Extradition in Indonesia (Legal and Procedure)

MINISTRY OF LAW AND HUMAN RIGHTS REPUBLIC OF INDONESIA

EXTRADITION

l  Legislation on Extradition: Act Number 1 Year 1979 on Extradition (Extradition Act)

l  “Extradition” means the Surrender by one Country to another Country which requests the surrender of a criminal offenders who is accused or convicted on account of the commission of crime outside the territory of the surrendering state and within the jurisdiction of the territory the state requesting the said surrender based on its right for prosecute or convict the offenders ! Article 1 Extradition Act

Indonesia Extradition Act 1979

l  General basis and principle for extradition into/from Indonesia;

l  Guidance for due process of law as speciality law with Indonesian Criminal Procedure Code;

l  List of Crime and Dual Criminality principle;

l  Designated Central Authority and mandatory for using diplomatic channel for extradition requests;

l  Decision and surrender mechanism.

General Principle on Extradition (Indonesia)

l  Based on the Treaty (Including based on International Convention which Indonesia and Requesting/Requested Country become a Parties);

l  May request to Indonesia in absence of the treaty

(needed a specific statement on reciprocity assurances).

Extradition Bilateral Treaty

l  Indonesia and Malaysia (signed 7 January 1974) - ! ratified; l  Indonesia and Philippines (signed 10 February 1976) - ! ratified; l  Indonesia and Thailand (signed 29 June 1978) - ! ratified; l  Indonesia and Australia (signed 22 April 1992) - ! ratified; l  Indonesia and Hongkong (signed 5 May 1997) - ! ratified; l  Indonesia and Republic of Korea (signed 28 November 2000) - ! ratified; l  Indonesia and Singapore (signed 27 April 2007) - " process to ratified; l  Indonesia and Peoples Republic of China (signed 2 July 2009) - " process

to ratified; l  Indonesia and India (signed 25 Januari 2011) - " process to ratified;

International Conventions

“Extradition also be consider for the request based on International Conventions which Indonesia and Requesting Country as a Party of the conventions” i.e. : l United Nations Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, ratified by Indonesia on 1997 by Act Number 7/1997; l United Nations Conventions against Transnational Organized Crime, 2000, ratified by Indonesia on 2009 by Act Number 5/2009; l United Nations Conventions against Corruption, 2003, ratified by Indonesia on 2006 by Act Number 7/2006;

Condition for Refusal (Mandatory)

1.  Respect to political crime [Article 5]; 2.  There is a final judgement [Article 10]; 3.  Double Jeopardy [Article 11]; 4.  Lapse of Time [Article 12]; 5.  Reason to believe that prosecution or sentence related to her/his

religion, political opinion or nationality, or because of his certain race or group of the people [Article 14];

6.  Will be surrender to the third jurisdiction other than Requesting Countries [Article 16]

Condition for Refusal (Discretional)

1.  Extradition for crimes under military criminal law, which are not crimes under ordinary criminal law – Discretion if it is decided otherwise in a treaty [Article 7]

2.  Extradition Request to Indonesia for Indonesian Nationality – Discretion if consider the fugitive will be better if prosecute in Requesting Country [Article 7];

3.  The criminal conduct has been committed in whole or in part in the territory of the Republic of Indonesia [Article 8];

4.  The person sought under criminal proceedings in Indonesia, discretion if the Requesting Country agreed for postponement [Article 9];

5.  The criminal law underlying the request related to the provision on death penalty, discretion if the Requesting Country could obtain the assurance that death penalty will be not imposed against the sought person [Article 13];

6.  Rule of Specialty assurance could not surrender by specific statement from the Requesting Country, discretion could be taken if the President of the Republic of Indonesia consider to waive the assurance of specialty from the Requesting Country [Article 15]

Arrest Warrant

1.  Arrest Warrant which issued by the competent authority in the Requesting Country shall be required for the extradition request;

2.  Should be described detail of identity of the person(s) sought, the offence and criminal legislation underlying the criminal conduct;

3.  Should be described the time limit which the warrant aplicable; 4.  Arrest Warrant which issued by the competent authority in the

Requesting Country could be basis for arrest and detain the fugitive person by the law enforcement authority in Indonesia;

5.  Law enforcement authority will apply for warrant from Indonesian Court during detain of the person for due process of law on extradition until decision has been made for surrender to the Requesting Country.

