INDONESIA CRIMINAL COURT SYSTEM AND ITS INFLUENCE TO

FOREIGN NATIONALITY ESPECIALLY IN REGARDS TO FOREIGN

NATIONALITY CRIMINAL SUSPECT IN CUSTODY
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I. PREFACE

Criminal Law has an important role in a law system of a state in order

to arrange one legal order community. Every state has its own law to
manage its criminal matters. Criminal law is a public law, whereas the
private law is related to person-to-person matter. As in Europe, in the
beginning Indonesia did not make separation between the private law
and the public law. Gradually, we recognized the public law, including
the criminal law as the law that aims for community interest. If there
is a wrongful act committed by a person, then the state will use its
authority to take action against it. Personal interests such as
compensation will be put aside, while the public interest is a priority,
that is criminal sanction is sentenced.

Subject of Matter:
The question is, how if a foreign nationality commits a wrongful act or
suspected/accused for a crime in Indonesia. What are the rights of the
foreign nationality criminal suspect under Indonesian law?
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II. THE LAW AND LAW SYSTEM IN INDONESIA

II.1. General Definitions on Law and Law System in Indonesia

Indonesia is a law basic state (rechtsstaat), not a power basic state

(Machtsstaat). This means that the state, including the government
and the government institutions, has to perform its duties based on
law and that perform could be accounted by law.

Before going any further, it is best to know the definition of the law
itself. Abdulkadir Muhammad, S.H. defines law as:

“Law is both written and unwritten act that has a distinct sanction for
those who break it.”

According to J.C.T. Simorangkir, S.H. and Woerjono Sastropranoto,

S.H., law is:

“Law is a forcing regulations, which determine the human behavior in

a community, made by the official body, violations which subjected to
certain law act.”

In general, law can be interpreted as a compilation act, which made by

the state authority to rule the community. Law has a forcing power by
dropping a sentence for those who break it. The form of law can be in
materiel as well as procedural law (formal), final decisions with legal
effects (inkracht) that will be collected on The Compilation of Supreme
Court Jurisprudence and government policies. These regulations above
are backing one another concerning lex specialist derogate lex
generale principle.

Due to the above explanation, the elements implied on the definition

of law are as follows:

1. Laws are made by the authority;

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2. Has the purpose to social life;

3. Has the element of commanding and forbiding;

4. Has the forcing power and must be obeyed.

Indonesia are known as a nation based on law and submitted to the

European Continental Judicial System. According to the third edition
Indonesian Dictionary 1990, system is an ordered assemblege of
elements that are tide each other which could form a totality.
Indonesian law principle commits itself to a particular system from all
the systems in the world, which is a European Continental System that
historically adopted the Dutch Continental European System in 1512,
when the Dutch spread its power to Indonesia. Due to the above
cause, Indonesia recognizes the Compilation of Criminal Law (KUHP)
and the Compilation of Civil Law (KUHPer/Burgerlijke Wetboek) whose
system and principles adhere to the European Continental System or
Civil Law.

This system submits to legality principal as other countries whose

system is similar. The definition of the legality principle is “one could
not be charged without existing regulations”. Hence, the authority or
the government could not adhere their decisions only based on the
power delegated for them but must made the law as their first priority.
Then in a making of a decision will not overlaping with the existing
laws.

Each system has the negative and positive points, whereas Indonesia
had adjusted the system, the negative points had been lessened with
a shift in its system. Whether it is only a slight shift but for the sake of
justice it must be taken in order to balance the globalisation.
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II.2. Purpose of Law and the Law System in Indonesia viewed

from the Criminal Law in Indonesia

After discussing the law and the law system in general in our previous
chapter, we have known the definition of law and the law system. In
general could be also known what is the law system which applied in
Indonesia. Furthermore, we are going to review the general purpose of
the law itself from the law scholars’ point of view.

