In the case of a person suspected of having committed a crime, the case of which is being investigated by the police, the police, in this case, the investigator or assistant investigator based on the order from the investigator, has the authority to detain the suspect. Detention is the placement of a suspect or defendant in a certain place by the investigator, or the public prosecutor or judges by their determination, in terms of and in the manner stipulated in this law, as explained in Article 1 number 21 of the Criminal Procedural Law. In practice, the status of detainees often becomes prolonged because the police investigation process is still ongoing. According to Article 7 paragraph (1) letter d of the Criminal Procedural Law, investigators, (in this case the police) because of their obligations, have the authority to conduct detention.
In a detention, the suspect or defendant is given the right to apply for their detention to be suspended. The provisions related to the suspension of detention is regulated in Article 31 paragraph (1) of the Criminal Procedural Law which reads “At the request of the suspect or defendant, the investigator or public prosecutor or judge, in line with their respective authorities, can allow a suspension of detention with or without money or personal guarantee on the basis of set conditions..”
In the explanation of Article 31 of the Criminal Procedural Law, it is explained that what is meant by “determined conditions” is mandatory reporting, not leaving the house or city. The period of suspension of detention of a suspect or defendant does not include the period of detention status.
Therefore, based on Article 31 of the Criminal Procedural Law, the requirements for a person to receive a suspension of detention can be set forth:
- Request from suspect or defendant;
- This request for a suspension of detention is approved by an investigator or public prosecutor or judge who detains with or without guarantee as determined;
- There is an agreement from the suspect/defendant who was detained to comply with the conditions and guarantees set.
Former judge and legal expert M. Yahya Harahap in his book titled “Discussion on Problems and Application of the Criminal Procedural Law; Investigations and Prosecutions” explains that one of the differences between the suspension of detention and release from detainees lies in the “condition”. This factor is the “basis” or foundation for the suspension of detention. While the act of release is carried out “without conditions”, making it not a factor underlying the release. According to Yahya, the determination of this condition constitutes conditio sine quanon in the provision of suspension. So, without the condition set beforehand, the suspension of detention may not be given.
Furthermore, Government Regulation No. 27 of 1983 concerning the Implementation of the Criminal Procedural Law stipulates that in the request for a suspension of detention, there is a required guarantee which can be given in the form of:
1. Bail (article 35)
- This bail is determined by the authorized official in accordance with the level of examination and is kept in the district court registrar.
- Depositing of this bail is made solely by the applicant or his legal counsel or his family and for that the registrar gives a receipt.
- This deposit is carried out based on the “deposit form” issued by the agency concerned.
- Proof of this deposit is made in triplicate according to the provisions of number 8 letter f Attachment to the Decree of the Minister of Justice No. M. 14-PW.07.03/1983. The copy of the receipt by the court registrar is conveyed to the competent official in accordance with the level of examination to be the basis for the official holding the issuance of a warrant or a detention suspension order.
- If then the suspect or defendant runs away and after 3 (three) months has not been found, the bail becomes the property of the state and is deposited in the State Treasury.
2. Guarantor (article 36)
- The guarantor can be the legal counsel, family, or anyone else who has no connection with the detainee.
- The guarantor gives a “statement” and certainty to the holding institution that he is “willing” and is responsible for taking all the risks and consequences that arise if the prisoner runs away.
- The identity of the person who guarantees must be clearly stated.
- The agency that conducts detention determines the amount of money that must be borne by the guarantor.
- The issuance of a suspension of detention warrant is based on a guarantee letter from the guarantor.
Related to the bail, based on Decree of the head of the Indonesian police No: Skep/1205/IX/2000, dated 11 September 2000 concerning the Revision of the Association for implementation Instruction and Technical Guidelines for the Criminal Investigation Process, Suspension of Detention conducted on a Bail held with the provisions:
- An agreement was made between the Investigator and the Suspect or his Legal Counsel to determine the conditions;
- The bail must be clearly stated in the agreement, the amount of which is determined by the investigator;
- The bail is deposited by the applicant or their legal advisor or their family to the registrar of the District Court with a Deposit Form issued by the Investigator;
- Evidence of a deposit made in 3 copies, one sheet for the court registrar, one sheet brought by the depositor, another sheet sent by the court registrar to the investigator;
- Based on the evidence of depositing the money, the investigator then issues a Detention Suspension Order.
How do investigators determine the amount of bail? So far, it only depends on the discretion of the judge or investigator. The bail can basically be used for the benefit of the investigator if the suspect then runs away. Related to this, the provision of Article 35 paragraph (2) Government Regulation No.27/1983 states that if a suspect or defendant runs away and after 3 (three) months has not been found, the bail becomes the property of the state and is deposited in the State Treasury.
Hope it’s useful,
FREDRIK J. PINAKUNARY LAW OFFICES