We discuss below the rights of a person in the unfortunate event that he or she is placed under arrest by the Indonesian police.
The Indonesian Criminal Code regulates police conduct in the conduct of criminal investigation such as treatment of accuse
It accords a number of rights to individuals who are subject to criminal investigation.
It will be useful to be able to demonstrate to the police that the individual has some awareness of criminal procedure code when dealing with a police investigator.
Ideally, you should exercise this right by asking to be accompanied by a qualified and trusted lawyer during police questioning.
Is the police obligated to inform a person under arrest of his rights?
There is no such obligation except where the crime implicated of carries a punishment of five years and above or death penalty, in which event the police is obliged to appoint legal advisor for the accused.
Otherwise, the police is not obliged to inform the accused of his rights under the criminal procedure code.
On what authority does police officer make an arrest?
An arrest has to be based on an arrest warrant and the arresting officer to produce to the arrestee an appointment letter.
The warrant can only be issued based on “sufficient preliminary evidence”. This is usually understood to mean a police complaint corroborated by one piece of evidence.
In practice, the standard is not high and there is some degree of subjectivity.
Article 17 of the Criminal Procedure Code – “An arrest warrant is carried out against a person suspected of committing a crime based on sufficient preliminary evidence.”
Article 18 sets out what information the arrest warrant should contain – identity of the accused, offense accused of, place of examination.
Right to remain silence
The right to remain silence is one of the Miranda rights always read out by police when making the arrest as can be seen in Hollywood movies.
There are two aspects to this – (a) the right to be told of what his or her rights are; (b) the right to remain silent and the right to a lawyer.
If the accused is not told of this right, he will not be aware of the existence of such right that he could exercise.
Right to remain silent is an important right given to accused so that an accused will not be under any coercion to say anything that might incriminate himself or herself.
The Indonesian psyche is different – a person questioned is expected to give a full account of himself or herself in respect of the crime accused of.
The impression might be worse if the accused choose to maintain silence in the face of questioning. The only safeguard is the right to be accompanied by a lawyer when questioned.
Why we think there is no right to remain silent?
Article 18 Criminal Procedure Code is telling as to whether there is any right to remain silent in the face of police questioning.
The arrest warrant must notify the accused of the place of examination which means the place where he or she will be subject to police questioning.
The police does not normally inform the accused of any right to remain silent when effecting the arrest with the arrest warrant setting out the place of examination. There are also news reports of individuals being detained because of refusal to answer certain questions.
Article 18
(1) The task of making an arrest shall be executed by state police officers of the Republic of Indonesia by showing their appointment letters and handing over to the suspect the arrest warrant which contains the suspect’s identity and setting out the reasons for his arrest, and brief explanation of the criminal offense accused of and his place of interrogation..
(2) If a person is arrested during commission of a crime, the arrest may be made without warrant, provided that that the arresting officer must immediately hand over the arrested and available evidence materials to the nearest investigator or assistant investigator.
(3) A copy of the arrest warrant as intended in section (1) shall be de- livered to the family of the arrested immediately after his arrest
Should I respond to police questions?
Yes but only when you are accompanied by and upon advised by a trusted and experienced lawyer. This is one of the most important right accorded by the criminal procedure code. This leads us to the next section – rights of a criminal suspect under criminal investigation.
Rights of a suspect under criminal investigation
As the police investigation progresses, the police is likely to identify certain individuals as suspects.
Individuals identified as suspects may eventually be determined as accused when the investigation is considered completed for the case file to be transferred to the public prosecutor for indictment.
“A suspect” shall be a person who, as a consequence of his/her actions or circumstance and based on the initial or preliminary evidence, is reasonably suspected to be the perpetrator of a criminal act or offence (Article 1, paragraph 14, of KUHAP).
During, criminal investigation stage, these are the rights of an accused person –
– rights to be questioned in the language that the suspect can understand
– right to be accompanied by a lawyer; and it becomes mandatory to appoint a lawyer when the offense accused of carries punishment of death penalty or imprisonment of five years or more.
Detention period
The police cannot detain a person under initial arrest for more than 24 hours following the initial arrest.
Where a person has been named a suspect, the investigator may detain him or her for up to 60 days.
Detention can be extended on request to the public prosecutor as the case progresses.
The maximum period of detention of a suspect/an accused in a criminal case is 400 (four hundred) days before a court verdict on the indictment is issued
Court indictment and trial
Typically, trial at the district court level could be up to 6 months. This comprises a series of court hearings at weekly intervals. The court should render its decision before the detention time limit passes.
Under the Criminal procedure code, the court cannot convict a defendant unless there are at least two separate supporting evidence of the commission of the crime by the accused.
See also this page re Drug Offense Indictment/Investigation
On whether breach of contractual obligation is a crime, please see this page