Pretrial detention under RKUHAP 2012

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C. Pretrial detention under RKUHAP 2012

Under RKUHAP 2012, there is a fundamental change regarding the detention during investigation and prosecution phase. The change is not merely on the procedure to extend a detention, but also the timeframe of detention during investigation phase. C.1. Detention authority Under RKUHAP 2012, detention is a placement for a suspect or defendant in a specific place by the official that is authorized to detain under the law. 223 Therefore the authority to detain is shared between the investigator, prosecutor, preliminary examination judge, district court judge, up to the Supreme Court, in accordance with the level of process. At the i estigatio legel, the i estigato has the dut a d autho it : …d. o du ti g a est, detention, search, foreclosure, documents examination, and interception; 224 for the purpose of examination during investigation, the investigator is authorized to detain a suspect 225 and in one day after detention, the suspect must be examined by the investigator. 226 The suspect, his family, or his legal counsel may request a challenge to the detention. 227 Investigator may approve such request by considering the necessity of detention. 228 If within three days such request is not approved by the investigator, the suspect, his family, or his legal counsel may submit su h e uest to the i estigato s supe io , 229 who also may approve the request by considering the necessity of the detention. 230 Investigator or his superior may approve the request with or without requirements. 231 The prosecutor has the duty and a utho it : …e te di g a dete tio fo da s, e uesti g a signature for detention order from preliminary examination judge; requesting a signature for detention order from district court judge, appointed by the head of district court; and requesting a det e tio suspe sio to p eli i a e a i atio judge o dist i t ou t judge… . 232 If the prosecutor detains a person during an investigation phase for more than 5 days, it needs an approval from: a. the Head of Regional Prosecutor office, if the detention is arranged by the Regional Prosecutor Office; b. the Head of High Prosecutor office, if the detention is arranged by the High Prosecutor Office; and c. the Director of Prosecution at the Attorney General Office. 233 For the purpose of examination at investigation phase, preliminary examiantion judge hakim pemeriksa pendahuluan - HPP upon request from the investigator, is authorized to approve detention extension. 234 At the prosecution level, the approval for detention will be given by the 223 Article 1 21 RKUHAP. 224 Article 7 1 RKUHAP. 225 See Article 58 1 RKUHAP. 226 See Article 27 RKUHAP. 227 See Article 28 1 RKUHAP. 228 See Article 28 2 RKUHAP. 229 See Article 28 3 RKUHAP. 230 See Article 28 4 RKUHAP. 231 See Article 28 5 RKUHAP. 232 See Article 42 1 d ,e, f, and g RKUHAP. 233 See Article 58 2 RKUHAP. 234 See Article 58 3 RKUHAP. 91 district court judge upon request from the prosecutor. 235 At trial level, the judge that handles the case is authorized to arrange the detention. 236 C.2. Detention requirements A detention may only be arranged based on the detention warrant or judge determination to a suspect or a accused who committed a criminal act andor has attempted or abetted such criminal act in which: a. the criminal act is subject to imprisonment of five years or more; b. the criminal act is as intended in Article 282 paragraph 3, Article 296, Article 335 paragraph 1, Article 351 paragraph 1, Article 353 paragraph 1, Article 372, Article 378, Article 379a, Article 453, Article 454, Article 455, Article 459, Article 480 and Article 506 of the Criminal Code. 237 A suspect or accused that does not have a permanent domicile, may also be detained, even though it does not fulfill the critearia under paragraph 1. 238 A detention may only be arranged based on detention warrant or judge determination, which must stipulate: a. identity of the suspect or the accused; b. reasons for detention; c. brief explanation on the criminal act; and d. The detention place. 239 Within 1 day at maximum since the detention, a copy of the warrant must be sent to: a. suspe ta used s fa il ; b. head of the village where the suspectaccused was arrested; c. a person who is appointed by the suspectaccused; andor d. suspe ta used s o a der, in case the suspectaccused is a member of the Indonesian National Army. 240 C.3. Detention timeframe Detention for the purpose of examination at investigation phase, is arranged for 5 days at maximum by the investigator, and may be extended for another 5 days by the prosecutor. During detention, the investigator may submit a written request to extend the detention to the preliminary examination judge HPP, and send a copy to the prosecutor. After receiving such request, HPP must notify and explain the suspect via letter or direct visit, ega di g: a. the ha ges; . suspe t s ights; a d . dete tio e tension. HPP will determine whether a detention extension is necessary or not. If it is necessary, the extension will apply for 20 days at maximum, and HPP must notify this to the suspect. 