Overview of the criminal law system in Indonesia

Arrest and detention

If you are detained or arrested and wish to have Canadian consular officials notified, you should communicate that request clearly to the Indonesian authority that detained you. Indonesian authorities have an obligation under the Vienna Convention on Consular Relations and the Indonesian Criminal Procedural Law to advise you of your right to a consular representative. They are not, however, obliged to inform a Canadian consular post of your detention or arrest unless you ask them to do so.

Under the Vienna Convention on Consular Relations, Indonesian authorities are also required to send any communication you address to a consular post. For example, if you write a letter to the Embassy of Canada to Indonesia, that letter must be delivered. This is in accordance with your right to communicate with, and have access to, a consular official. These rights must be exercised in conformity with the laws and regulations of Indonesia, as provided in the ICPC.

If you choose to speak with Canadian consular officials, any information you give them will remain confidential, subject to the provisions of Canada’s Privacy Act. It will not normally be passed on to anyone other than the consular officials concerned with your case without your permission. However, under the Privacy Act, personal information may be disclosed in certain circumstances, such as in cases where disclosure would clearly benefit you, where the public interest in disclosure clearly outweighs any invasion of your privacy, or pursuant to a court order. Please consult the Consular Services privacy notice statement for more details.

At your meeting with a consular official, please inform him or her if the Indonesian authorities did not inform you of your right to request that Canadian officials be advised of your arrest or detention, or if at any time they denied you the right to communicate with, or have access to, a Canadian consular official.

Dual nationality is not legally recognized in Indonesia. The Embassy of Canada may, therefore, be limited in its ability to provide you with consular services if you are considered to be an Indonesian citizen. See Travelling as a dual citizen for more information.

A criminal investigation may be carried out by the police or other civil servant investigators, depending on the type of crime you are accused of. In the ICPC, a person can only be named a suspect if investigators have preliminary evidence. Investigators have the authority to gather evidence and information by means of summoning witnesses, examining documents and seizing evidence. Once the investigation is complete, the investigators will deliver a case dossier to a prosecutor. The prosecutor then has seven days to determine if the investigation is complete and can move forward. If the prosecutor determines that the investigation is not yet complete, he will return the case dossier to the police. Police investigators have 14 days from the receipt of the incomplete case dossier to complete the investigation. The law does not limit the number of times a case dossier can be returned to investigators for more work; in theory, this process could drag on for many months before the prosecutor determines the case dossier is complete.

After the prosecutor determines that the investigation is complete, he will submit a letter of indictment to the court authorized to hear the case.

As stated, the Indonesian criminal law system does not have preliminary hearings to determine if there is sufficient evidence for a trial. You can, however, challenge your investigation, arrest or detention by applying for a pre-trial hearing. The pre-trial hearing must begin within three days of the receipt of the application and a decision must be rendered, at the latest, seven days after the start of the hearing. Before you decide to apply for a pre-trial hearing, you should consult with your legal counsel on how a pre-trial hearing works and what effect it may have on your investigation.

There is no bail system in Indonesia; however, investigators, prosecutors and judges, in accordance with their respective authorities, can grant a suspension of detention. The suspension of detention may be granted with or without seizure of your Canadian passport, collateral or assurance, as applicable.

Court hearings are conducted in the Indonesian language. You will, however, be provided a sworn translator to interpret the proceedings. In the first hearing of a criminal trial, the panel of judges will confirm your identity as it was stated in the letter of indictment. After you have confirmed your identity, the prosecutor will be told to read out the letter of indictment. You will then be asked if you understand the crimes you are being charged with. If you do not understand the charges against you, the prosecutor will be asked by the panel of judges to provide the required explanation.

You will then be given the opportunity to object to the letter of indictment, specifically to the court’s authority to adjudicate the matter and whether the letter of indictment should be accepted by the court. You can submit your own objection, your legal counsel can submit one, or both you and your legal counsel can submit objections. While the objection technically should not discuss the merits of the case, in practice the opportunity to object to the letter of indictment serves as a preliminary statement of defence.

After receiving an objection, the panel of judges will render an interim decision on whether the trial should proceed. If the judges continue with the examination of the case, they will ask the prosecution to present its evidence.

