Litigation Processes

Litigation Processes

Criminal Matters


Criminal justice system commences with inquiry and investigation process. According to article 6 par (1) Criminal Procedural Law investigator shall be the investigator from the Police Force and certain civil servant official provided with special authority by the Law. In addition to that, for criminal act of corruption, according to article 6 letter c Act Number 30 Year 2002, the Anti Corruption Commission shall have the authority to conduct inquiry, investigation and prosecution over corruption offences and further article 30 par (1) letter d mention that one of the authority of the prosecutor general is to conduct investigation over certain offences according to the laws.

Offences under the Indonesian legal system shall consist of general offences and special offences. General Offences is offences regulated under Criminal Code, such as murder (art 338), theft (art 362), fraud (art 378) whereas special offences are offences regulated in specific laws such as Criminal Act of Corruption (Act Number 31 Year 1999 jo Act Number 20 Year 2001) Criminal Act of Money Laundering (Act Number 8 Year 2010) Criminal Act of Human Trafficking (Act Number 21 Year 2007).


Prosecution according to Article 1 Number 7 Criminal Code shall be the action taken by public prosecutor to file a criminal case to the court having jurisdiction over such matters in accordance with the applicable procedure with the request to the judge to review and decide upon the matter. If the public prosecutor is in the opinion that the result of investigation has been sufficient to prosecution, the prosecutor shall prepare indictment and file the case to the court. In the case where prosecutor is in the opinion that there is not sufficient evidence, or the event is not an offence, or the case must be closed on behalf of public order, the prosecutor may discontinue the prosecution by issuing the Order to Terminate the Prosecution.

Court Hearing

Court hearing is conducted by panel of judges consist of at least 3 (three) judges, except the laws determine the otherwise. Exceptions include hearing for juvenile cases, minor offences, expeditious procedures and pre-hearing procedures.

The hearing process is open for public except the laws determine the otherwise. Cases examined with closed procedure shall be offences committed by minor. According to Article 1 Number 3 Act Number 11 Year 2012 on Juvenile Court System, referred to as minor shall be child at the age of 12 but not exceeding 18 years old suspected to have commit crime.

The timeframe for court examination for criminal cases shall be based according to the following condition:

  1. If the defendant is under detention, the examination process shall take the consideration of the detention time. A judge can apply detention for 30 days. If the examination is not yet complete, the detention can be extended into 60 days. In the case where the defendant commit offences which subject to more than 9 years of imprisonment or the defendant is ill, the detention can be extended to maximum 30 days and can be extended further for 30 days.

  2. If the defendant is not in detention, the examination shall be conducted in accordance to the Supreme Court Circular Number 2 Year 2014 which is 5 months for court of first instance and 3 months for court of appeal.

Court agenda in a simple criminal case shall consist of the followings:

  1. Reading the Indictment

  2. Exception from the defendant

  3. Examination of evidences

  4. Reading the Requisitoir / prosecutor’s charges

  5. Reading the Pledoi / defences

  6. Reading the Decisions

The court decision shall be read in a public hearing, a typical criminal court decisions shall consist of:

  1. The decision to punish, a decisions imposed if the defendant has been proven to be guilty committing the offences mentioned by prosecutor, followings are type of the punishment:

    • Death penalty
    • Lifetime penalty
    • Jail penalty
    • Fine
    • confinement

  2. Acquittal, decision imposed if the defendant cannot be proven to commit the offences

  3. Release from the charges, if the defendant is proven to commit the act but such act is not offences.

Civil Matters

Both petition or claim under civil case shall be filed into the Court of First Instance in the general court jurisdiction. However, family cases for moslem citizen, which include divorce claim, inheritance, guardianship, shall falls under the jurisdiction of Religious Court, while same matters for non-moslem citizen shall falls under the jurisdiction of General Court.

Party can file the claim by themselves or having its own legal representation to the President of the Court of First Instance having the jurisdiction over the matter (article 118 HIR). The claim will only be registered if the plaintiff pay the court fees stipulated by the Registrar.