241 If another extension is needed for the purpose of: a. investigation, district court judge will arrange a detention upon the request of investigator for 30 days at maximum; 242 and b. prosecution, district court judge will arrange a detention upon the request from the prosecutor, for 30 days at maximum. 243 These may be extended for another 60 days upon request from the prosecutor. 244 If the detention period expires, the investigator and prosecutor must release the suspect. 235 See Article 58 4 RKUHAP. 236 See Article 58 5 RKUHAP. 237 See Article 59 1 RKUHAP. 238 See Article 59 2 RKUHAP. 239 See Article 59 3 RKUHAP. 240 See Article 59 4 RKUHAP. 241 See Article 60 1 RKUHAP. 242 See Article 60 8a RKUHAP. 243 See Article 60 8b RKUHAP. 244 See Article 60 9 RKUHAP. 92 District court judge may also issue a determination on detention for 30 days at maximum. 245 For the purpose of unconcluded examination, such detention may be extended by the Head of District Court for another 30 days at maximum. 246 This extension may be extended once again, by the Head of District Court for 30 days at maximum. 247 If the examination is concluded, the accused may be released from detention before the detention expires. 248 If the detention exceeds this timeframe, the accused must be released, even though the examination is yet to be concluded. 249 Similar rule applies to the examination at the appeal, where such authority is given to the appeal court judge, and the extension authority is given to the Head of Appeal Court. 250 Justice is also authorized to issue a determination on detention for the purpose of examination at cassation level, for 30 days at maximum, 251 which can be extended by the Chief Justice of MA for 60 days at maximum. 252 If the examination is concluded, the accused may be released from detention before the detention expires. 253 If the detention exceeds this timeframe, the accused must be released, even though the examination is yet to be concluded. 254 Under 2012 draft, detention is only arranged at State Detention House, and no longer incorporates house arrest and city jail. 255 Arrest and detention period will reduce the verdict. 256 The duration of detention may not exceed the maximum penalty. 257 If the HPP determines that the detention is illegal, the suspect is entitled to a compensation. 258 C.4. Challenge against detention RKUHAP 2012 allows the suspect to challenge a detention that is conducted by the investigator. 259 This right is executed by filing a challenge against the detention to the investigator that arranges it. 260 Investigator may approve such request by considering the necessity of detention. 261 If within three days such request is not approved by the investigator, the suspect, his family, or his legal ou sel a su it su h e uest to the i estigato s supe io . 262 The challenge must be filed within the detention period, which is 5 days, otherwise, such challenge may not be conduced. I estigato s supe io may approve the request by considering the necessity of the detention. 263 Investigator or his superior may approve the request with or without requirements. 264 245 See Article 61 1 RKUHAP. 246 See Article 61 2 RKUHAP. 247 See Article 61 3 RKUHAP. 248 See Article 61 4 RKUHAP. 249 See Article 61 4 RKUHAP. 250 See Article 62 1, 2, 3, and 4 RKUHAP. 251 See Article 63 1 RKUHAP. 252 See Article 63 2 RKUHAP. 253 See Article 63 3 RKUHAP. 254 See Article 63 4 RKUHAP. 255 See Article 64 1 RKUHAP. 256 See Article 64 2 RKUHAP. 257 See Article 66 RKUHAP. 258 See Article 65 1 RKUHAP. 259 This right has been stipulated on 2008 KUHAP draft. 260 See Article 28 1 RKUHAP. 261 See Article 28 2 RKUHAP. 262 See Article 28 3 RKUHAP. 263 See Article 28 4 RKUHAP. 264 See Article 28 5 RKUHAP. 93 C.5. Detention postponement Upon request from the suspect or the accused, HPP or district court judge may suspend a detention with bail. 265 HPP or district court judge, upon request from the prosecutor, may also revoke such suspension, if the suspect or the accused violates the suspension requirements. 266 Against the detention suspension, the prosecutor may challenge such suspension to the competence Head of District Court. 267 During the challenge from the prosecutor, the accused is still detained, until the Head of District Court issue a determination. 268 If the Head of Dist i t Cou t app o e the p ose uto s halle ge, the judge ust issue a dete tio order, within 1 day after the determination from the Head of District Court. 269 The period between detention suspension and re-detention will be not calculated as detention period. 270 C.6. Treatment during detention If during detention at the investigation, prosecution, or trial phase the suspect or accused is ill and needs hospital treatment, there may be a treatment for him pembantaran, and this period is not counted as detention period. 271 During pembantaran, the suspectaccused will be under the supervision of investigator, prosecutor, or judge. 272

D. Overseeing pretrial detention: highlighting preliminary examination judge under RKUHAP