Provisional Arrest (Article 18-21)

1.  Requesting Country could made the request for provisional arrest in case of urgency provided that the arrest is not contrary to the law of the Republic of Indonesia (i.e. urgency reason: there is a reasonable ground to believe if the fugitive person not immediately arrested, he/she will be flight away to other country).

2.  Provisional arrest is requested by other reasons that the document of extradition under preparation in the Requesting Country.

3.  Provisional arrest applicable to the request from treaty and non-treaty based country with Indonesia.

4.  Dual criminality principle is required in the criminal conduct which made under the statement in document of request for provisional arrest.

Provisional Arrest (Article 18-21)

1.  Requesting Country could made the Provisional Arrest Requst (PAR) in case of urgency provided that the arrest is not contrary to the law of the Republic of Indonesia (i.e. urgency reason: there is a reasonable ground to believe if the fugitive person not immediately arrested, he/she will be flight away to other country).

2.  PAR is requested by other reasons that the document of extradition under preparation in the Requesting Country.

3.  PAR applicable to the request from treaty and non-treaty based country with Indonesia.

4.  Dual criminality principle is required in the criminal conduct which made under the statement in document of request for provisional arrest.

Provisional Arrest (Article 18-21)

5. There is a time limit for the Requesting Country on submission of the document (original) through diplomatic channel:

- Treaty : state time limit under agreement (i.e. Indonesia and Australia for 45 days) - Non Treaty: 20 days

if Requesting Country failed to fulfill the obligation on this matter – the person(s) should be release from custody 6. PAR request shall be sent by the competent authorities of the requesting country to the competent authorities in Indonesia (Head of Police of the Republic of Indonesia or the Attorney General of the Republic of Indonesia through the INTERPOL Indonesia) through the diplomatic channel or also could sent directly by post or telegraph.

Provisional Arrest (Article 18-21)

7. competent authorities in Indonesia will inform competent authorities of Requesting country for the decision to arrest the person under PAR. 8. If the extradition document was submitted at the time, the nature of provisional arrest the person in custody will be continued to the arrest for extradition. 9. Document for extradition which made previously by PAR at the first stage should fulfil the requirement (refer to the extradition act or the treaty). It is important for intensive communication and consultation before submission of extradition request document to made sure the extradition document could be granted.

Central Authority on Extraditiom

INDONESIAN NATIONAL

POLICE

PROSECUTOR (ATTORNEY GENERAL OFFICE)

COURT

PRESIDENT

For Granted,

Communicated, And

Center Of

Process

For Search

And Arrest And

Made Indictment

For Made

Prosecution

For Hearing Process In Single

Judge And

Short Trial: Court Order

For Decision

Process as Requested

Relation to Others Domestic Agencies (Follow up)

Aproval Stage of the Request

l  Based on the Treaty: Request will directly made assesment by central authority and conclusion (if fulfil the requirement) will submitted to the competent authority in Indonesia for due process of law;

l  Article 39: In absence of the Treaty, Request should obtain the first consideration from the President of the Republic of Indonesia.

l  Consideration request to the President of the Republic of Indonesia should made by Minister of Law and Human Rights with attached by opinion from Minister of Foreign Affairs.

Phase 1:

Granting the Extradition Request Document before Due Process of

Law

Request (Article 22-24)

Indonesia  as  Requested  Country:  o  The   request   for   extradi0on   shall   addressed   in  wri3ng   to   the  

Minister   of   Law   and   Human   Rights   of   the   Republic   of  Indonesia;  

o  Original   document   submission   through   the   diploma3c  channel    is  Mandatory;  

o  The   central   authority   unit   for   extradi0on   in  Ministry   of   Law  and   Human   Rights  will   carry   out   the   legal   assesment   before  Minister   made   decision   for   gran0ng   extradi0on   request  document  and  forwarded  on  due  process  of  law.  

Request (Article 22-24)

General requirement for fugitive convicted persons: l  The original or an authenticated copy of the final and

binding decision from the court; l  Summary of fact underlying the criminal conduct; l  Statements for establishing the identity and nationality

of the person(s); l  The original or an authenticated copy of the arrest

warrant issued by the competent authorities of the requesting state.

