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In civil procedural law, types of evidences in court are regulated under Article 1866 of the Indonesian Civil Code (the “Civil Code“) which includes:

  1. Written evidence
  2. Witness
  3. Presumption
  4. Admission
  5. Oath

Admission is specifically regulated in Articles 174-176 of Herzien Inlandsch Regulations (“HIR“), Articles 311-313 Rechtsreglement voor de Buitengewesten (“RBg“) and articles 1923-1928 of the Civil Code. In general, admission can be defined as a statement that justifies an event, right, or legal relationship submitted by an opponent[1]. Article 1923 of the Civil Code divides evidence into two types, namely admission before the court and admission outside the court.

A .Admission before the Court

Admission before the court (gerechtelijke bekenisenis) is a unilateral statement, both written and oral expressly stated by one of the parties at the hearing, which justifies either all or part of an event, right or legal relationship submitted by the opponent, which resulting in no necessary further examination by the judge[2]. This was confirmed by the Supreme Court of the Republic of Indonesia’s decision Number 497 K / SIP / 1971 dated September 1, 1971 which states as follows:

“The existence of the Defendant’s admission is considered the claim has been proven.”  

Furthermore, Article 1925 of the Civil Code states that:

“The admission given before the Judge is a perfect proof of the person who has given it, either alone or through a person who has been given special powers for it.”

1. The Evidentiary Value of Admission Before the Court

Based on MARI Decision and the legal provisions that have been explained above, it can be concluded that the evidentiary value of admission before the court is perfect. However, it must be admitted that this is actually more or less contrary to Article 178 HIR or Article 189 RBg which states that the judge for his position (ambtshalve) must add legal grounds based on the law stated by the parties[3]. This was then agreed upon by the legal experts as a limitation of the perfect evidentiary value (volledig bewijs) which is attached to the admission before the judge.

In addition, in certain cases the judge does not have to acknowlege the admission before the court that blatantly contains a lie. In dealing with such frank and obvious lies, the judge has the right to reject such admission as evidence. This was confirmed by MARI jurisprudence No.288.K / Sip / 1973, December 16, 1975, which states:

“Based on the permanent jurisprudence regarding the evidentiary law in the Procedure, especially the Admission, the Judge has the authority to judge an admission to be not absolute because it is not submitted truthfully; if there is a submitted admission that is not true, it is the authority of Judex facti which is not subject to an examination of the appeal to the Supreme Court level; i.e. The High Court  considers: that the admission of Defendant I / co-appelle, which sided with the Plaintiffs / Appelee, is not accompanied by strong reasons (met Redenen Omkleed) then according to the law cannot be trusted “

2. Types of Admission before the Court

There are 3 classifications of admission before the court, namely:

a. Pure Admission

In a pure or unanimous admission, no slightest denial of the arguments and claim made in the lawsuit. Such admission is in the form of a total justification for all arguments and claim.

Pure or unanimous admission has the following legal consequences:

  1. The opposing party does not have to prove the arguments of the lawsuit anymore, even though the admission is a lie or is not true;
  2. Based on that admission, the dispute between the parties is finished;
  3. Therefore the judge must end the hearing of the case, by issuing a decision.

An example of a pure admission is the plaintiff stated that the defendant bought a house from the plaintiff at a price of IDR 1,000,000,000.00, the defendant answered that he bought a house from the plaintiff for IDR 1,000,000,000.00.

b. Admission with Qualification

Qualified admission (gekwalificeerde bekenisenis) is an admission of the arguments of the lawsuit followed by conditions. The burden of proof to prove the invalidity of the conditions is on the plaintiff.

Examples of qualified admission is the plaintiff stated that the defendant had bought a house from the plaintiff for IDR 1,000,000,000.00, then the defendant claimed to have indeed bought the plaintiff’s house, not for IDR 1,000,000,000.00, but IDR 700,000,000.00.

c. Admission with Clause

An admission with clause (geclasuleerde bekenisenis) is an admission that is followed by a statement which will free from the claim made in the lawsuit. In the case of the release added to the admission does not have a clear legal basis, the reason for the release is considered to be non-existent, so the admission given is considered to be pure. It can be affirmed that the admission with clause acknowledges all claims but at the same time, denies the other parts of the claim.

An example of admission with clause is the plaintiff stated that the defendant had bought the plaintiff’s house for IDR 1,000,000,000.00, then the defendant claimed to have entered into an agreement to buy the plaintiff’s house for IDR 1,000,000,000.00, but it has been paid in full.

In practice it is not easy to determine the boundaries and benchmarks between refusal with qualifications and with clauses. Therefore, there can be legal problems between the two types of admission. However, in practice, admission with clause is more often applied, even though what actually happens theoretically is admission with qualification.

3. The Principle of Admission Cannot Be Separated (Onsplitsbaar Aveau)

Basically an admission must be considered by the Judge as a whole and must not be separately, or known as the “onsplitsbaar aveau” principle, to protect the position of the defendant in the admission he/she has filed, so as not to harm himself/herself[4].

However, this principle does not apply to pure admission because there can be no conflict between one admission with the other. On the other hand, in the admission with the qualification and admission with clause, in each of these admissions, there are two sets of statements of admission, which consist of:

  • An information that contains admission of some of the arguments mentioned in the lawsuit;
  • An admission followed by information in the form of a condition or release which at the same time is a rebuttal to the arguments and claims.

Furthermore, if during the process of examination of cases there is an admission with qualification or admission with clause, the standard of enforcement of the burden of proof must be upheld based on the principles outlined in Article 1865 of the Civil Code and Article 163 of the HIR which in essence emphasizes:

  1. The plaintiff is obliged to prove all the arguments of the claim, including the argument that has been admitted by the defendant;
  2. Defendant is obliged to prove his/her rebuttal, without reducing the plaintiff’s obligation to prove the invalidity of the rebuttal;
  3. However, in the above provisions, it does not reduce the burden of proof based on reasonable propriety.

According to Yahya Harahap, an expert on Indonesian procedural law, there are events that are excluded from prohibition on the separation of admission, namely additional statements which were free the arguments and claims. The same was also expressed by Prof. Sudikno, in his book[5] which states that a judge could separate admission if the plaintiff succeeds in proving that the additional information on the admission was not true, in this case the burden of proof is on the defendant.

Meanwhile, Retnowulan and Iskandar, Indonesian procedural law experts, states that the prohibition on separating an admission is no longer apply if the defendant in his/her admission earlier has revealed events that turned out to be false in order to free himself/herself[6].

It can be seen that Yahya Harahap, Retnowulan and Iskandar considered that the onsplitsbaar aveau principle could be ruled out if the defendant gave a freeing admission. The opinion of Yahya Harahap, Retnowulan and Iskandar was supported by the jurisprudence of MARI No.117K / Sip / 1956, dated 12 June 1955, which states:

“In the event an admission is accompanied by additions that have nothing to do with that admission, which is called” Gekwalificeerde-type” by the doctrine and jurisprudence, admission can be separated from the addition.”

Furthermore, the existence of a provision that prohibits judges from separating admission actually receives criticism from legal experts. Prof. Wirjono Prodjodikoro said that the doctrine of the prohibition on separating admission was very disappointing because it does not make sense and could not be understood by public. Whereas in dealing with the additional admission, the judge is free to determine the evidentiary value of the admission, as is the case with admission outside the court (vrijbewijs)[7].

Regarding the burden of proof in a separate admission, there are several Supreme Court Decisions that can be taken into consideration:

  • Supreme Court Decision No.8.K/Sip/1957, dated May 28th, 1958, which states:

“The original Plaintiff demanded that the original Defendant to give the disputed rice field to the original Plaintiff and her two children on the grounds that the rice field was a legacy inheritance from her husband, Marhum, who is now possessed by the original Defendant without rights; the original Defendant’s reply, the rice field was purchased approximately 15 years ago from the original Plaintiff by the original Defendant’s husband.
The original Defendant’s answer is an inseparable answer (Onsplitsbaar Aveau), so actually the original Plaintiff must have the burden to prove the truth of her argument, i.e. that the disputed rice fields belong to her husband, Marhum. “

  • Supreme Court Decision No. 272 K/Sip/1973, dated November 27th, 1975, which states:

“The development of the Jurisprudence concerning Article 176 HIR (= separate admission) is that in the case of separate admission, the Judge is free to determine for whom the burden of proof is given.”

