by Dharma Na Gara

Criminal Law, lawyers in bali, Pengacara di baliMarch 8, 20241 comment 0 Likes

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.