For those of you who enjoy Hollywood big-screen films, you must be familiar with the scene of arresting criminals by the police; the police often say the following:
“You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.”
The following is an explanation of why the police in America always mention these words when arresting the criminals not only in the movie but also in real life:
Regarding the rights of a suspect/defendant, United States law recognizes the principle known as the Miranda Rule. Miranda Rule is the right of a suspect/defendant which includes the right not to answer questions from the official concerned (investigators) in the criminal justice process and the right to be accompanied or present by a lawyer from the investigation process to and/or at all levels of the judicial hearing. Miranda Rules was born from a phenomenal case in the United States namely Miranda vs. Arizona. The case began with a man named Ernesto Miranda who was arrested as a suspect in a case of kidnapping and rape of a teenager in Phoenix, Arizona, United States. After being interrogated by investigators for about two hours, Miranda finally claimed to be the perpetrator and he signed the minutes of investigation. At the end of the minutes it is written that Miranda answered voluntarily, without coercion, and understands his legal rights. However, at the beginning of the examination, Miranda was not given the right to get a lawyer to accompany him in the examination. The written statement made by Miranda was then used as evidence of the defendant’s confession, resulting in him sentenced to 20 years in prison.
With respect to the verdict, Ernesto Miranda through his lawyer filed an appeal to the United States Supreme Court with the argument that the confession made by Miranda in investigation process was invalid, because at first, before the examination, his rights were not granted as a suspect. This was done in 1966 but did not make him free, only granting him a reprieve. At the Supreme Court level, The Public Prosecutor sought other confessions which could incriminate Ernesto Miranda. A confession was finally obtained from his ex-girlfriend, making Ernesto Miranda was sentenced to 11 years in prison. In 1972 Ernesto released on parole. After he was released he was often arrested and returned to prison for several times.
The spirit of the decision is that the confession of suspects in the investigation process must not be obtained in a manner that violates the law. The rights of the suspect must be given in every investigation process until the hearing process. The decision was considered as one of the “landmark decisions” in the US justice system.
Miranda’s decision spread to become a national issue. The US Congress accepted the decision by making rules that require investigators to read the suspect’s right to remain silent and their right to get a lawyer before the interrogation/investigation. The following is an excerpt of Miranda Rules:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
Under Indonesian law, something similar to the Miranda Rule is regulated in several articles in Law No. 8 of 1981 concerning Indonesian Criminal Procedural Law (“KUHAP”), namely:
Article 18 (1) KUHAP:
“The task of making an arrest shall be executed by officers of the state police of the Republic of Indonesia by showing their assignment letters and giving the suspect the arrest warrant which contains the suspect’s identity and states the reasons for the arrest and a brief explanation of the criminal case of which he is suspect and the place where he is to be examined.”
Article 51 KUHAP:
“In order to prepare a defense:
a. a suspect shall have the right to be clearly informed in a language which he understands about what he is suspected of at the time an examination begins;
b. a defendant shall have the right to be clearly informed in a language which he understands about what he is suspected of at the time an examination begins.”
Article 52 KUHAP:
“in examinations at the stages of investigation and adjudication, a suspect or an accused has right to freely give information to an investigator or judge.”
Article 54 KUHAP:
“for purposes of defense, a suspect or a defendant has the right to obtain legal assistance from one or more legal counsels during the period of and at every stage of examination, according to the procedures stipulated by this law.”
Article 55 KUHAP:
“in order to obtain the legal counsel referred to in article 54, a suspect or a has the right to make his own choice of legal counsel.”
Article 56 KUHAP:
“(1) In the event that a suspect or defendant is suspected or charged with a criminal offense that is threatened with multiple punishment or fines of fifteen years or more or for those who cannot afford those who are threatened with a sentence of five years or more who do not have their own legal counsel, the official at all levels of examination in the judicial process must appoint a legal counsel for them;
(2) Every legal counsel appointed to act as referred to in paragraph (1), provides assistance free of charge. “
Article 57 KUHAP:
“(1) A suspect or defendant subject to detention has the right to contact his legal counsel in accordance with the provisions of this law;
(2) A Suspects or defendant of foreign nationality who are subject to detention have the right to contact and speak with a representative of their country in dealing with the case process.”
Legal remedies that can be carried out in the event of violations of these articles can be sought by applying for a pretrial hearing as stipulated in Article 77 through Article 83 of KUHAP.
In addition to pretrial hearing legal efforts, the suspect can also file a complain regarding the arbitrary action conducted by the police officers at the time of arrest and detention to the Division of Profession and Internal Security (Divpropam) because of violations of the Police Professional Code of Ethics as regulated in Article 15 of the Head of Indonesian Police Regulation No. 14 of 2011 concerning the Republic of Indonesia National Police Professional Code of Ethics.
When the results of investigations and examinations have been submitted to the court, and the violation of the rights of the suspect occurs, such as not being fulfilled his right to be accompanied by a legal counsel or not given legal assistance for suspects who are unable to afford it, the judge then should decide that the indictment of the public prosecutor is null and void by law. This was confirmed in the Supreme Court Decision No. 1565 K/Pid/1991 dated September 16, 1993, which states:
“If the conditions of the request are not fulfilled as the investigator did not appoint a legal counsel to the suspect from the beginning of the investigation, the prosecution’s indictment was declared unacceptable.”
The judge’s decision regarding the indictment of the public prosecutor was declared null and void by law, among others, have been made by Judge Tjokorda Rae Suamba in a child criminal case. Judge Tjokorda stated that the indictment on the case of the child with the defendant DS was null and void by law, so the Public Prosecutor was ordered to stop the prosecution of the DS as the defendant.
In its legal considerations, Judge Tjokorda saw that DS as a defendant was a 14-year-old child who was legally considered as not yet capable under the law, making him unable to take legal actions such as making power of attorney or other legal documents. In the evidentiary process of the court hearing, Judge Tjokorda found evidence in the minutes of the investigation that showed DS had signed a statement and an official report. The two documents stated that DS consciously refused to be accompanied by a lawyer.
Based on the above explanation, although the principle of Miranda Rules is not known directly in Indonesian law, similar principles can be found in the Indonesian Criminal Procedural Law. In the event of a violation conducted by the Police of these principles, the suspect or defendant can file a pretrial hearing at the District Court and the violating Police officer can be reported to Code of Ethics Commission of Republic of Indonesia National Police through the Division of Profession and Internal Security (Divpropam).
Hope it’s useful,
FREDRIK J. PINAKUNARY LAW OFFICES