PRETRIAL IN THE LAW OF

CRIMINAL PROCEDURE IN
INDONESIA

Aristo Pangaribuan
1. DEFINITIONS
1) Legal Basis in Indonesia: Article 77-83 Criminal
Procedure Code/KUHAP.

2) Pretrial is one of the court's supervisory

authority over the application of the horizontal
force by police / investigators and prosecutors,
termination of an investigation or prosecution,
compensation and rehabilitation.

3) Pretrial inspired of habeas corpus from the

Western Legal Tradition .
⚪ Western Legal Tradition > History traced back
when Roman Empire divided the Empire into
two.

⚪ Justice during Roman Empire decided by the

King’s say = “The King can do no wrong”
● Vulnerable to the abuse of power
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⚪ Pretrial inspired the existence of the principle of Habeas Corpus in

the Anglo Saxon legal system. Habeas Corpus artinya = “have the
body”. “have the body present with cause” {habeas corpus cum
causa)“. Habeas Corpus Act 1679

⚪ Habeas Corpus is also inspired by Magna Charta 1215. Magna Charta is

an agreement between the Government of United Kingdom (King John
of England) with the Rebel.

⚪ Habeas Corpus guarantees fundamental to the protection of human

rights, especially in terms of the right of freedom.

⚪ Pretrial institution was born because of the encouragement that the

unavailability of an institution that has the function to monitor and
assess the forceful measures that ensure human rights in the HIR.
 2.THE SCOPE OF PRETRIAL
(1) The validity of the arrest, detention, investigation termination, or
termination of prosecution (vide, article 79 jo. 80 KUHAP)

(2) The compensation and/or rehabilitation due to it invalid arrest or

detention or as a result of the validity of the termination of
investigation or prosecution (vide, article 81 KUHAP)

(3) The legitimacy of the seized objects as a means of proof (vide, art.
82 paragraph (1) b KUHAP)

(4) Claims for compensation and rehabilitation of the suspect or his

heirs for the arrest or detention and other measures without reason
or because of confusion about persons or the laws that is applied to
the case is not filed(vide, article 95 paragraph (2) KUHAP)

(5) The establishment of suspects by the Constitutional Court Ruling No.

21/PUU-XII/2014
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⚪ Subjects of pretrial:

⚪ Article 79: Request for examination of the validity of an

arrest or detention filed by the suspect , the family or
their proxies to the head of the district court stating the
reasons.

⚪ Article 80: Requests to check the validity of a termination

of an investigation or prosecution may be filed by an
investigator or prosecutor or interested third parties to the
head of district court stating the reasons
 3. Examination Process
(vide, art. 82 paragraph (1) KUHAP)
1) Request for examination filed in criminal court registrate:
i. In terms of the validity of an arrest or detention: the suspect,
family, attorney (vide, article 79 KUHAP)
ii. In the event of the validity of SP3 or SKPP: investigators,
prosecutors, interested third parties (vide, article 80 KUHAP)
iii. The compensation and/or rehabilitation: the suspect or
interested third parties (vide, article 81 KUHAP)

2) Within three days after the receipt of the request, the appointed
judge (single judge) set the day of trial;
3) Examination done quickly and not later than seven days the judge
must have passed the decisions;
4) In the event that a case has been started to be examined by the
district court, while hearing on a request for the pretrial
unfinished, then the request fall;
 4. PRETRIAL VERDICT
(vide, article 82 paragraph (3)
KUHAP)
Verdict must contain:
1) In the case of an arrest or detention is invalid :
i. The investigator or the public prosecutor at the level of each
examination should immediately release the suspect(vide,
article 82 paragraph (3)a KUHAP)
ii. In its verdict, specified the amount of compensation and
rehabilitation(vide, article 82 paragraph (3)c KUHAP)

2) In the case of SP3 or SKPP declared invalid: investigation or

prosecution of a suspect shall proceed(vide, article 82 paragraph
(3)b KUHAP)