According to Apeldoorn “purpose of law is to regulates the social life

in peace and justice.” While Prof. Soebekti defines the purpose of law
as, “the purpose of law is to commit to the purpose of the state where
in essential could invite a prosperity and the happiness of the nation.”1

From those theories above we could concluded that the purpose of law
itself was one of the reason why Indonesia is one of the country based
on law, in order for the government or the authority could adhere
themselves to law in their function as the regulated of the state in
every aspect of life to create the orderly nation. If this aim has been
achieved, then the final purpose of the state could be achieved as well
in every form of goodness in a fair distribution.

That means, a country (including its government and its institution in

conducting its task and function) must be accorded to law. Indonesia
also has the Constitutional System, which means the work of the
government is based on Constitutional System, not based on
absolutism (absolutismus).

It explains that the government is restricted by the constitutional law,

and of course including other laws and regulations which are the
constitutional product as GBHN, acts, etc.2

In connection to criminal law, Indonesia as a law based country, in

solving criminal problems has its own materiel law and procedural law
1
http://www.asiamaya.com/konsultasi_hukum/ist_hukum/definisi_hukum.htm
2
http://www.asiamaya.com/konsultasi_hukum/ist_hukum/sumber_tatahukum.htm
 6

which regulated in KUHP as the source of criminal law and KUHAP as

the source of the criminal procedural law.

Regarding to criminal law in Indonesia, we have to recognize the

judicial system in Indonesia.

INDONESIA JUDICIAL SYSTEM

The Indonesian Judicial system is composed of five types of lower

courts, and a Supreme Court. The lower courts include: General Courts
(consisting of two levels: the State District Court and State High
Court); Military Courts (consisting of two levels, the Military Court and
Military High Court); Administrative Courts (consisting of two levels,
the Administrative Court and the Administrative High Court); Religious
Courts (consisting of two levels, the Religious Court and the Religious
High Court); and the Commercial Court (a specialized court for hearing
insolvency cases with the possibility of appeal to a special bankruptcy
tribunal of the Supreme Court). The Supreme Court is the highest
judicial tribunal and the final court of appeal in Indonesia. The Courts
are independent from the executive and legislative arms of the
government.3

In relation with criminal law, General Court has the rights to settle
criminal cases in Indonesia. Before that, there were procedures that
should be taken through other legal jurisdictions such as the Police and
Prosecutor in Indonesia.

CRIMINAL LAW PRINCIPLES IN INDONESIA

3
http://www.lgslaw.co.id/legalsys.asp
 7

There are 4 applicable principles in criminal law.

1. Territoriality Principle

The criminal law of one country is only valid in its territory. It is an

old and primary principle. It means that anyone who commits
wrongful act in a territory must obey the law which valid in that
country. The person, who commits the wrongful act, does not have
to be phisically in Indonesia but the wrongful act (strafbaar feit) is
committed in Indonesia. This territoriality principle is regulated in
Article 2 KUHP.

2. Passive nationality principle or protection principle

Criminal law in one country is also valid to the wrongful act

committed in overseas, if there is any particular interest of one
country is violated outside the territory. It means, the protection is
not given for individual but for the national interest. If an
Indonesian nationality were a victim of a wrongful act commited by
a foreign nationality inside the territory of a foreign country, then
the Indonesia criminal law could not be applicable. The passive
nationality principle or the protection principle regulated in Article 4
section 1, 2 and 4 KUHP.

3. Individuality principle or Active nationality principle

Individuality principle focuses on the nationality of the criminal. It is

not a problem whether the crimes is threatened by the criminal law
of the country where such crime has been commited. It is viewed
necessary that a crime, which threatened the interest of Indonesia,
had to be convicted, although such crime is not regulated in the
criminal law of the foreign country.

4. Universality principle
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Criminal law is general in effect; it is beyond the border of the

territory of law of Indonesia. The object of protection is the global
interest. A crime, according to this principle, is highly vulnerable
and could not be seen only from Indonesia’s interest, but also for
the interest of the world. Universally, this crime is viewed to be
prevented and eliminated. In this situation, judicial power is
absolute due to the jurisdiction of a court is no more dependent on
the wrongful act commited or the domicille or the nationality of the
defendant.