In general, Mediation is compulsory procedure before the hearing commences, as implementation of article 130 HIR/154 RBg. As compulsory procedure, failure to offer mediation prior the hearing shall render the court decision’s null and void.

According to Supreme Court Regulation Number 1 Year 2016 on Mediation, if the mediation succeeded, the court shall issue the deed of settlement which have equal power to a final and binding court decision, and failure to implement such deed, will allow the plaintiff to request court order from the President of the Court for execution.

If the mediation failed to reach settlement, the result of the mediation shall be recorded in the minutes of hearing, and the hearing will be continued. (Pasal 131 HIR/Pasal 155 RBg).

A summary civil dispute shall be handled by the procedure according to the Supreme Court Regulation Number 2 Year 2014 on Small Claim Court which allow the case to be settled not more than 25 days after filing, heard by single judge and appeal only possible to full panel at the same court. For ordinary civil dispute, the process is handled according to Supreme Court Circular Number 2 Year 2014 on the Settlement of Cases in the Court of First Instances and Appellate Court for Four Court Jurisdiction which stipulates that cases in the court of first instance should be finished by maximum 5 months and maximum 3 months for appellate court.

Generally, court hear cases in panel of three judges, except for petition cases, which usually heard by single judge. According to Small Claim Procedure, small claim cases shall be handled by single judge.

Appeal to the decision of the court of first instance can be made to appellate court, further appeal is available under Cassation to the Supreme Court. Special Review to the Supreme Court is possible under very limited reasons, i.e. after the decision was rendered, it is then known that the decision was based on fraud, deception from the defendant or based on the evidences which later decided by criminal judges as false or fabricated; after the decision was rendered, key evidences that may determine the outcome of the decision was found; the court decision grant matters that is not requested or decide more than requested by the prosecutor; in the case where some part of the requisitor has not been decided without any consideration; in the case where the same parties, on the same matters, on the same basis has receive inconsistent decision one to another; in the event where there are error of the judges or visible mistakes. (Article 67 Act Number 14 Year 1985 as amended by Act Number 5 Year 2004 on the Supreme Court)

Certain type of cases can be appealed directly to the Supreme Court without the need to go through the appellate court, for example in bankruptcy, Intellectual Property, Appeal Against the decision of the Consumer Protection Body, Appeal Against the Decision of Business Competition Commission, and Industrial Relation Dispute, which allow cases to be finalized in more expeditiously.

State Administrative Court

State Administrative Court is the forum for individual or private entity to sue an individual government’s decision which they consider to be on the contrary with their interest. All application shall be reviewed for its documentation before it enters the second stage, the dismissal process.

Dismissal Process in principle is a process to review whether the claim made by plaintiff meets the qualification as State Administrative claims. A dismissal procedure is conducted in summary manner in a deliberation meeting by the President of the Court or appointed judge as rapporteur.

In the dismissal procedure, the President of State Administrative Court shall summon and hear the information from both parties, and whenever necessary, the President of State Administrative Court may decide in one Court Order with argument outlining whether the petition is accepted or should be rejected.

Several reasons that may be the basis for rejection of petition in a dismissal process, as follows:

  1. the core of the claim is clearly outside the jurisdiction of the State Administrative Court

  2. the claimant does not met the condition for filing the claim, as regulated in Article 56 State Administrative Court Law even though the court has reminded the claimant

  3. the claim was based on insufficient reasons

  4. the claim requested has actually been fulfilled by the administrative decision being complained

  5. the claim was filed before the time or exceed the time.

Appeal to the decision of the State Administrative Court is made to the Appellate Administrative Court and cassation to the Supreme Court. It also follows the general rules of special review regulated in the Supreme Court Law.

Small Claim Procedure

The Supreme Court Regulation Number 3 Year 2015 in Small Claim Procedure introduce new simplified procedure for resolving simple civil case with the value of claim not exceeding Rp. 200 million (approx. 15,000 USD). Under this procedure, the court must grant its decision no later than 25 days after the first hearing.

