General Norms and Principles of Pretrial Detention

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CHAPTER I Norms and Principles of Pretrial Detention

A. General

KUHAP defi es dete tio as the pla e e t of a suspe t o a used i a e tai pla e the investigator or prosecutor or judge under a determination, according to the procedures stipulated u de this la . 283 Another definition can be found under the Law No. 3 of 1997 on Juvenile Court, which states that dete tio is a pla e e t of a suspe t o a used i the “tate Dete tion House, Branch of State Dete tio House o i e tai pla e . 284 KUHAP itself does not differentiate the detention based on examination level. Therefore, as e tio ed p e iousl , the use of p et ial dete tio ill efe to the dete tio du i g i estigatio and prosecution levels. By referring to KUHAP, this Guideline will limit the authorized official on detention process to the investigators and prosecutors. KUHAP acknowledges three types of detention: detention in the State Detention House, house arrest, and city arrest. These types of detention may be used on every level of examination. In regards to places for detention, this Guideline limits itself on the pretrial detention at State Detention Houses or detention facilities organized by the police and prosecutors. The main basis in executing detention against a person, as stipulated under the international law i st u e ts o hu a ights, is that the est ai t agai st a pe so s li e t ust e i ple e ted properly. In addition, detention is the last resort, in which the legality can be tested before the court. While KUHAP does not acknowledge judicial scrutiny on every level of criminal proceeding, there is an instrument that may be used to see whether the pretrial detention is legal or not, which is the pretrial institution. Unfortunately, pretrial as an institution is only considered as a judicial authority that conducts a mere administratrive-procedura control against detention from the investigators and prosecutors. ICJ‘ s stud sho s that this situatio o u ed si e the e a e t of KUHAP u til o . As a response to this condition, the Constitutional Court MK rendered a decision on a judicial review petition against Article 21 1 of KUHAP, which states: 285 A judicial institution rechtsinstituut that is stipulated under Article 77 of KUHAP, which is aimed to check the legality of a detention, should not merely examine the formal or administrative aspect of a detention, but also a deeper aspect that is the rationality on the necessity of the detention . Based o MK s de isio , the atio alit of hethe a detention is necessary or not must be ela o ated sha pl , lea l , a d easu ea le, usi g ele a t i di ato s fo autho ized offi ial s consideration. 283 Article 1 21, KUHAP. 284 Article 1 4 of the Law No. 3 of 1997 on Juvenile Justice 285 See MK Decision No. 018PUU-IV2006. 6 Therefore, the use of pretrial detention by placing the suspect in the State Detention House of detention facilities managed by the police or prosecutor can be minimized. For instance, by using non-custodial alternative action. B. Legal basis for pretrial detention To make a detention is not arbitrariy conducted and is in line with the principles of civil freedom protection, law enforcers must refer to a number of applicable legal instruments as the basis in executing detention. These instruments are obtained from international law, both hard laws and soft laws, and also obtained from the national laws and regulations. The legal instruments regarding pretrial detention may be categorized as follows: Source of Law Regulations International Law 1. Universal Declaration of Human Rights UDHR 2. International Covenant on Civil and Political Rights ICCPR 1976 ratified under the Law No. 12 of 2005 3. Convention on the Rights of the Child ratified under the Presidential Decree No. 36 of 1990 4. Basic Principles for Treatment of Prisoners 5. Body Principles for the Protection of All Persons under Any Form of Detention or Imprisonment 6. Standard Minimum Rules for the Treatment of Prisoners 7. Minimum Rules for Non Custodial Measures 8. Rules for the Protection of Juveniles Deprived of their Liberty 9. Standard Minimum Rules for the Administration of Juveniles Justice National Laws and Regulations Laws 1. Law No. 8 of 1981 on Criminal Procedural Law 2. Law No. 5 of 1983 on Exclusive Economic Zone 3. Law No. 26 of 2000 on Human Rights Court 4. Law No. 15 of 2003 on the Determination of the Government Regulation in lieu of a Law No. 1 of 2002 on the Eradication of Terrorism 5. Law No. 23 of 2004 on Elimination of Domestic Violence 6. Law No. 11 of 2008 on Electronic Information and Transaction 7. Law No. 35 of 2009 on Narcotics 8. Law No. 6 of 2011 on Immigration 9. Law No. 11 of 2012 on Juvenile Justice System Implementing Regulations 1. Supreme Court Regulation No. 2 of 2012 on the Establishment of Petty Crime Limitations and Penalties in the Criminal Code 2. Supreme Court Circular Letter No. 4 of 2010 on the Placement of Drugs Abuse and the Victims of Drugs Abuse to the Medical and Social Rehabilitation Institution 3. Supreme Court Circular Letter No. 3 of 2011 on the Placement of 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