Request (Article 22-24)

General requirement for fugitive suspected persons: l  The original or an authenticated copy of the arrest warrant

issued by the competent authorities of the requesting state; l  Statement of underlying the prosecution in Requesting

Country; l  Summary of fact underlying the conduct; l  The text of the legal provision of the requesting state which

has been violated or, where this is not possible, the contents of the relevant law;

l  Relevant evidence (statement of witness) concerning the crime;

l  Statements for establishing the identity and nationality of the person (s);

Role of Process on Ministry of Law Request Document

Ministry of Foreign Affairs

(diplomatic channel)

Central Authority For

Extradition

•  Assessment Process for legality and formality in requirement;

•  Dual criminality assesment (also possible to consult the law enforcement authority);

•  Communication with the Requesting Country competent case officer/liaison.

•  Submission of assesment conclusion and recommendation to the Minister;

Law Enforcement Agency

Due Process of Law

Phase 2:

Due Process of Law

Indictment for Extradition (Chapter V)

Article 26: l Indonesian National Police of the Republic of Indonesia, after having received the request for extradition, shall conduct to search and arrest the person, dealing with the extradition investigation on the basis of the statements or evidences given by the requesting state. l  Result of the investigation shall be registered in an official report and immediately be sent to the local office of the public prosecutor of the Republic of Indonesia.

Due Process of Law

Indictment for Extradition (Chapter V)

Article 27: l  7 (Seven) days at the latest on receipt of the indictment, the office of

the public prosecutor, while forwarding its grounds in writing, shall request the District Court of the region in which the said person is detained to institute proceedings and to decide whether or not the extradited person may be surrendered

Due Process of Law

Court Examination (Chapter V)

l  Priority case scheduled in the District Court (Article 28); l  If the examination was shedule, Court will made formally summons

to the prosecution authority and extradited person(s); l  The requesting Country in extradition request will be represented by

Public Prosecutor in Indonesia; l  Extradited person(s) may arise they challenge (if any) in the court; l  Court will issuing the Order whether the person(s) agreed to

extradited or not - Non-appeal in Court Order; l  The hearing by the District Court shall be held in an open session,

unless the Judge deems it necessary to hold a closed session

Due Process of Law

Court  Examina3on   Primary Basis of Judge Examination (under Article 32): 1. CONFORMITY IDENTITY: the identity and nationality of the

person claimed for extradition are in conformity with the statement and evidence forwarded by the requesting country;

2. STATUTE OF LIMITATION: the crime concerned is an extradition crime according to crime on the list of crime in Indonesia Law and Treaty (if any) and dual criminality, and does not constitute a political crime or a military crime;

3. LAPSE OF TIME: the right to prosecute or the right to execute a sentence has expired by reason of lapse of time;

4. LEGALITY and DUAL CRIMINALITY: in respect of the crime committed by the person concerned, a sentence which has become final, has been passed by the court;

5. ANALYZING OF CAPITAL PUNISHMENT (IF ANY): the said crime is punishable by death in the requesting country whereas in Indonesia it is not punishable by death (or contrary);

7. DOUBLE JEOPARDY: the said person is being proceeded in Indonesia in respect of the same crime.

PHASE  3:  DECISION  FOR  SURRENDER  

(Chapter  VII)  

Submission  of  the  Order  from  the  Court  (Ar0cle  

•  Court  Order  from  District  Court  convey  to  Minister  of  Law  and  Human  Rights;  

•  Minister  of  Law  and  Human  Rights  made  the  applica0on  for  suppor0ng  considera0on  from  3  (three)  Ministerial  level:    -­‐  Head  of  INP;    -­‐  ARorney-­‐General’s    -­‐  Minister  of  Foreign  Affairs.  

           suppor0ng  considera0on  refer  to  the  Court  Order.    •  AVer  receiving  the    official  suppor0ng  considera0on  from  3  (three)  Ministerial  

level,  Minister  of  Law  and  Human  Rights    made  applica0on  to  the  President  of  the  Republic  of  Indonesia  for  surrender  the  person.  

President  Decision  

•  Final  decision  for  surrender  the  extradited  person;  •  Decision  made  by  President  consider  to  the  Court  Order  and  

suppor0ng  considera0on  from  3  (three)  Ministerial  level;  •  Decision  will  made  with    the  form  of  “President  Decree”  •  President  Decree  will  designeted  to  the  Minister  of  Law  and  Human  

Rights    for  taking  necessary  procedure  for  surrender.  