Basically, Indonesia submit to the teritoriallity principle as regulated in

Article 2 KUHP which stated as follow:
“The Criminal Law of Indonesia is valid for anyone commits the
wrongful act (strafbaar feit) inside the territory of Indonesia”

Hence, it has been determined that the Republic of Indonesia submit

to the territoriality principle, meaning, anyone commits a wrongful act
inside the territory of Indonesia will be proceeded by Indonesian law.

This principle, in essence, based on the sovereignty of the country in

its own territory. Criminal law is valid for anyone who commits a crime
in its territory. It is an obligation to a country to maintain the law and
order in its own territory on any person.

Territory consists of land, sea, as far as 12 mil, and air space above it.
Particularly for Indonesia submitted the archipelago concept, which
stated wheras all the sea territory between the archipelago is one
territory of Indonesia. It means, land and sea territory of Indonesia
Indonesia is 12 mil measured from the outer islands of Indonesia.
Certainly, it includes the air space above it. There is an exception if the
sea gap between the outer Islands of Indonesia and the neighbour
country is less than 24 mil, i.e. Malacca Strait between Indonesia and
Malaysia, the border is in the middle. This archipelago concept is
 9

regulated in Act No. 4 (prp) Year 1960, afterwards strengthened by

MPR Decision Year 1973 regarding GBHN.4

Article 3 KUHP expand the effectiveness of territoriallity principle by

viewing the Vessel of Indonesia as the territory where the criminal law
is valid.5

4
Andi Hamzah, Asas-Asas Hukum Pidana, Jakarta: Rineka Cipta, 1991, halaman 53.
5
Ibid.
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III. SUSPECT, DEFENDANT AND CONVICT

We have to differ between the suspect, defendant and the convict as

explain below.

A Suspect is a person who because of his act or condition, on the

basis of initial proof can reasonably be suspected of being a
perpetraitor of a criminal act. A suspect could not be sentenced guilty
or not guilty.6 Article 8 Act No. 14 Year 1970 regarding regulation on
Judicial Power submit to the principle of Presumption of Innocence,
which in essence a person must be regarded not gulity until the verdict
has been made.

Based on Article 1 point 15 KUHAP a Defendant is a suspect who is

prosecuted, examined and tried at a court session.7

A Convict is a person convicted on the basis of a court’s decision

which has acquired a permanent legal force. And because of it, he will
be sentenced a sanction comparable to the crime commited

Suspect or defendant is given their rights by the law and if the rights
are violated, it means the human right has been violated as well.
The rights of the suspect and defendant are as follow:
1. Examined immediately (Article 50 section (1))
2. Have his case submitted to the court immediately (Article 50
section (2))
3. Immediately tried by a court (Article 50 section (3))
4. Preparing a defence (Article 51 point a)
5. Informed in a language that he understands about the charge
brought against him (Article 51 point b)

6
Darwan Prinst, Hukum Acara Pidana dalam Praktek, Jakarta: Djambatan, 1998, halaman 14.
7
Ibid
 11

6. Freedom to give information (Article 52)

Any form of violation or intimidation are forbidden.
7. Have an assistance of an interpreter (Article 53 section (1))
8. Legal aid for the deaf and/or the dumb (Article 53 section (2))
9. Legal adviser (Article 54 dan 55)
10. Will be appointed a legal adviser for one whose not capable
(Article 56)
11. Contact his legal adviser (Article 57 section (1))
12. Contact and speak to his country representative (for a foreign
nationality) (Article 57 section (2))
13. Visited by his personal doctor (Article 58)
14. Informed about his detention by the competent official (Article
59)
15. Contact and be visited by his family or relatives (Article 60 dan
61)
16. Sending and receiving letters (Article 62)
17. Contact and receive the visit of a spiritual councellor (Article 63)
18. Tried at a court session which is open to the public (Article 64)
19. Seek and submit a witness (Article 65)
20. Not burdened with the duty of providing evidence (Article 66)
21. Appeal against a decision of the court of first instance and the
higher court (Article 67, 233-243, 244-258, 263-269)
22. Demand for compensation and rehabilitation (Article 68)
23. Right to obtain the copy of the report on the examination (Article
72)

