The civil procedural code stipulates the types of evidences, the minimum limits and the strength of evidentiary. Article 164 HIR, 284 R.Bg and 1866 Civil Code states the details of evidence in civil procedural law, namely written evidence, witness evidence, allegations, confessions, and oaths.
Besides those five evidences, there are also two other institutions, namely the site visit examination (descente/plaatselijke opneming en onderzoek) and expert opinion (expertise). Although, according to Article 164 HIR, 284 R.Bg. or Article 1866 of the Civil Code, the two institutions is not regarded as evidences, but based on various arguments, which will be explained below, they poses a significant aspect. In this article we will focus to explain on the Site Visit Examination.
According to a legal expert Sudikno M., S.H. in his book entitled Indonesian Civil Procedure Law, Site Visit Examination or Descente is an examination of a case by a Judge because of his position that is conducted outside the court, so that the Judge can get a picture or information that gives certainty about the events that are in dispute.
This Site Visit Examination is an examination carried out by the judge directly in the location or place of disputed property. It is often also called an on-site examination. The judge (the panel) himself went to the place of the disputed object, and assisted by a Registrar or a Substitute Registrar. In this case, the judge can examine documents, witnesses and other matters deemed necessary, for example: land boundaries, location and conditions obtained on the land. All the facts found by the judge (the panel of judges) at the time the session is held, immediately become the judge’s own knowledge.
Legal Basis for Site Visit Examination
Site Visit Examination is regulated under article 153 HIR/Article 180 RBG, which states:
- If being considered and useful, the Head of District Court may appoint one or two commissioners from the Court, who with the help of the Registrar will examine a local situation, so that it can become an information to the Judge.
- The Registrar will make minutes about the work and the results and signed by the Commissioner and the Registrar.
- (R.Bg). If the place to be examined is located outside the jurisdiction where the Court located, the Head of District Court may ask the local Government to conduct or order to carry out the inspection and send as soon as possible the minutes of the examination.
Furthermore, Site Visit Examination is regulated under the Supreme Court Circular Letter Number 7 of 2001 concerning Site Visit Examination which explains that many civil cases with permanent legal force cannot be executed (non-executable) because the disputed objects such as the location, area and boundaries of the rice fields/land are not clear.
Site Visit Examination is also regulated in Article 211 RV, namely:
- If the Judge either at the request of the parties or because of its position deems it necessary, then with a written order may make an order to one or more members of the panel of judges, accompanied by the Registrar, come to a place that must be examined to assess the local conditions and make a deed of opinion, either to do it independently or with the assistance of experts.
- With the same means and intent, it can be ordered, to examine movable objects which cannot or are difficult to be brought into a court hearing.
- The decision determines the time of the examination at the place or time and place of examination, the grace period, when the minutes as mentioned in Article 212 must be provided in the Registrar’s Office, and determines the time for the hearing for the parties to continue the case.
Site Visit Examination in Practice
Site Visit Examination is essentially an official court hearing, where the trial location is moved from the courtroom building to the place/location of the disputed object. The Plaintiff and Defendant must attend the hearing, therefore in Site Visit Examination, the Plaintiff and Defendant must be summoned/ordered to attend, except if they do not attend after being summoned/ordered, the Site Visit Examination can still be carried out. (Article 127 HIR / Article 151 RBg).
According to Article 153 jo. Article 163 HIR / Article 180 jo. Article 283 RBg, the parties to the dispute may request the Panel of Judges to conduct a Site Visit Examination if the opposing party denies the truth about the location, area and boundaries of the disputed land object.
However, if the parties do not request, the Judge because of his position, ex officio, will take the initiative to determine the Site Visit Examination upon finding there is a certain problem with the disputed object. It was obtained and can be extracted from the trial process.
The importance of conducting a Site Visit Examination by a Judge can be seen from the following decision:
Decision of the Supreme Court No. 274 K /Sip/1976 dated April 25, 1979 stressed that: Because judex facti had not examined the land owned by the plaintiff but under the possession of the defendants, the District Court was ordered to conduct a site visit examination followed by measurement of the land by Sub. Director District Agrarian affairs and witnessed by the relevant Judge and the parties.
Decision Number 3783 K/Pdt/1987, a case between the Republic of Indonesia qq. Government QQ. The Ministry of Finance of the Republic of Indonesia against the Indonesian Entrepreneur Education Foundation. Before issuing a final decision, the Supreme Court decided to have an additional examination conducted by the Supreme Court itself to clearly know the status and location of the disputed land as well as other matters related to the disputed land deemed necessary by summoning expert witnesses from 1. South Jakarta Agrarian Service, 2. South Jakarta Land Tax Inspection, 3. Sub-district Head of Mampang Prapatan, South Jakarta, and witnesses, 1. Village Head of Kalibata, Mampang Prapatan, South Jakarta, 2. Notary Chufrari Iiamal, SH., 3. Head Registrar of Central Jakarta District Court, 4. The heirs whose names are listed in the Decree of the Special District Court of Jakarta dated April 15, 1964 No. 421 / 1962.G, 28 July 1964, No.429 / 1964 G, 8 October 1974 No. 417/1974 G (evidence P.4b, P.5b, P.6b), to attend the Supreme Court consultative session.
As explained previously, although the Site Visit Examination is not considered as evidence based on Article 164 HIR, Article 284 R.Bg., and Article 1866 of the Civil Code, but because of the aim that judges obtain certainty over disputed events, the function of Site Visit Examination is essentially as evidence. The evidentiary strength of Site Visit Examination is left to the judge to decide.
Hope this is useful.
FREDRIK J PINAKUNARY LAW OFFICES
This article is available in Indonesian. Please follow this link: Pemeriksaan Setempat (descente)