutional System, which means the work of the government

is

based

on

Constitutional

System,

not

based

on

absolutism (absolutismus). It explains that the government is restricted by the constitutional law, and of course including other laws and regulations which are the constitutional product as GBHN, acts, etc.2 In connection to criminal law, Indonesia as a law based country, in solving criminal problems has its own materiel law and procedural law 1 2

http://www.asiamaya.com/konsultasi_hukum/ist_hukum/definisi_hukum.htm http://www.asiamaya.com/konsultasi_hukum/ist_hukum/sumber_tatahukum.htm

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which regulated in KUHP as the source of criminal law and KUHAP as the source of the criminal procedural law. Regarding to criminal law in Indonesia, we have to recognize the judicial system in Indonesia.

INDONESIA JUDICIAL SYSTEM The Indonesian Judicial system is composed of five types of lower courts, and a Supreme Court. The lower courts include: General Courts (consisting of two levels: the State District Court and State High Court); Military Courts (consisting of two levels, the Military Court and Military High Court); Administrative Courts (consisting of two levels, the Administrative Court and the Administrative High Court); Religious Courts (consisting of two levels, the Religious Court and the Religious High Court); and the Commercial Court (a specialized court for hearing insolvency cases with the possibility of appeal to a special bankruptcy tribunal of the Supreme Court). The Supreme Court is the highest judicial tribunal and the final court of appeal in Indonesia. The Courts are independent from the executive and legislative arms of the government.3 In relation with criminal law, General Court has the rights to settle criminal cases in Indonesia. Before that, there were procedures that should be taken through other legal jurisdictions such as the Police and Prosecutor in Indonesia.

CRIMINAL LAW PRINCIPLES IN INDONESIA

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http://www.lgslaw.co.id/legalsys.asp

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There are 4 applicable principles in criminal law. 1. Territoriality Principle The criminal law of one country is only valid in its territory. It is an old and primary principle. It means that anyone who commits wrongful act in a territory must obey the law which valid in that country. The person, who commits the wrongful act, does not have to be phisically in Indonesia but the wrongful act (strafbaar feit) is committed in Indonesia. This territoriality principle is regulated in Article 2 KUHP. 2. Passive nationality principle or protection principle Criminal law in one country is also valid to the wrongful act committed in overseas, if there is any particular interest of one country is violated outside the territory. It means, the protection is not given for individual but for the national interest. If an Indonesian nationality were a victim of a wrongful act commited by a foreign nationality inside the territory of a foreign country, then the Indonesia criminal law could not be applicable. The passive nationality principle or the protection principle regulated in Article 4 section 1, 2 and 4 KUHP. 3. Individuality principle or Active nationality principle Individuality principle focuses on the nationality of the criminal. It is not a problem whether the crimes is threatened by the criminal law of the country where such crime has been commited. It is viewed necessary that a crime, which threatened the interest of Indonesia, had to be convicted, although such crime is not regulated in the criminal law of the foreign country.

4. Universality principle

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Criminal law is general in effect; it is beyond the border of the territory of law of Indonesia. The object of protection is the global interest. A crime, according to this principle, is highly vulnerable and could not be seen only from Indonesia’s interest, but also for the interest of the world. Universally, this crime is viewed to be prevented and eliminated. In this situation, judicial power is absolute due to the jurisdiction of a court is no more dependent on the wrongful act commited or the domicille or the nationality of the defendant. Basically, Indonesia submit to the teritoriallity principle as regulated in Article 2 KUHP which stated as follow: “The Criminal Law of Indonesia is valid for anyone commits the wrongful act (strafbaar feit) inside the territory of Indonesia” Hence, it has been determined that the Republic of Indonesia submit to the territoriality principle, meaning, anyone commits a wrongful act inside the territory of Indonesia will be proceeded by Indonesian law. This principle, in essence, based on the sovereignty of the country in its own territory. Criminal law is valid for anyone who commits a crime in its territory. It is an obligation to a country to maintain the law and order in its own territory on any person. Territory consists of land, sea, as far as 12 mil, and air space above it. Particularly for Indonesia submitted the archipelago concept, which stated wheras all the sea territory between the archipelago is one territory of Indonesia. It means, land and sea territory of Indonesia Indonesia is 12 mil measured from the outer islands of Indonesia. Certainly, it includes the air space above it. There is an exception if the sea gap between the outer Islands of Indonesia and the neighbour country is less than 24 mil, i.e. Malacca Strait between Indonesia and Malaysia, the border is in the middle. This archipelago concept is

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regulated in Act No. 4 (prp) Year 1960, afterwards strengthened by MPR Decision Year 1973 regarding GBHN.4 Article 3 KUHP expand the effectiveness of territoriallity principle by viewing the Vessel of Indonesia as the territory where the criminal law is valid.5

4 5

Andi Hamzah, Asas-Asas Hukum Pidana, Jakarta: Rineka Cipta, 1991, halaman 53. Ibid.

