The New Regime of Criminal Procedural Law [Part II: Criminal Procedural Enhancement and Refinement]

Coordination Between Investigators and Public Prosecutors

The Previous ICPC only required the investigator to notify the Public Prosecutor of the commencement of an investigation and did not expressly stipulate that such notification constituted the commencement of coordination between the investigator and Public Prosecutor.

The New ICPC provides that the coordination between investigator and Public Prosecutor will begin with the submission of the notice of commencement of investigation by the investigator to the public prosecutor.

Categories of the Investigator

Investigator were limited to two categories:

a.   police investigators and

b.   civil servant investigators authorized by law to conduct investigations.

The New ICPC among others:

a.   police investigator;

b.   civil servant investigators authorized by law to conduct investigation; and

c.   “certain investigators”, which includes officials from institutions other than the police or authorized civil servants who are expressly empowered by law.

Authority of Investigator

The Previous ICPC provided investigators with authority to receive reports or complaints, take initial actions at the crime scene, stop and examine suspects, conduct arrest, detention, search, and seizure, examine documents, collect fingerprints and photographs, summon witnesses, experts, and suspects, terminate investigations, and take other lawful actions.

The New ICPC expands the investigator’s authority by introducing additional powers, including:

a.   conduct coercive actions;

b.   collect fingerprints, identification, photo, and forensic data;

c.   resolve cases through restorative justice mechanism;

d.   designate a suspect as crown witness;

e.   accept a plea bargain; and

f.    conduct assessments and seek facilities and/or referrals for the special needs of women and vulnerable groups.

Authority of Public Prosecutor in Investigation Stage

The Previous ICPC did not confer broad powers on the Public Prosecutor during the investigation stage or empower the Public Prosecutor to resolve criminal cases through alternative resolution mechanisms. However, the Public Prosecutor’s authority to resolve cases through restorative justice recognized under Attorney General Regulation No. 15 of 2020 on the Termination of Prosecution Based on Restorative Justice.

Pursuant to Article 65 of the New ICPC, the Public Prosecutor’s authority significantly expanded, with the power to:

a.  terminate the prosecution with notification to the Investigator;

b.  conduct resolution through settlement fine;

c.   conduct resolution through restorative justice mechanism;

d.  conduct resolution through DPA; and

e.  accept a plea bargain.

Enhancement of Coercive Actions

Arrest

The Previous ICPC defined arrest as the temporary deprivation of a suspect’s or defendant’s liberty based on sufficient preliminary evidence for the purposes of investigation, prosecution, or proceeding, which could generally be carried out for up to one day, subject to procedural requirements, including the issuance of an arrest warrant.

Arrest

The New ICPC refines the arrest procedure by requiring at least 2 (two) evidence, extending the definition of arrest to include convicted persons, restricting the arrest powers of certain investigators unless authorized by the Indonesian National Police, requiring notification of the suspect’s family or designated person within 1 (one) day.

Detainment

The Previous ICPC provided that an order for detention or extended detention could be imposed on a suspect or defendant who was strongly suspected of committing a criminal offence based on sufficient evidence, where there were circumstances giving rise to concerns that the suspect or defendant would abscond, destroy or remove evidence, and/or repeat the criminal offence.

Detainment

The New ICPC broadens the grounds for detention, among others:

a.   failure to comply with 2 consecutive summonses without valid reasons

b.   providing inaccurate information during examination

c.   obstructing the examination process

d.   attempts to flee

e.   attempts to destroy or remove evidence

f.    repetition of criminal acts

g.   threats to the safety of the suspect or defendant upon their consent or request

h.   and attempts to influence witnesses.

Search

The Previous ICPC limited search authority to searches of houses, clothing, or bodies in accordance with the procedures provided under the law, which required investigators to obtain approval from the head of the district court to conduct searches.

Search

The New ICPC expands the scope of search authority by allowing investigators to conduct searches of houses or buildings, clothing, bodies, means of transportation, Electronic Information, Electronic Documents, and/or other objects and should the head of the district court refuse to grant approval for the search, the results of such search may not be used as evidence in the criminal proceedings.

