THE IMPLEMENTATION OF THE GENERAL CRIMINAL TRIAL

PROCESS IN INDONESIA DURING THE COVID-19 PANDEMIC

Topic: Criminal Litigation

Written by: Abiyyu Ihsan Samudro – Universitas Padjajaran

Introduction
COVID-19 has infected not only Indonesia, it has reached almost every region in the world. It has
massive impact on various aspects of life, including the legal services of the judiciary, without
exception the general criminal trial process. The COVID-19 pandemic does not decrease or even
deter criminality in Indonesia. The crime rate itself is considerably high during the COVID-19
pandemic. The Headquarter of the Indonesian Police stated that the crime rate has been increasing
since the COVID-19 pandemic and there were 4.649 criminal cases recorded in August 2020. 1
Furthermore, the Indonesian Judicial Research Society stated that in March 2020, 270.466 people
were being detained in the State Detention Center or Rumah Tahanan Negara ("Rutan") and Public
Empowerment Institution or Lembaga Pemberdayaan Masyarakat ("Lapas"). Meanwhile, the
capacity of Rutan and Lapas can only accommodate 132.335 people which means the over-capacity
of Rutan and Lapas had reached 204%.2 These data explain that there are still plenty amount of
criminal cases during the COVID-19 pandemic. However, the danger of the COVID-19 pandemic
has hindered the resolution of criminal cases.
One of the policies established due to the COVID-19 pandemic which is being the main hindrance
of the resolution of criminal cases is the enactment of the social distancing policy. It has forced the
Supreme Court and Attorney General to establish and implement the social distancing policy which
is applied to the judges, court officials, prosecutors, and other parties involved in a criminal justice
system. Therefore, the implementation of the court activities cannot be carried out as usual because
the courts cannot hold a trial by the rules and regulations that apply before the COVID-19 pandemic.
Due to the urgency of this situation, the courts which are usually carried out their process of trial
conventionally are switched to be implemented remotely via teleconference which has brought
differences and various impacts.
This writing uses the following regulation, agreement, letters, and instruction:
1. Regulation of the Supreme Court Number 4 of 2020 on the Administration and Criminal Trial In
Court Through an Electronic System (“Regulation of the Supreme Court Number 4 of 2020”);

1
Inge Klara Safitri, “Kriminalitas Meningkat Selama Pandemi” https://koran.tempo.co/read/metro/457569/kriminalitas-
meningkat-selama-masa-pandemi Accessed on November 17, 2020.
2
Koalisi Pemantau Peradilan, “[Rilis Pers] Kondisi Buruk Lapas Terekspos Kembali: Mutlak, Reformasi Kebijakan
Pidana Harus Perhatikan Lapas” http://ijrs.or.id/rilis-pers-kondisi-buruk-lapas-terekspos-kembali-mutlak-reformasi-
kebijakan-pidana-harus-perhatikan-lapas/ Accessed on November 17, 2020.

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2. Collaboration Agreement Between the Supreme Court of the Republic Of Indonesia, the Attorney
of the Republic of Indonesia (Kejaksaan), and the Ministry of Law and Human Rights of the
Republic of Indonesia Number 402/Dju/Hm.01.1/4/2020, Number Kep-17/E/Ejp/04/2020,
Number Pas-08.Hh.05.05 of 2020 on the Implementation of the Trials Through Teleconference
(“The Collaboration Agreement between the Supreme Court, Attorney (Kejaksaan), and
Ministry of Law and Human Rights”).
3. Circular Letter of the Supreme Court Number 1 of 2020 on the Guidelines to Implement Duties
During the Prevention Period of the COVID-19 Dissemination Within the Supreme Court and the
Judicial Institutions Under It (“Circular Letter of the Supreme Court Number 1 of 2020”);
4. Circular Letter of the Supreme Court Number 6 of 2020 on the Working System Within the
Supreme Court and the Judicial Institutions Under It In the New Normal Order (“Circular Letter
of the Supreme Court Number 6 of 2020”);
5. Letter of the Attorney General of the Republic of Indonesia Number B-049/A/SUJA/03/2020 of
2020 on Optimizing the Implementation of Duties, Functions, and Authorities Amid the Efforts
To Prevent the COVID-19 Dissemination (“Letter of the Attorney General Number B-
049/A/SUJA/03/2020 of 2020”);
6. Instruction of the Attorney General of the Republic of Indonesia Number 5 of 2020 on the
Implementation of Duties and Cases Management Policy During the Prevention of the COVID-
19 Dissemination Within the Prosecutor’s Office of the Republic of Indonesia (“Instruction of
the Attorney General Number 5 of 2020”);
7. Letter of the Supreme Court’s Directorate General of the General Judiciary Number
379/DJU/PS.00/3/2020 dated 27 March 2020 on Criminal Trial Through Teleconference (“Letter
Number 379/DJU/PS.00/3/2020”).

Analysis
Criminal trials through an online system have been carried out to implement the social distancing
policy which was established as an effort to reduce COVID-19 dissemination. Through the
Directorate General of the General Judiciary, the Supreme Court issued Letter Number
379/DJU/PS.00/3/2020 addressed to the district courts and high courts which informed that during
the COVID-19 pandemic, the criminal trials are allowed to be carried out via teleconference. The
Supreme Court also issued Regulation of the Supreme Court Number 4 of 2020 which consists of
provisions that act as a guideline to conduct a criminal trial during the COVID-19 pandemic. The
regulation goes on to explain the guideline as follows:
Provision Explanation
General Provision a. The trial can be held in the court with the presence of the judge(s), the
prosecutor(s), and the defendant with/without lawyer(s) accompaniment;
b. The trial can be held through an electronic system with them still use
their own respective attributes.