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III. SUSPECT, DEFENDANT AND CONVICT We have to differ between the suspect, defendant and the convict as explain below. A Suspect is a person who because of his act or condition, on the basis of initial proof can reasonably be suspected of being a perpetraitor of a criminal act. A suspect could not be sentenced guilty or not guilty.6 Article 8 Act No. 14 Year 1970 regarding regulation on Judicial Power submit to the principle of Presumption of Innocence, which in essence a person must be regarded not gulity until the verdict has been made. Based on Article 1 point 15 KUHAP a Defendant is a suspect who is prosecuted, examined and tried at a court session.7 A Convict is a person convicted on the basis of a court’s decision which has acquired a permanent legal force. And because of it, he will be sentenced a sanction comparable to the crime commited Suspect or defendant is given their rights by the law and if the rights are violated, it means the human right has been violated as well. The rights of the suspect and defendant are as follow: 1.

Examined immediately (Article 50 section (1))

2.

Have his case submitted to the court immediately (Article 50 section (2))

3.

Immediately tried by a court (Article 50 section (3))

4.

Preparing a defence (Article 51 point a)

5.

Informed in a language that he understands about the charge brought against him (Article 51 point b)

6 7

Darwan Prinst, Hukum Acara Pidana dalam Praktek, Jakarta: Djambatan, 1998, halaman 14. Ibid

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6.

Freedom to give information (Article 52) Any form of violation or intimidation are forbidden.

7.

Have an assistance of an interpreter (Article 53 section (1))

8.

Legal aid for the deaf and/or the dumb (Article 53 section (2))

9.

Legal adviser (Article 54 dan 55)

10.

Will be appointed a legal adviser for one whose not capable (Article 56)

11.

Contact his legal adviser (Article 57 section (1))

12.

Contact and speak to his country representative (for a foreign nationality) (Article 57 section (2))

13.

Visited by his personal doctor (Article 58)

14.

Informed about his detention by the competent official (Article 59)

15.

Contact and be visited by his family or relatives (Article 60 dan 61)

16.

Sending and receiving letters (Article 62)

17.

Contact and receive the visit of a spiritual councellor (Article 63)

18.

Tried at a court session which is open to the public (Article 64)

19.

Seek and submit a witness (Article 65)

20.

Not burdened with the duty of providing evidence (Article 66)

21.

Appeal against a decision of the court of first instance and the higher court (Article 67, 233-243, 244-258, 263-269)

22.

Demand for compensation and rehabilitation (Article 68)

23.

Right to obtain the copy of the report on the examination (Article 72)

Articles which guarantee the rights of the detainee in Indonesia could be found in KUHAP (The Compilation of Indonesian Criminal law dalam) as follow:

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Article 50 (1) A suspect has the right to be examined immediately by an investigator and to have his case further referred prosecutor. (2) A suspect has the right to have his case submitted to court immediately by the public prosecutor. (3) A defendant has the right to be immediately tried by a court. Article 51 To prepare defense: a. A suspect has the right to be clearly informed in a language he understands about what has been presumed about him at the star of an examination, b. A defendant has the right to be clearly informed in a language he understands about the charge brought against him. Article 52 In an examination at the level of t he investigation and trial, a suspect or defendant has the right to freely give information to an investigator or judge. Article 53 (1) In an examination at the level of investigation and trial, a suspect or defendant has the right every time to have the assistance of an interpreter as intended in Article 177. (2) In case a suspect of defendant is deaf and/or dumb, the provision as intended in Article 178 shall apply.

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Article 54 In the interest of defence, a suspect or defendant has the right to get legal assistance from one or more legal adviser during the period and at every level of examination, according to the procedure determined by this law. Article 55 In order to get legal adviser as mentioned at Article 54, a suspect or defendant has the right to choose his own legal adviser. Article 56 (1) In case a suspect or defendant is suspected of or charged with having committed a criminal act which is liable to a death sentence or prison term of fifteen years or more or for those who are nor capable who are liable to a prison term of five tears or more while they have no legal advisers of their own, the official concerned at all levels of examinations in the trial process is obliged to appoint a legal adviser for them. (2) Every legal adviser who is appointed to act as intended in section (1), shall give his assistance free of charge. Article 57 (1) A suspect or defendant who is detained has the right to contact his legal adviser in accordance with the provisions of this law. (2) A suspect or defendant of foreign nationality who is detained has the right to contact and speak with a representative of his country in facing the process of his case.

