COERCIVE MEASURES

DURING INVESTIGATION
 OBJECTIVES:
• DEFINITION OF ARREST & DETENTION
• COMPETENCY
• CONDITIONS
• PROCEDURE
• PERIOD/LENGTH OF TIME
• POSTPONEMENT AND BAILOUT
• AUTOPSY
• PREVENT & DETERRENT
Anatomy
of Investigation
BY FLORA DIANTI
CRIMINAL PROCEDURE

Preliminary
Legal Event Investigation
Investigation

Pre-Prosecution
Hearing/Trial
Court Judgment & Prosecution
Examination
(Pre Trial)

Court Judgment Supervision &

Legal Remedies
Execution Observation
Investigation Process:
https://www.youtube.com/watch?v=7Z_nT6cP7pk
Coercive Measure
• All Coercive Measure should
be based on warrant, made by
Investigating Judge , Juge
d’instruction, Rechter
Commisaries.
• Authority: Prima facie, not
only lawful or unlawful but
also legal or illegality of CM. =
more than adminstrative
requirement.

6
Coercive Measure

• calling for investigation shall be considered

or had entered as a coercive measure
• All should be with warrant
• Search conducted at Airport without warrant,
why? Airport is a special Territory, anyone
entering the territory must be subject to its
regulation.
• Terminal is not the same definition as Station.
Terminal = the last embarkation/departure.

7
Principles of Legal Enforcement/Coercive
Measures

• Very violate human rights, so the use of

Legal Enforcement should be avoided.
• If it had to be done, then the
implementation must be Due Process of
Law.
• The more Legal Enforcement, the worse
criminal justice process
DOCTRINE
1. Compliant to KUHAP/ CP
Code
2. Deviate from KUHAP/CPC:
HR Violation, KPK
3. International Standard: Public
Prosecutors monitor the
investigator for ITE.
Arrest
ARREST (1)
• 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
 Condition
ART. 17 CP CODE
1. Strongly Presumed to have commited
2. Sufficient Preliminary Evidence
 The Meaning of
Strongly Presumed?

NOT AN ASSUMPTION
Based on Evidence!
Sufficient Evidence?

Sufficient Pre-Evidence:
SKB Mahkejapol (Joint
Decree of Supreme Court,
Gen Attorney and State
Police): 1 report + 1 Evidence
Sufficient Preliminary Evidence
Constitutional Decision No. 21/PUU-XII/2014
Dated 28th April 2015
• 2 means of legal evidence as stated in Art. 184
CPC/KUHAP.
• Re. Suspect Determination:
• two legal evidence, there must be an examination of
the potential suspects.
PERIOD
• ART. 30-31 Juvenile Court

Period of Arrest: 24 hours

PERIOD OF ARREST: 1 x 24 hrs (Art. 19)

Anti Terrorism Act (ATA): 7 x 24 hours

PROCEDURE
PROCEDURE: Art. 18-19 CP
1. Showing Assignment Letter
2. Giving Arrest Warrant
(Id, Reason, Brief
Explanation)
3. Copy of the Arrest Warrant
Forbiden to arrest
CPP Art. 19 (2)
A person suspected of having committed a
misdemeanor shall not be arrested, except
when without valid reason s/he/ has failed two
consecutive times to comply with valid
summons.

Bill of Revision: Suspect of committing

misdemeanor with charge of fine, except...
 Miranda Rules
• The suspect must be Revisi KUHAP
advised of the right to • Before the investigation
remain silent, right to get started by the
have an attorney present investigators, the suspect
during questioning, or shall be informed his
attorney appointed if right to have an attorney.
cannot afford one. Exception: if the suspects
Otherwise: any evidence reject/refuse the offer to
obtained during have an attorney (shall be
intterogation cannot be stated in written minutes
used against the suspect and signed by the
at trial. (Miranda v suspect)
Arizona, 1966).
Miranda Rules
https://www.youtube.com/watch?v=2QiFg7MJL3E
CP Code/KUHAP?
Art. 56 : Right to get Legal Aid
ARREST WARRANTAND
ARREST ORDER
10 Min
Break
Detention
PRINCIPLES OF DETENTION
• 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

• COMPETENCY of:
Art. 20 CP Code
1. Investigator
2. Public Prosecutor
3. Judge at Trial
Definition
Art. 1:21
Placement in Certain Place.
 Conditions of Detention

OBJECTIVE/LEGAL SUBJECTIVE/INTEREST
CONDITION CONDITION
 Objective Condition

Strongly Presumed Imprisonment of 5 years

Sufficient Evidence or more
CONDITIONS
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
Strongly Presumed?
BASED ON SUFFICIENT EVIDENCE
CONDITIONS of DETENTION (2)

2. Subjective/Interest Conditions (Art. 21):

in case where there are circumtances which give rise to
concerns that the suspect/Accused:
• will escape;
• will damage/destroy Physical Evidence,
• Repeat the Offense
 THREE point
subjective/interest condition

POINT ONE POINT TWO POINT THREE

WILL ESCAPE WILL REPEAT THE WILL DAMAGE THE
OFFENCE EVIDENCE
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:
• 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
 PROCEDURE
PROCEDURE: Art.21 (2) & Art.
21 (3)
1. Presenting warrant of
Detention/Ruling
2. Copy of warrant of
Detention
 Arrest & Detention Process
https://www.youtube.com/watch?v=bwD45hD4sGo
 TYPE OF
DETENTION

STATE HOUSE City

DETENTION ARREST ARREST
HOUSE
TYPES OF DETENTION (Art.22)
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. Subtracted 1/3
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.
Subtracted 1/5.

Rev of CPC: only State Detention

Juvenile Court: Special Room for Minor / LPKS
period 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 (20+30+60)
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)

• 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 Period 1st 2nd Total
Extention extention
by/Period by/Period
1. Investigator PA: Ha. DC
20 40 30+30 120
2. Publict Head of Ha. DC
Attorney DC: 30+30
20 30 110
3. Judge of Head of Ha. HC
District Court 30 DC: 60 30+30 150
4. Judges of High Head of Judges of
Court HC: SC
30 60 30+30 150
5. Judges of Head of Ha. SC
Supreme Court 50 SC: 60 30+30 170
TOTAL 150 +250 +300 =700
 CPC Revision
No. Authority Period 1st 2nd : Total
Extention By:
/ by: Period:
Period:
1. Investigator Prosec: HPP:
(Investigating 5 5 20 90
Judge= Hk Hk. PN: 30
Pemeriksa +30
Pendahuluan)
2. PU/DA/ J of DC J of DC
Prosecutor 5 5 30+30 70
3. Judge of DC Head DC Head DC
30 30 30 90
4. Judge of HC/AC Head HC
30 30 60
5. Judge of SC Head SC
30 60 90
 Juvenile Court Art. 33-40.
No. Authority Period Extended by:

1. Investigator DA:
7 8 15
2. DA/Prosecutor Judge of DC
5 5 10
3. Judge of DC Head of DC
10 15 25
4. Judge of AC Head of DC
10 15 25
5. Judge of SC Head of SC
10 20 35

TOTAL 47 +63 =110

RIGHT TO CLAIM
• 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

• 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
• Art. 31: With or without money bail
• or personal guarantee

• GUARANTEE: PP 27/83 (Execution Provision

of CP Code)
1. Money Bail: Art. 35. deposited into the
state treasury through DC Registraar.
2. Personal Guarantee: Art.36. If the
suspect/accused escaped and could not
be founded in 3 months, the person shall
deposited the money
Setya Novanto &
Ahmad Dhani Cases
• Are they both can be
arrested and detained?
• Analyze!
Prevent
& Deterrent
Cegah =Prevent
tangkal = deterrent
• See Art. 12 Act No. 30 Year 2002
concerning KPK:

“ordering the relevant authorities to prohibit

a person from traveling abroad- during
preliminary investigation and or
investigation”

= does not have to be admitted whether

he is a witness or suspect.
CEKAL = Prevent deterrent

Law No. 6 of 2011 on Immigration also states “those

persons who may engage in relationships with persons
associated with the investigation.”
Investigation = exclude preliminary investigation

Analysis case: KPK Letter of Prohibition to travel

abroad as witnesses for SetNov as a witness of E-KTP
conducted by ANANG SUGIANA SUDIHARJO as
President Director of PT Quarda Solution together
with SETYA NOVANTO on the Investigation Order
Number: SPRIN.DIK-104/01/09/2017 dated
September 26, 2017.
Autopsy
Forensic post-mortem Examination
• Act No. 36 Year 2009 concerning HEALTHY
Art. 122

1.For the purposes of law enforcement to do forensic post-mortem

examination in accordance with the provisions of the legislation.
2.A post-mortem forensic referred to in paragraph (1) shall be conducted
by a forensic expert physician, or by another doctor if there is no forensic
expert physician and referral to existing forensic expert doctor is not
possible.

3.Government and local governments are responsible for providing

services in the area of forensic autopsy.
Further provisions concerning the implementation of a forensic post-
mortem examination is set by Minister
Autopsy: seek out the Real
Truth
• Art. 134 CP Code:
1. Where absolutely necessary for purposes of evidence is
impossible to avoid an autopsy, the investigator shall be obliged
to first notify the family of the victim.
2.Where the family objects, the investigator shall be obliged to
explain in the clearest possible way the object and purpose of
conducting said autopsy
3.If within two days, there is no response whatsoever from the
family or the party to be informed has not been found, the
investigator shall promptly execute the provision as intended
by Art. 133 Par. (3) of this law.
If the Victim’s Family refuse the
investigator to conduct an Autopsy?

• Art. 222 Penal Code: “a maximum

imprisonment of 9 months or a
maximum fine of Rp. 300 shall punish
any person who with deliberate intent
prevents, obstructs or frustrates a
judicial post-mortem examination”

• Perma No.2/2012: Rp. 300 x 1000

Instruksi Kapolri No. Pol: Ins/ E/ 20 / IX/
75 butir (3)
"In case someone is injured had finally died, then it should immediately submit a
written follow-up to request a post mortem"

Furthermore point (6) stated "If there are families of victims / corpses objection if
the Post mortem Visum et Repertum to be conducted, it is the duty of the police
officer Police inspector to persuasively explain the necessity and importance of an
autopsy, for the purpose of investigation, if necessary, even the enforcement of
Article 222 Criminal Code"

With a post mortem on the bodies, it means the corpses must be dissected.
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
SEARCH
SEIZURE
WIRETAPING
(definition, terms, Conditions,
bailout, Etc).
 THANK YOU
floradianti88@gmail.com @flora dianti @flo_di