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Before the hearing begins, the court will summon the defendant through a summons. If the defendant is domiciled in Indonesia, the summons is delivered directly to the defendant. However, what if the defendant is domiciled abroad?

The procedure for summoning defendants domiciled abroad is stipulated in the Memorandum of Understanding of the Ministry of Foreign Affairs and the Supreme Court of the Republic of Indonesia concerning Handling a Request of Legal Technical Assistance in Civil Matter No. PRJ/HI/102/02/2018/01 No. 01/NK/MA/2/2018 signed on February 20, 2018 (“Memorandum of Understanding“). Indonesia does not have legislation related to handling a request of legal technical assistance in civil matter yet. To fill the legal vacuum, therefore a Memorandum of Understanding which serves as a guide in handling a request of legal technical assistance in civil matter from Indonesian courts to foreign courts and vice versa, was created.

Legal technical assistance in civil matter that can be requested is in the form of letters rogatory and delivery of judicial documents. Letters rogatory are letters of request from other countries to obtain legal technical assistance in the field of civil service regarding, but not limited to assistance in finding or identifying people, searching for or identifying assets or property, obtaining witness statements, obtaining documents or other evidence, and implementing civil process.

Meanwhile, judicial documents that can be delivered include but are not limited to civil statement of claim, summons for civil litigation, witness examination letters, legal remedies statement letter, case dossier examination statements letter, court stipulation or decisions, letters, deeds, and other civil documents.

Both legal technical assistance involves several parties, including the courts in Indonesia, the Supreme Court, the Ministry of Foreign Affairs, diplomatic representatives of foreign countries in Indonesia, and also representatives of the Republic of Indonesia abroad. What is meant by Indonesian representative abroad is diplomatic and consular representatives of the Republic of Indonesia who officially represent and fight for the interests of the nation, state and the Indonesian government as a whole in the recipient country or in an international organizations.

Following are the procedures for requesting legal technical assistance in civil matter from Indonesian courts to foreign courts:

A. Letters rogatory

  1. Courts in Indonesia through the Supreme Court submit letters rogatory to the destination country. The letters rogatory must meet the conditions required by the destination country.
  2. The Supreme Court through the Ministry of Foreign Affairs submits the letter rogatory to the foreign court.
  3. The Ministry of Foreign Affairs through the Republic of Indonesia’s representatives abroad forward letters rogatory to the competent authorities in the destination country.

B. Judicial Documents

  1. Courts in Indonesia through the Supreme Court submit requests for delivery of judicial documents in civil matter to the destination country. The request must meet the conditions required by the destination country.
  2. The Supreme Court shall forward the request to the destination country through the Ministry of Foreign Affairs which is handled by:
    • Directorate of Legal and Socio-Cultural Agreements, Directorate General of Law and International Agreements, in the case of judicial documents addressed to a Foreign Citizens or Foreign Legal Entities;
    • Directorate of Consular / Directorate of Protection of Indonesian Citizens and Indonesian Legal Entities, Directorate General of Protocol and Consular Affairs, in the case of judicial documents addressed to Indonesian Citizens domiciled abroad.
  3. The Ministry of Foreign Affairs through the Republic of Indonesia’s representatives abroad shall forward the request to the competent authority or other parties in accordance with the law of the destination country.

Due to the lengthy procedure that must be taken in submitting summons, usually the first hearing of a lawsuit whose defendant is domiciled abroad will be held 2 to 3 months after the lawsuit is registered at the District Court.

Furthermore, foreign courts can also request for legal technical assistance in civil matter from Indonesian courts. Below is the procedure:

A. Letters rogatory

  1. A letter rogatory from a foreign country must be addressed to the Supreme Court and delivered through its diplomatic representative in Indonesia or whose territory covers Indonesia. The letter rogatory must be accompanied by several supporting documents. For more details, those supporting documents is stipulated in Article 6 (2) Memorandum of Understanding.
  2. Diplomatic representatives forward letters rogatory to the Ministry of Foreign Affairs c.q. Directorate of Legal and Socio-Cultural Agreements, Directorate General of Law and International Agreements.
  3. Ministry of Foreign Affairs c.q. Directorate of Legal and Socio-Cultural Agreements, Directorate General of Law and International Agreements forward letters rogatory to the Supreme Court for further action.
  4. The Supreme Court sends proof of receipt of a letter rogatory to the Ministry of Foreign Affairs to be forwarded to diplomatic representatives from the foreign country.
  5. The Supreme Court forwards letters rogatory to the competent court in Indonesia.
  6. The Supreme Court conveyed to the Ministry of Foreign Affairs the results of the follow-up in handling of letters rogatory in the form of Minutes of Examination to be forwarded to the diplomatic representatives of the foreign country.

B. Judicial documents

  1. Requests for the delivery of judicial documents from foreign countries are submitted to the Ministry of Foreign Affairs through diplomatic representatives in Indonesia or whose territory covers Indonesia.The request is attached with:
    • Name of the intended party;
    • The clear address of the litigants (plaintiff or defendant) or their representatives;
    • Name and address of the requested witness (expert witness or party witness).
  2. The Ministry of Foreign Affairs submits the request to the Supreme Court for further action.
  3. The Supreme Court sends proof of receipt of the delivery of documents to the Ministry of Foreign Affairs to be forwarded to diplomatic representatives from the recipient country.

Letters rogatory and requests for delivery of documents along with other related documents from foreign courts must be attached with Indonesian translation, unless otherwise stipulated based on mutual legal assistance agreements in civil matters with the foreign country.

Hope this is useful.

FREDRIK J PINAKUNARY LAW OFFICES


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