3) In terms SP3 or SKPP is legitimate: the verdict listed in

rehabilitation(vide, article 82 paragraph (3)c KUHAP)

4) In the case of the seized objects exist which do not included as

proofing tool: In the verdict stated that the object must be
immediately returned to the suspect or from whom it was
confiscated(vide, article 82 paragraph (3)b KUHAP)
 5. LEGAL ACTIONS FOR PRETRIAL
VERDICT

1) Verdict on pretrial is final and binding according

to SEMA No.4 Tahun 2014
6. CONSTITUTIONAL COURT VERDICT
ABOUT PRETRIAL
Before Constitutional Court Verdict No. 21/PUU-XII/2014
According to Criminal Procedure Code/KUHAP After Constitutional Court Verdict No. 21/PUU-XII/2014

Examine and decide upon the validity of an arrest or detention at Examine and decide upon the validity of an arrest or detention at
the request of the suspect or his family or any other party for the the request of the suspect or his family or any other party for the
power of the suspect. power of the suspect.

Examine and decide upon the validity of termination of an Examine and decide upon the validity of termination of an
investigation or prosecution in the demand for law and justice investigation or prosecution in demand for law and justice

Examine and decide upon requests for damages or rehabilitation by Examine and decide upon requests for damages or rehabilitation by
the suspect or his family or any other party for attorney that his the suspect or his family or any other party for attorney that his
case was not brought to trial case was not brought to trial

Examine and decide upon the validity of a search and confiscation

Examine and decide upon the validity of the establishment of the

suspect
 7. SOUTH JAKARTA DISTRICT COURTS’ VERDICT
PRETRIAL RELATED
South Jakarta District Court verdict date 27 November 2012
No. 38 / Pid.Prap / 2012 / PN.Jkt.Sel
1) Applicant (Bachtiar Abdul Fatah / employees of PT Chevron Pacific Indonesia)
principally to file a Pretrial application on (1) Establishment of the Applicant as
a suspect, (2) Investigation on the Applicant, (3) Imprisonment of the Applicant
(4) Prevention Abroad on behalf of the Applicant, (5) Compensation and
Rehabilitation, conducted by the Respondent (Attorney General cq. Jampidsus
cq. Dir.Penyidikan Jampidsus).

2) Request applicants are accepted for most with consideration: "that further
conditions that fundamentally regulated in Article 21 paragraph (1) Criminal
Procedure Code/KUHAP that containment should be based on enough evidence
that at least two items of evidence amongst legitimate evidences mentioned in
Article 184 paragraph (1) Criminal Procedure Code, and whether it has been
met by the Respondent
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3) "Considering that, from the written evidence presented by the Respondent .... is
only a summons of witnesses to be questioned and invitation for case presentation
by the Respondent, which is related to allegations of corruption in Procurement
Project Bioremediation (waste treatment) at PT Chevron Pacific Indonesia,
without the results of the Minutes of Examination (BAP) brought forward which
was made by Respondent as investigators, with the hope that from the BAP can be
demonstrated that the examination of the witnesses have been able to be
evidence and enlighten of a crime that occurred, and it is known who the suspects
a quo whether it was the Applicant, and it is in line with the terms of the
investigation as mentioned in Article 1 paragraph 2 of the Criminal Code. “

4) "Considering that of all the evidence presented by the Respondent, Respondent

has proven unable to prove the existence of at least two (2) can be used as
evidence to establish the basis of the Applicant as a suspect and then arrest him.“

5) "Considering that the acts which the Respondent has established the Applicant as
a suspect violated Article 2 paragraph (1) or Article 3 of Law 31 of 1999 jo. Law
No.20 of 2001 on Corruption Eradication is not valid. "
 Lanjutan
South Jakarta Disrict Court’s Verdict No.:04/Pid.Prap/2015/PN.Jkt.Sel. Tahun 2015
BUDI GUNAWAN VS KPK

