Pengacara di bali

by Dharma Na Gara

Medical records

Medical records

Doctors who practice medicine are obliged to make notes which must be made immediately after the patient receives services. Every health service must record and document the results of examinations, treatment, actions and other services that have been provided to patients.

Article 46 Indonesia’s Law Number 29 Year 2004 concerning Medical Practice determines:

• Every doctor or dentist in carrying out medical practice is obliged to keep a medical record;
• Medical records as intended in paragraph 1 must be completed immediately after the patient has finished receiving health services;
• Every medical record must contain the name, time and signature of the officer who provides the service or action.

From the provisions of Article 46 of the Medical Practice Law above, it is clear that the recording referred to is medical records. In practice, the term medical record has developed into other terms, namely:

1. Medical Document = Dokumen Medis;
2. Medical Notes = Catatan Medis;
3. Medical Record = Rekam Medis;
4. Health Record = Rekaman Kesehatan;
5. Personal Health Record = Rekaman Kesehatan Pribadi;
6. Medical Report = Laporan Medis.

Every recording (medical record) that is made must contain the name, time and signature of the doctor, dentist or certain health worker who provides health services directly. In the event that an error occurs in recording, correction must be made immediately by crossing out without removing the corrected note and initialing the doctor, dentist or health service worker concerned. Recording and documenting the results of examinations, treatment, actions and other services that have been provided to patients, is what generally called a medical record.

Organizing medical records at a health service facility is one way to measure the quality of service at that health service. Based on the data in the medical record, it will be possible to assess whether the service provided is of good quality or not, and whether it meets standards or not. For this reason, medical records were originally regulated in Minister of Health Regulation Number 749a/MENKES/PER/XII/1989 concerning Medical Records, then updated in Minister of Health Regulation Number 269/MENKES/PER/III/2008 concerning Medical Records. This is further regulated in the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records.

Meaning of Medical Records:

1. In article 1 letters 1, 6 and 7 of the Minister of Health Regulation Number 269/MENKES/PER/III/2008, what is meant by medical record is a file containing notes and documents regarding patient identity, examination, treatment, procedures and other services that have been provided to the patient. Notes are writings made by a doctor or dentist regarding all actions taken to patients in the context of providing health services. Documents are notes from doctors, dentists and/or certain health workers, reports of supporting examination results, daily observation and treatment records and all records in the form of radiology photos, imaging and electro-diagnostic records.

2. In the explanation of Article 46 paragraph (1) of Law Number 29 Year 2004 concerning Medical Practice, what is meant by medical records are files containing notes and documents regarding patient identity, examinations, treatment, procedures and other services that have been provided to patient.

3. In the Regulation of the Minister of Health of the Republic of Indonesia Number 55 Year 2013 concerning the Implementation of Medical Recorder Work, Specifically in Article 1 paragraph (2) Medical Records are files containing notes and documents regarding patient identity, examination, treatment, procedures and other services to patients at Health facility.

4. According to Ery Rustiyanto, medical records are who, where and how the patient was treated while in hospital to complete the medical record, it must have sufficient written data in a series to produce a diagnosis, guarantee, treatment and final result[1].

5. According to Gemala R. Hatta, a medical record is a file containing notes and documents regarding patient identity, examination, treatment, procedures and other services provided to patients in health service facility[2].

6. According to the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records, Medical Records are documents that contain the patient’s identity, examination, treatment, actions and other services that have been provided to the patient.

The content in Medical Records

According to the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records Article 26 paragraph 6 states:

The contents of the medical record as intended in paragraph 2 at least consist of:

1. Patient identity;
2. Results of physical and supporting examinations;
3. Diagnosis, treatment, and health service follow-up plans; And
4. Name and signature of the Health Worker providing Health services.

According to the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records Article 26 paragraph 7 states: Medical records as intended in paragraph (2) must be made by the person in charge of the service.

For further information, please consult your problem with us.

Source:

Zaeni Asyhadie, 2017, Aspek-Aspek Hukum Kesehatan di Indonesia, Rajawali Pers, Depok.

Peraturan Menteri Kesehatan Republik Indonesia No. 24 Tahun 2022 tentang Rekam Medis (Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records).

[1] Ery Rustiyanto, 2009, Etika Profesi Perekam Medis dan Informasi Kesehatan, Graha Ilmu, Yogyakarta, h. 5.

[2] Gemala R. Hatta, 2008, Pedoman Manajemen Informasi Kesehatan di Sarana Pelayanan Kesehatan, Universitas Indonesia, Jakarta, h. 73.

by Dharma Na Gara

Suspension of Detention

Suspension of Detention

Suspension of detention is regulated in Article 31 of the Indonesia’s Criminal Law Procedure. According to the provisions of Article 31 regarding the definition of suspending the detention of a suspect or defendant from detention, removing the suspect or defendant from detention before the time limit for the detention expires.

Official and legal detention still exists and has not yet expired, however, the implementation of the detention that the suspect or defendant still has to undergo is suspended, even though the detention period ordered has not yet expired. With a suspension of detention, a suspect or defendant is released from detention while the legal and official detention period is running.