The ICPC recognizes the following as valid evidence:

• Witness testimony
• Expert opinions
• Written evidence
• “Indication” (this is the consistency between different pieces of evidence, such as the consistency between a witness’ statement and an expert’s statement)
• Defendant’s testimony

The examination of evidence follows the order of recognized evidence, above. The prosecution presents its evidence first, followed by the defence. The defendant’s testimony will be the last evidence heard by the court. Only the statements and testimony of witnesses and experts provided in court and under oath will be considered by the judges. A defendant will not be under oath when being examined in the court, and a defendant has the right to not incriminate himself or herself during a court hearing.

After the examination of the evidence, the prosecution will read out its letter of prosecution, which is in essence a closing argument that also contains the sentence being sought for the defendant. The defence will then be given the opportunity to submit its “pledooi” or statement of defence. After all the submissions, the panel of judges will deliberate before rendering a decision.

Note that all written submissions will also be read aloud in court.

There is no time limit on trials under the Indonesian Criminal Procedural Law. Normally, a trial at the district court level will last no more than six months. Sessions in a court trial are not held daily, and there is typically a week’s break between court sessions, though that varies. There are several other factors that can affect the length of a trial. One such factor is that if the defendant is being detained, the court will render a decision before the detention period lapses.

The court must not convict a defendant unless there are at least two sources of valid evidence that a crime has been committed and that the defendant is guilty.

A district court decision can be appealed to the high court. The appeal must be filed within seven days after the decision is read out or made known to the appealing party. The party filing an appeal is not required to submit a memorandum of appeal, nor is the other side required to submit a counter memorandum of appeal. There are no court hearings for an appeal. The high court will examine the case dossier and appeal memorandums, if any. There is no time limit for the high court to render a decision, but if the defendant is still being detained, the high court will in practice render a decision before the detention period lapses.

After the high court issues a decision on the appeal, the aggrieved party may submit another appeal to the Supreme Court. The application for such appeal must be made at least within 14 days from the date the party filing the appeal receives a copy of the high court decision. Unlike at the high court, a memorandum of cassation must be submitted within 14 days, at the latest, from the day the appeal is submitted to the Supreme Court. The memorandum of cassation must contain valid grounds for the appeal. Where the high court examines the legal facts (judex facti) and/or the application of the law (judex juris) in deciding on an appeal, the Supreme Court only examines and issues a decision on the application of the law (judex juris).

A Supreme Court decision is final and binding, meaning that the verdict can be immediately executed. There is, however, an extraordinary legal remedy still available to the aggrieved party, which is a judicial review to a different panel of judges of the Supreme Court. Grounds for filing a judicial review are limited to new evidence (novum), contradictory legal consideration in the court’s judgment and/or an evident mistake by the judges hearing the case.

At each step of the appeals process, there is a chance that the court will increase the sentence. That is why it is important to consult with your legal counsel regarding the available legal remedies at every stage of the legal process.

Canada and Indonesia do not have a bilateral transfer of offender treaty (TOOT). However, it may still be possible to request a transfer to a Canadian prison under Canada’s International Transfer of Offenders Act (ITOA). The ITOA allows the minister of foreign affairs, with the consent of the minister of public safety, to enter into an administrative agreement with the foreign entity when there is no TOOT in force between Canada and the foreign entity.

Should you have any questions about the application process, you may also contact Correctional Service Canada directly:

International Transfers Unit
Correctional Service Canada
340 Laurier Avenue West
Ottawa, ON K1A 0P9

Tel.: 613-947-9708
Fax: 613-952-7676

Email: internationaltransfers@csc-scc.gc.ca

Indonesia actively practices death penalty for serious criminal offences. In 2015 alone, the Government of Indonesia carried out 15 death sentences. Crimes that may result in the death penalty are terrorism, premeditated murder, corruption and drug trafficking.

If you have been charged with or convicted of a crime punishable by death, you should consult your lawyer and speak to a Canadian consular official. The Government of Canada opposes the use of the death penalty in all cases, everywhere, and will undertake clemency intervention in your case. Clemency intervention is defined as any diplomatic effort, at any stage of the process after detention, aimed at avoiding imposition of or carrying out the death penalty.

• Canadian Consular Services Charter
• A Guide for Canadians Imprisoned Abroad
• Bon Voyage But… Essential Information for Canadian Travellers
• Country Advice and Advisories for Indonesia
• Embassy of Canada to Indonesia

 

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