Seizure

The Previous ICPC, with the approval from the head of the district court, investigation is allowed to seizure of objects or claims belonging to a suspect or defendant that were wholly or partly suspected to have been obtained from or resulted from:

a.   a criminal act, which objects used directly to commit or prepare a criminal act;

b.   objects used to obstruct a criminal investigation;

c.   objects specifically made or intended for committing a criminal act;

d.   and other objects directly related to the criminal act.

Seizure

The New ICPC expands the scope of objects by adding objects created from a criminal act and objects suspected to constitute proceeds of crime where the owner is unknown. Should the head of the district court reject a seizure request, the investigator may resubmit the request once. If approval for the seizure is refused, the seized objects may not be used as evidence and must be returned to the owner.

Examination of Letters

The Previous ICPC does not specify a time limit for the return of correspondence that is unrelated to the criminal case under examination.

Examination of Letters

Investigators are authorized to open, examine and confiscate letters suspected to have connection with the crime. If the letter is determined to be unrelated to the case, it must be resealed and returned within a maximum period of 2 (two) days from the completion of the examination, with a stamped ‘opened by the Investigator’ along with the date, signature, and identity of the Investigator.

New Forms of Coercive Action

The Previous ICPC did not expressly recognize interception of communications, blocking measures, or travel restrictions as coercive measures.

However, it is important to note that although the Previous ICPC did not regulate the “designation of suspect”, the Previous ICPC only defined who a “suspect” was with procedural requirements.

The New ICPC expand the scope and mechanisms of coercive action for law enforcement purposes, which there are 4 (four) newly introduced coercive action, as follows:

a.   Designation of Suspect

The designation of a suspect must be made in writing and served on the suspect within 1 (one) day of issuance. Should a suspect abscond or cannot be located, investigators may seek assistance from the media and the public to locate the suspect.

b.   Interception of Communications

the New ICPC recognize interception of communications as activities by investigators to secretly obtain personal information.

c.   Blocking Measures

New ICPC allowing investigators, public prosecutors, or judges, with court approval, to temporarily restrict the use or transfer of specified assets, accounts, transactions, or other property, which valid for 1 (one) year and may be extended twice for 6 (six) months each.

d.   Travel Restriction

New ICPC stipulate that travel restrictions may be imposed by investigators, public prosecutors, or judges in coordination with immigration authorities, in which a suspect or defendant is prohibited from leaving Indonesia for a maximum of 6 (six) months, extendable once for an additional 6 (six) months.

Rights of Suspects, Defendants, Witnesses, Victims, Disabilities and Other Vulnerable Groups

Suspects or Defendants

The rights of suspects or defendants were regulated in a fragmented manner across various provisions of the Previous ICPC. While it recognized fundamental procedural rights, it did not expressly codify several rights introduced under the New ICPC.

Suspects or Defendants

The New ICPC expands those rights by expressly recognizing, among others:

a.             the right to be informed of their procedural rights;

b.             the right to designate a representative of a foreign state to be contacted;

c.             submit a request for a restorative justice mechanism, except for crimes of corruption; and

d.             the right to seek compensation and rehabilitation.

Witnesses or Victims

The Previous ICPC only expressly provided certain procedural rights, including the right to an interpreter where necessary and the right to reimbursement of expenses incurred in attending examinations.

Witnesses or Victims

The New ICPC codifies the rights of witnesses and victims by expressly recognizing, among others:

a.    the right to legal assistance;

b.    the right to refuse self-incriminating statements;

c.    protection of personal safety and identity;

d.    freedom from intimidation and inhuman treatment;

e.    reimbursement of transportation expenses, and participation in determining appropriate protection measures.

Disabilities and Other Vulnerable Groups

The Previous ICPC only provided procedural accommodations for deaf or mute suspects, defendants, or witnesses by requiring the appointment of an interpreter or the use of written communication during court proceedings and did not expressly recognize the specific rights or procedural accommodations of persons with disabilities, women, older persons, or other vulnerable groups throughout the criminal justice process.

