Parties in the Law of Criminal Procedure
1. Suspect and
Defendant
Suspect is someone, because of his
action or his condition based on beginning of evidence, should be known as the
perpetrators of criminal action.
Defendant is a suspect who is
demanded, is examined, and is judged at the court.
Suspect has right to choose he want
to answer the question from investigator or not. It based on the principle of “akusator”
The suspect has been given a set of
rights by statute book of criminal law procedure that includes:
a.
The right to immediately receive the examination.
Defendant may soon get a further examination by the investigator to be
submitted to the public prosecutor, and the defendant may promptly forward his
case to the public prosecutor by the court (Article 50 paragraph 1 and
paragraph 2).
b.
The suspect has the right to be informed clearly in a
language understood by him about what was alleged to him at the time of the
examination begins (Article 51)
c.
The right to provide information freely to investigator.
In examining the level of investigation and trial, the suspect or the accused
has the right to provide information freely to the investigator or the judge
(Article 52 of the Criminal Procedure Code).
d.
The right to obtain an interpreter in every
examination. In examining the level of investigation and trial, the suspect or
the accused has the right to at any time get an interpreter (Article 53
paragraph 1, cf. Also Article 177).
e.
The right to have legal representation at any level of
scrutiny. For the benefit of the defense, suspect or the accused are entitled
to legal assistance of one or more legal adviser during the time and at every
level of inspection, according to the procedure set out in legislation /
Criminal Procedure Code (Article 54)
f.
Entitled to freely choose counsel. To obtain legal
counsel or the defendant's alleged right to choose their own counsel (Article
55).
g.
The right to change becomes mandatory to obtain legal
assistance. Mandatory for the accused to have legal representation for the
accused in all levels of alleged checks if the allegation were threatened with
the death penalty or a sentence of a minimum of 15 years or more (Article 56).
h.
The suspect or defendant charged detentions are
entitled to contact his legal counsel in accordance with the provisions of the
Criminal Procedure Code (Article 57).
i.
The suspect or the accused has the right to contact the
subject of detention or receiving visitors from personal physician for the
benefit of good health has to do with the case or not (Article 58)
j.
The suspect or the accused has the right of detention
imposed on him informed of the arrest by the authorities, at all levels of the
examination in the judicial process, to family or other people at home with the
suspect or defendant or other person whose assistance required by the suspect
or defendant to obtain legal assistance or warranty for the suspension (Article
59).
k.
The suspect or the accused has the right to contact and
receive visits from those who have family or other relationship with the
suspect or the accused to obtain bail for surety or to attempt legal aid
(Article 60).
l.
The suspect or the accused has the right, directly or
through the intermediary of his lawyer to contact and receive visits relatives their
family in things that have nothing to do with the case against the suspect or
the accused for the purpose of employment or for a family (Article 61).
m.
The suspect or the accused has the right, directly or
through the medium of his legal counsel and received a letter from his lawyer
and relatives family whenever required by him, for this purpose for the suspect
or defendant supplied stationery (Article 62).
n.
The suspect or the accused has the right to contact and
receive visits from clergy (Article 63).
o.
The defendant has the right to be tried in a court
siding open to the public (Article 64).
p.
The suspect knew the defendant has the right to seek
and call witnesses and or a specially qualified to provide testimony favorable
to him (Article 65).
q.
Suspect or defendant is not burdened with the burden of
proof (Article 66).
r.
Suspect or defendant the right to demand compensation
and rehabilitation (Article 68. cfa Article 95)
2. Public Prosecutor
Public prosecutor is from French and
then it was adopted by Netherlands, through the principle of concordance it
come into force in Indonesia.
The supreme prosecutor is attorney general. Law no 5 year 1991 set
about the authority of attorney general and prosecutors.
3. Investigator
and Preliminary Investigator
Investigator is an official of the
state police of the Republic of Indonesia or a certain official of the civil
service who by the law is granted special authority to conduct an
investigation.
Preliminary investigator is police
and civil servant who investigate the defendant.
It apparent a close relationship
and function between investigator and preliminary investigator. investigation
is not a stand-alone function, separate from the functions of investigation,
but only one way or method or a sub rather than a function of investigation,
which preceded another action that is action in the form of arrest, detention,
search, seizure, inspection letters, calling, acts of checks, completion and
submission of the case file to the Public Prosecutor.
4. Legal Counsel
Legal counsel is someone who
assists a suspect or defendant as an assistant in the examination.
In practice, prior to accompany a
defendant at the trial of the Legal Counsel should get a "Special Power of
Attorney" from the defendants then registered in the District Court which may
prosecute the case or appointed orally by the defendant in court, and if a
defendant cannot be accompanied by Counsel which appointed by the court based
on the "Determination" by appointing judges who hear the case. To get
legal assistance free of charge, the defendant had to prove incapability of him
with a certificate from the local government.
Under the provisions of Article 56
of the Criminal Procedure Code the Legal Counsel is necessary, because the
article mentions the obligation for officials to appoint counsel for a
defendant who threatened with the death penalty or criminal threats of five
years or more, to those who cannot afford.
RIGHTS OF LEGAL COUNSEL
Under Law No. 8 of 1981 on Criminal
Procedure
Article 69
Legal counsel has the right to
contact the suspect has since been arrested or detained at all levels of
examination according to the procedures specified in this law.
Article 70
(1) Counsel referred to in Article
69 the right to call and talk to a suspect at any level of scrutiny and every
time for the sake of the defense of his case.
(2) If there is evidence that the
lawyer is misusing its rights in talks with the suspects according to the
investigation, the investigator, prosecutor or correctional officer gives a
warning to counsel.
(3) If the warning is not heeded,
then the relationship is supervised by an officer referred to in paragraph (2).
(4) If, after being watched, their
rights are abused, then the relationship was witnessed by an officer referred
to in paragraph (2), and if after that still are violated, the next relationship
is prohibited.
Article 71
(1) legal counsel, according to the
investigation, in dealing with suspects supervised by the investigator,
prosecutor or correctional officer without hearing the conversation.
(2) In the case of crimes against
state security, the official referred to in paragraph (1) to hear the
conversation.
Article 72
At the request of the suspect or
his lawyer concerned officials gave derivatives investigation report for the
purpose of defense.
Article 73
Legal counsel has the right to send
and receive mail from the suspect whenever desired by him.
Article 74
Reduction freedom relationship
between counsel and the suspect as mentioned in Article 70 paragraph (2),
subsection (3), subsection (4) and Article 71 prohibited, after the case being
brought by the public prosecutor with the district court for trial, a copy of
the letter submitted to suspect or his legal counsel, and other parties in the
process.
Bibliography
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