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In carrying out his/her profession, an Advocate is protected by law, statute and code of ethics. In addition, Advocates have freedom which is based on the honor and personality of an Advocate who adheres to Independence, Honesty, Confidentiality and Openness. Thus, the Advocate profession is called as a noble profession (Officium Nobile). Apart from being labeled as a noble profession, what is even more special is that Advocates are also granted with immunity rights based on Law Number 18 of 2003 concerning Advocate (“Advocate Law”). To what extent can an advocate “enjoy” the immunity rights? Below are the explanations.

Article 15 of the Advocate Law explains the Advocate’s immunity right, namely:

“Advocates are free in carrying out their professional duties to defend cases for which they are responsible by sticking to the professional code of ethics and laws.”

The elucidation of Article 15 of the Advocate Law explains that this provision regulates the Advocate’s immunity rights in carrying out their professional duties for the benefit of their clients outside of court proceedings and in accompanying their clients at hearings at people’s representative institutions.

On the other hand, although an Advocate has immunity rights as described above, an Advocate is not necessarily free from all lawsuits. In carrying out their duties, Advocates must have a good faith as described in Article 16 of the Advocate Law jo. Constitutional Court Decision Number 26/PUU-XI/2013. The article can be cited as follows:

“Advocates cannot be prosecuted either civil or criminal in carrying out their professional duties in good faith for the benefit of the client’s defense inside or outside court proceedings.”

In the elucidation of Article 16 of the Advocate Law, “good faith” means carrying out professional duties for the sake of upholding justice based on the law to defend the interests of his/her clients. Meanwhile, what is meant by “court proceedings” is a court proceedings in every level of court in all areas of the court.

The Decision of the Constitutional Court of the Republic of Indonesia Number 26 / PUUXI / 2013 states that Article 16 of the Advocate Law does not have binding legal force as long as it is not interpreted, “Advocates cannot be prosecuted either civil or criminal in carrying out their professional duties in good faith for the benefit of the client’s defense inside or outside the court proceedings”. The meaning of outside court proceeding in the Constitutional Court decision is the defense of an advocate since his/her client is examined and suspected outside the trial.

A senior advocate, Luhut M.P. Pangaribuan, in his book with title “Advocate and Contempt of Court: A Process in the Professional Honorary Council”, explains that if there is an allegation of a criminal act committed by an Advocate, then the Advocate’s immunity rights does not apply, for example in ways that violate the law. For instance, an Advocate obstructs or hinders the court process against his/her client by telling his/her client to pretend to be sick or to leave the country. This is an alleged criminal act and is not protected by immunity rights.

It is different when an Advocate advises his/her client in good faith, such as giving input to his/her client to prepare a large team of experts which can help his/her client to be declared innocent. This is protected by the immunity rights.

In line with the opinion of senior Advocate, Luhut M.P. Pangaribuan, former Supreme Court Justice, Susanti Adi Nugroho, explained that Advocate’s immunity rights are not absolute. Advocates are not immune to the law so they can still be held accountable. Moreover, Advocate is a professional profession and clients deserve the best efforts from an Advocate. The phrase “in trial” is not only in the courtroom itself, but every action that is required when conducting the trial process itself, whether in the court of first instance until a civil review. The act of a corporate lawyer in handling his/her client’s affairs has nothing to do with court proceedings. Legal opinions regarding the case of his/her clients cannot be categorized as legal opinions that are immune to the law as stipulated in Article 14, Article 16, and Article 18 of the Advocate Law. If something goes wrong when giving their legal opinion, they can be held accountable. In other words it is not protected by the immunity rights.[1]

Cases related to violations of Advocate’s immunity rights can be seen in a case involving Advocate named Fredrich Yunadi, a former lawyer for Setya Novanto, who was named a suspect and detained by the Corruption Eradication Commission (“KPK”). In this case, the KPK assessed that Fredrich had obstructed and hindered the investigation of the e-KTP case with the suspect Novanto. This refers to the KPK’s allegations that Fredrich Yunadi and Bimanesh Sutarjo, a doctor at Medika Permata Hijau Hospital, has worked together to manipulate Setya Novanto’s medical data while being treated after the accident that befell Setya Novanto. In this case, Fredrich claims that he was criminalized because as an advocate he has the immunity rights, while the KPK found strong evidence that Fredrich and Bimanesh has cooperated to obstruct the investigation process. Fredrich Yunadi is deemed to have violated Article 21 of Law Number 31 of 1999 concerning the Corruption, namely “Any person who deliberately prevents, obstructs, or thwarts directly or indirectly the investigation, prosecution and examination in court against suspects and defendants or the witness in a corruption case, is sentenced to imprisonment for a minimum of 3 years and a maximum of 12 years and / or a fine of at least IDR 150 million and a maximum of IDR 600 million.”

Thus, the Advocate’s immunity rights only apply to those who carry out their profession in defending their clients in good faith. This measure of good faith is in accordance with the applicable laws and does not violate the law. Based on the Advocate Code of Ethics, an advocate in carrying out his/her profession must be free and independent, and not influenced by anyone and must fight for human rights.

Hope this is useful.

FREDRIK J. PINAKUNARY LAW OFFICES


[1] Teguh Prasetyo , Hukum dan Sistem Hukum Berdasarkan Pancasil,(Yogyakarta:Media Perkasa,2013),hal.34.


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