SURRENDER  THE  FUGITIVE  PERSON(S)  

•  If  the  request  for  extradi0on  has  been  granted,  the  extradited  person  shall  immediately  be  surrendered  to  the  authori0es  concerned  of  the  reques0ng  state  at  the  place  and  on  the  date  indicate  by  the  Minister  of  Law  and  Human  Rights  of  the  Republic  of  Indonesia.  

•   Central  Authority  unit  will  consult  with  the  Reques0ng  Country  for  Role  and  Responsibilites  in  surrender  the  person(s);  

 Important  consequences:    •  If  the  extradited  person  has  not  been  taken  over  on  the  appointed  date,  he  may  

be  released  aVer  the  expiry  of  15  (fiVeen)  days  and  shall  in  any  case  be  released  aVer  the  expiry  of  30  (thirty)  days.    

•  The  following  request  for  extradi0on  for  the  same  crime,  aVer  the  expiry  of  the  said  30  (thirty)  days  may  be  refused  by  the  President.  

Sta3s3c  of  Indonesian  Extradi3on  (Surrender  by  Indonesia  under  President  Decree)    Indonesia  has  surrender  10  fugi0ve  

Reques3ng  Country   Request  and  Surrender  Year   Informa3on  

1. Phillipines 1998 and surrender on 2000 Dennis Austin Standefer, suspect for Sexual Abuse, US Nationality, extradited under Extradition Treaty

2. Australia 2007 and surrender on 2008 Charles Alfred Barnett, suspect for Child Sexual Abuse, Australian Nationality, extradited under Extradition Treaty

3. Australia

2007 and surrender on 2008

Paul Francis Callahan, suspect for Sexual Abuse, Nationality of Australia, extradited under Extradition Treaty

4. Australia

2008 and surrender on 2009

Hadi Ahmadi, suspected for smuggling migrant, Iran nationality, extradited under Extradition Treaty

5. France 2008 and surrender on 2009

Christian Burger, fugitive convicted person for Child Sexual Abuse, France nationality, extradition under absence of the treaty

Sta3s3c  of  Indonesian  Extradi3on  (Surrender  by  Indonesia  under  President  Decree)    

Reques3ng  Country   Request  and  Surrender  Year   Informa3on  

6. Repubic of Korea 2008 and surrender on 2009

Paik Bo Hyun, suspected for fraud and embezzlement, nationality of Republic of Korea, extradited under Extradition Treaty

7. Australia 2008 and surrender on 2010 Robert James Mc Niece, suspect for fraud, Australia and UK nationality, extradited under Extradition Treaty

8. Australia 2008 and surrender on 2010

Timothy Geoffrey Lee, suspect for illicit drugs and trafficking, Australian nationality, extradited under Extradition Treaty

9. Romania 2009 and surrender on 2011 Popa Nicolae, fugitive convicted person for investment fraud, Romanian nationality, extradition under absence of the treaty

10. Hongary 2010 and surrender on 2011 Eva Horvath, suspect for investment fraud, Hongarian nationality, extradition under absence of the treaty

   

Process as Requesting

INP or AG

application Attached

With Arrest Warrant

Minister of Law and Human

Rights (CA)

DIPLOMATIC CHANNEL

REQUESTED COUNTRY

DraVing  the    Request  

MINISTRY OF

LAW AND

HUMAN RIGHTS

AVer  Conveying  

INP &

AGO REQUESTED

COUNTRY

Communication And

Others could be needed

Informa0on  

DIRECTORATE  OF  INTERNATIONAL  LAW  AND  CENTRAL  AUTHORITY  DIRECTORATE  GENERAL  OF  LEGAL  ADMINISTRATIVE  AFFAIRS  

MINISTRY  OF  LAW  AND  HUMAN  RIGHTS  INDONESIA  

Tel.  +62  21  522  1619  Fax.  +62  21  529  63  996  

hXp//www.kemenkumham.go.id  

 Hendra  Andy  GURNING  (Chief  Sec3on  for  Extradi3on  and  TSP)  

Tel.  +62  21  520  2387-­‐90  ext.  720  Fax.  +62  21  529  63  996  

E-­‐mail:  hendra.gurning@kemenkumham.go.id