Procedures for special detention

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C. Procedures for special detention

Detention against a person with special treatment according to the laws and regulations, is executed after securing an approval from certain officials. In general, the procedures for this detention is similar to KUHAP. The authorized official that issues the warrant is the investigator or hisher supe io . The op of the a a t ust e se t to the detai ee s fa il o la e . 355 The special treatment for detention procedures applies to the following positions:

a. Penahanan Ketua, Wakil Ketua Pengadilan atau Hakim

Article 20 of the Law No. No. 14 of 2002 on Tax Court states that the Chairman, Deputy Chairman, or Judges of the Tax Court may be arrested or detained under the order from the Attorney General afte se u i g P eside t s App o al, fo the e eptio o the follo i g o ditio : i Caught red-handed when committing a crime; or ii Allegedly committing a crime subject to capital punishment or crime against the national security. The arrest or detention under point i must be reported the the Chief Justice of the Supreme Court in 48 hours. Meanwhile, detention against the Chief Justice, Deputy Chief Justice, Deputy, and Justices of the Supreme Court may only be executed under the order from the Attorney General after securing P eside t s app o al, fo the e eptio o the follo i g o ditio : i Caught red-handed when committing a crime; or ii Allegedly committing a crime subject to capital punishment or crime against the national security, based on the sufficient preliminary evidence. If the arrest and detention are executed based on the exception, such arrest and detention must be reported to the Attorney General in 48 hours. 356 Further, Article 26 of the Law No. 49 of 2009 on the Second Amendment to the Law No. 2 of 1986 on General Court states that the Chairman, Deputy Chairman, and Judges of the general court may be 355 Article 46, Chief of the National Police Regulation No. 14 of 2012 on the Management of Investigation Level 356 Article 17, Law No. 3 of 2009 on the Second Amendment to the Law No. 14 of 1985 on the Supreme Court . 27 arrested or detained under the order from the Attorney General afte se u i g Chief Justi e s approval, for the exception on the following conditions: d. Caught red-handed when committing a crime; e. Allegedly committing a crime subject to capital punishment; or f. Allegedly committing a crime against the national security. Similar provisions may also be found under Article 25 of the Law No. 50 of 2009 on the Second Amendment to the Law No. 3 of 2006 on Religion Court, and Article 26 of the Law No. 51 of 2009 on the Second Amendment to the Law No. 5 of 1986 on State Administrative Court.

b. Detention against Prosecutor

Article 8 of the Law No. 16 of 2004 on the Prosecutor of the Republic of Indonesia states that summon, examination, search, arrest, and detention against a prosecutor that allegedly committing a i e a o l e e e uted afte se u i g Atto e Ge e al s approval. According to its Elucidation, this effort aims to give protection to prosecutor, as stipulated under the Guidelines on the Role of Prosecutors and the International Association of Prosecutors. The mentioned Guidelines state that the Government ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.

c. Detention against a Head or Deputy Head of Regions

Prior to the MK Decision No. 73PUU-IX2011, 26 September 2012, if the suspect is a Head or Deputy Head of a Region, the investigation and detention must secure a written approval from the President, pursuant to Article 36 of the Law No. 32 of 2004 on Regional Governments. Investigator must submit an application for inquiry and investigation to the President, by elaborating the alleged crime. If within 60 days the President does not give approval, the inquiry and investigation may proceed, including the detention. This procedure, as stipulated under Article 36 4 of the Regional Government, may be excluded on the following conditions: i Caught red-handed when committing a crime; or ii Allegedly committing a crime subject to capital punishment or crime against the national security, The investigation must be reported to the President within 48 hours. After MK Decision No. 73PUU-IX2011, 26 September 2012, P eside t s app o al fo i ui a d investigation against the head andor deputy head of regions was declared unconstitutional. Mea hile, P eside t s app o al fo i estigatio follo ed-up by detention was declared unconstitutional with condition.

d. Detention against the member of the regional house of representatives

Article 53 of the Regional Governments Law states that investigation against a member of the regional house of representatives may be conducted after a written approval from the Minister of 28 Interior Affairs on behalf of the President, if the suspect is a member of provincial house of representatives, and from the Governor on behalf of the Minister of Interior Affairs, if the suspect is a member of regencymunicipality house of representatives. The application for such approval must include a clear elaboration on the alleged crime. If the approval is not given within 60 days after it was filed, the investigation followed-up by a detention may be executed. Such approval is excluded on the following conditions: c. Caught red-handed when committing a crime; or d. Allegedly committing a crime subject to capital punishment or crime against the national security, In regards to the crime against national security, Elucidation of Article 53 4 b of the Regional Government Law states that the crimes under this category are terrorism and separatism. For this exception, the investigation must be reported to the related official in 48 hours.

e. Detention against the member of the Audit Board of the Republic of Indonesia BPK

If the suspect is the member of BPK, Article 25 of the Law No. 15 of 2006 on BPK states that the BPK s e e a o du t e essa a tio ithout a o de the Atto e Ge e al o app o al from the President on the following conditions: c. Caught red-handed when committing a crime; or d. Allegedly committing a crime subject to capital punishment The necessary action must be reported to the Attorney General within 24 hours, and it will be notified to the President, the House of Representatives, and BPK itself.

f. Detention against the Chairman, Deputy Chairman, and Member of Judicial

Commission Article 10 of the Law No. 18 of 2011 on the Amendment to the Law No. 22 of 2004 on Judicial Commission states that the Chairman, Deputy Chairman, and member of Judicial Commission may be arrested or detai ed u de the o de f o the Atto e Ge e al a d afte se u i g P eside t s Approval, for the exception on the following conditions: iii Caught red-handed when committing a crime; or iv Allegedly committing a crime subject to capital punishment or crime against the national security, based on the sufficient preliminary evidence. If the arrest and detention are executed based on the exception, such arrest and detention must be reported to the Attorney General in 48 hours.

g. Detention against the Chairman and member of Bank Indonesia Board of Governors

Article 49 of the Law NO. 23 of 1999 on Bank Indonesia juncto Law No. 3 of 2004 states that summon, inquiry, and investigation against the Chairman and member of Bank Indonesia Board of Governors must be approved by the President. 29

D. Detention period