Indonesia Adheres to Due Process or Crime Control?

Back to the discussion at the beginning regarding due process model and crime control model, the question arises, which model is applied in Indonesia? Is it due process or crime control? If we use the hurdle race analogy used by Prof. Eddy, then essentially the criminal procedure law in Indonesia is due process model because in the KUHAP we know together that all actions taken by law enforcement officials must be in accordance with the conditions and procedures that have been set. For example, regarding arrests, as stated in article 1 number 20 of the KUHAP, what is meant by arrest is:

“an investigative action in the form of temporarily restraining the freedom of a suspect or defendant if there is sufficient evidence for the purposes of investigation or prosecution and or adjudication in cases and according to the manner regulated in this law.”

Meanwhile, the conditions for arrest can be seen in article 17 of the KUHAP which states:

“An arrest warrant is carried out against someone who is strongly suspected of committing a criminal act based on sufficient preliminary evidence.”

From the above provisions, it can be concluded that to make an arrest, the element must be fulfilled someone who is strongly suspected of committing a criminal act and based on sufficient preliminary evidence. Regarding the second element, the Constitutional Court in Constitutional Court decision Number 21/PUU-XII/2014 explains that the meaning of the phrase “sufficient preliminary evidence” must be interpreted as at least two pieces of evidence as contained in article 184 KUHAP.

Then in article 18 paragraph (1) of the KUHAP it is explained that the arrest is carried out with the following procedure, namely:

  1. Carried out by officers of the State Police of the Republic of Indonesia
  2. Showing an assignment letter
  3. Provide the suspect with an arrest warrant
  4. Explain a brief description of the alleged crime and the place where he is being examined

All of the above conditions and procedures are cumulative, meaning that the above conditions must be met in order to make an arrest. This shows that our criminal justice system actually adheres to due process model because what is prioritized is not only efficiency in enforcement, but also the quality of the actions taken. Moreover, in our criminal procedure law, the pre-trial mechanism regulated in Article 77 of the Criminal Procedure Code is also recognized, where the essence of the pre-trial is to test whether the arrest, detention, termination of investigation, and/or termination of prosecution carried out by law enforcement officials is in accordance with the applicable requirements and procedures or not.

However, with the pre-trial decision number 10/Pid.Pra/2024/PN Bandung which states that the process of determining Pegi Setiawan as a suspect by the West Java Regional Police seems to make us rethink whether our criminal procedure law really adheres to due process model or rather crime control model. Perhaps this question can be answered to some extent through the opinion of Maqdir Ismail, a senior advocate in a public seminar who stated that “our procedural law, even though in the Criminal Procedure Code due process, but in practice it is more crime control”.[1]

[1] Hamalatul Qurani, KUHAP, Due Process atau Crime Control?, Hukum Online, Juli 8, 2024, https://www.hukumonline.com/stories/article/lt668a102b33474/kuhap--due-process-atau-crime-control/

[1] Eddy Hiariej, Teori dan Hukum Pembuktian, ( Jakarta: Penerbit Erlangga, 2012), hlm. 30

[2] Ibid. hlm. 31