Articles which guarantee the rights of the detainee in Indonesia could

be found in KUHAP (The Compilation of Indonesian Criminal law
dalam) as follow:
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Article 50

(1) A suspect has the right to be examined immediately by an

investigator and to have his case further referred prosecutor.

(2) A suspect has the right to have his case submitted to court
immediately by the public prosecutor.

(3) A defendant has the right to be immediately tried by a court.

Article 51

To prepare defense:

a. A suspect has the right to be clearly informed in a language he

understands about what has been presumed about him at the star of
an examination,

b. A defendant has the right to be clearly informed in a language he

understands about the charge brought against him.

Article 52

In an examination at the level of t he investigation and trial, a suspect

or defendant has the right to freely give information to an investigator
or judge.

Article 53

(1) In an examination at the level of investigation and trial, a suspect

or defendant has the right every time to have the assistance of an
interpreter as intended in Article 177.

(2) In case a suspect of defendant is deaf and/or dumb, the provision

as intended in Article 178 shall apply.
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Article 54

In the interest of defence, a suspect or defendant has the right to get

legal assistance from one or more legal adviser during the period and
at every level of examination, according to the procedure determined
by this law.

Article 55

In order to get legal adviser as mentioned at Article 54, a suspect or

defendant has the right to choose his own legal adviser.

Article 56

(1) In case a suspect or defendant is suspected of or charged with

having committed a criminal act which is liable to a death sentence or
prison term of fifteen years or more or for those who are nor capable
who are liable to a prison term of five tears or more while they have
no legal advisers of their own, the official concerned at all levels of
examinations in the trial process is obliged to appoint a legal adviser
for them.

(2) Every legal adviser who is appointed to act as intended in section

(1), shall give his assistance free of charge.

Article 57

(1) A suspect or defendant who is detained has the right to contact his
legal adviser in accordance with the provisions of this law.

(2) A suspect or defendant of foreign nationality who is detained has

the right to contact and speak with a representative of his country in
facing the process of his case.
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Article 58

A suspect or defendant who is detained has the right to contact and to

be visitted by his personal doctor in the interest of his health, whether
or not this has any connection with the process of his case.

Article 59

A suspect or defendant who is detained has the right to have his family
or other people living in the same house as the suspect or defendant
or other persons whose assistance is needed by the suspect or
defendant to provide legal assistance or guarantee for his bail,
informed about his detention by the competent official, at all levels of
examination in the trial process.

Article 60

A suspect or defendant has the right to contact and be visited by those

who have family or other relationships with the suspect or defendant
in order to get guarantees for their bail or to secure legal assistance.

Article 61

A suspect or defendant has the right, directly or through his legal

adviser to contact and receive the visits of his relatives for matters
which have no connection with the case of the suspect or defendant, in
the interest of work or that of family relationship.

Article 62

(1) A suspect or defendant has the right to send letters to his legal
adviser, and to receive letters from his legal adviser and relatives
everytime he needs them, for which purpose stationery shall be
provided for the suspect or defendant.
 15

(2) Correspondence between a suspect or defendant and his legal

adviser or relatives shall not be censored by an investigator, public
prosecutor, judge or state penitentiary official, except when there is
enough reason to presume that correspondence is being abused.

(3) In case a letter for a suspect or defendant is censored or examined

by an investigator, public prosecutor, judge or official of a state
penitentiary, the suspect or defendant shall be informed about it and
the letter sent back to the sender after being marked “censored”.

