There is a foreigner who is serving a criminal detention period. Before being detained in a correctional facility for the investigation period, he was first detained in a detention room by immigration authorities for a week. The question is, when is his detention period counted? Since the beginning he was arrested and detained in the detention room or since he was detained in the correctional facility which in the Minutes written for the purpose of investigation? Whereas the investigation has certainly started since he was detained in the detention room. Please explain according to the law and regulations. Thank you.
DAFTAR ISI
INTISARI JAWABAN
The authority to arrest and detain is in the hands of the investigator who can be an official of the Indonesian National Police or certain civil servants who are specifically authorized by law to conduct investigations, which in the case of immigration is carried out by the Immigration Civil Servant Investigator.
Then how is the calculation of the detention period of foreigners in the detention center by the Immigration Civil Servant Investigator?
Please read the review below for a further explanation.
This article is an update of the article entitled Foreigners Detained in Detention Center, Can it Count as Criminal Detention Period?, written by Novie Ardhiyani, S.H., and published on Wednesday, 15 September 2021.
This article is written according to the previous Indonesian Criminal Code and Law 1/2023 on the Criminal Code, which was promulgated on 2 January 2023.
All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.
Previously, we will explain first that for Foreign Citizens ("foreigners") who are in the territory of Indonesia, the applicable law in Indonesia does apply. This refers to the territoriality principle, which is the principle that Indonesian criminal law applies within the territory of the Republic of Indonesia, whoever commits a criminal offense. This principle is emphasized in Article 2 Criminal Code or Article 4 letter a Law 1/2023.
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Arrest and Detention
Arrest or detention is the authority possessed by investigators,[1] namely state police officers of the Republic of Indonesia or certain civil servants who are specifically authorized by law to conduct investigations.[2] Based on this definition, it is clear that the task of investigators is to conduct investigations.
Meanwhile, an investigation is a series of investigator's actions in terms of and according to the method regulated in the Criminal Procedure Code to seek and collect evidence with which the evidence makes sense of the criminal offense that occurred and to find the suspect.[3]
Based on your question, it is stated that the detention is carried out in the detention center, and the person detained is a foreigner. If the crime committed is an immigration crime, then the investigator in the case is an Immigration Civil Servant Investigator, which is an immigration official authorized by law to investigate immigration crimes.[4] As an investigator, the Immigration Civil Servant Investigator is authorized by law to conduct detention.
We also need to explain that the requirements for the authority to detain consist of objective and subjective requirements. The subjective requirement is if the perpetrator is strongly suspected of committing a criminal offense based on sufficient evidence, or there is a concern that the perpetrator will escape, damage, or eliminate evidence, and/or repeat the criminal offense.[5]
Meanwhile, the objective requirement is if the crime committed by the perpetrator is punishable by a maximum imprisonment of 5 years or more, or includes immigration crimes in Articles 1, 2, and 4 Emergency Law 8/1955.[6] The procedures for arrest and detention must be carried out in accordance with legal procedures that refer to Criminal Procedure Code.
In addition, in practice, in the event that the suspect is a foreigner, the arrest/detention is also notified to the officials of the Embassy office of the offender's home country. For the record, the aforementioned arrest and detention provisions do not apply to those who are granted immunity rights under international law.
Foreigners Detained in Detention Center, Can it Count as Detention Period?
Answering your question regarding the calculation of the detention period starts from the time of detention by the investigator, public prosecutor, or court as stated in Article 20 section (1), Article 21 section (2), and Article 26 section (1) Criminal Procedure Code.
In the case you described, the foreigner has been detained in the immigration detention center which is a temporary shelter for foreigners subject to immigration administrative actions. The detention center is located at the Directorate General of Immigration or the Immigration Office.[7]
Therefore, if the criminal offense committed by the foreigner is an immigration crime in which the detention is carried out by the Immigration Civil Servant Investigator, then the detention period can be calculated from the detention period in the detention center while still taking into account the provisions of the Criminal Procedure Code, which is a maximum of 20 days and if necessary for the sake of examination, it can be extended by the public prosecutor for a maximum of 40 days.[8]
These are the answers we can provide, we hope you will find them useful.
