Provisions for Presenting Foreign Experts in a Trial

PERTANYAAN

Does the Indonesian criminal justice system allow foreign experts to testify in a trial?

INTISARI JAWABAN

There are no prohibitions for presenting foreign experts during criminal trials in Indonesia.

However, there are several things that need to be considered if you wish to present foreign experts, among others, which are provisions on immigration, taxation, and translators for said experts.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Aturan Menghadirkan Ahli Berkewarganegaraan Asing dalam Persidangan which was written by Togar S.M. Sijabat, S.H., M.H., and was published on Friday, 18 September 2020.

All legal informations which are available through Klinik hukumonline.com have been prepared for educational purposes only and are general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Previously, regarding experts, there were often errors in the designation by referring to them as "expert witnesses." The term used by the law is “expert” so this needs to be clarified.

Under the principle of proof of the Criminal Procedure Law in Indonesia, as regulated in Article 183 Law Number 8 of 1981 on the Criminal Procedure Code (“Criminal Procedure Code”), a person may be subject to criminal punishment to a minimum of 2 valid pieces of evidence and the conviction of a judge.

Such evidence is regulated in Article 184 section (1) Criminal Procedure Code jo. Decision of the Constitutional Court Number 65/PUU-VIII-2010 (p. 92), namely:

1. statement of a witness regarding a criminal act which he/she does not always hear by himself/herself, he/she sees by himself/herself, and he/she experiences it by himself/herself;
2. statement of expert;
3. letter;
4. clue/hint;
5. statement of the defendant.

Furthermore, Article 1 number 28 Criminal Procedure Code explains that a statement of an expert is information provided by a person who has special expertise on matters needed to shed light on a criminal case for the purpose of examination.

According to Article 179 of the Criminal Procedure Code, a statement of an expert may be sourced from medical jurisprudence experts, doctors, or other experts. Furthermore, as written in the article entitled Understanding the Duties of Forensic Doctors Behind Deaths, in practice, experts from Indonesia have also been acknowledged to be able to handle cases that have captured the attention of the international community, such as in the case of Bali bombings or suicide bombings in front of the Australian Embassy.

Foreign Experts

However, what if the defendant, through his/her attorney, wishes to present foreign experts for his/her defense purposes?

In order to obtain the ultimate truth in a trial, this request is legitimate and is not prohibited. However, based on practice, several points should be noted in this regard, as follows:

Firstly, based on practice, the defendant or his/her attorney should notify this matter to the panel of judges who examine the case along with the reasons for the presence of a foreign expert. The identity and expertise of the prospective expert should also be clarified, specifically based on the expert's publications which have been written in international journals that have been officially acknowledged by universities in Indonesia. In this submission, the panel of judges usually also ask for the opinion of the public prosecutor.

Secondly, if the application is approved by the panel of judges, the expert must also be present in accordance with the legal immigration regulations. According to Article 102 section (2) Regulation of the Government Number 31 of 2013 on the Regulation on the Implementation of Law Number 6 of 2011 on Immigration (“Government Regulation 31/2013”), visas that can be obtained by experts or persons who carry out activities related to the profession by receiving payment are limited stay visas/temporary stay visas.

Thirdly, due to receiving honorariums, said foreign experts must also fulfill their tax obligations in Indonesia. Considering their relatively short visits in Indonesia, foreign experts may be categorized as foreign tax subjects based on Article 4 section (1) letter b Regulation of the Director General of Taxes Number PER-43/PJ/2011 of 2011 on Determination of Domestic and Foreign Tax Subjects (“Director General of Taxes Regulation 43/2011”).

Fourthly, the defendant or his/her attorney must provide an official (sworn) translator to translate the expert's statement to the court. According to Article 1 number 1 Regulation of the Minister of Law and Human Rights Number 4 of 2019 on the Amendment to Regulation of the Minister of Law and Human Rights Number 29 of 2016 on the  Requirements and Procedures for Appointment, Reporting, and Discontinuation of Sworn Translators (“Minister of Law and Human Rights Regulation 4/2019”), a sworn translator is a person or individual who has expertise in producing translations, who has been appointed by the minister who organizes government affairs in the field of law and human rights and is registered in the ministry which organizes government affairs in the field of law and human rights.

However, in addition to the abovementioned provisions, the presenting of experts must not be in contradiction with the principles of trial in Indonesia, which are simple, prompt, and low cost as affirmed in Article 2 section (4) Law Number 48 of 2009 on Judicial Authority (“Law 48/2009”).

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 8 of 1981 on the Criminal Procedure Code;
2. Law Number 48 of 2009 on Judicial Authority;
3. Regulation of the Government Number 31 of 2013 on the Regulation on the Implementation of Law Number 6 of 2011 on Immigration as amended by Regulation of the Government Number 26 of 2016 on the Amendment of Regulation of the Government Number 31 of 2013 on the Regulation on the Implementation of Law Number 6 of 2011 on Immigration.
4. Regulation of the Minister of Law and Human Rights Number 4 of 2019 on the Amendment to Regulation of the Minister of Law and Human Rights Number 29 of 2016 on the  Requirements and Procedures for Appointment, Reporting, and Discontinuation of Sworn Translators;
5. Regulation of the Director General of Taxes Number PER-43/PJ/2011 of 2011 on Determination of Domestic and Foreign Tax Subjects.

Court Decision:

Decision of the Constitutional Court Number 65/PUU-VIII-2010.