ARREST DETENTION Flora Dianti SH MH

ARREST & DETENTION Flora Dianti, SH, MH

TODAY’S GOAL n n n DEFINITION OF ARREST & DETENTION COMPETENCY CONDITIONS PROCEDURE PERIOD/LENGTH OF TIME POSTPONEMENT AND BAILOUT (detention)

CRIMINAL PROCEDURE Legal Event Court Judgment Legal Remedies Preliminary Investigation Hearing/Trial Examination Court Judgment Execution Investigation Pre-Prosecution & Prosecution (Pre Trial) Supervision & Observation

Principles of Legal Enforcement Very violate human rights, so the use of Legal Enforcement should be avoided. n If it had to be done, then the implementation must be Due Process of Law. n The more Legal Enforcement, the worse criminal justice process n

ARREST (1) n DEFINITION: Art. 1: 20 is an act of an investigator to temporarily restrict the Freedom if there is sufficient evidence for proposes of investigation of prosecution and or adjudication COMPETENCY: 1. Investigator 2. Assistant Investigator n

CONDITIONS: ART. 17 CP CODE 1. Strongly Presumed to have commited 2. Sufficient Preliminary Evidence Strongly presumed? Not an assumption Sufficient Pre-Evidence: SKB Mahkejapol (Joint Decree of Supreme Court, Gen Attorney and State Police): 1 report + 1 Evidence n n PERIOD OF ARREST: 1 x 24 hrs (Art. 19)

CONDITION n ART. 30 -31 Juvenile Court Period of Arrest: 24 hours PERIOD OF ARREST: 1 x 24 hrs (Art. 19) Anti Terrorism Act (ATC): 7 x 24 hours

PROCEDURE: Art. 18 -19 CP 1. Showing Assignment Letter 2. Giving Arrest Warrant (Id, Reason, Brief Explanation) 3. Copy of the Arrest Warrant

EXAMINED BY INVESTIGATOR n n n Who? Suspect, Witness, Victim or Expert. If unable to appear before the investigator conducting an exaction, shall go to the suspect or witness place of residence Art. 113 Suspect ‘s right to obtain legal assistance (miranda rules) Legal Assistance: within sight within hearing, or within sight but not within hearing (Art. 115) Without an oath being administered, except when there is sufficient reason to presume that he will be unable to attend the examination at trial (Art. 116)

Miranda Rules n The suspect must be advised of the right to remain silent, right to have an attorney present during questioning, or attorney appointed if cannot afford one. Otherwise: any evidence obtained during intterogation cannot be used against the suspect at trial. (Miranda v Arizona, 1966). Revisi KUHAP n Before the investigation get started by the investigators, the suspect shall be informed his right to have an attorney. Exception: if the suspects reject/refuse the offer to have an attorney (shall be stated in written minutes and signed by the suspect)

EXAMINED BY INVESTIGATOR n n Examined separately, may be confronted with another Testify the truth, and right to be asked whether he wants a witness to be heard (defense witness = a de charge), Art. 116 Without pressure from anyone whomsoever and or in any form whatsoever (Art. 117) Recorded in minutes, signed by the investigator and the person giving the statement after they have approved the content. No signature = record in the minutes stating the reason Art. 118

Termination of Investigation n 1. 2. 3. Shall inform the Public Prosecutor, the suspect or his family of his fact. Conditions: Insufficient evidence The event did not constitute an offense By virtue of law: Penal Code Art. 76, 77, 78. CCP Revision (Bill): (+) No complaint for complaint offense (klacht delict/delik aduan), the related act/article has been revoked by the authorized institution (Constitutional Court/SC), the offender is minor (under 8 y. o)

ARREST WARRANTAND ARREST ORDER

PRINCIPLES OF DETENTION n n should not be construed as a form of punishment, or intended for punishment, or punishment installments. Even if someone was finally detained, then the entire period of detention, must be compensate, in the form of reduced criminal punishment or other compensation. Should not be blasted with a sense of justice. must not endanger the health and safety of the suspect/accused

DETENTION n n DEFINITION: Art. 1: 21 Placement in Certain Place. COMPETENCY of: Art. 20 CP Code 1. Investigator 2. Public Prosecutor 3. Judge at Trial

CONDITIONS of DETENTION (2) 1. Objective/Legal Conditions: 21(1) jo. 4 a. Art. 21(1): Strongly Presumed to have committed: Sufficient Evidence: Art. 183 (Min. 2 Evidences) b. Art. 21(4) - the offense is liable to imprisonment of 5 years or more. - < 5 years, only for limited Crimes