  • Supreme Court Decision No. 22 K/Sip/1973, dated November 25th, 1976, which states:

“In the event of separate admission, the Judge is free to determine based on a sense of justice on whom to prove.”

B. Admission Outside the Court

According to some legal experts, admission outside the court or bekentenis buiten rechte (out of court) has the following meaning:

  • M. Yahya Harahap, S.H

“Admission outside the court is an admission or statement of “justification” about the argument or rebuttal or the right or fact of the lawsuit, but the statement was made or uttered outside the court hearing and it was conveyed to anyone”[8].

  • Prof. Mr. A. Pitlo

“Admission outside the court is a statement given by one of the parties in dispute, outside the court, which contains an admission of what was stated by the opposing party in this case. This information may have been given as admission before the court in another case. In this case it is an admission outside the court”[9].

Types of admission outside the court
a. Oral admission

Based on Supreme Court Decision No. 818 K / Sip / 1983 dated August 13, 1984, if an oral admission is strengthen with a statement given by de auditu witnesses from the disputed parties, then the statement has the value of  “strengthening” other evidence. To make the oral admission more concrete, the following steps can be taken:

  • present those who hear the admission and be examined as witnesses in court to prove the admission outside the court;
  • in addition to the verification with witnesses, it can also be made in writing;
  • if the facts about the existence of an admission outside the court can be proven, the admission outside the court can be used as judges’ presumption based on Article 1922 of the Civil Code, Article 173 HIR.
b. Written admission

A written admission outside the court is a written admission given by one of the disputed parties, outside this case, the contents of which justify what was stated by the opposing party in this case. This writing is the opposite of admission before the court[10]. Written admission outside the court can be given before or during the examination process[11].

Actually, the law only recognizes oral admission outside the court, but as time goes by, in practice there is also a written admission outside the court, which also has free evidentiary value[12]. This was also confirmed by the legal doctrine of Prof. Dr. R. Soepomo, S.H.[13], which states:

“Indonesian Regulations and B.W. do not mention written admission outside the court hearing. This can be understood, because written admission is included in the category of letter evidence (schrifterlijk bewijs), which indeed is a separate chapter.”

According to Pitlo, a civil procedural expert, the evidentiary value of written admission outside the court is free[14]. Written admission outside the court can be withdrawn by the defendant[15].

There are two types of written admission, namely:

  • Unilateral written admission

A writing received by the opposing party which contains admission of certain matter or facts can be used as written evidence if the letter is signed by the party concerned.

  • Written admission submitted to other party

For example, if one party makes a letter or writing that contains admission either whole or part of the dispute, and the written admission is given to another person, then the process that can be taken to make it as evidence are:

  • Must be proven in advance about the truth of the written admission, i.e. made and given by the maker to the recipient;
  • To prove this, it can be done with witnesses or in writing;
  • If it can be proven, it can be used as a source of facts of the judge’s presumption based on Article 1922 of the Civil Code.

Evidentiary Value of Admission Outside the Court

The provision concerning the evidentiary value of an admission outside the court is regulated in Article 1927 of the Civil Code, which states:

“An oral admission given outside the court cannot be used as evidence, except in the case that evidentiary with witnesses is permitted”.

Although it is declared that it cannot be used as evidence, the Judge was basically given the freedom to assess the oral admission outside the court. This is as regulated in Article 1928 of the Civil Code, which states as follows:

“As mentioned at the closing of the previous article, it is the Judge who determines which strength will be given to an oral admission that is stated outside the court.”

