7 the Victims of Narcotics Abuse to the Medical and Social
Rehabilitation Institution 4.
Chief of the National Police Regulation No. 14 of 2012 on Criminal Investigation Management
Court Decisions 1.
MK Decision No. 018PUU-IV2006 judicial review against Article 21 1 KUHAP
2. MK Decision No. 65PUU-IX2011 judicial review against Article
83 2 and 3 KUHAP
C. The principles of pretrial detention
1. Non-discrimination
Detention that is imposed to the suspect may not violate the non-discrimination principle. However, the authorized official has the power not to detain women, especially those who are in pregnancy,
breastfeeding women, children, elderly people, a person with illness, and disabled persons. Such decision of not detaining the mentioned persons may not be interpreted as a discriminative
decision.
2. Presumption of innocence
There is a significant difference between a detained and convicted person. Due to this condition, the presumption of innocence principle must be at the top of consideration before an authorized official
make the decision to detain such person. If a detention must be made, the suspect has the right to be treated differently than the person that has been convicted by the Court.
3. Last resort
The action to execute pretrial detention must be minimized at as far as possible. In essence, pretrial detention involves a person that has not been convicted by the court. The decision to conduct a
pretrial detention may bring a negative impact on the presumption of innocence principle. Therefore, pretrial detention must be used as the last resort during criminal proceeding.
4. Reasonable and necessary
Pretrial detention may only be used if there is a real necessity in doing so. The human rights law asserts that there must be a strict condition if a pretrial detention will be imposed to a person.
5. Immediate examination at the court
While KUHAP does not stipulate the mechanism for a detainee to appear before the court for the examination of hisher detention requirements and condition, the obligation under Article 21 of
KUHAP must be satisfied. The exclusion of such definition can be found under Article 43 6 of the Law No. 11 of 2008 on
Electronic Information and Transaction ITE Law, which states that every arrest and detention must be approved by the Chairman of the Court. While this article is a significant improvement in terms of
civil freedom, such provision is not fully in line with Article 9 of ICCPR.
6. The right to examine the legality of pretrial detention
Every suspect who is under the pretrial detention must be given the right to file a complaint to examine the legality of hisher pretrial detention without any delay. Every suspect may not be
8 detained without any chance to challenge the legality of hisher detention and the extension of such
detention before the court at any convenient time.
7. A periodical examination on the legality of detention without application
When the pretrial detention has been executed and has been examined with a pretrial mechanism, the suspect still has the right to examine the pretrial detention periodically without any obligation to
do any legal effort. The suspect must be released from the detention if there is no viable reason pursuant to the law.
D.
Detention authority
Based on the provision on the authorized officials, KUHAP differentiates three types of detention. This differentiation also shows the level of ongoing criminal proceeding. The three types of
detention are:
i Detention by the investigators, for the purpose of investigation;
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ii Detention by the prosecutors, for the purpose of prosecution;
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and iii
Detention by the court, for the purpose of court examination. The judge is authorized to execute detention with a determination based on the necessity of a detention for the
purpose of court examination.
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D.1. Detention during investigation KUHAP is the main reference to seek the authority of the investigators in executing detention
against a suspect.
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In addition, the authority to execute detention can also be found in several laws:
a. Law No. 3 of 1997 on Juvenile Court. Article 44 1 of the Law states that for the purpose of
investigation, Investigator as mentioned under Article 41 1 and 3 a, is authorized to detain a minor allegedly committing a crime, based on sufficient preliminary evidences.
b. Law No. 26 of 2000 on Human Rights Court. Article 12 1 of the Law states that the Attorney
General as the investigator and prosecutor is authorized to execute detention and extension of detention for the purpose of investigation and prosecution.
c. Law No. 35 of 2009 on Narcotics. Article 75 of the Law states that for the purpose of
i estigatio , the Natio al Na oti s Age s BNN i estigato s a e authorized to arrest
and detain a person that is allegedly committing narcotics and narcotics precursors abuse and illicit trafficking.
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Pursuant to the abovementioned provisions, investigators are authorized to execute detention. The measure of the investigation necessity will be based on the purpose of the investigation itself that
will refer to objective considerations. The legal responsibility towards the suspect that has been detained is on the the investigator that
issues detention warrant. Meanwhil
e, the espo si ilit o the suspe t s ph si al o ditio lies o the head of the detention house the institution that arrange detainees treatment.
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Article 20 1, KUHAP. It also covers detention for the investigation under specific laws.
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Article 20 2, KUHAP.
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Article 20 3, KUHAP.
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Article 20 1, KUHAP
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Article 75 g, Law No. 35 of 2009 on Narcotics.
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Article 43, Chief of the National Police Regulation No. 14 of 2012 on Criminal Investigation Management.
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D.2. Detention during prosecution Article 20 2 of KUHAP states that the detention conducted by the prosecutor is aimed for the
purpose of prosecution. In using this authority, the prosecutor must always refer to the Law No. 16 of 2004 on The Prosecutor of the Republic of Indonesia Prosecutor Law as a guideline.
Article 8 4 of the Prosecutor Law states that in doing its duties and authorities, prosecutor must always act according to the law by considering the norms of religion, civility, decency, and must
uphold the society values, and always maintain the honor and dignity of the profession.
E. The right to legal aid and access to a lawyer
