24 European Convention states that the reason on detention must be informed promptly. The term
p o ptl ust e i te p eted as di e tl , u less the e a e se e al issues, su h as the la k of interpreter.
346
The Eu opea Hu a ‘ights Cou t has stated that the li it o se e al hou s between detention and interrogation, which made the detainee knew the reason for detention
during interrogation, cannot be considered as the reason for postponing such notification.
347
The European Commission states that Article 5 2 of the European Convention required that every person that is detained must be informed on the facts and events that become the basis of
the detention. It means that the defendant must be able to say that whether heshe admits the charges or not.
348
The requirements on prompt information has two objectives. Firstly, to inform the detainees that they may examine the legality of their detention. Secondly, to open the
possibility for anyone that are facing trial and being detained, to prepare the defense.
349
The European Convention is the only international convention that explicitly states the obligation to
inform the reason of the detention.
350
To be more effective, information must be given in the language that is understood by the suspectdefendant. Any person that is arrested, indicted, or detained, and does not understand the
language of the authorized official, has the right to obtain information in the language that heshe undestands
—what are the rights, how to use it, why they are arrested or detained, and what are the charges.
They also have the right on written explanation on the reason of detention, the time of detention, and the transfer of detention place, date and the time of judge examination, who conducts the
arrest or detention, and where are they detained.
351
In addition, they also have the right to an interpreter that will help them during the legal process after the arrest for free or paid
—if necessary.
352
If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of
which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he
is a refugee or is otherwise under the protection of an intergovernmental organization.
353
B. Detention procedures
The procedures on detention, conducted by the investigator, prosecutor, or judge refer to Article 21 2 and 3 of KUHAP. If the investigator or prosecutor conduct the detention, they must issue a
warrant. If the judge conducts it, heshe must issue a Detention Determination Letter Surat Penetapan Penahanan.
346
Article 5 2, European Convention
347
Fox, Campbell, and Hartley, 181989178234-236, 30 August 1990, paragraph 42.
348
Lihat X. v. Federal Republic of German 809877, 13 December 1978, 16 DR 11, hal.114.
349
Similar provision found underPrincple 13 of the Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment
, which states that “Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment,
respectively, with information on and an explanation of his rights and how to avail himself of such rights ”. Also under the
Principle 5 of the Basic Principles on the Role of Lawyers, which states that Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or
detention or when charged with a criminal offence.
350
Article 5 2 European Convention.
351
Principle 14, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
352
Principle 14, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
353
Article 36, Vienna Convention on Consular Relation. See also Principle 16 2, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
25 The matters stipulated under the Detention OrderDeterminatin Letter are:
1. The identity of the suspectdefendant, name, age, occupation, sex, and domicile
2. Stating the reason for detention. For instance, for the purpose of investigation or court
proceeding. 3.
Short elaboraton on the crime that is charged, for preparing the defense and for the legal certainty.
4. Clearly stating the place of detention to give legal certainty for the detainee and hisher
family. At the level of investigation, the detention must be accompanied by a warrant issued by the
investigator or his superior. The detention is executed after an expose. Warrant that has been signed the offi ia ust e se t to the detai ee s fa il a do la e .
354
Without the warrant, the detention will be illegal.
The Minister of Justice issed Minister of Justice Directive No. J.C.51918 of 1964 on the Release of Detainee Who is Detained Without Proper Warrant or Detention Order, which directed Heads of
Directorate of Correctional Facilities; Heads of Regional Correctional Facility Inspectorates; Director of Regional Correctional Facilities; and DirectorHead of Correctional Facilities, not to accept
detainee without proper warrant. If such situation is occurred, the correctional facilities must release the respective person, after informing the institution that transferred the detainee.
The
dete tio a a t o o de ust e se t to the detai ee s fa il , to gi e e tai t a d as a o t ol e ha is to see hethe the a a t is i a o da e to the la o ot. The detai ee s
family is given the right by the law to examine the legality of detention via the pretrial institution. Detention without a detention order may only be used for domestic violence cases. Article 35 of the
Law No. 23 of 2003 on the Elimination of Domestic Violence states that:
1. The police may arrest and detain a suspect without a warrant, even though the domestic
violence was committed in another jurisdiction; 2.
After the arrest and detention is conducted, a warrant must be issued in 24 hours; 3.
The suspension of detention will not apply for this condition.
Further, Article 36 states that:
1. To protect the victim, the police may arrest the suspect with sufficient preliminary evidence;
2. The arrest may be continued with a detention, by issuing a warrant in 24 hours.
Another exception may also be found for cybercrime, even though the requirements for detention are more difficult. Pursuant to Article 43 6 of the Law No. 11 of 2008 on Electronic Information and
Transaction, an arrest or a detention against a suspect must be approved by the chairman of the local district court, via the prosecutor in 24 hours.
354
Article 45, Chief of the National Police Regulation No. 14 of 2012.
26
C. Procedures for special detention
