Overview Criminal Procedures in Indonesia

In general, the procedures criminal proceeding in Indonesia should be referred to Law No. 8 of 1981 regarding Criminal Procedures Law (“CPL“). Briefly, the procedures of criminal cases through the following stages:

  1. Stage of Preliminary investigation
  2. Stage of Investigation
  3. Stage of Prosecution
  4. Stage of Court Hearing in District Court

 Each of these stages is handled by different institution but still in one line, in the other hand that the stages should have consistency or in line since beginning. Furthermore, the detail explanation for criminal procedures as stipulated in CPL will be described below.

Stage of Preliminary Investigation

According to Article 1 paragraph 5 of CPL, it is stated that the preliminary investigation is a series act by junior investigator to seek and find an event which presumed as criminal acts in order to determine whether could be or not for investigation in the manner set forth in this law.

Basically, the process of preliminary investigation is to determine whether an event can be categorized as a crime or not. For example, it often happens in case of a fire that hit someone’s home, investigator has task to determine whether the fire was caused by any offence from someone or it is just a natural occurrence.

Furthermore, according to Article 5 point a, CPL mentioned about the duties and authority of the junior investigator, as follows:

  1. to accept a report or complaint from anybody about the existence of criminal offense;
  2. to seek information and physical evidence;
  3. to order a person whom suspicious to stop for being asked and check personal identification;
  4. to organize other responsible actions by law.

Moreover, the junior investigator can perform other actions on the basis of orders of the investigator, as Article 5 point a of CPL, as follows:

  1. arrest, prohibition to leave the place, search and seizure;
  2. The inspection and seizure of letters;
  3. take fingerprints and a photograph;
  4. taking and bringing a person to the investigator.

Therefore, it can be concluded that the preliminary investigation is the initial stage of criminal procedures.

Stage of Investigation

According to CPL Article 1 paragraph 2, stated that the investigation is a series of actions by the investigator and in the manner as set forth in this law to seek and collect evidence with which to clarify whether an offense has occurred and to locate the suspect.

At this stage, the investigator (police) has discovered the existence of criminal elements that occurred, but still require corroborating evidence and/or to determine someone as a suspect in the criminal case. Practically, before determining the suspect, the investigator would take testimony from witnesses and collect relevant evidences based on information from the witnesses.

The Investigators have authority as mentioned in Article 7 paragraph (1) of CPL, which is as follows:

  1. To receive a report or complains about the existence of a criminal offense;
  2. To take the first action at the moment in the criminal scene;
  3. To order a suspect to stop and check the personal identification of the suspect;
  4. arrest, detention, search and seizure;
  5. inspection and seizure the letters;
  6. take fingerprints and a photograph;
  7. calling people to be heard and questioned as a suspect or a witness;
  8. bring in the necessary expertise in relation to the proceedings;
  9. To terminate the investigation;
  10. To conduct other responsible actions in accordance with law.

In practice, the investigator will send a summons to the relevant witnesses to be questioned as outlined in the Minutes of Investigation (Berita Acara Pemeriksaan/BAP), but it is also to seize relevant evidence for the purpose of examination by the prosecutor to be used in court.

Stage of Prosecution

According to Article 1 point 7 of CPL, it is stated that the prosecution is an act of the public prosecutor to deliver the criminal case to the competent district court in the manner as set forth in this law to demand for examining and decided the case by judge in court hearing.

At this stage, the task of prosecution will be conducted by the Public Prosecutor. All files that have been compiled by the investigator should be submitted to the Public Prosecutor which to be transferred to the Court. The prosecutor has authorities under Article 14 of CPL are as follows:

  1. To receive and examine the case file of the investigation from the investigator or investigator assistant;
  2. To conduct pre prosecution of any deficiencies in the investigation with regard to Article 110 paragraph (3) and paragraph (4), by giving instructions in order to improve the investigation from investigator;
  3. To grant an extension of detention, detention or continued detention and or change the status of prisoners after their cases transferred by the investigator;
  4. To make the indictment;
  5. To transfer the case to court;
  6. To give notice to the defendant about the day and time of the Court Hearing along with summon letter either both to the defendant and witnesses, to come to the hearing which has been determined;
  7. To prosecute;
  8. To close the case for the interest of law;
  9. To conduct other actions within the scope of duties and responsibilities as a public prosecutor under the provisions of this law;
  10. To execute the verdict from judge.

At this stage, the criminal case has been processed by the investigator will be analyzed by the public prosecutor if the entire file is complete or not. If the file is completed, the Public Prosecutor will deliver the case to the Court for an immediate examination by a panel of judges.

Stage of Court Proceeding

According to Article 1 point 9 of CPL, it is mentioned that the court proceeding (adjudicate) is a series of actions of judges to receive, examine, and decide criminal cases based on the principle of independent, fair, and impartial in court in the manner as set forth in this law.

At this stage, the status of suspect will change became the defendant who faced against the Public Prosecutor in the court hearing. In the court hearing, the composition of council of judges consisting of one chairman and two members of judges. Generally, all process of court hearing as follows:

  1. Recitation of indictment letter (Surat Dakwaan) by the Prosecutor, which containing the articles or allegation against defendant.
  2. Submission of the rebuttal letter (Eksepsi) by the defendants or Lawyer, which contains a denial of the formal aspects of an indictment.
  3. evidentiary, which begins with hearing the testimony of witnesses and submit evidence.
  4. Recitation of Claim Letter/prosecution (Surat Tuntutan) by the prosecutor, which contained the articles of allegation along with threat of punishment to be imposed on the defendant.
  5. Defense Letter (Pledoi) by the defendant or his Lawyer, which contains about a refutation of the charges and the threat of punishment.
  6. Response to the defense Letter (Replik) by the Prosecutor (if any)
  7. The answer to the Response Letter (Duplik) by the defendant or his Lawyer (if any)
  8. Reading the verdict by Judge

author: Wilopo Husodo

Published by Husodo & Partners

contact@husodolawfirm.com

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