1.Granting Applicant's pretrial requests partly;

2.Declare Warrant Investigation Number: Sprin.Dik-03/01/01/2015 dated January 12,

2015 which established the Applicant as a suspect by the Respondent criminal events
related referred to in Article 12 letters a or b, Article 5, paragraph (2), Article 11 or 12
B of Law No. 31 of 1999 on Corruption Eradication jo. Law No. 20 of 2001 on
Amendments to the Law No. 31 of 1999 on Corruption Eradication jo. Article 55
paragraph (1) 1st Criminal Code is invalid and not based on law, and therefore the
stipulation a quo has no binding force;
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3. Declare investigation conducted by the Respondent related to criminal act
referred to in the Stipulation of the suspect against the applicant as referred to in
Article 12 letters a or b, Article 5, paragraph (2), Article 11 or 12 B of Act Number
20 of 2001 on Amendment of No. 31 of 1999 on Corruption Eradication jo. Article
55 paragraph 1 1st Criminal Code is invalid and not based on law, and therefore the
investigation a quo has no binding force;

4. Declare the suspect establishment upon the Applicant conducted by the

Respondent is invalid;

5. Declaring invalid any decision or establishment issued further by the Respondent

relating to the suspect establishment against the Applicant by Respondent;

7. Refuse Applicant's pretrial requests apart and the rest of them.

 8. VERDICT EXECUTION:
COMPENSATION & REHABILITATION
Legal basis: article 95-96 KUHAP jo. article 9 PP 27:1983 jo. Kepmenkeu
983/KMK.01/1983 , PP 92/2015 regarding the amount (article 9)

Request (Supreme Court)

SKO on Finance Minister cq.
General Director of Budgets
District Court request for
Head District Court Request
provision of funds to
Payment Warrant from
Supreme Court cq. Secretary
Head District Court
General

Execution Request Application for payment through

Head District Court (Standard Of Judicial
To District Court Services)

VERDICT DECREE OF AUTHORIZATION (SKO)

APPLICANT
9. Trial Examination Agenda

1. Pretrial Requests’ readings

2. The Respondent’s answers
3. Verification process
4. Pretrial Conclusion readings
5. Verdict
10. Draft Changes in the Code of Criminal
Procedure

1) Judge preliminary examiner as a substitute for

pretrial institutions
2) The term of imprisonment of 15 days (criticized
for still not in accordance with the ICCPR)
3) The pattern of the relationship between the
investigator and the prosecutor is more
coordinative in the investigation stage and also in
the trial phase (Putusan MK
130/PUU-XIII/2015)
4) A system for settling disputes out of court
(Misdemeanor,criminal act max. 4 years prison, an
offense with the threat of fines, the elderly as a
suspect, and there is already compensation)
11. Official Letter Form Of Pretrial
Examination Request

1) There is no standard format in preparing the

Request for Pretrial Examination.

2) Sistematics Inquiry for Official Letter of Pretrial

Examination : (i) Introduction, (ii) Reasons
for Pretrial: (iii) Requests and Petition
Official Letter Form Of Pretrial
Examination Request

⚪ I. Introduction

Explaining about the Legal Basis of

Pretrial Request. Typically, the
philosophy of why this pretrial as a
formality beforehand must be
received before prosecuting the
material
Official Letter Form Of Pretrial
Examination Request

⚪ II. Reasons For Pretrial

Explaining violations of procedural

law, which are included in the scope
of pretrial according to the criminal
procedural law and Constitution
Court Ruling No.21/2014
Official Letter Form Of Pretrial
Examination Request

⚪ III. Requests and Petition

The Conclusion of Pretrial Requests

and the Petition for the Requests
Official Letter Form Of Pretrial
Examination Request

Petition, example:

1. Grant the Pretrial Requests entirely

2. Declare that the investigators’ measures
that established [*] as a suspect
unauthorized
3. Declare the investigation invalid and does
not have binding legal force