Suspension of detention is not the same as release from detention. The differences are mainly seen from a legal perspective as well as the reasons and requirements that follow the action of implementing a suspension than release from detention. In terms of law, implementation and requirements:

• The suspension of detention is still valid and official and is still within the detention time limit permitted by law. However, the implementation of detention is stopped by releasing the detainee after the detaining agency determines the terms of the suspension which must be fulfilled by the detainee or other person acting to guarantee the suspension.
• While release from detention must be based on statutory provisions. Without fulfilling the elements stipulated by law, release from detention cannot be carried out. For example, because the detention carried out is illegal and contrary to the law or because the detention time limit imposed has expired, the detainee must be released by law. Or it could also be because the length of detention served has accordanced with the criminal law imposed by the court which has permanent legal force. Apart from that, in terms of implementing the release of prisoners, it is carried out without bail conditions.

Talking about the issue of suspension of detention as regulated in Article 31 of the Indonesia’s Criminal Law Procedure, it does not fully regulate the procedures for its implementation, neither as the conditions and guarantees that can be imposed on detainees or the person providing collateral. Therefore, Article 31 of the Indonesia’s Criminal Law Procedure still requires implementing regulations which have recently been stipulated in various regulations:

• Regarding guarantees for suspension of detention, it is regulated in Chapter X, Article 35 and Article 36 of PP No. 27/1983.
• The implementation of suspension of detention is regulated in Chapter IV, Article 25 of Minister of Justice Regulation No. M.04.UM.01.06/1983 and number 8 of the Attachment to Minister of Justice Decree No. M.14-PW.07.03/1983.

The occurrence of suspension of detention is confirmed in Article 31 paragraph (1) of the Indonesia’s Criminal Law Procedure. According to the confirmation contained in this provision, suspension of detention occurs:

• Due to the request of the suspect or defendant;
• The request is approved by the detaining agency or which is legally responsible for the detention with the specified conditions and guarantees and judicially for the detention with the specified conditions and guarantees and
• There is agreement from the detainee to comply with the specified conditions and fulfill the specified guarantees.

As for what conditions must be determined by the authorized agency, it is not specified in Article 31 of the Indonesia’s Criminal Law Procedure. Confirmation and details of the conditions that must be stipulated in the suspension of detention are further stated in the explanation of Article 31 of the Indonesia’s Criminal Law Procedure. From this explanation, confirmation of what conditions can be set by the detaining agency can be obtained.

• Compulsory to report;
• Not leaving the house, or
• Not leaving the town.

These are the conditions that can be set in granting a suspension of detention.

Is the collateral element a determining factor in granting a suspension of detention? Is the collateral element similar in function to the terms of suspension? Stipulation of suspension conditions is a condition sine quanon factor in suspension of detention. Without stipulation of terms of suspension, it is considered invalid and contrary to Article 31 paragraph (1) of the Indonesia’s Criminal Law Procedure. What about the stipulation of bail, is the stipulation of bail is a condition for granting a suspension of detention? Absolutely not! Stipulation of collateral in suspended detention is “facultative”, in accordance with the provisions of Article 31 paragraph (1), in the sentence that reads: “with or without collateral of money or person”. From the sound of this sentence, money collateral or person “can” be determined by the detaining agency in granting suspension. If that is the case, the nature of the collateral stipulation is facultative, it is up to the opinion and judgment of the detaining agency to burden the person concerned with the collateral.

For further information, please consult your problem with us.

Source:

Indonesia’s Criminal Law Prosedure/KUHAP;

Yahya Harahap, S.H., 2009, Pembahasan Permasalahan dan Penerapan KUHAP Penyidikan dan Penuntutan, Sinar Grafika, Jakarta.

by Dharma Na Gara

The Emergency Telephone Numbers in Bali

The emergency telephone numbers that can be contacted for the Bali area are as follows:

• Emergency call center: 112
• Information call center: 0361 108
• Police call center: 110
• BPBD stands for Badan Penanggulangan Bencana Daerah or Regional Disaster Management Agency, they handle: fires, fallen tree, accidents/traffic accident (crash), wild animals (snakes and monitor lizard) sneaking into the house, evacuation of sick patients, free corpse delivery service, search and rescue for victims in the water. Instagram: bpbd_kota_denpasar, bpbdbadung
• BPBD Bali Province: 0361 251177, 085792240799
• BPBD Denpasar City: 0361 223333, 081236706882
• BPBD Badung Regency: 08113894000
• BPBD Gianyar Regency: 0361 8958447/4795632/08113884353
• BPBD Bangli Regency: 0366 91448
• BPBD Karangasem Regency: 0363 22173, 081384417970
• BPBD Klungkung Regency: 0366 21047/23000
• BPBD Tabanan Regency: 0361 811171
• BPBD Jembrana Regency: 0365 41166, 082145730669
• BPBD Buleleng Regency: 0362 23022
• Basarnas (SAR/Search and Rescue) Bali 0361 703300/705536, 081138115115
• PMI (Palang Merah Indonesia/Indonesian Red Cross) Bali Province: 0361 483465, 081339474681

website:

Police = https://www.bali.polri.go.id/

Keywords: Website Kepolisian Daerah Bali, Website Kepolisian Republik Indonesia, Polisi (Police), Indonesia, Bali, Denpasar, Badung (City/Regency in Bali).