CONDITIONS of DETENTION (2) 2. Subjective/Interest Conditions: in case where there are circumtances which give rise to concerns that the suspect/Accused: n will escape; n will damage/destroy Physical Evidence, n Repeat the Offense

Juvenile Court 1. Legal Requirements/Objective: Art. 32 a. Minor with min. 14 yo. b. the offense is liable to imprisonment of 7 years or more. c. Shall be stated on Detention Warrant

JUVENILE COURT 2. SUBJECTIVE REQUIREMENTS: in case where there are circumtances which give rise to concerns that the suspect/Accused: n will escape; will damage/destroy Physical Evidence, Repeat the Offense, influence the witness, or Threatened his safety, upon approval /on their own demand. Note: Children less than 12 yo: handed children to their parents, asked to follow specific guidance

DETENTION (3) PROCEDURE: Art. 21 (2) & Art. 21 (3) 1. Presenting warrant of Detention/Ruling 2. Copy of warrant of Detention n n TYPES OF DETENTION: Art. 22 1. State Detention House: full 2. House Arrest: 1/3 3. City Arrest: 1/5

TYPES OF DETENTION (3) 1. State Detention House: shall be subtracted in full from the term of the penalty imposed. 2. House Arrest: effected at home or residence of suspect/accused through the exervise of supervision over him to prevent difficulty. 3. City Arrest: effected in the city where a suspect/accused stays or resides, with an obligation on the suspect/acc to report on specified times. Rev of CPC: only State Detention Juvenile Court: Special Room for Minor / LPKS

LENGTH of DETENTION 1. Investigator Art. 24 jo. 29 (20+40+30+30) Only valid for 20 days, may be extended by Public prosecutors for 40 days. 2. P. Prosecutor Art. 25 jo. 29 3. Judge at DC Art. 26 jo. 29 (30+60+30+30) 4. Judge at HC Art. 27 jo. 29 (=ibid=) 5. Judge at SC Art. 28 jo. 29 (50+60+30+30) n Art. 29: Exception for Suspect/accused suffering from a serious physical/mental disturbance, liable to imprisonment of 9 yrs/more

DETENTION LENGTH OF TIME No. Authority 1. Investigator 5. PA: 40 Ha. DC 30+30 Head of DC: 30 Ha. DC 30+30 30 Head of DC: 60 Ha. HC 30+30 30 4. 2 nd extention by/Period 20 3. 1 st Extention by/Period 20 2. Period Head of HC: 60 Judges of SC 30+30 150 Judges of Supreme Court 50 Head of SC: 60 Ha. SC 30+30 170 TOTAL +250 +300 =700 Publict Attorney Judge of District Court Judges of High Court 150 Total 120 110 150

CPC Revision No. Authority 1. Investigator (Investigating Judge= Hk Pemeriksa Pendahuluan) Period 1 st 2 nd : Extention/ By: by: Period: Total 3. 4. 5. 5 J of DC 30+30 70 Head DC 30 90 30 Head HC 30 60 30 PU/DA/ Prosecutor HPP: 20 Hk. PN: 30 +30 30 2. Prosecu tor: 5 Head SC 60 90 5 Judge of DC Judge of HC/AC Judge of SC TOTAL 90 400

Juvenile Court Art. 33 -40. No. Authority 1. Investigator Judge of DC 5 10 Head of DC 15 25 10 5. 15 10 4. DA: 8 5 3. Extended by: 7 2. Period Head of DC 15 25 10 Head of SC 20 35 47 +63 =110 DA/Prosecutor Judge of DC Judge of AC Judge of SC TOTAL

RIGHT TO CLAIM n n Art. 30 CP Code Suspect/Accused shall have the right to claim compensation, if the length of time of detention proves to be invalid.

Postponement and Guarantee n n n Art. 31 CP Code At the request of the suspect/accused May from time to time withdraw the postponement if the sus/acc fails to observe the condition

Guarantee n n n 1. 2. Art. 31: With or without bail money or personal guarantee GUARANTEE: PP 27/83 (Execution Provision of CP Code) Money Bail: Art. 35. deposited into the state treasury through DC Court Registraar. Personal Guarantee: Art. 36. If the suspect/accused escaped and could not be founded in 3 months, the person shall deposited the money

STATE DETENTION HOUSE INDIA AND INDONESIA

HOUSE DETENTION

INDONESIA STATE DETENTION ARTALYTA’S ROOM IN PRISON

PONDOK BAMBU DETENTION HOUSE ARTALYTA’S AND GENERAL CONVICTED MAN IN PRISON

NEXT ASSIGNMENT n n n SEARCH SEIZURE WIRETAPING (definition, terms, Conditions, bailout, Etc).