Updated: Jun 15, 2020
Bali is currently one of the main tourist destinations of foreign tourists in Indonesia. In 2019 alone, Bali recorded 6,298,852 tourists’ arrivals with 19.53% of the tourist were from Australia. However recent trends over the past 10 years have seen a dramatic increase in tourism to other areas of Indonesia. This spreading of tourism is creating a new set of problems associated with crime in these new tourist areas. As we have already discussed, President Jokowi’s is trying to create 10 New Bali’s across the nation and with it are reports of increased crime.
As you can imaging, Indonesia has a high crime rate and surprisingly, Indonesia has one of the highest rates of crime committed by foreigners in the world. Today, however, we want to explain the complicated Indonesian judicial system so you can understand it in a simple way.
If you are ever charged with a crime in Indonesia, this guide will help you understand what will happen at each different stage of the process.
The criminal procedure in Indonesia is known as Kitab Undang-Undang Hukum Acara Pidana (KUHAP)and was created under Act no 8 of 1981.
Steps of Indonesian Criminal Procedures
5. Pre-trial proceedings
6. Trial Procedures
This article will look at the first 2 steps of the procedure.
If you are arrested in Indonesia this means you are suspected of committing a crime. According to article 1 number of The Law of Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana – KUHAP), a suspect is a person who by virtue of his deeds or his condition, on the basis preliminary evidence can reasonably be presumed to have committed an offense.
The police must produce a warrant upon arrest
The arrest warrant must contain with the suspect’s identity and states the reasons for arrest and brief explanation of the criminal case of which he is suspect and the place where he is to be examined.
If the police cannot show the warrant, you have the right to resist the arrest.
Be prepared to be forced to accompany the police even when they arrest you without a warrant.
We suggest you follow the police’s instructions are all times in a calm and respectful way.
If you are caught at the time committing a crime, or immediately after the time the crime was committed, or shortly after people has exclaimed that you committed it, then the police don’t need the arrest warrant.
The police catch you using drugs at party or smoking weed in the street in Bali or you get caught smuggling illegal drugs at the airport in Bali, then the police don’t need an arrest warrant. They can arrest you and brought you to the police station.
Rights of a suspect under arrest
Unfortunately the Indonesia legal system does not have the Miranda Rights, however, we can find several principles similar to Miranda Rights as regulated in the following chapters of the Criminal Law:
1. Upon arrest, the police must show the suspect the warrant that contains the suspect’s identity and brief explanation of the crime of which he / she is suspected of committing (Article 18 verse (1) KUHAP)
2. The suspect must be clearly informed in the language which he /she understands what crime they are suspected of committing to allow the accused to prepare their defence (Article 51 KUHAP)
3. During the examination stages of investigation, the suspect or the accused must have the right to freely give information to investigator or judge (Article 52 KUHAP)
4. For defence purposes, a suspect shall have the right to obtain legal assistance from a lawyer(s) during the period of, and at every stage of examination (Article 54 KUHAP)
5. In order to obtain a lawyer, the suspect has the right to choose his own lawyer (Article 55 KUHAP)
6. For crimes that carry the death penalty or a prison sentence of 15 years or more, a suspect / accused person must be represented by legal counsel. If the suspect cannot afford their own legal counsel, the court will provide legal counsel free of charge. (Article 56 KUHAP)
7. A suspect or an accused who is detained has the right to contact his lawyer and if they are a foreign national, they must have the right to contact and speak with their countries embassy / consulate (Article 57 KUHAP)
After the investigator finishes questioning the suspect for the alleged crime, the suspect must be released within one day of arrest (1x 24 hour), unless the investigator, prosecutor or judge orders a detention.
There are 3 (three) reasons for investigator to be able to detain a suspect :
· The suspect might will flee – either the village, town, region, country
· Destroying physical evidences
· Repeating the crime
However, detention can only be imposed on suspects who has committed a crime which has a prison sentence of five or more years.
Period of detention?
The period of detention for each stage of investigation has different timeframes according to KUHAP, as below:
Types of Detention
· Detention in a state detention house
· House arrest
· City arrest
Can you ask the postponement of detention ?
Yes, you or your family can request a postponement of detention to the investigator with or without bail money or personal guarantee.
What if you are detained unlawfully?
You can challenge your arrest or detention by applying for a pre-trial hearing. This process is handled by your lawyer.
In the Part 2, I will explain about how you can request a pre-trial hearing and the rest of steps in criminal judicial procedures.
See you soon….
Law No. 8 of 1981 The Law of Criminal Procedure : http://bphn.go.id/data/documents/vcv.pdf