BPBD:

https://www.penanggulanganbencana.denpasarkota.go.id/

https://bpbd.baliprov.go.id/

https://bpbd.badungkab.go.id/

Keywords:  Website BPBD Provinsi Bali, BPBD/Badan Penanggulangan Bencana Daerah, Denpasar, Badung (City=Kota, Regency=Kabupaten, in=di, Province=Provinsi)

Hospital :

https://sanglahhospitalbali.com/home/

https://www.rsudmangusada.badungkab.go.id/

Keywords: Website Rumah Sakit Pemerintah Denpasar, Provinsi (province), Kabupaten (regency), Kota (city), rumah sakit (hospital), pemerintah (government), Denpasar, Badung (City/Regency in Bali), Bali is Province.

Fire Department and Rescue Badung Regency = https://diskarmat.badungkab.go.id/

Phone: 0361 411333 (emergency call center), 0361 428449 Fire Department and Rescue Badung Regency

Keywords: Website Dinas Pemadam Kebakaran Denpasar, Badung (City/Regency in Bali), Dinas Kebakaran dan Penyelamatan=Fire Department and Rescue

Source:

https://bpbd.baliprov.go.id/v/37/berita/article/2735/waspada-cuaca-ekstrem

https://diskarmat.badungkab.go.id/kontak-kami-197

https://bali.polri.go.id/yanmas/view/yanmas-120397-call-center-110

by Dharma Na Gara

Evidences in Indonesia’s Criminal Law Procedure

Evidences in Indonesia’s Criminal Law Procedure
According to Article 184 paragraph (1) of the Indonesian Criminal Law Procedure (KUHAP/Kitab Undang-undang Hukum Acara Pidana),
A. Witness statements;
B. Expert testimony;
C. Letter;
D. Clue;
E. Statement of the accused/the defendant.

A. Witness Statement
Requirements for a valid witness statement:
1) Must take an oath or promise;
2) Statements of witnesses who are valuable as evidence according to Article 1 number 27 of the Indonesia’s Criminal Procedure/KUHAP:

i. What the witness saw him/herself;
ii. Witness heard him/herself;
iii. What the witness experienced him/herself;
iv. As well as giving the reasons for his/her knowledge.

Regarding this witness statement, there are expansion based on the decision of the Republic Indonesia Constitutional Court Number 65/PUU-VIII/2010 regarding “testimonium de auditu” or hearsay evidence.

3) Witness testimony must be given at a court hearing in accordance with the affirmation of Article 185 paragraph (1) of the Criminal Law Procedure.
4) The testimony of a single witness is considered insufficient (unnus testis nullus testis).
5) The testimony of several witnesses that stand alone without any correlation with one another is just a waste of time.

In term of the exceptions that free a person from the obligation to be a witness, they can be grouped:

1. People who cannot be heard and “can resign”;
2. Those who “could ask for release”;
3. Those who “may be examined without an oath”.

Ad.1 a person whose testimony cannot be heard and who “can resign” is associated with the factor of “kinship” between the defendant and the witness by blood or kinship, contained in Article 168 of the Criminal Law Procedure:

Unless otherwise stipulated in this law, statements which cannot be heard and can withdraw as a witness:

a. Blood relatives or marriage relatives in a straight line up or down to the third degree of the defendant or co-defendant;
b. Relatives of the defendant or co-defendant, mother’s or father’s siblings, also those who are related by marriage and the children of the defendant’s relatives up to the third degree;
c. The husband or wife of the defendant even though they’ve divorced or who are together as defendant.

If it’s linked with Article 169 paragraph (1) of the Criminal Law Procedure:

a. In principle, people who are related by blood, marriage and marital ties with the defendant “cannot” be heard as a witness. They are not allowed to be witnesses, even though they may be heard without an oath (Article 169 paragraph (2) of the Criminal Procedure Code)
b. However, if they “want” to be examined as witnesses to testify under oath, their wish to become witnesses can only be carried out under the condition: “if the public prosecutor and the defendant expressly agree to it”. Means that a person who has a family relationship or marital ties with the defendant as referred to in Article 168 of the Criminal Law Procedure can become a witness if he himself wishes and this wish must be “unequivocally” approved by the public prosecutor and the accused/defendant;
c. On the other hand, even if the public prosecutor or the defendant expressly ask the person to be a witness, if he/she does not wish, thus he/she “cannot be obliged” to be a witness.

ad. 2 Those who can ask to be “released as witnesses”

Based on the provisions of Article 170 of the Criminal Law Procedure, there are a group of people who “can ask to be released” from the obligation to provide testimony as witnesses. Regarding the issue of self-liberation as a witness, but it is not absolute.

Article 170 of the Criminal Law Procedure states:

1) They because of their job, dignity or position are required to keep secrets, can ask to be released from the obligation to provide testimony as witnesses, namely about things that are trusted to them.
2) The judge determines whether all the reasons for the request are valid or not.

ad. 3 Those who “may be examined without an oath”.