The process is simplified compared ordinary civil litigation and examined by single judge. The procedure requires that both parties must reside under the same court jurisdiction, and identity of both parties must be clear. The procedures allow the litigants to litigate without representation.

The Source of Laws in Indonesia

The Source of Laws in Indonesia

The sources of Laws in Indonesia can be divided into two types, namely material and formal legal sources. Material legal sources are sources of laws that determine the content of a regulation (norms) which bound the people. Material sources of law originated from legal situation of the society, the economic and social situation, public opinion, tradition, religion, results of scientific research, morale, geographic development, international development and legal politics.

Formal legal sources are sources of laws which determine the forms and the cause of inception of certain regulation (legal norms). Regulations have two main function, namely as legalization and legislation. Referred to as legislation function is to enact phenomenon that present in the society, whereas referred to as legislation is a process to conduct legal reform.

The formal sources of laws can be described as the following

  1. Laws

  2. Customary or unwritten laws

  3. Jurisprudence

  4. Treaties

  5. Doctrine


From its forms, laws can be distinguished into

  1. Constitution

  2. The Order of People’s Consultative Assembly

  3. Laws

  4. Government Regulation in Lieu of Laws

  5. Government Regulation

  6. Presidential Regulation

  7. Regional Regulation on Provincial Level

  8. Regional Regulation on City/Regency Level

Customary/ Unwritten Law

Customary is the norms that adhered by the society without being stipulated by the government. For a customary to become applicable laws and acknowledged as sources as laws, following requirements needs to be met:

  • There is an action or certain action committed repeatedly in similar matter and followed by wider people;

  • There is a legal understanding from peoples/interest group, in the sense that there is an assurance that such norms developed by custom is of good value and relevant to be followed and have binding power.


Jurisprudence is decisions of judges that are followed and used as guidance as judges in deciding cases of similar issue.


Treaty is agreement conducted by two (bilateral) or more countries (multilateral).

Legal Doctrine

This is opinion of respected expert and legal scholars. Judges often use legal doctrine in making its decisions which is then referred as jurisprudences.



Civil Code

Burgerlijk Wetboek Staatsblad No. 23/1847 dated 30 April 1847 effective January 1848. dan berlaku Januari 1948.

Four Books

  1. Book 1 on Person: Partially amanded by Act Number 1/1974 on marriage as far as related to Moslem

  2. Book 2 on Goods: No longer applicable in particular to Land and some part of Security Rights Regime (as far as hypothec and some part of security over movable property)

    Amended/regulated by Act No 5/1960 on Basic Agrarian Act and Act Number 4/1996 on Mortgage, and Act Number 42/1999 on Fidusia Security.

  3. Book 3 on Contract: Including wetboek van kophandel, Failissement Verordening, etc

    Amended by various legislation i.e. Company Law, Bankruptcy Law, etc

  4. Book 4 on Expiration and Substantiation

Criminal Code

Wetboek van Strafrecht voor Nederlandsch-Indie according to Staatsblad 1915: 732 deemed as in force by Act Number 1 Year 1946 Regulation on indonesian Criminal Law

Minor amendment, last amendment known:

– Government Regulation in Leiu of Act Number 16/1960 and 18/1960 regarding adjustment of Fine in the Criminal Code.

Separate Laws on:

  1. Corruption (Act Number 31/1999 as amended by Act Number 20/2001)

  2. Money Laundering (Act Number 8 /2001 on Money Laundering)

  3. Environment (Act Number 32/2009 on Environment,

  4. Fisheries (Act Number 31/2004 as amended by Act Number 45/2009 on Fisheries)

  5. Juvenile (Act Number 11 year 2012 on Juvenile Criminal Court System)

  6. Others

Procedural law

Civil Procedural Law still generally use the colonial regulations:

  1. Reglement Op De Rechtsvordering (Staatsblad Year 1847 No. 52 jo. Staatsblad Tahun 1849 No. 63), applicable for European Citizen)

  2. Het Herziene Indonesisch Reglemen (Staatsblad Tahun 1941 No. 44), applicable for Citizen in the Island of Java and Madura

  3. R.bG (Rechtsreglement Buitengewesten atau Reglemen for Outside Region) Applicable for Court Procedure outside the Island of Java and Madura

  4. Influence from various laws such as Law on Judiciaries, Law on Advocates, Law on Legal Aid, etc.

Criminal Procedural Law

Act Number 8/1981.

