48 5
Threat against public order: a.
The level of crime b.
Pu li s ea tio agai st the suspe t a e used as the argument to execute pretrial detention
c. Showing the evidences that indicate if the suspect is
released from pretrial detention, it will endanger the safety of the suspect
d. Suspect on narcotics abuse case as a user may not be
used as condition that it will threat the public order. e.
Condition in which the suspect is accused of committing sexual crime or child molestation
3. Elements on detention
procedures 1
Detention warrant a.
“uspe tdefe da t s ide tit , a e, age, o upatio , sex, and domicile
b. Reason for detention, such as for the purpose of
investigation or court examination c.
Necessity and real condition d.
Without detention, the investigation will be hampered
e. Quick elaboration on the crime that is charged
f. Stating the detention place
2 Copy of detention warrant must be sent to the s
uspe t s family or lawyer
3 Comply with the Detention Procedures with Special
Treatment. 4.
Detention period 1
Must not exceed 20 days limitation and 40 days of extension during investigation
2 Must not exceed 20 days limitation and 40 days of
extension during prosecution 3
Must not exceed 7 days limitation and 8 days of extension for minors.
4 Must not exceed 90 days limitation for cases in human
rights court 5
Must not exceed six months limitation for terrorism cases
C. Procedures in applying for pretrial against detention
The procedures in applying for pretrial against detention are stipulated under Articles 77 to 83 of KUHAP. In addition, Government Regulation No. 27 of 1983 is also the reference for the
implementation, as can be found under Articles 7 to 15. In practice, the pretrial procedures are similar to private lawsuit
—in form of lawsuit.
392
There are two parties in pretrial case, namely the party that submit pretrial petition or known as appli a t , a d o the othe side is espo de t . The espo de t i p et ial ases is al a s the
Government, represented by the police, prosecutor, or other institutions that may execute detention.
392
See BPHN’s study, Hukum tentang Perbandingan Antara Penyelesaian Putusan Praperadilan dengan Kehadiran Hakim Komisaris dalam Peradilan Pidana, Hasil Penelitian 2007, pg. 49.
49 Pursuant to Article 79 of KUHAP, pretrial on the legality of arrest, detention, foreclosure, and search,
the party that may submit the pretrial petition is the suspect, his family, or his lawyer. This provision also applies to compensation request due to illegal arrest or detention.
a. Pretrial petition registration
KUHAP does not stipulate the procedures in filing pretrial petition, whether it may be sent from the post office, or must be directly sent to the Chairman of the District Court or relevant registrar. In
practice, however, the pretrial petition must be directed to the Chairman of repective district court that has the jurisdiction on the arrest, detention, search, or foreclosure. It is registered to the
espe ti e dist i t ou t s egist a . In essence, pretrial petition consists of:
393
1. Complete identity of the applicant and respondent,
2. Elaborateing the facts that the applicant has suffered from losses due to the coercive
actions of the officials respondent, 3.
For instance, due tue arrest or detention, etc, and elaborating the reasons. After the registrat accepted the petition and being registered at the pretrial logbook, the Chairman
of the District Court will appoint a single judge and a registrar to examine the pretrial petition. While KUHAP does not explicitly state the period in appointing such judge and registrar, the appointment
must be conducted in three days after the petitionis registered, as can be found under Article 82 1 a of KUHAP, which states that the trial must be set in three days after the pretrial petition is
accepted. Pursuant to the mentioned articles, it can be said that pretrial proceeding is categorized as express
examination. Therefore, after being registered, the registrar must put it in the logbook. Subsequently, the registrar will ask the Chairman of the District Court to appoint a judge and
registrar that will examine the petition. If the Chairman of the District Court has formed a special permanent work unit that handles pretrial cases, then the pretrial will be given to the unit.
b. Requirements in filing pretrial against detention
Pursuant to Article 79 of KUHAP, pretrial petition on the legality of detention is filed by the suspect, his family, or his lawyer, to the Chairman of the District Court by elaborating the reasons.
The applicant must elaborate that the detention executed by the investigator or prosecutor contradicts the:
1. Institution that is authorized to execute detention as stipulated under Article 20 of
KUHAP, 2.
Reasons for detention are not in accordance with Article 21 1 juncto 21 4 of KUHAP, 3.
Detention warrant was not given to the suspect, or the copy of the warrant was not given to his family, as mandated under Article 21 2 juncto 21 3 of KUHAP,
4. Detention warrant did not elaborate the identity of the suspect, reasons for detention,
quick elaboration on the crimes that has been committed, and did not state the detention place, as mandated under Article 21 2 of KUHAP.
393
Artice 77 1 KUHAP.
50
c. Determination of trial date and pretrial proceeding timeframe
Article 82 1 a of KUHAP asserted that the Head of District Court must appoint the judge and court clerk, including the trial date, within 3 days after the petition is received. This timeframe is
calculated from the date of petition receival or petition registration..