According to Article 171 of the Criminal Law Procedure: those who may be examined to give statements without being sworn in/taken an oath are:

a. Children who haven’t fifteen years old either haven’t married;
b. People who have memory ill or mentally ill, although sometimes regain their good memories.

B. Expert Statement

Article 186 KUHAP: Expert testimony is what the expert states in the court. Meanwhile, article 1 number 28 of the Criminal Law Procedure states: expert testimony is information given by a person who has special expertise on the matters needed to enlightened on a criminal case for the purposes of examination.

C. Letter

Article 187 of the Criminal Law Procedure states: the letter as referred to in Article 184 paragraph (1) letter c, made under an official oath or confirmed by oath are:

a. Minutes and other letters in an official form made by the authorized public official or made before him, containing information about events or circumstances that he heard, saw or experienced himself, accompanied by clear and firm reasons regarding the statement he/she made;
b. Letters which made according to the provisions of laws and regulations or letters made by officials regarding matters that are included in the management for which they are responsible and which are intended for the authentication of a situation.
c. A statement from an expert containing an opinion based on his/her expertise regarding a matter or a situation that has been officially requested from him.
d. Another letters which can only be valid if it has correlation with the contents of other evidences.

D. Clue
Regulated in Article 188 of the Criminal Law Code/KUHAP.
(1) Clues are actions, events or circumstances which due to their correspondence, both between one and another, as well as with the criminal act itself, indicate that a criminal act has occurred and who the perpetrator is.
(2) Clue as referred to in paragraph (1) can only be obtained from:

a. Witness statement;
b. Letter;
c. Defendant’s statement.

(3) The evaluation and strength of authentication of a clue in each specific situation is carried out by a judge who is wise and prudent after he has conducted an examination with full accuracy and precision based on his conscience.

E. Statement of the Defendant

It is found in Article 189 KUHAP
(1) The testimony of the defendant is what the defendant stated at the trial regarding the actions he/she had committed or which he/she knew or experienced himself/herself.
(2) The testimony of the defendant which was given outside the trial can be used to help find evidence at trial, as long as the statement is supported by valid evidence insofar as it concerns the matter against which he/she is charged.
(3) The testimony of the defendant can only be used against him/herself.
(4) The testimony of the defendant alone is not sufficient to prove that he/she is guilty of committing the act he/she was charged with, but must be accompanied by other evidence.

Article 40 KUHAP: In the case of being caught red-handed, investigating officer may confiscate objects and tools that are in fact or reasonably suspected to have been used to commit a crime or other objects that can be used as evidence.

Article 42 KUHAP (1) The investigating officer has the authority to order the person who controls the object which can be confiscated, to hand over the goods to him for the purposes of examination and the person who surrenders the goods must be given a receipt.

Apart from the evidences mentioned above, there are also some evidences such as emails, screenshots, videos, photos, etc., that are regulated in the Information and Electronic Transactions Law.

For more information, please consult your problem with us.

Source:
Kitab Undang-undang Hukum Acara Pidana/KUHAP/Indonesian Criminal Law Procedure;
M. Yahya Harahap, S.H., 2009, Pembahasan Permasalahan dan Penerapan KUHAP Pemeriksaan sidang Pengadilan, Banding, Kasasi dan Peninjauan Kembali, Sinar Grafika, Jakarta.

by Dharma Na Gara

Evidences in Indonesia’s Civil Law Procedure

Evidences in Indonesia’s Civil Law Procedure

Definition of evidence:

Evidence (bewijsmiddel) in various forms and types, which are capable to provide information and explanations about the problems being litigated in court. Evidence is submitted by the parties to justify the argument of a lawsuit or the argument of rebuttal. Based on the information and explanation provided by the evidence, the judge evaluates which party has the most perfect authentication.

Types of evidence in civil cases

Based on the provisions of Article 164 HIR, Article 284 RBg and Article 1866 of the Civil Code, in Indonesia there are 5 (five) main types of evidence in civil case, namely:

1. Letter;
2. Witness;
3. Presupposition;
4. Confession;
5. Oath.

Ad. 1 Letter of Evidence is classified into 3 (three) types, namely:

A. Ordinary Letters

In principle, this ordinary letter was not made with the intention of being used as evidence. However, if the letter is later used as evidence in court due to incidental (coincidentally). For example, love letters, letters related to trade correspondence, notes on the use of money and so on.

B. Authentic Deed

Regarding authentic deeds, it is regulated in Article 1868 of the Civil Code which reads: “An authentic deed is a deed made in the form determined by law by or before a public official authorized to do so (Judges, Notaries, bailiffs, Civil Registry Officers, etc.) who has the authority to do so at the place where the deed was made.

From the explanation of this article, the authentic deed is made by or before an authorized official called a public official. Noted it was made by competent or authorized official and the form/content is not defect.

The power of authentication attached to the authentic deed is the power of perfect and binding authentication which is a combination of several strengths contained in it. If one of the strengths is defect, the authentic deed does not have the value of perfect proof/authentication (volledig) neither binding (bindende).

