36 The Court must have many programs or options to promote the release of pretrial detainees, by
considering the abovementioned consideration, and in accordance with the risk and special need from the defendant. If there is no guarantee, the defendant may be still detained after several
procedures. For petty crimes that do not need detention, the defendant will attend the trial by using a summon
from the court official mandatory reporting as a replacement to the arrest warrant during pretrial. In determining that a criminal act as a petty crime or not, many factors must be considered such as
the presence of violent threat, guns, or violation against court order. In detail, the requirements to release detainee are as follows:
1. Every jurisdiction must adopt the procedure that is designed to promote the release of a
detainee based on their own confession or if necessary with bail. Additional requirements ust e used to elease a detai ee if this is e essa to ake the detai ee s p ese e
during trials; to protect the public, victims, witnesses, or other people; and to maintain the integrity of judicial process
2. When the release on
l ased o the defe da t s o fessio is ot sufi ie t to assu e hishe presence during trials, bail by using money may be imposed.
3. ‘elease ased o ail a o l e used to gua a tee defe da t s ate da e du i g t ials.
Befre using bail, the the court must consider the relase without bail. if the bail is not enough fo a elease, the ail ust e set a lo e le el to assu e defe da t s atte da e a d to help
the defe da t s fi a ial o ditio . 4.
Bail using money should not be used to consider the crimes that relate to public safety. 5.
The court may net the bail using money as the main requirements for release 6.
It is prohibited towards compensation on bail, the defendant must be released when bail is set, and the court may not take 10 of the bail
The policy that support the release of detainee and the selective use of pretrial detention will bring a big impact on the necessity to see the significant number of defendant that being postponed from
the adjudication process. Therefore, to be more effective, this policy needs proper information and oversight.
C. Non-custodial measures
Chapter II of this Guideline has mentioned the importance of authorized officials to consider some principles and rules, when executing detention, especially for minors and narcotics users. Non-
custodial measures must be prioritized for minors, as stipulated under the Juvenile Criminal Justice System Law and international human rights law, because detention will affect the physical and
mental development of the children. Meanwhile, non-custodial alternative measures for narcotics users may be conducted by putting
them into medical and social rehabilitation institution, as stipulated under the Supreme Court Circular Letter. In addition, pursuant to the Supreme Court Regulation No. 2 of 2012, pretrial
detention is no longer needed for petty crimes KUHAP stipulates the non-custodial alternative measures in State Detention House, as stipulated
under Article 22 1 of KUHAP. Types of detention, pursuant to the said article are detention at State House Detention; house arrest; and city arrest. Therefore it can be interpreted that house or city
arrest are the forms of non-custodial alternative measures.
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a. House arrest
House a est is i ple e ted i the suspe tdefe da t s house o do i ile and there will be a supervision towards it. KUHAP does not determine on how to conduct the supervision for house
arrest. Therefore, the rules on the supervision of house arrest depend on official that executes the detention.
The main objective of supervision on house arrest is to prevent the difficulties in investigation, prosecution, and court examination. A suspect or defendant that is currently under house arrest
may leave hisher house after being approved by the authorized official. This is in accordance with the Elucidation of Article 22 2 and 3 of KUHAP.
b. City arrest
Cit a est a e i ple e ted i the it he e suspe tdefe da t is do i iled. The te it a est also o e s the dete tio i illages. The e ill e o supe isio o the suspect or
defendant that is currently under city arrest. However, KUHAP obliges the mandatory reporting for the suspectdefendant, as stipulated under Article 22 3 of KUHAP.
The schedule for mandatory reporting is not stipulated under KUHAP and will be at the discretion of the official that execute the city arrest. The suspect or defendant that is currenty under city arrest
may not leave the city without permission from the authorized official, as stipulated under Article 22 2 and 3 of KUHAP.
c. Change of detention type and its mechanism
Investigator may change the detention from the State Detention House into a house or city arrest, fo the pu pose of i estigatio a d suspe t s i te est.
The change of detention may be given by considering:
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i ‘e uest f o the suspe t, suspe t s fa il , o suspe t s la e s i udi g the easo
for transfer; ii
Medi al e a i atio esult of suspe t s health; a d iii
Recommendation frome expose. Change of detention must be accompanied by an order letter from the investigator or its superior.
Detention at the State Detention House is the heaviest type of detention, followed by house arrest, and city arrest. Therefore, Article 23 of KUHAP opens the possibility on the change of detention type.
In detail, Article 23 of KUHAP states that the change of detention type may be conducted on the following conditions:
i By the investigator and prosecutor, with the issuance of specific warrant that aims the
change the type of detention; ii
If the change of detention is conducted by the judge, the order of the change must be written in a determination letter;
iii Copy of order letter of the change of detention type, or the determination of the change
must be sent to the suspect or defendant and to the related institutions.
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Article 49, Chief of Naitonal Police Regulation No. 14 of 2012.
38 Related institutions are those that are involved in the detention process, such as the head of the
village that lead the area where the house arrest is located. The head of the village will be considered as the related institution. Therefore, copy order letter of the change of detention type
must be sent to the head of the village. Further, KUHAP only states the authority of an official that may change the type of detention,
because KUHAP does not stipulate the right of a detainee to request such change of detention type. Ho e e , this does ot ea that the detai ee a ot file fo su h e uest. I p a ti e, detai ee s
family may file such request to the official that executed the detention. Based on several consideration, the request may be granted. In contrast, the authorized official may change the type
of detention without any request.
D. Detention postponement