394
The judge will also call the parties, including the petitioner and other related officials, such as investigator or prosecutor. It is made in form of summon, therefore it cannot be done verbally, even
though, in practice, some parties state that verbal summon is allowed. According to Article 82 1 c of KUHAP, the decision must be render in 7 days at maximum. A single
judge will examine the pretrial, so that all pretrial petition will be examined by a single judge panel, assited by a court clerk.
395
d. Assignment of prosecutor in pretrial proceeding
Pursuant to the Deputy Attorney General of General Crime Circular Letter No. B-249E51996, 15 Mei 1996, there are many inconsistencies when conducting pretrial in each regions. This
inconsistency may be seen from the assignment of prosecutor, in which some of them were assigned by Order Letter Surat Perintah, and some of them were assigned by Special Power of Attorney
Surat Kuasa Khusus. In regards to this, there must be a guideline for the practice:
1. Pretrial is the authority of the court that covers the authority to examine the legality of
arrest, detention, termination of investigation, termination of prosecution, and examination of compensation request or rehabilitation. By considering these topics, pretrial is clearly the
sub-system of integrated criminal justice system and sub-system of private cases proceeding. It is clearer by considering Article 77 b of KUHAP that stipulate compensation
of rehabilitation for a person that the case is terminated during investigation or p ose utio . I p a ti e, the pa ties a e ot alled as plai tiff a d defe da t , ut
appli a t a d espo de t . 2.
It is not correct that the assignment of a prosecutor that handles the pretrial is stipulated u de a “pe ial Po e of Atto e , hi h is o
o l used du i g i il a d state ad i ist ati e ases. It is o e p ope if the assig
e t is stipulated u de a O de Lette .
3. In handling pretrial examination, it is recommended to assign the prosecutor that conduct
research on the docket during preprosecution, therefore it is hoped that the comprehension on the case should be given to another prosecutor.
D.
Trial procedures D.1. Model fo pretrial examination
The examination in pretrial does not merely examine the petitioner, but also the official that caused the pretrial petition. For instance, illegal arrest. The investigator that conduct such arrest will be
summoned and examined, and the process is similar to civil case examination. The petitioner acts as an applicant, and the official acts as a respondent. Some parties viewed that it examines and judges
the legality of coercive action that has been conducted.
394
Pursuant to this provision, Yahya Harahap said that the determination of trial date is calculated from the registration of the petition at the registrar, not from the appointment of a judge by the Chairman of the District Court. See M. Yahya Harahap,
Peninjauan Kembali, Jakarta: Sinar Grafika, 2010,pg. 13.
395
Artice 78 2 KUHAP.
51
D.2. Pretrial examination phases Pretrial consists of following phases:
1. Examination of power of attorney or recitation of petition
2. Response from the respondent
3. Counter response from the petitioner
4. Rebuttal from the respondent
5. Examination over witnesses and documents.
6. Decision.
During pretrial examination, the judge will examine the pretrial petition. KUHAP does not specify whether pretrial petition must be in written format or may verbally submitted. In practice, however,
the petition is written by the attorney-in-fact, which is similar to a lawsuit in civil case. The format of a petition consists of:
1. Identity of petitioner and respondent,
2. Reasons and legal basis fundamentum patendiposita,
3. Motion petitum to be decided by the judge,
4. Registration of petition.
An official merely gives a statement, as consideration for the judge to render a decision. Therefore, the de isio is ot o l ased o petitio e s state e t, ut also f o the elated offi ial. The
statement from the official is a counter argument to the petitioner, which makes it similar to counter response in a civil case trial. The official may be called as quasi-defendant.
D.3. Timeframe for the proceeding on pretrial against detention Pursuant to Article 82 1 c KUHAP, pretrial examination is conducted by using express
examination, and in 7 days at most the judge must render a decision. The appointed judge must set the trial date and order the registrar to summon the respondent and related officials. Further, Article
uses the o d ust , so that the judges is o liged to e de a de isio i da s. The parties must also repond to the summon of pretrial proceeding. If the applicant or respondent
does not attend the trial, it should not hamper the judge to examine and decide the case. The lack of attendance is not a factor to hamper the examination process and may not affect the judge to
render a decision in 7 days. It is not a problem on whether the statement from the respondent has been heard or not. Exceeding the 7 days limitation means violating Article 82 1 c of KUHAP.
D.4. Pretrial examination Pursuant to Article 82 1 b of KUHAP, during pretrial examination on the legality of detention, the
judge hears the statement from the applicant and related official. To this regard, law enforcers must provide clear and assuring evidences on the detention requirements.
This provision, however, it not imperative. Therefore, the judge may heard the statement from both parties. If the applicant or related officials do not attend the trial, it should not hamper the judge to
examine and decide the pretrial petition.
52 In practice, there is arule that the lack of attendance during trial may be used as a consideration that
it is a voluntary action from the party to waive its right in defending its interest. In short, the judge is encouraged to hear the statement from applicant and related officials. However, the lack of
attendance may not be used as the argument to violate the law.
E. Pretrial decision