Concretely, the authentic deed was made purposely for the authentication. Because it is for the authentication, authentic deeds based on the provisions of Article 1868 of the Civil Code can be classified into 2 (two) types, namely: first, deeds made by public employees. This type of deed is commonly referred to by the following terms: official deed, acte ambtelijk, relaas deed or procesverbaal acte. For example, the deed made by notary, sub-district head, clerk, summons of bailiff, judge’s decision and so on are authentic deed made by the public employee. Second, the deed made before a public employee. This type of deed is commonly referred to as the party deed or Acte Partij. In principle, in the aspect of making the party deed, the initiative lies within the parties to create it and public official only listen, witness and write down the agreement. For example, a deed made before a notary regarding an agreement (leasing, buying and selling and so on).

C. Underhand Deed/Ordinary Deed/Akta di Bawah Tangan

The definition of an underhand deed/ordinary deed or in Indonesian language akta di bawah tangan is a deed that is not made by neither before a public official who is authorized to make it, or specifically, as the essence of Article 1874 of the Civil Code, an underhand deed is made by the parties themselves without the assistance of a public employee. For example: Receipts, debt agreements, lease agreements, statement letters, registers, household affairs letters and so on.

The power of authentication of underhand deed/ordinary deed or akta di bawah tangan is not as wide and as high as the degree of authentic deed.

Ad. 2 Witness Evidence:

Regarding witness evidence, it is basically regulated in Article 139-152, Article 162-172 HIR, Article 165-179, Article 306-309 RBg and Article 1895, Article 1902-1908 of the Civil Code.

The most important essence of witness evidence is that in general every event can be proven by testimony, unless the law expressly stipulates otherwise. This exception appears, for example, in the agreement for the establishment of a company between the company itself, it must be proven by a notarial deed (Article 22 of the KUHD).

To a person as witness, in principle, all people who are mature and capable of carrying out legal actions (rechtsbekwaamheid) can become witnesses and are required to testify if requested.

In relation to a person’s obligation to be a witness, there are several provisions that regulated people who cannot be heard as witnesses and can refuse also are asked to be released to testify as detailed in the provisions of Article 145, 146 HIR, Article 172, 173, 174 RBg and Article 1909, 1910 of the Civil Code and several Supreme Court decisions of the Republic Indonesia, namely:

People who cannot be heard as witnesses are:

1. Straight descendants who are bound by blood or marriage relations with one of the litigants. This is also confirmed as the Supreme Court Decision of the Republic of Indonesia Number: 84 K/Sip/1973 dated 25 June 1973 in the case: Karsilah versus 1. Murati, 2. Baeah and 3. Wari.
2. The husband of one of the parties to the litigants even though they divorced. This is in parallel with the Decision of the Supreme Court of the Republic Indonesia Number: 140 K/Sip/1974 dated 6 January 1976 in the case of: 1. Ni Tanjung alias Ni Bukit, 2. Bukit al. I Daha versus I Ngayus; and
3. Children who are not known for certain whether they have reached the age of fifteen and people who are insane even though they sometimes can think sanely. This aspect is also emphasized in the Decision of the Supreme Court of the Republic Indonesia Number: 1409 K/Sip/1975 dated 12 May 1976 in the cases: 1. Umi Kalsum et al., against Roekijah and H. Maskur et al.

However, in certain cases they are capable of being witnesses, even though the litigants consist of blood relatives or by marriage or husband or wife. This is regulated in Article 145 paragraph (2) of HIR and Article 1910 paragraph (2) of the Civil Code and other regulation.

People who can ask to be released/can refuse as witnesses, namely:

1. Brothers and sisters, brother-in-law and sister-in-law of one of the litigants.
2. Families of straight descent and brothers and sisters of the husband or wife of one of the litigants and
3. Everyone based on their position, business or occupation is obliged to keep a secret but only because of the knowledge due to the position, business or occupation that has been entrusted to them.

Basically, if someone become a witness in a civil case, what is explained is only limited to what he/she sees, hears or experienced him/herself. Then each of these testimonies must be accompanied by reasons as to the caused and how he/she knew the things that they’ve explained.

Ad. 3 Evidence of Presupposition (Vermoedens)

The existence of presupposition evidence which is common in doctrine is called the term “vermoedens” or “presumptions” it can be seen that in the examination of civil cases, it is difficult to find evidence of witnesses who have seen, heard or felt the case themselves, so that legal events that must be proven are sought to prove through presuppositions.

From the definition of Article 1915 BW and judicial practice, there are 2 (two) kinds of suspicions, namely:

• Presupposition according to law
• Presupposition according to judge

Ad. 1) presupposition according to law

According to the provision of Article 1916 BW, a statutory presupposition is an assumption which, based on a special provision of the law, is associated with certain actions or certain events. Example: every child born during a marriage gets the husband as the father (Article 250 BW). In this context, it means that the law concludes that from the existence of marriage, the children were born during the marriage due to the husband.

Ad. 2) presupposition according to Judge

Identical to presupposition according to the law, in this context the conclusion drawn from an event is the judge. For example: in the case of a child adoption application where A (applicant) will adopt a child named B. At a trial in the District Court, A explains that the child to be adopted had been taking cared by her for a long time. Later in the trial it turned out that the child had called the applicant “mom”. This gives a presupposition and the judge can draw a presupposition that it is true that the child had been taking cared by the A (applicant).