Article 63

A suspect or defendant has the right to contact and receive the visit of
spiritual counsellor.

Article 64

A defendant has the right to be tried at a court session which is open

to the public.

Article 65

A suspect or defendant has the right to seek and submit a witness

and/or a person with special expertise to provide information which is
favourable to him.

Article 66

A suspect or defendant shall not be burdened with the duty of

providing evidence.

Article 67

A defendant or public prosecutor has the right to appeal against a

decision of the court of first instance except against a decision of
acquittal, absolution from a legal charge and court decisions in a
lightening session.
 16

Article 68

A suspect or defendant has the right to demand for compensation and

rehabilitation as arrange in Article 95 and so forth.
 17

Article 69

A legal adviser has the right to contact a suspect since the moment af
his arrest or detention at all levels of examination according to the
procedure determined in this law.

Article 70

(1) The legal adviser as intended in Article 69 has the right to contact
and speak with t he suspect at every level of examination and at every
time in the interest of his case defence.

(2) If there is proof that said legal adviser abuses his right in his
discussion with the suspect, then in line with the level of examination,
the investigator, public prosecutor or prison official shall give an
admonition to the legal adviser.

(3) If the admonition shall not be heeded, then the relationship shall
be closely watched by the officials mentioned in section (2).

(4) In after being closely watched, the abuse of right continues, the
relationship shall be considered by the official mentioned in section (2)
and banned if violation continues.

Article 71

(1) A legal adviser, in line with the level of examination, in his relation
with a suspect shall supervised by the investigator, public prosecutor,
or prison officer without listening to the content of their discussion.

(2) In a case involving crime against the security of the state, the
officials mentioned in section (1) can listen to the content of the
discussion.
 18

Article 72

At the request of a suspect or his legal adviser, the official concerned

can provide him with a copy of the report on the examination in the
interest of his defence.

Article 73

A legal adviser has the right to send and receive a letter from a
suspect anytime he wants.

Article 74

The restriction of freedon in the relationship between a legal adviser

and a suspect as mentioned in Article 70 section (2), section (3),
section (4) and Article 71 is prohibited, after the case in question has
been delicated by the public prosecutor to the district court for trial,
for which a copy of the letter shall be submitted to the suspect or his
legal adviser and the other parties concerned in the process.

Article 117

(1) Information by a suspect and/or witness to an investigator shall be

given without pressure from whomsoever and/or in any form
whatsoever.

(2) In case a suspect gives a statement about what he has actually

done in connection with the criminal act he has been suspected of, the
investigator shall record it in a report in the minutest detail in the
words used by the suspect himself.
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IV. CONCLUSION

Based on above explanation, it is clear that for foreign nationalities,

including those with Netherlands Nationality who is suspected or
convicted commiting crime in Indonesia or committing a wrongful act
as articulated in a valid materiel law will be proceeded by the
Indonesian Procedural law. Therefore, the regulation that rules the
procedure of detention and other criminal law procedure is KUHAP
(The Compilation of Criminal Law Procedures). These articles in KUHAP
secure the rights of the suspect, defendant and the convict who is
detained and moreover valid as guidelines and binding regulations to
the law enforcement authority, i.e. Police officer, Prosecutor, and
Judges.

The detainee of foreign nationality, besides could claim their rights

which are protected by the Indonesian law is also could claim a non
discriminatory treatment, therefore it could be presumed that
Indonesia is indeed a law based country which respect the human
rights principles.
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REFERENCES

Darwan Prinst, Hukum Acara Pidana dalam Praktek, Jakarta: Djambatan,

1998

Andi Hamzah, Asas-Asas Hukum Pidana, Jakarta: Rineka Cipta, 1991

http://www.asiamaya.com/konsultasi_hukum/ist_hukum/definisi_hukum.ht
m

http://www.asiamaya.com/konsultasi_hukum/ist_hukum/sumber_tatahuku
m.htm