Legal Literacy - This article discusses the meaning and role of advocates according to Indonesian law, especially in Law Number 18 of 2003 concerning Advocates. This article highlights the status of advocates as law enforcers, their freedom and independence, and their important role in various stages of the criminal justice process, including investigation, prosecution, examination in court, and legal remedies. This article emphasizes the importance of advocates in guaranteeing justice, equality before the law, and protection of the rights of suspects, while also examining the broader impact of advocates in the legal system.

Definition of Advocate

Article 1 paragraph (1) of Law Number 18 of 2003 concerning Advocates (Advocate Law), provides the definition of Advocate as a person who practices providing legal services, both inside and outside the court, who meets the requirements based on the provisions of the law a quo.

The role of Advocates in law enforcement is stated in the provisions of Article 5 Paragraph (1) of the Advocate Law which states: “Advocates have the status of law enforcers, free, and independent guaranteed by law”.

The meaning of Advocate having the status of “law enforcer” is that Advocate is one of the instruments in the judicial process that has an equal position with other law enforcers in upholding law and justice.

What is meant by “free” is without pressure, threats, obstacles, without fear, or treatment that degrades the dignity of the profession. Advocates are free to express opinions in defending cases for which they are responsible in court hearings while adhering to the Advocate's Code of Ethics and statutory regulations.

The position of advocates in the KUHAP (Criminal Procedure Code) is closely related to assisting and handling criminal cases against suspects and defendants. In this case, Advocates are not only considered as objects but also as subjects together with other law enforcement officials. According to Barda Nawawi Arief, the Integrated Criminal Justice System is divided into four sub-systems, including: the power of "investigation" by the investigating agency, the power of "prosecution" by the public prosecutor's office, the power to "adjudicate and pass judgment" by the court, and the power of "execution of criminal judgments" by the executing agency.

The Role of Advocates in the Investigation Stage

Investigation is a series of investigator actions to search for and find an event suspected of being a criminal act in order to determine whether or not an investigation can be carried out according to the method regulated in the law. The role of Advocates at the investigation level is to follow the course of the examination, but only as a limited "spectator" who only sees and hears, is not allowed to give advice or opinions, where it seems that the Advocate's participation includes preparing for compiling a defense or providing legal advice at the examination stage.

The provisions of Article 69 of the Criminal Procedure Code explain that the right to obtain legal assistance is given to the defendant with the aim of avoiding errors and arbitrariness from law enforcement officials that can harm the suspect. With the existence of an Advocate or legal advisor in the preliminary examination, the Advocate can witness and listen carefully to the examination process carried out against the suspect.

When a case is held by the police in order to clarify the position of the case that is occurring in the criminal legal area, in this case the Advocate can supervise the suitability of the procedure and scope of the case, so as to prevent actions that demean the authority of the judiciary (contempt of court), because the case title is part of the Integrated Criminal Justice System process. Advocates must accompany the Reporter or Reported Party who has requested legal assistance from him as an implementation of the rights of every citizen.

The Role of Advocates in Investigation Stage

In providing legal assistance, Advocates are obliged to assist in handling and resolving cases of suspects or defendants by upholding the law and justice in order to facilitate the process of resolving the case in question. Advocates are obliged to clearly and coherently inform the Suspect of what they are suspected of and their rights during the case examination process.

As stated in Article 56 paragraph (1) of the Criminal Procedure Code, as an example, an Advocate who provides legal assistance is appointed by the Head of the Panel of Judges who adjudicates the case after consulting with the Head of the District Court in the legal area where a criminal act occurred. The appointment of the Advocate is stipulated by a Decree of the Head of the Panel of Judges and given to the Advocate with the willingness to provide his legal services free of charge.

The duties and roles of an Advocate at the investigation stage in the Criminal Procedure Code include the process of arrest and search. In the arrest process, the Advocate plays a role in asking and supervising whether the investigator in making the arrest has shown a valid warrant and has given an arrest warrant to the suspect which includes the identity of the suspect along with the reasons for the arrest and a brief description of the elements of the alleged crime. At the search stage, the Advocate has a role to examine and check whether the search has an official and valid permit from the local district court and each time entering the house whether it is also attended by the village head and two people as witnesses.

Article 57 paragraph (1) of the Criminal Procedure Code regulates that Advocates or legal advisors can also contact and communicate with Suspects who are subject to detention, provided that this does not conflict with applicable laws and regulations.

The Role of Advocates in Prosecution Stage

The role of the Advocate in the prosecution stage is that the Advocate can supervise whether what the Prosecutor accuses his client of is indeed directed or true to the intended Defendant, for the purpose of further assistance the Advocate can request a copy of the file that will be transferred to the court. Thus, the Advocate then prepares procedural documents, prepares responses or answers to the Prosecutor's charges, submits the case to court, and corresponds with judicial institutions in court.

