Detention period Procedures and Period of Detention

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D. Detention period

ICCPR guarantees the right to be tried in reasonable time, otherwise the suspect must be released. 357 It is reated to the period of pretrial detention that is considered reasonable according to ICCPR and other international regional legal instruments. Under the The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a person that is detained for an alleged crime has the right to be tried in reasonale time or heshe must be released. 358 The United Nations Human Rights Committee stated that the right to trial without postponement must be interpreted as the right for final decision without postponement. 359 Unreasonable postponement during trial is a violation against the international standards. Therefore, every country must be responsible to assure that all judicial process are concluded without postponement The Council also asserted that a country cannot avoid from the responsibility of a postponement, by arguing that a suspect should demand to be tried promptly. 360 The Council said that the 6 months time limitation for pretrial detention is too long if it is compared to Article 9 3 ICCPR. Regulation in other Regions American Convention on Human Rights prohibited a pretrial detention without time limitation. The Inter-American Human Rights Commission stated that the lack of time limitation for the release of the suspect or the lack of information on the charges are violations against the suspe t s ights. 361 If the period of pretrial detention exceeds the time limitation, the detention is a serious violation against the detain ee s ights. 362 By interpreting the right to be tried in reasonable time or must be released to wait trial, as stipulated under Article 5 3 of the European Convention, the European Human Rights Court states that this provision cannot be interpreted as the right for the court officials to choose whether they bring he suspect for trial or release them. 363 The reasonableness of detention period is evaluated separately from the reasonableness of trial postponement, pursuant to Article 6 1 of the European Convention the detention for the same period cannot be conducted. 364 The European Commission explained that Article 5 3 of the European Convention aims to limit the detention period and not to improve the quick trial. 365 In regards to guarantee to trial in reasonable time, the European Human Rights Court States that a detainee has the right to be prioritized for his case and to have a quick examination. 366 During the case of Moreira de Azevedo, the Court decided that the applicant has no obligation to be more active for immediate trial. 367 Even such person has no obligation to actively cooperate with court officials in regards to criminal proceeding.. 368 357 Article 9 3 ICCPR. 358 Principle 38, Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment. 359 Adolfo Drescher Caldas v. Uruguay. 360 Earl Pratt and Ivan Morgan v. Jamaica 2101986 and 2251987. 361 OAS, Report on the Situation of Human Rights in Paraguay OEASer.LVII. 4, doc 13 1978, pg. 53. 362 OAS, Report on the Situation of Human Rights in Panama OASer.LVII.44, doc 38 rev.I 1978, pg. 58. 363 Neumester Case, 27 June 1968, European Human Rights Court, series A, No. 8, pg. 37 par. 4. 364 Matznetter Case, 10 November 1969. 365 Dieter Haase v. Federal Republik of Germany No. 741276. 366 Wemhoff Case, and Stigmulle Case, 10 November 1969. 367 Moreira de Azevedo Case, 23 October 1990, also Gincho case, 10 July 1984. 368 Eckle Case, 15 July 1982. 30 According to the abovementioned legal instruments, countries must set the time limitation on the maximum detention period without trial. If a person is detained without trial in longer period, he has the right to be released. In determining the maxium detention period, countries must calculate the maximum time of liberty deprivation that may be imposed for a crime. The maximum period of pretrial detention must be in accordance with the possible conviction. The maximum period under this Guideline will not affect the implementation of international standards that limit the detention period before an examination on the detention at the court. Such standards and this Guideline are two different issues, because those standards guarantee for promptly trial, while this Guideline tries to limit the pretrial detention period. Some organizations and penalization expert have recommended that no one may be detained without any communication or under a non-stop supervision garde a vue for more than 24 hours. 369 D.1. The Principle of detention period under KUHAP KUHAP provision that limits the detention period and detention extension period is considered monumental, and this is not negotiale. In regards to this, there are some principles as the main reference, so that there will be no longer a person that do not know when his detention period is over. The principle of detention period limitation is strict. If an institution exceeds the time limitation, such institution can be brought into pretrial or the trial, to give compensation to the suspect or defendant. In addition, KUHAP also acknowledges that the detainee must be released if the detention exceeds the time limitation. D.2. Detention period during investigation Pursuant to Article 24 1 of KUHAP, investigator may detain a person for 20 days. For the purpose of unconcluded investigation, the investigator may request to the prosecutor for 40 days of extension. Article 24 2 of KUHAP. With the time limitation, the detention during investigation may only be conducted for 60 days. Under the condition that it is still possible to release the suspect from the detention, if the investigation has been concluded Article 24 3 KUHAP: a. The extension from the prosecutor does not have to be 40 days, as it is the maximum limitation. It means that the prosecutor may give partial extension for the purpose of investigation. b. If the investigation needs more time, then it may comply to the maximum limitation under Article 24 2 of KUHAP. c. After the 60 days limitation exceeded, the investigator must release the suspect without any procedure. 369 See Arab-Africa Seminar Recommendation on Criminal Justice and Improvement on Penalization Tunisia, 2 Desember 1991. 31 The detention period during investigation depends on the necessity to conclude an investigation, which will be forwarded to the prosecutor for the purpose of trial. If the investigation is suficient, detention is no longer needed, unless there is another reason to detain the suspect. 370

a. Detention period for minors

Prior to the enactment of the Law No. 11 of 2012 on the Juvenile Criminal Justice System, Article 44 of the Law No. 3 of 1997 on Juvenile Court states that the detention against a minor may only be o du ted fo da s. It a e e te ded ith p ose uto s approval for 10 days. Within the time limitation 30 days after the extension, the investigator must send the docket to the prosecutor. If the time limitaiton is exceeded and the docket is not sent, the suspect must be released from detention. Meanwhile Article 33 1 to 3 of the Law No. 11 of 2012 on the Juvenile Criminal Justice System, detention for the purpose of investigation may be conducted for 7 days at maximum. If it is necessary, the Prosecutor may approve for 8 days of extension. If the time limitation is exceeded, the minor must be released. Pursuant to Article 50 1 and 2 of the Juvenile Court Law, the detention may still be conducted by the investigation based on reasonable argument, for instance the suspect suffers from physical and mental condition, after medical examination. The detention period for this argument is set at 15 days, with possible extension of another 15 days. Sub-paragraph 5 of the said article states that after 30 days, the suspect must be released. While pursuant to sub-paragraph 6 of the same article, the suspect may file an objection against the extension of detention to the Chairman of the High Court.

b. Detention period for gross violation of human rights cases

In regards to the suspect of gross violation of human rights, Article 13 of the Law No. 26 of 2000 on Human Rights Court states that: 1. The detention for investigation purpose may be conducted for 90 days. 2. The detntion may be extended for another 90 days after being approved by the Chairman of the Human Rights Court in the respective jurisdiction 3. If the investigation is yet to be concluded, the detention may be extended for 60 days after being approved by the Chairman of the Human Rights Court in the respective jurisdiction.

c. Detention period for crime of terrorism

In regards to terrorism cases, pursuant to Article 25 of the Law No. 15 of 2003 on the Determination of the Government Regulation in lieu of a Law No. 1 of 2002 on Eradication of Terrorism as a Law, the investigator is authorized to detain a person for investigation purposes for 6 months at maximum. 370 Article 20 1 KUHAP. 32 D.3. Detention period during prosecution Pursuant to Article 25 1 of KUHAP, the prosecutor may conduct detention for 20 days and a possible 30 days of extension maximum after being approved by the Chairman of District Court Article 25 2 of KUHAP. The extension is requested by the prosecutor due to unconcluded prosecution. The maximum detention period after the extension is 60 days: 1. It is still possible to release the defendant from the detention even though the maximum limitation is not exceeded just yet Article 25 3 of KUHAP. 2. The Chairman of the District Court does not have the obligation to grant every extension request. The Court may reject such request if there is sufficient argument to reject the extension. The extension may be given according to the need for prosecution. If the Chairman of the District Court partially granted the request, the prosecutor may ask for another extension until the time limitation is fulfilled as stipulated under Article 25 2 KUHAP. 3. If the Chairman of the District Court grants the extension, it is not legal to transfer the type of detention. 4. After the time limitation is exceeded, the suspect must be released from the detention. D.4. Exception on the detention period In addition to detention period limitation, there are some exceptions under Article 29 of KUHAP, which states that the abovementioned institution that are authorized to detain a person may i ple e t a e te sio o e tha o al pe iod as stipulated u de A ti les 24, 25, 26, 27, and 28 of KUHAP. For the purpose of examination, the detention may be extended on the following conditions: i The suspect or defendat suffers from physical and mental disorder, after medical examination Article 29 1 a if KUHAP; or ii The crime is subject to nine years of imprisonment or more, as stipulated under Article 29 1 b of KUHAP. Both conditions validate the implementation of the extension. There are no other available arguments to justify the extension. An extension to detention may be implemented if the suspect or defendat suffers from physical and mental disorder after medical examination. Due to this condition, an extension that exceeds the maximum time limitation under KUHAP may be conducted. Pursuant to Article 29 KUHAP, there are two types of crime that may obtain exclusion from the maximum time limitation: 1. Crimes that subject to nine years of imprisonment or more may be excluded from maximum detention period limitation. The extension is set at 60 days for the purpose of examination 2. Crimes that subject to less than nine years of imprisonment may not obtain an exclusion from maximum detention period limitation. However, if the suspect of these crimes suffers from physica and mental disorder, an exclusion may be implemented. The exclusion of detention period limitation is stipulated under Article 29 2 of KUHAP: 1. Maximum two times of extension. If it exceeds, the suspect or defendant must be released. 33 2. Each extension may not exceed 30 days. The maximum of extension according to Article 29 of KUHAP is 60 days. 3. The extension must be given gradually, 30 days of each extension. If the first 30 days is not sufficient for the purpose of examination, then another extension may be given. 4. It is still possible to release the suspecdefendant from the detention, which depends on th urgency of the examination and the detention. If the extension has expired in 60 days, then the suspectdefendant must be released. D.5. Extension in regards to the exclusion of detention period The extension of detention is given by the authorized official, depending on the level of examination. The extension will be given after the request and report according to Article 29 3 of KUHAP: 1. During investigation and prosecution, the extension request is sent by the investigator and prosecutor to the Chairman of District Court. 2. During examination at the district court, the extension request is sent to the High Court and must be approved by the Chairman of the High Court.. 3. During appeal process, the extension request is sent to the Supreme Court. However, it is unclear whether such request must be approved by the Chief Justice. 4. During cassation, the extension request must be approved by the Chief Justice of the Supreme Court.

E. Mechanism on the objection against detention