Based on the above, the evidentiary value of an admission outside the court is free (vrij bewijskracht)[16] or depend on the discretion of the judges to determine it. According to legal expert Wirjono Projodikoro, another Indonesian civil procedural law expert, the judge is very free to give a perfect evidentiary value as in admission before the judge, or does not give any evidential value, or can also use the admission as initial evidence (begin van bewijs) which can be perfected with other instruments of evidence[17]. It should be noted, in contrast to the admission before the judges that cannot be withdrawn, admission outside the court can be withdrawn.

We hope this will be useful.

FREDRIK J PINAKUNARY LAW OFFICES

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Yunilla Nurhalim
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[1] Prof. Dr. Sudikno Mertokusumo, S.H., Indonesian Civil Procedure Law, Liberty Publisher Yogyakarta, 1999, p. 150.

[2] Ibid, p. 149.

[3] Prof. DR. R. Wirjono Projodikoro S.H., Civil Procedure Law in Indonesia, Well Publisher, Bandung, 1992, p. 118, which states that judges must not merely surrender to the wishes of the parties. It is true that the nature of civil law and civil procedural law is that the desire of both parties is important, meaning that it depends on their desire, whether a civil right will be exercised or not, but this should not be interpreted that both parties can conspire to jointly “rape” the applicable law.

[4] This is as stated through the legal doctrine of Mrs. Retnowulan Sutantio, SH and Iskandar Oeripkartawinata, in his book entitled, Civil Procedure Law in Theory and Practice, CV Mandar Maju Publisher, 2009, p. 83, which states:

“Every confession must be received in whole, and the judge is not free to accept some part and reject the other parts, so that it becomes a loss to the person who confess it; but if the person who is in debt to release himself, mentions, along with that admission, some real false deeds; said article 176 HIR. This article contains the principle of “onsplitsbaar aveau”, a confession which must not be separated. … The purpose of this principle is to protect the honest party, who openly expresses everything that has actually happened, therefore he, as a honest person, must be protected. In the foregoing it has been stated, that in the evidentiary law especially the defendant must be protected, because he is a person who is under attack.”

[5] Prof. Dr. Sudikno Mertokusumo, S.H., Indonesian Civil Procedure Law, Liberty Publisher Yogyakarta, 1999, p. 154.

[6] Mrs. Retnowulan Sutantio, S.H. and Iskandar Oeripkartawinata, SH., in their book entitled Civil Procedure Law in Theory and Practice, CV Mandar Maju Publisher, 2009, p. 84.

[7] Prof. Moh. Taufik Makarao, S.H., M.H., Principles of Civil Procedure Law, PT Rineka Cipta, 2009, p. 114.

[8] M. Yahya Harahap, S.H., Civil Procedure Law on Lawsuit, Trial, Confiscation, Proof, and Court Decision, Sinar Grafika Publisher, 2015, p. 732.

[9] Prof. Mr. A. Pitlo, Evidence and Expiration According to the Dutch Civil Code, Publisher of PT Intermasa – Jakarta, 1986, p. 168 – 169.

[10] Ibid.

[11] M. Yahya Harahap, Loc.Cit.

[12] Prof. Moh. Taufik Makarao, S.H., M.H., The Principles of Civil Procedure Law, PT Rineka Cipta, 2009, p. 113.

[13] Prof. Dr. R. Soepomo, S.H., Civil Procedure Law of the District Court, Publisher of PT. Pradnya Paramita, Jakarta, 2000, p. 71.

[14] Prof. Mr. A. Pitlo, Evidence and Expiration According to the Dutch Civil Code, Publisher of PT Intermasa – Jakarta, 1986, p. 168.

[15] Prof. Dr. Sudikno Mertokusumo, S.H., Indonesian Civil Procedure Law, Liberty Publisher Yogyakarta, 1999, p. 154.

[16] M. Yahya Harahap, S.H. Civil Procedure Law regarding Lawsuit, Trial, Confiscation, Proof, and Court Decision, Sinar Grafika Publisher, 2015, p. 733.

[17] Prof. DR. R. Wirjono Projodikoro S.H., Civil Procedure Law in Indonesia, Bandung Well Publisher, 1992, p. 119.


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