If there is an Advocate in handling a case who will contact the Judge as referred to above, then the Advocate must do it together with the Public Prosecutor as regulated in Article 7 of the Advocate's Code of Ethics regarding how to act in handling a case, especially in carrying out advocacy or defense. Things that need to be done in facing the task of defense as advocacy management, include:

  1. recognizing and understanding the problem or case being handled as a whole;
  2. collecting data or information relevant to the case to be advocated and observing every existing progress;
  3. conducting a detailed and in-depth analysis of the case problem;
  4. mastering laws and regulations;
  5. building access and solidarity or networks;
  6. launching pressure and evaluation.

The Role of Advocates in Court Examination Stage

In the judicial process at the trial examination stage, the role of the Advocate includes carrying out a defense or making a plea for the rights of his client in accordance with the facts revealed in the trial and accompanying the Defendant during the trial process, especially during the examination of witness and Defendant testimony, thus avoiding arbitrariness. Based on this, the influence of Advocates in the criminal justice process who understand and know the rules that apply in Indonesia is very large. In general, the role of the Advocate in the trial examination stage includes: accompanying clients who have Defendant status, making exceptions and responses to what is suspected of the client, making interruptions during the trial, and presenting mitigating witnesses and experts.

Legal Counsel is a party that defends the interests and rights of the Defendant, by providing instructions and finding solutions to the series of charges and accusations of the Prosecutor based on applicable laws and regulations. Advocates with the function of defending clients and protecting client rights must be fulfilled in the criminal justice process.

Advocates also have a role to help Judges in finding material truth or by revealing things that may not have been revealed in the search for legal facts of the trial and providing data and information materials so that Judges are able to provide considerations and decisions that are in accordance with public justice and legal certainty.

The relationship between the Advocate and the Defendant is that the Advocate has the right to contact and communicate with the Defendant, especially in the stage of submitting legal remedies, be it appeal, cassation, or review, with the note that these rights can be exercised by the legal advisor for the sake of his defense. The obligation to provide legal consultation, exercise power, represent, accompany, defend and take other legal actions for the legal interests of clients for Advocates cannot be separated from the principle of equality before the law (equality before the law) and the client's right to be accompanied by an Advocate, which is a human right for everyone without exception, including those with the status of Defendant.

If the Defendant is not satisfied with the decision of the first-level Panel of Judges, the Defendant or through his Legal Counsel can submit an application to the District Court where the first examination was submitted, with several requirements that must be met, such as: Appeal Application Letter, Defendant's Power of Attorney to the Advocate that has been legalized, Appeal Memorandum along with existing documentary evidence. At the cassation and Judicial Review (PK) levels, the Advocate can represent the client to submit a cassation or PK application by preparing a Cassation Application Letter or PK Application Letter, Power of Attorney, Cassation Memorandum or PK Memorandum supported by existing evidence, conducting File Examination (Inzage), and convey the Judge's decision to the client.

References

  • Arief, Barda Nawawi. Kapita Selekta Hukum Pidana Tentang Sistem Peradilan Pidana Terpadu. Semarang: Badan Penerbit Universitas Diponegoro, 2006.
  • Farahwati. “Peran Advokat Selaku Penasehat Hukum Tersangka Atau Terdakwa Atas Dasar Pasal 56 Ayat (1) Kitab Undang-Undang Hukum Acara Pidana.” Jurnal Legalitas 6, no. 2 (2021): 28–47.
  • Gunawan. “Kedudukan, Peran Dan Fungsi Advokat Dalam Proses Peradilan Pidana (Upaya Meluruskan Persepsi Negatif Masyarakat Terhadap Advokat).” Pemuliaan Hukum 1, no. 1 (2018): 47–72.
  • Harun, M. Husein. Penyidik Dan Penuntut Dalam Proses Pidana. Jakarta: Rineka Cipta, 2019.
  • Lasmadi, Sahuri. “Peran Advokat Dalam Pendampingan Hukum.” Jurnal Inovatif 7, no. 2 (2014): 59–75.
  • Putra, Darmadayana Nasa. “The Role of Advocates in Protecting the Rights of Suspects or Defendants in Criminal Case Examinations.” Jurnal Ilmiah Fakultas Hukum Universitas Mataram, 2016.
  • Rompis, Fabian M. “The Authority of Advocates in the Criminal Justice System to Support an Integrated Justice System.” Lex et Societatis 1, no. 2 (2013): 125–34.