Judicial Commission

Judicial Commission

In addition to the two courts, article 24 of Constitution also establish a third agency, named the Judicial Commission. The Commission shall have the following authorities: [1]

  1. to nominate the appointment of the Justices and Ad Hoc Justices of the Supreme Court to the Parliament for approval;

  2. to maintain and uphold the honour, dignity, as well as the conduct of judges;

  3. establish judge’s code of ethic and/or conduct jointly with the Supreme Court;

  4. to guard and enforce the implementation of judge’s code of ethic and/or conduct.

Judicial Commission sits in the capital city and consist of 7 commissioners.

Source :

[1] Article 13 Law Number 18 Year 2011 on Amendment of the Law Number 22 Year 2004 on Judicial Commission

Constitutional Court

Constitutional Court

Constitutional Court sits the capital city, and does not have any hierarchical relation with the Supreme Court. Constitutional Court have 9 Justices. According to Act Number 24 Year 2003, as amended by Act Number 8 Year 2011, Constitutional Court have the following authorities:

  1. constitutional review of a Law against the Constitution;

  2. dispute between state agencies having the authorities mandated from the Constitution;

  3. dissolution of political party

  4. dispute over the result of general election; or

  5. opinion of the parliament that president or vice president has committed violation in the form of treason, corruption, bribery, and other type of gross criminal act, or disgraceful act and/or no longer meet the requirement President and/or Vice President as mentioned in the Constitution.

Tax Court

Tax Court

Dasar Hukum

The tax court is established under the Act Number 14 Year 2002 on Tax Court.


The Tax Court is the court with authority to hear and decide cases filed by Tax Payer that seek justice over tax disputes. Whereas, tax dispute is defined as disputes that arise in the field of taxation between taxpayer vis a vis the official in charge as results of appealable order or claim against the tax court in accordance to applicable regulation, including claim against tax collection conducted in accordance to forced warrant.[1]

Place of Seat

The Tax Court sits in Jakarta, and have sitting places in Yogyakarta and Surabaya.


Source :
[1] Article 1 par (5) Law Number 14 Year 2002 on Tax Court.

Industrial Relation Court

Industrial Relation Court

Legal Basis

Industrial Relation Court is Special Court in the level of first instance established under the jurisdiction of General Court with authority to examine, hear and decide upon the industrial relation dispute.

The Industrial Relation Court is established under the Act Number 2 Year 2004 on the Resolution of Industrial Relation Dispute.


The Industrial Relations Court has the task and competency to examine and decide:

  1. disputes on rights (of employee);

  2. disputes on interest

  3. disputes on termination of employment

  4. disputes among the labor unions within the same company

The industrial relation court hear cases in panel of three judges, consist of one career judge as chairman of the panel, and two ad hoc judges, one represents the labor union and the other one represents businesses association. (art 88)

Place of Seat

The Industrial Relation Court sits in the district court in each capital of provinces (art 59), and other district court as deemed necessary.

Anti Corruption Court

Anti Corruption Court

Legal Basis

The anti corruption court is established by Act Number 46 Year 2009 on Anti Corruption Court.


Anti Corruption Court have the authority to examine and decide upon the following types of criminal cases:

  1. Criminal Act of Corruption;

  2. Criminal Act of Money Laundering which originated from criminal act of corruption; and/or

  3. Criminal Act which specifically mentioned by other laws as criminal act of corruption.

Anti Corruption Court in the Central Jakarta have special authority to examine criminal act of corruption committed by Indonesian citizen overseas.

