Pretrial Hearing in Indonesia: Theory, History, and Practice

One of the most debated issues among the legal profession is the coercive action conducted by law enforcement officials, particularly the Investigators and Prosecutors. In general, coercive actions that are commonly acknowledged in most countries are arrest, detention, search, foreclosure, and wiretap. Coercive actions conducted by law enforcement officials must be under the supervision of judicial institution – judicial scrutiny. So that there will be no arbitrary coercive actions conducted by law enforcement officials, which may violate the civil rights and freedom of a person.

The principle of judicial scrutiny is not regulated under the Law No. 8 of 1981 on Criminal Procedural Law, commonly known as KUHAP. When it was issued, many viewed that KUHAP is one of the greatest Indonesian legal documents at that time, because only KUHAP that explicitly stated the phrase “human rights” in its articles. However, supervision from judicial institution is always absent from every coercive action conducted by the investigators or prosecutors.

The most important issue that needs to be amended under KUHAP is the provision regarding pretrial detention. The term “pretrial detention”, however, is not stipulated under KUHAP, because it only acknowledges the detention based on which institution that conducted such action. Universally speaking, the definition of “pretrial detention” is vary, and for the purpose of this research, ICJR defines “pretrial detention” as a detention that is imposed to a suspect before the first trial at the court. In short, pretrial detention under this research refers to detention conducted by Investigators and Prosecutors.

Why this issue is crucial? One of the reason is the poor situation and condition of detention houses. Most detention houses or any other places to put the detainees in Indonesia are overcapacity, which leads to many health problems suffered by the detainees. In addition, such condition may also cause comodification practice and clash among detainees groups. Moreover, the lack of oversight from the judicial institution through the means of pretrial against investigation institution causes arbitratry acts towards the detainees, in forms of physical and psychological torture during the investigation process.

ICJR identifies two main causes of such situation. Firstly, the absence of judicial oversight (judicial scrutiny) on coercive action under KUHAP. Secondly, the lack of in depth elaboration on the requirements of detention under Article 21 of KUHAP. Even though there is a pretrial institution as a complaint mechanism against coercive action, this institution only focuses on administrative issues on coercive actions conducted by authorized officials. Additionally, the lack of procedural law for pretrial proceeding under KUHAP also needs to be revised.

The problems regarding pretrial must be corrected from the source of the problems itself, which is KUHAP. However, the discussion of KUHAP between legislators at the House of Representatives is timeconsuming. Therefore, ICJR, together with other non-governmental organizations have formed the Civil Society Coalition for Criminal Procedural Law Reform (Koalisi Masyarakat Sipil untuk Pembaharuan Hukum Acara Pidana – KuHAP) to guard the KUHAP Draft discussion. Within the Coalition, ICJR took the initiative to be actively involved in overseeing the KUHAP discussion on pretrial detention and wiretap.

Due to the current situation, ICJR has no other option but to optimize the use of pretrial institution against arbitratry detention conducted by law enforcement officials.

This research focuses on two main issues: to measure the effectiveness of pretrial institution and how to maximize the function and role of pretrial institution. From these main issues, ICJR offers a limited reform on pretrial institution, by providing a Guidelines for pretrial detention and a “so-called” procedural law that can be used to examine pretrial petition regarding pretrial detention.

ICJR hopes that the output of this research may be used by the related stakeholders, especially the judicial institution. ICJR hopes that this research may bring a significant improvement to revitalize pretrial institution, so that it may play its function and role to guard the basic human rights from arbitrary detention.

The research and guideline would not be realized without the support from many parties. ICJR would like to thank the Open Society Justice Initiative, which has supported ICJR’s programs since 2011. We

also would like to thank the Panel of Experts: Y.M. Hakim Agung Dr. Salman Luthan, S.H., M.H., Y.M. Hakim Agung Dr. H. Andi Samsan Nganro, S.H., M.H., and Ifdhal Kasim, S.H. Also to Gregory Churcill JD, and Dr. Luhut M.P. Pangaribuan, S.H., LL.M that gave many invaluable inputs for this research and guideline. In particular, we also would like to thank ICJR’s Researchers that have worked really hard to make this research realized:Supriyadi W. Eddyono, Wahyudi Djafar, Sufriadi Pinim, Sriyana, and Erasmus A.T. Napitupulu.

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