Ad. 4 Evidence of Confession (Bekentenis Confession)

Basically, a confession/ acknowledgment is a statement in written or oral form from one of the litigants in which the contents justify the opponent’s argument either partially or completely. So concretely, the confession is a one-sided statement and there is no need approval from other party.

According to the doctrinal view, the principle of confession (article 1923 BW) can be divided into 2 (two) types, namely:

Confession before the Judge at the Trial (Gerechtelijke Bekentenis)

Confession before the trial has perfect authentication power (volledig bewijs) and binds the person concerned or through the intermediary of a person specifically authorized for it (Article 174 HIR, Article 311 RBg and Article 1925 BW). In this context it means that the judge must consider the arguments recognized as true and grant the claim based on those arguments.

Confession outside the trial

Confession outside the trial is the opposite of confession in the trial or before the judge as outlined in Article 1925 BW and Article 174 HIR. In the form of confession or statement of “justification” regarding the arguments of the lawsuit or denial as well as rights or facts, but the statement is delivered or uttered outside the trial/court session.

In practice, confession outside the trial can be done in written or oral form and is regulated in Article 175 HIR, Article 312 RBg and Article 1927-1928 BW.

In practice and according to legal science, apart from the 2 (two) kinds of confessions above, there are also 3 (three) other kinds of confessions, namely:

• Pure confession (Aveu pur et Simple): this pure confession is simple in nature and basically justifies all the arguments of the opponent (Plaintiff).
• Qualified confession (Gequaliceerde Bekentenis/Aveu Qualifie): basically, qualified confession is confessions accompanied by partial denial of the opposing arguments.
• Confession with a clause (Geelausuleerde Bekentenis/Aveu Complexe): Basically, a confession with a clause is given by providing additional information that is liberating.

Ad. 5 Oath Evidence

The definition of an oath evidence is a statement that is corroborated in the name of God, with the aim of:

• So that the person who takes an oath in giving statements is afraid of the wrath of God, if he lies;
• Fear of God’s wrath or punishment, is considered a driving force for those who swear to tell the truth.

Evidence of oath can be classified into 3 (three) types, namely:

1. Decisive Oath

In practice, the decisive oath is commonly referred to by the following terms: “dicisoir oath” or “decisoir eed” which is regulated in Article 156 HIR, Article 183 RBg and Article 1930-1939 of the Civil Code. The essential purpose of the decisive oath is to decide cases (litis decisoir), imposed by the judge on one party at the request of his opponent due to the absence of evidence.

2. Complementary Oath

Complementary oaths or commonly referred to by the terms: “addition oath”, “supletoir oath” or “supletoire eed”. This oath is regulated in Article 155 HIR, Article 182 RBg and Article 1940 of the Civil Code and is ordered by the judge to one of the parties if there is just a small amount of evidence against the plaintiff’s claim or to confirm the truth of the defendant’s rebuttal, but the evidence is not sufficient and there is no possibility of adding the incomplete evidence with other evidence to complete the authentication. In such a case, the judge because of his position (ambthalve) can charge one of the parties to take an oath so that the case can be decided.

3. Appraiser’s Oath

In common practice the appraiser oath is referred to by the following terms: “taxatoir oath”, “aestimatoire eed”, “waarderingseed” or “schattingseed”, which is an oath ordered by the judge because of his position to the plaintiff (the plaintiff in the convention/the defendant in the reconvention) to determine the amount of compensation for losses. The imposition of the appraiser oath to the plaintiff is carried out selectively in the meaning that there must be no other way to determine the amount of the claim for compensation and the judge can set a highest limit on the amount (Article 1942 of the Civil Code).

Expert Statement (Deskundigenbericht)

The main essence of expert testimony is to provide an opinion on matters submitted to him in accordance with his expertise and aims to clarify the situation of the case.

Also, there’re other evidences such as email, screenshots, photos and videos etc., which regulated in law of information and electronic transaction.

For more information, please consult your problem with us.

Source:

Lilik Mulyadi, S.H.,M.H., 2005, Hukum Acara Perdata menurut Teori dan Praktik Peradilan Indonesia, Djambatan, Jakarta.

Yahya Harahap, S.H., 2008, Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian dan Putusan Pengadilan, Sinar Grafika, Jakarta.

by Dharma Na Gara

Criminology

Criminology is a new branch of science. In contrast to the criminal law that appears once humans were in society. Criminology had begun to develop in 1850 together with sociology, anthropology and psychology. Starting from the thought that humans are wolves to another humans (homo homini lupus), always selfish and not concerned with others. Therefore, a norm is needed to regulate his life. This is very important in order to ensure a sense of security for other humans.

The name of criminology given by P. Topinard (1830-1911) a French anthropologist, literally comes from the words “Crimen” which means crime or criminals and “Logos” which means science; then criminology literally means the science of crime or criminals. Several scholars provide different understanding of this criminology. Among them is Bonger who provides a definition of criminology as a science that aims to investigate the symptoms of crime broadly.

One of the well-known theories of criminology is the Differential Association theory.

