Extradition in Indonesia (Legal and Procedure) MINISTRY OF LAW AND HUMAN RIGHTS REPUBLIC OF INDONESIA

Transcription

1 Extradition in Indonesia (Legal and Procedure) MINISTRY OF LAW AND HUMAN RIGHTS REPUBLIC OF INDONESIA

2 EXTRADITION Legislation on Extradition: Act Number 1 Year 1979 on Extradition (Extradition Act) 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

3 Indonesia Extradition Act 1979 General basis and principle for extradition into/from Indonesia; Guidance for due process of law as speciality law with Indonesian Criminal Procedure Code; List of Crime and Dual Criminality principle; Designated Central Authority and mandatory for using diplomatic channel for extradition requests; Decision and surrender mechanism.

4 General Principle on Extradition (Indonesia) Based on the Treaty (Including based on International Convention which Indonesia and Requesting/Requested Country become a Parties); May request to Indonesia in absence of the treaty (needed a specific statement on reciprocity assurances).

5 Extradition Bilateral Treaty Indonesia and Malaysia (signed 7 January 1974) -! ratified; Indonesia and Philippines (signed 10 February 1976) -! ratified; Indonesia and Thailand (signed 29 June 1978) -! ratified; Indonesia and Australia (signed 22 April 1992) -! ratified; Indonesia and Hongkong (signed 5 May 1997) -! ratified; Indonesia and Republic of Korea (signed 28 November 2000) -! ratified; Indonesia and Singapore (signed 27 April 2007) - " process to ratified; Indonesia and Peoples Republic of China (signed 2 July 2009) - " process to ratified; Indonesia and India (signed 25 Januari 2011) - " process to ratified;

6 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. : United Nations Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, ratified by Indonesia on 1997 by Act Number 7/1997; United Nations Conventions against Transnational Organized Crime, 2000, ratified by Indonesia on 2009 by Act Number 5/2009; United Nations Conventions against Corruption, 2003, ratified by Indonesia on 2006 by Act Number 7/2006;

7 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]

8 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]

9 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.

10 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.

11 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.

12 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.

13 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.

14 Relation to Others Domestic Agencies (Follow up) Process as Requested 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

15 Aproval Stage of the Request 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; Article 39: In absence of the Treaty, Request should obtain the first consideration from the President of the Republic of Indonesia. 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.

16 Phase 1: Granting the Extradition Request Document before Due Process of Law

17 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.

18 Request (Article 22-24) General requirement for fugitive convicted persons: The original or an authenticated copy of the final and binding decision from the court; Summary of fact underlying the criminal conduct; Statements for establishing the identity and nationality of the person(s); The original or an authenticated copy of the arrest warrant issued by the competent authorities of the requesting state.

19 Request (Article 22-24) General requirement for fugitive suspected persons: The original or an authenticated copy of the arrest warrant issued by the competent authorities of the requesting state; Statement of underlying the prosecution in Requesting Country; Summary of fact underlying the conduct; 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; Relevant evidence (statement of witness) concerning the crime; Statements for establishing the identity and nationality of the person (s);

20 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

21 Phase 2: Due Process of Law

22 Due Process of Law Indictment for Extradition (Chapter V) Article 26: 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. 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.

23 Due Process of Law Indictment for Extradition (Chapter V) Article 27: 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

24 Due Process of Law Court Examination (Chapter V) Priority case scheduled in the District Court (Article 28); If the examination was shedule, Court will made formally summons to the prosecution authority and extradited person(s); The requesting Country in extradition request will be represented by Public Prosecutor in Indonesia; Extradited person(s) may arise they challenge (if any) in the court; Court will issuing the Order whether the person(s) agreed to extradited or not - Non-appeal in Court Order; The hearing by the District Court shall be held in an open session, unless the Judge deems it necessary to hold a closed session

25 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.

26 PHASE 3: DECISION FOR SURRENDER (Chapter VII)

27 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.

28 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.

29 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.

30 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

31 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

32 Process as Requesting INP or AG application Attached With Arrest Warrant Minister of Law and Human Rights (CA) DraVing the Request REQUESTED COUNTRY DIPLOMATIC CHANNEL

33 AVer Conveying REQUESTED COUNTRY MINISTRY OF LAW AND HUMAN RIGHTS INP & AGO Communication And Others could be needed

34 Informa0on DIRECTORATE OF INTERNATIONAL LAW AND CENTRAL AUTHORITY DIRECTORATE GENERAL OF LEGAL ADMINISTRATIVE AFFAIRS MINISTRY OF LAW AND HUMAN RIGHTS INDONESIA Tel Fax hxp// Hendra Andy GURNING (Chief Sec3on for Extradi3on and TSP) Tel ext. 720 Fax E- mail: