Under the Soeharto regime, which is known as the New Order Era, Indonesia issued Criminal Procedure Code Number 8 of 1981 (known as KUHAP). This Law was issued to replace the old Criminal Procedure legacy of the Dutch Colonial era, known as the Update Indonesia Regulation (RIB) or also called Het Herziene Indonesisch Reglement.
After Soeharto stepped down in 1998 due to massive public protest, Indonesia started to reform its Judiciary and Legal Systems, one being the Code of Criminal Procedure. One of the important provisions that need to be reformed in the existing Criminal Procedure is Pretrial Detention. The existing code provide authority to police, prosecutor, district court, high court and the Supreme Court, for a total of 400 days.
The latest bill of the Code of Criminal Procedure was issued in 2012. And there has been no amendment since then.
Unfortunately, the latest bill of criminal procedure still applied to pretrial detention. It can be described as follows:
a. Police Investigator and Prosecutor can detain a suspect for 5 days extended for another 5 days for a total of 20 days under the Police and Prosecutor stages.
b. District Court is 30 days extended for another 30 days for a total of 60 days.
c. High Court is 30 days extended for another 30 days for a total of 60 days.
a. Supreme Court is 50 days extended for another 50 days for a total of 100 days
Total pretrial detention under the latest Bill of Criminal Procedure is 240 days
A Comparison Between the Existing Code of Criminal Procedure and the Bill of Criminal Procedure
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Pretrial Detention Under Existing Code |
Pretrial Detention Under the New Bill |
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Article 19
- The arrest as intended by Article 17, can be made for at most one day
- A person suspected of having committed a misdemeanor shall not be arrested, except when without valid reasons he has failed two consecutive times to comply with valid summons.
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Article 57
1. The arrest as referred to in Article 54, is carried out for a maximum of 1 (one) day.
2. A suspect in a criminal act which is punishable by a fine shall not be subject to arrest, unless the suspect has been legally summoned 2 (two) times in a row and fails to fulfill the summons without valid reason. |
| Detention in the stage of investigation |
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Detention
Article 24
1. A warrant of detention issued by an investigator as intended by Article 20, shall only be valid for at most twenty days.
2. The period of time mentioned in Paragraph (1), if necessary for purposes of an examination which is not yet completed, may be extended by a competent Public Prosecutor for at most forty days. |
Detention
Article 58
For the purpose of examination at the investigation stage, an Investigator is authorized to detain a suspect.
Article 60
The detention as referred to in Article 58 paragraph 1 and paragraph 2 conducted for a maximum period of 5 (five) days by the Investigator |
| Detention in the stage of prosecutor |
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Detention
Article 25
1. A warrant of detention issued by a Public Prosecutor as intended by Article 20 shall only be valid for at most twenty days.
2. The period of time as stated in Paragraph (1) if necessary for purposes of an examination which is not yet completed, may be extended by the head of a competent district court for at most thirty days.
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Detention
Article 58
(2) If the Prosecutor who is detaining is in the investigation stage of a certain criminal act, the approval of the detention that exceeds 5 x 24 (five times twenty-four) hours is granted by:
a. the head of the State Prosecutor’s Office in the event that the detention is carried out by the District Attorney.
b. the head of the High Prosecutor’s Office in the event that the detention is carried out by a high prosecutor’s office; or
c. The Director of Prosecution of the Attorney General’s Office (AGO) in the event that the detention is carried out by the AGO.
Article 60
(1) The detention as referred to in Article 58 paragraph (1) and paragraph (2) conducted for a maximum period of 5 (five) days by the Investigator.
(2) The detention as referred to in paragraph (1) may be extended for a maximum of 5 (five) days by the Public Prosecutor. |
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Article 26
1. A Judge of a district court who is adjudicating a case as intended by Article 84 shall have the authority, for purposes of an examination, to issue a warrant of detention for the most thirty days.
2. The period of time as stated in Paragraph
if necessary for purposes of an examination that is not yet completed, may be extended by the Head of the District Court concerned for at most sixty days. |
Article 61
(1) District Court Judges adjudicating cases as referred to in Article 58 paragraph (5), have the authority to issue detention judgements for a maximum of 30 (thirty) days.
(2) If necessary, for the purposes of an incomplete examination, the period of detention as referred to in paragraph (1) may be extended by the Head of the District Court concerned for a maximum of 30 (thirty) days.
(3) The extension of the detention period as referred to in paragraph (2) may be extended 1 (one) more time by the Head of the District Court for a maximum of 30 (thirty) days. |
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Article 27
(1) The Judge of a High Court who is adjudicating a case intended by Article 87, for purposes of an examination on appeal, shall have the authority to issue a warrant of detention for a period of at most thirty days.
(2) The period of time as stated in Paragraph (1), if necessary for purposes of an examination that is not yet completed, may be extended by the Head of the High Court concerned for at most sixty days.
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Article 62
(1) A high court judge hearing a case for the purpose of examining an appeal case has the authority to issue a detention order for a maximum of 30 (thirty) days.
(2) If it is necessary for the purposes of an incomplete examination, the period of detention as referred to in paragraph (1) may be extended by the Chairman of the High Court concerned for a maximum of 30 (thirty) days.
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Article 28
(1)The Supreme Court Justice who is adjudicating a case as intended by Article 88, for purposes of an examination in cessation, shall be the Authority to issue a warrant of detention for a period of at most fifty days.
(2) The period of time as stated in Paragraph 1, if necessary for purposes of an examination that is not yet completed, may be extended by the Chief Justice of the Supreme Court for at most sixty days. |
Article 63
(1) The Supreme Court Judge who hears a case for the purpose of examining the cessation case has the authority to issue a detention order for a maximum of 30 (thirty) days.
(2) If it is necessary for the purposes of an incomplete examination, the period of detention as referred to in paragraph (1) may be extended by the Chief Justice of the Supreme Court for a maximum of 60 (sixty) days.
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