Differential Association Theory

Sutherland had found the term differential association to describe the process of learning criminal behavior through social interaction. Everyone, according to him, may have contact (relationship) with “definitions favorable to violation of law” or “definitions unfavorable to violation of law”.

The ratio of these definitions or views on crime – whether criminal or non-criminal influences are stronger in a person’s life determines whether or not he adheres to crime as an accepted way of life. In other words, the ratio of definitions (criminal to non-criminal) determines whether a person will engage in criminal behavior.

Sutherland introduced differential association theory in his textbook Principle of Criminology in 1939. Since then, the scholars have read, tested, retested, and sometimes criticized this theory, which claimed to explain the development of all criminal behavior.

Differential association is based on nine propositions, they are:

1) Criminal behavior is learned.

2) Criminal behavior is learned in interaction with other people in the communication process. A person does not simply become a criminal just because he lives in a criminal environment. Crime is learned by participating with others in both verbal and non-verbal communication.

3) The principal part of the learning of criminal behavior occurs within intimate personal groups. Family and close friends have the greatest influence in studying deviant behavior. Their communications far much more than the mass media, such as films, television, and newspapers.

4) When criminal behavior is learned, the learning includes (a) techniques of committing the crime, which are sometimes very complicated, sometimes very simple and (b) the specific direction of motives, drives, rationalizations, and attitudes. Young Delinquents not only learn how to steal in stores, break boxes, open locks and so on, but also learn how to rationalize and defend their actions. A thief will be accompanied by another thief for a certain amount of time before he commits himself. In other words, criminals also learn skills and gain experience.

5) The specific direction of motives and drives is learned from the definition of the legal codes as favorable or unfavorable. In some societies an individual is surrounded by people who without exception define the rules of law as rules to obey, while in other places he is surrounded by people whose definitions are favorable to breaking the rules of law. Not everyone in our society agrees that laws must be obeyed. Some people define the rules of law as unimportant.

6) A person becomes delinquent because of an excess of definitions favorable to violation of law over definitions unfavorable to violation of law. This is the key principle of differential association, the main direction of this theory. In other words, studying criminal behavior is not simply a matter of relationships with bad friends. However, studying criminal behavior depends on how many definitions we study which favorable for lawlessness as opposed to unfavorable definitions for lawlessness.

7) Differential associations may vary in frequency, duration, priority, and intensity. The degree to which a person’s associations/definitions will result in crime is related to the frequency of contact, the duration and meaning of the association/definition to the individual.

8) The process of learning criminal behavior by association with criminal and anticriminal patterns involves all of the mechanisms that are involved in any other learning. Studying patterns of criminal behavior is very much like studying conventional patterns of behavior and is not simply a matter of observation and imitation.

9) While criminal behavior is an expression of general needs and values, it is not explained by those general needs and values, since noncriminal behavior is an expression of the same needs and values. Shop thieves steal to get what they want. Other people work to get what they want. Motives – frustration, desire to accumulate wealth and social status, low self-concept and such explain both criminal and non-criminal behavior.

Criticism to Differential Association

1) Why doesn’t everyone who is associated with more criminal patterns of behavior become a criminal?

2) Does this theory really explain all crimes, maybe it can be applied to theft, but what about murders caused by anger of jealousy?

3) Why are some people who study patterns of criminal behavior not involved in criminal activity?

4) This theory explains how criminal behavior is learned, but it doesn’t explain how criminal techniques and definitions first existed? Or in another word, this theory doesn’t explain to us how the first criminal became criminal.

Source:

Yesmil Anwar and Adang, 2010, Kriminologi, PT. Refika Aditama, Bandung.

Topo Santoso, S.H.,M.H., and Eva Achjani Zulfa, S.H., 2009, Kriminologi, Rajawali Pers, Jakarta.

by Dharma Na Gara

Victimology

Victimology

Victimology comes from the Latin victima which means victim and logos means knowledge. Terminologically, victimology means a study that studies victims, the causes of victims and the consequences of victims, which are human problems as a social reality. Victims in the scope of victimization have a broad meaning because they are not only limited to individuals who actually suffer losses, but also groups, corporations, private sector and government, while what is meant by the consequences of victimization are the attitudes or actions of the victim and/or the perpetrators and those who directly or indirectly involved in the occurrence of a crime.

Victimology is a scientific knowledge/study that studies victimization (criminal) as a human problem which is a social reality. This formulation results in the need for an understanding, namely:

1. As a human problem according to the actual proportion dimensionally;
2. As a result of interaction due to an interrelation between existing phenomena and mutual influence;
3. As the action of a person (individual) who is influenced by certain elements of the social structure of a particular society.

Victimology provides a better understanding of victims of crime as a result of human actions that cause mental, physical and social suffering. The aim is not to flatter the victims, but only to provide an explanation of the victims real role and their correlation with the victims. This explanation is important in order to undertake activities to prevent various victimization crimes, maintain social justice and improve the welfare of those who are directly or indirectly involved in a victimization. Especially in the field of information and guidance not to become victims of structural or non-structural crimes.