The court hears cases in panels of 3 or 5 judges, consist of combination of career and ad hoc judges. Ad Hoc Judges are recruited for five years.

Place of Seat

The Anti Corruption Court sits in District Court in every capital of provinces.

Human Rights Court

Human Rights Court

Legal Basis

The Human Rights Court is established under the Act Number 26 Year 2000 on Human Rights Court

The Act also recognize Ad Hoc Human Rights Court with special authority to hear gross violation of human right taking place prior to the enactment of the Act Number 26 Year 2000. Establishment of this Court must be conducted under the recommendation by the parliament in a very special instances and established according to the Presidential Decree. (art 43).


As special court responsible to hear and decide on gross violation of human rights cases. (art 4)

The court also responsible to hear and decide on gross violation of human rights committed outside the Indonesian border by Indonesian citizen. (art 5)

Gross violation of human rights covers crime of genocide and crime against humanity (article 7 and article 8) as action committed with the intention to destroy or eliminate all or part of group of nation, race, ethnic group, religious group by way of:

  1. Massacre the member of the group

  2. Inflict heavy physical and mental suffering to the members of the group;

  3. Create certain life condition over the life of the group which will caused physical termination in whole or in part;

  4. Insist actions intended to prevent reproduction in certain group; or

  5. Forced removal of children in certain group to another group.

The Crime Against Humanity (article 9) is defined as widespread or systematic attack which known (to the perpetrator) that such attack intended directly to civilian, in form of;

  1. Murder

  2. Extermination

  3. Slavery

  4. Forced eviction or removal of citizen

  5. Deprivation of freedom or other physical freedom in arbitrary manner which violates principles of international laws

  6. Torture

  7. Rape, sexual slavery, forced prostitution, forced pregnancy

  8. Forced sterilization or other equal forms of sexual harassment

  9. Persecution to certain group or association which is based on the similarity of political views, race, nation, ethnicity, culture, religion, sex or other universally accepted reasons as prohibited act according to international law

  10. Forced disappearance or

  11. Crime of apartheid

Place of Seat

Human Rights court is a special court under the jurisdiction of general court. Human Rights Courts sits in:

  1. Central Jakarta with jurisdiction covers the Special Capital Region of Jakarta, Province of West Java, Banten, South Sumatera, Lampung, Bengkulu, West Kalimantan, and Central Kalimantan;

  2. Surabaya with jurisdiction covers the Province of East Java, Central Java, Special Region of Yogyakarta, Bali, South Kalimantan, East Kalimantan, West Nusa Tenggara, and East Nusa Tenggara;

  3. Makassar with jurisdiction covers the Province of South Sulawesi, South East Sulawesi, Central Sulawesi, North Sulawesi, Maluku, North Maluku, and Irian Jaya;

  4. Medan with jurisdiction covers the Province of North Sumatera, Special Region of Aceh, Riau, Jambi, and West Sumatera.

Fisheries Court

Fisheries Court

Legal Basis

The fisheries Court was established in accordance to Act Number 31 Year 20014 on Fisheries. The court is established under the court of first instance in General Court Jurisdiction. The court have authority over criminal act of fisheries as regulated under Act Number 31 Year 2004 on Fisheries.


The Fisheries Court have jurisdiction over crime that are stipulated in article 84 to 105 Act Number 31 Year 2004 on Fisheries.

The industrial relation court hear cases in panel of three judges, consist of one career judge as chairman of the panel, and two ad hoc judges, one represents the labor union and the other one represents businesses association.

The Place of Seat

Currently there are ten Fisheries Court in Indonesia. The first Fisheries Courts were established in 2004 in District Court of North Jakarta, District Court of Medan, District Court of Pontianak, District Court of BItung, District Court of Tual. Later in 2010, through Presidential Decree Number 15 Year 2010 following Fisheries Court were established in District Court of Tanjung Pinang, District Court of Ranai. In 2014 3 more Fisheries Court were established in District Court of Ambon, District Court of Sorong, and District Court of Merauke.