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In media coverage we often hear that the president grant clemency, amnesty, abolition, and rehabilitation. What exactly is the difference between these terms? In this article we will discuss the different definitions of each of these terms and how to apply for them.

Clemency

Clemency is a pardon in the form of amendment, commutation, reduction, or abolition of criminal punishment to a convict given by the President. Clemency is regulated in Law No. 5 of 2010 concerning Amendments to Law No. 22 of 2002 concerning Clemency (“Clemency Law“).

The convict can submit a request for clemency from the President for a court decision which has obtained permanent legal force and no later than 1 (one) year after the decision has obtained permanent legal force. The word “can” is meant to give the convict freedom to use or not use the right to submit a request for clemency. A request for clemency may only be submitted 1 (one) time.

The decisions that can be requested for clemency are death sentence, life imprisonment, or imprisonment of at least 2 (two) years. A petition for clemency will not delay the execution of criminal punishment for convict, except in the case of a death sentence.

The judge or the head of judge who decides the case at the first level informs the convict about the right to file a clemency. If the convict is not present at the time the court decision is given, the right of the convict to file a clemency is notified in writing by the court clerk of the court who decides the case at the first level.

An application for clemency may be filed by the convict or his/her attorney. In addition, it can also be submitted by the convict’s family with the approval of the convict. The family referred to here is the wife or husband, biological children, biological parents, or siblings of the convict. However, if the convict is sentenced to death, a request for clemency can be submitted by the family of the convict without the convict’s consent. In addition, the minister in charge of government affairs in the field of law and human rights can ask the convict, his/her legal counsel or the family of the convict to submit a request for clemency in the interests of humanity and justice.

Requests for clemency are filed in written form. A copy of the request for clemency is submitted to the court which decides the case at the first level to be forwarded to the Supreme Court. Requests for clemency and copies can also be submitted by the convict through the Head of Penal Institution where the convict is punished. The Head of Penal Institution then submits the request for clemency to the President and a copy is sent to the court which decides the case at the first level no later than 7 (seven) days from the receipt of the request for clemency and a copy. The court of first level will send a copy of the request and case dossier of the convict to the Supreme Court within a period of no later than 20 (twenty) days from the date of receipt of the copy of the request for clemency.

Then, within a period of no later than 30 (thirty) days from the date of receipt of the copy of the request and case dossier, the Supreme Court sends written consideration to the President. The President gives a decision on the request for clemency, both granting or rejecting clemency, after taking into account the considerations of the Supreme Court. The time period for granting or rejecting clemency is no later than 3 (three) months from the receipt of the Supreme Court’s consideration. The Presidential Decree is conveyed to the convict within a period of no later than 14 (fourteen) days from the stipulation of the Presidential Decree.

Convicts can get clemency in the form of:

  1. commutation or change in criminal punishment;
  2. reduction of the criminal punishment; or
  3. abolition of criminal punishment.

 Amnesty

Stipulations regarding amnesty can be seen in Emergency Law No. 11 of 1954 concerning Amnesty and Abolition. However, the law does not provide a definition of amnesty. Amnesty can be defined as a remission or abolition of a sentence given by the head of state to a person or group of people who have committed a crime. Granting amnesty means that all consequences of criminal law are abolished. Based on Article 14 (2) of the 1945 Constitution, the president grants an amnesty by taking into account the considerations of the House of Representatives (“DPR“).

There are no specific rules governing the procedure for submitting an amnesty. However, in practice, the secretary of state will make a list of names of prisoners who will receive amnesty. After an internal review, the proposal will be sent to the DPR to get a response. Taking into account the response of the DPR, if the president considers that amnesty needs to be granted, the president will issue a presidential decree concerning amnesty. Through the presidential decree, the said prisoners will be out from the penal institution[1].

Abolition

Abolition can be defined as the abolition of an ongoing legal process of a person. Abolition is given to individual convicts and is given when court proceedings are or will take place. Based on Article 14 (2) of the 1945 Constitution, the president grants abolition by taking into account the considerations of the DPR.

Rehabilitation

According to Article 1 Number 23 of the Criminal Procedure Code, rehabilitation can be defined as an act of fulfilling a person’s right to recover his/her rights in his/her abilities, position and dignity, given at the level of investigation, prosecution or trial for being arrested, detained, prosecuted or tried without a reason based on the law or because of a mistake about the person or the laws applied.

An accused has the right to obtain rehabilitation if the court decided he/she is acquitted or is free of all lawsuits, which decisions have permanent legal force. Meanwhile, a suspect has the right to demand rehabilitation, if an arrest, detention, search or seizure is carried out without valid legal reasons.

Hope this is useful.

FREDRIK J PINAKUNARY LAW OFFICES

This article is also available in Bahasa Indonesia : Memahami Perbedaan Grasi, Amnesti, Abolisi, dan Rehabilitasi


[1] Abi Jam’an Kurnia, Tahapan Pengajuan Amnesti, https://www.hukumonline.com/klinik/detail/ulasan/lt5ce8049120a7f/tahapan-pengajuan-amnesti


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