Scope of Victimology

Victimology examines topics about victims, such as the role of the victim in the occurrence of a crime, the relationship between the perpetrator and the victim, the vulnerability of the victim’s position and the role of the victim in the criminal justice system. According to J.E. Sahetapy, the scope of victimology includes how someone (can) become a victim who is determined by a victimity that is not always related to the problem of crime, including victims of accidents and natural disasters apart from victims of crime and abuse of power.

However, in its development in 1985, Separovic pioneered the idea that victimology specifically examines victims due to crime and abuse of power and does not examine victims due to natural disasters or disasters because victims of natural disasters are out of human’s will.

According to Arif Gosita, the object of study or scope of attention for victimology is as follows:

1. Various kinds of criminal victimization or criminality
2. Theories of the etiology of criminal victimization
3. Participants who are involved in the occurrence or existence of a criminal victimization or crime. Such as victims, perpetrators, observers, lawmakers, police, prosecutors, judges, lawyers and so on.
4. Reaction to criminal victimization.
5. Response to a criminal victimization: argumentation of activities to resolve a victimization or victimology, prevention efforts, repression, follow-up (compensation) and the making of related legal regulations.
6. Victimogen/criminogen factors.

According to Muladi, the aims of victimology are:

1. Analyze various aspects related to the victim;
2. Trying to provide an explanation of the causes of victimization; and
3. Develop a system of action to reduce human suffering.

Definition of Victim

Regarding the definition of the victim itself, as stated in Article 1 point 2 of Law Number 13 year 2006 concerning the Protection of Witnesses and Victims, states that a victim is someone who has suffered physical, mental, and/or economic loss caused by a criminal act.

According to Mandelsohn, based on the degree of guilt, victims are divided into five types, namely:

1. who is completely innocent;
2. who became victims due to negligence;
3. who is as wrong as the perpetrator;
4. who is more guilty than the perpetrator;
5. The victim is the only one at fault.

Viewed from the perspective of the level of involvement of victims in the occurrence of crimes, Ezzat Abde Fattah mentions several typologies of victims, namely:

1. non-participating victims are those who deny/reject crime and criminals but do not participate in crime prevention.
2. Latent or predisposed victims are those who have certain characteristics tend to become victims of certain violations.
3. Provocative victims are those who cause crime or trigger crime.
4. Participating victims are those who are not aware of or have other behaviors that make it easier for them to become victims.
5. False victims are those who become victims because of themselves.

Victim’s rights as a party who suffering and loss, and of course the victim has rights that can be obtained as a victim. These rights are contained in Article 5 of Law Number 31 year 2014 concerning the amendments of Law Number 13 year 2006 concerning the Protection of Witnesses and Victims, which states that victims have the right to:

Paragraph (1)

1. To obtain protection for the safety of his personal, family, and property, and be free from threats related to the testimony that he/she will, is currently, or has given.
2. Participate in the process of selecting and determining the form of security protection and support.
3. To provide information without pressure.
4. To get a translator.
5. Free from entangled questions.
6. To get information about the progress of the case.
7. To get information about court decisions
8. To obtain information in the event that the convict is released.
9. The identity is being kept in secret.
10. To get a new identity.
11. To get a temporary residence.
12. To get a new residence.
13. To obtain reimbursement of transportation costs as needed.
14. To get legal advice.
15. To obtain temporary living expenses assistance until the protection period ends, and/or
16. To get accompaniment.

Paragraph (2) The rights as referred to in paragraph (1) are granted to witnesses and/or victims of criminal acts in certain cases in accordance with the decision of the LPSK (Witnesses and Victims Protection Institution).

Paragraph (3) in addition to witnesses and/or victims, the rights granted in certain cases as referred to in paragraph (2) may be granted to witnesses of perpetrators, reporters, and experts, including people who can provide information related to a criminal case. although he/she has not heard it himself/herself, he/she has not seen it himself/herself, and he/she has not experienced it himself/herself, as long as the person’s information relates to the criminal act.

Source:

• Rena Yulia, 2010, Viktimologi Perlindungan Hukum Terhadap Korban Kejahatan, Graha Ilmu, Yogyakarta.
• Republic Indonesia Law Number 13 year 2006 concerning the Protection of Witnesses and Victims juncto Republic Indonesia Law Number 31 year 2014 concerning the amendments of Law Number 13 year 2006 concerning the Protection of Witnesses and Victims.

by Dharma Na Gara

Divorce

According to Article 19 of the Republic of Indonesia Government Regulation Number 9 Year 1975 concerning the Implementation of Law Number 1 Year 1974 concerning Marriage, divorce can occur for a reason or reasons:

1. One of the parties commits adultery or becomes a drunkard, a junkie, gambler and others who are difficult to be cured;
2. One of the parties leaves the other party for 2 (two) consecutive years without the permission of the other party and without valid reasons or for other reasons beyond its capabilities;
3. One of the parties receives 5 (five) years imprisonment sentence or heavier sentence after the marriage has taken place;
4. One party commits cruelty or serious maltreatment which endangers the other party;
5. One of the parties has a physical disability or disease resulting in not being able to carry out his obligations as husband / wife;
6. Between husband and wife there are constant quarrels and fights and there is no hope of living in harmony again in the household.

Consult your problem with us to find out more about divorce in Indonesia.