Disabilities and Other Vulnerable Groups

The New ICPC expressly recognizes the rights of persons with disabilities to accessible services and facilities at every stage of criminal proceedings, provides for rehabilitation or treatment measures for offenders with severe mental or intellectual disabilities, and establishes additional procedural rights and gender-responsive protections for women, as well as special procedural accommodations and protections for elderly persons.

It is important to note that the elderly persons, who are entitled to special services, healthcare, and facilities appropriate to their physical condition, and defendants aged over 75 years may be exempted from imprisonment as deemed feasible.

Pre-Trial Proceedings

The Previous ICPC limited the scope of pre-trial review to:  

a.     the legality of arrest and detention;

b.     the legality of the termination of investigation or prosecution; and

c.     claims for compensation or rehabilitation where the case was not brought before the court.

In addition, if the main proceeding had commenced before the district court while the pre-trial proceeding was still pending, the pre-trial proceeding became moot and was dismissed.

The New ICPC significantly expands the scope of pre-trial review to:

a.             the legality of coercive action; 

b.             the legality of the termination of an investigation or prosecution; 

c.             claims for compensation and/or rehabilitation for individuals whose criminal cases are terminated at the investigation or prosecution stage; 

d.             the seizure of objects or goods unrelated to the alleged criminal offense; 

e.             delays in case handling without lawful grounds; and 

f.              the suspension of detainment.

The New ICPC also provides that the main proceeding may not proceed until the pre-trial proceedings have been concluded.

Evidence

The Previous ICPC recognized five categories of evidence, among others:

a.    witness testimony;

b.    expert testimony;

c.    documentary evidence;

d.    indications (petunjuk); and

e.    the defendant’s statement.

The New ICPC expands the categories of evidence by expressly recognizing:

a.    physical evidence;

b.    electronic evidence;

c.    judicial observations; and

d.    and any other evidence that may be used for evidentiary purposes in court, provided that it has been lawfully obtained.

Termination of an investigation

The Previous ICPC permitted the termination of an investigation only where:

a.    there was insufficient evidence;

b.    the act did not constitute a criminal act; or

c.    the investigation was terminated by operation of law.

The investigator was required to notify the Public Prosecutor, the suspect, or the suspect’s family of the termination.

The New ICPC expands the grounds for terminating an investigation, among others:

a.    there is a final and binding judgment on the same matter;

b.    the limitation period has expired;

c.    the suspect has died;

d.    a complaint is withdrawn in a complaint-based offence;

e.    the case has been resolved through restorative justice;

f.     the suspect has paid the maximum statutory fine in certain offences.

The New ICPC requires investigators to notify the Public Prosecutor, the victim, and the suspect (or the suspect’s family) within one day of the termination.

Roles of Advocate and Legal Assistance

The Previous ICPC regulated the rights of legal counsel primarily in relation to suspects and defendants. Legal counsel was entitled to:

a.    communicate with and visit suspects or defendants;

b.    provide legal representation during criminal proceedings,

c.    obtain copies of investigation records for the purpose of the defence; and

d.    exchange correspondence with the suspect or defendant.

However, it did not expressly recognize advocates as law enforcement officers, prescribe their professional rights and obligations in a comprehensive manner, or extend legal assistance to witnesses, victims, complainants, or reporters.

The New ICPC expressly recognizes advocates as law enforcement officers and comprehensively regulates their rights and obligations, among others:

a.    accompany suspects, defendants, witnesses, and victims throughout criminal proceedings;

b.    obtain copies of investigation records within one day after the examination report is signed;

c.    request relevant documents and evidence, present exculpatory evidence;

d.    object to intimidation or leading questions during investigations.

The New ICPC also broadens the availability of state-funded legal assistance by extending it to indigent complainants, reporters, witnesses, and victims, in addition to suspects and defendants.

Types of Court Decision

The Previous ICPC recognized three types of court decisions namely:

a.     conviction,

b.     acquittal, and

c.     discharge from all legal charges.

The New ICPC expands the categories of court decisions by introducing two additional types of decisions, namely:

a.     judicial pardon (putusan pemaafan Hakim) and

b.     orders imposing measures (putusan berupa tindakan).

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