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Article 58 A suspect or defendant who is detained has the right to contact and to be visitted by his personal doctor in the interest of his health, whether or not this has any connection with the process of his case. Article 59 A suspect or defendant who is detained has the right to have his family or other people living in the same house as the suspect or defendant or other persons whose assistance is needed by the suspect or defendant to provide legal assistance or guarantee for his bail, informed about his detention by the competent official, at all levels of examination in the trial process. Article 60 A suspect or defendant has the right to contact and be visited by those who have family or other relationships with the suspect or defendant in order to get guarantees for their bail or to secure legal assistance. Article 61 A suspect or defendant has the right, directly or through his legal adviser to contact and receive the visits of his relatives for matters which have no connection with the case of the suspect or defendant, in the interest of work or that of family relationship. Article 62 (1) A suspect or defendant has the right to send letters to his legal adviser, and to receive letters from his legal adviser and relatives everytime he needs them, for which purpose stationery shall be provided for the suspect or defendant.

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(2) Correspondence between a suspect or defendant and his legal adviser or relatives shall not be censored by an investigator, public prosecutor, judge or state penitentiary official, except when there is enough reason to presume that correspondence is being abused. (3) In case a letter for a suspect or defendant is censored or examined by an investigator, public prosecutor, judge or official of a state penitentiary, the suspect or defendant shall be informed about it and the letter sent back to the sender after being marked “censored”. Article 63 A suspect or defendant has the right to contact and receive the visit of spiritual counsellor. Article 64 A defendant has the right to be tried at a court session which is open to the public. Article 65 A suspect or defendant has the right to seek and submit a witness and/or a person with special expertise to provide information which is favourable to him. Article 66 A suspect or defendant shall not be burdened with the duty of providing evidence. Article 67 A defendant or public prosecutor has the right to appeal against a decision of the court of first instance except against a decision of acquittal, absolution from a legal charge and court decisions in a lightening session.

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Article 68 A suspect or defendant has the right to demand for compensation and rehabilitation as arrange in Article 95 and so forth.

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Article 69 A legal adviser has the right to contact a suspect since the moment af his arrest or detention at all levels of examination according to the procedure determined in this law. Article 70 (1) The legal adviser as intended in Article 69 has the right to contact and speak with t he suspect at every level of examination and at every time in the interest of his case defence. (2) If there is proof that said legal adviser abuses his right in his discussion with the suspect, then in line with the level of examination, the investigator, public prosecutor or prison official shall give an admonition to the legal adviser. (3) If the admonition shall not be heeded, then the relationship shall be closely watched by the officials mentioned in section (2). (4) In after being closely watched, the abuse of right continues, the relationship shall be considered by the official mentioned in section (2) and banned if violation continues. Article 71 (1) A legal adviser, in line with the level of examination, in his relation with a suspect shall supervised by the investigator, public prosecutor, or prison officer without listening to the content of their discussion. (2) In a case involving crime against the security of the state, the officials mentioned in section (1) can listen to the content of the discussion.

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Article 72 At the request of a suspect or his legal adviser, the official concerned can provide him with a copy of the report on the examination in the interest of his defence. Article 73 A legal adviser has the right to send and receive a letter from a suspect anytime he wants. Article 74 The restriction of freedon in the relationship between a legal adviser and a suspect as mentioned in Article 70 section (2), section (3), section (4) and Article 71 is prohibited, after the case in question has been delicated by the public prosecutor to the district court for trial, for which a copy of the letter shall be submitted to the suspect or his legal adviser and the other parties concerned in the process. Article 117 (1) Information by a suspect and/or witness to an investigator shall be given

without pressure

from

whomsoever

and/or in

any

form

whatsoever. (2) In case a suspect gives a statement about what he has actually done in connection with the criminal act he has been suspected of, the investigator shall record it in a report in the minutest detail in the words used by the suspect himself.

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IV. CONCLUSION Based on above explanation, it is clear that for foreign nationalities, including those with Netherlands Nationality who is suspected or convicted commiting crime in Indonesia or committing a wrongful act as articulated in a valid materiel law will be proceeded by the Indonesian Procedural law. Therefore, the regulation that rules the procedure of detention and other criminal law procedure is KUHAP (The Compilation of Criminal Law Procedures). These articles in KUHAP secure the rights of the suspect, defendant and the convict who is detained and moreover valid as guidelines and binding regulations to the law enforcement authority, i.e. Police officer, Prosecutor, and Judges. The detainee of foreign nationality, besides could claim their rights which are protected by the Indonesian law is also could claim a non discriminatory

treatment,

therefore

it

could

be

presumed

that

Indonesia is indeed a law based country which respect the human rights principles.

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REFERENCES

Darwan Prinst, Hukum Acara Pidana dalam Praktek, Jakarta: Djambatan, 1998 Andi Hamzah, Asas-Asas Hukum Pidana, Jakarta: Rineka Cipta, 1991 http://www.asiamaya.com/konsultasi_hukum/ist_hukum/definisi_hukum.ht m http://www.asiamaya.com/konsultasi_hukum/ist_hukum/sumber_tatahuku m.htm