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Cases Delegation, a. The delegation of ordinary, short, and fast cases are conducted in
Numbering, and accordance with the procedure of the existing law;
Trial Summons b. In terms of point “a” above cannot be done, cases delegation conducted
through an e-mail, meanwhile the evidence stays in the prosecutor’s
office;
c. The schedule of the electronic trial set by the judge(s) is being delivered
to the prosecutor through an electronic system;
d. The prosecutor delivers the trial summons to the defendant through an
electronic domicile which is a message service in the form of a verified
account, or through a letter if the defendant is not being arrested and does
not own an electronic domicile.

Trial a. Preparation of the Trial

 The defendant with a lawyer’s accompaniment must be in the same
room with the lawyer(s), or if it is not possible, the lawyer(s) must
conduct the trial in the court or the prosecutor’s office;
 The room where the defendant held the trial must consist of a
recorder/camera/CCTV and only attended by the defendant, the
lawyer(s), the officer of Rutan, and IT officer unless specified
otherwise by the laws and regulations.

b. Indictment and Objection

 The indictment, objection, opinion against the objection are read out in
the trial;
 The objection and the opinion against the objection are delivered to the
judges by e-mail to then be forward on to the prosecutor and the
lawyer(s);
 The judgement/interlocutory judgement can be read out through an
electronic system.

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c. The Examination of witnesses and experts
 The examination is conducted in the court’s trial room, or other place
mentioned in Article 11 Paragraph (3);
 Before the trial, the party who presented the witness(es) and/or
expert(s) must inform the court regarding the details of the witness(es)
and/or expert(s);
 The witness must turn off the video and gives the explanation with a
camouflaged voice or without the presence of the defendant for an
examination in which the witness’ identity considered by the judge(s)
must be concealed.

d. The Examination of the defendant

 If the defendant is detained, the explanation can be heard from the
place the defendant is detained or the prosecutor’s office;
 If the defendant is not detained, the explanation can be heard from the
court, the prosecutor’s office, or other place set by the judge(s).

e. The Examination of the Evidence

 The evidence stays at the prosecutor’s office and shown to the
judge(s);
 If the evidence is a printed document, the evidence must be scanned;
 If the evidence is not a printed document, the evidence can be
photographed or videotaped to then be sent to the court’s e-mail
address;
 Points 2 and 3 of this section also apply for the evidence delivered by
the defendant.

f. Demand, Defense, Counterplea (or Replik), Rejoinder (or Duplik)

 The demand, defense, counterplea, and rejoinder are delivered to the
judges by e-mail to then be forward on to the prosecutor and the
lawyer(s);

g. Judgement and Notification of the Judgement

 The judgement can be read out through an electronic system;
 In terms the defendant does not attend the judgement reading trial, the
notification delivered through electronic domicile or letter or mass
media, bulletin board, and the court’s website.

h. Technical Constraint and Public Access

 If there is a constraint during the trial, then the trial is suspended until

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 the constraint ended;
 If there is a constraint for more than 60 minutes, then the trial is
postponed;
 Public access to administration and trials is conducted in accordance
with the existing laws and regulations.

Similarly with the Supreme Court, the Attorney General also issued an instruction and a circular
letter for those who work within the prosecutor’s office regarding the resolution of the criminal
cases during the COVID-19 pandemic, namely the Instruction of the Attorney General Number 5 of
2020 and the Letter of the Attorney General Number B-049/A/SUJA/03/2020 of 2020 which consist
of the following important points:
a. Complete ongoing trials, especially cases where the defendant has the status of detention in Rutan
and it is no longer possible to carry out additional detention;
b. Postpone the cases and trials against the suspect/defendant which on the basis of law its
resolution and detention is still reasonable to be extended or deferred;
c. Optimizing case resolution with the Short Examination Procedure or Acara Pemeriksaan Singkat
(“APS”);
d. Attempting to have a criminal trial through video conference/live streaming, which in its
implementation is coordinated by the respective head of the district court and the respective head
of Rutan/Lapas.
Besides the aforementioned regulation, the Supreme Court issued Circular Letter of the Supreme
Court Number 1 of 2020 which more or less consists of provisions similar to the instruction and the
circular letter issued by the Attorney General, yet, it also consists of provisions about cases that still
have to undergo a trial that goes on to say:
a. The judges have the authority to postpone a trial;
b. Restrict the court’s visitors;
c. Conduct health protocols (social distancing, wear a mask, measure body temperature, etc).
Furthermore, the Supreme Court also issued Circular Letter of the Supreme Court Number 6 of 2020
that says the implementation of a criminal trial via teleconference during the COVID-19 pandemic
still has to comply its process in accordance with the existing laws and regulations, also the
Collaboration Agreement between the Supreme Court, Attorney (Kejaksaan), and Ministry of Law
and Human Rights. The agreement obliges the Supreme Court, Attorney (Kejaksaan), and Ministry
of Law and Human Rights to:

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a. Provide adequate supporting facilities to carry out the trials via teleconference in the district
courts;
b. Coordinate with each other to carry out the trials while still complying with the fast, simple and,
low-cost trial and open to the public principles;
c. Keep pay attention to the rights of the defendants, victims, and witnesses;
d. Monitor and evaluate the trial implementation via teleconference.
While for the Ministry of Law and Human Rights, there is an additional obligation for them to
prepare detainees and/or occupants of Rutan/Lapas who have the status of a defendant/witness in a
trial via teleconference at the respective Rutan/Lapas.
The Supreme Court and Attorney General have jointly issued policies that serve as a guideline
during the unexpected COVID-19 pandemic for the law enforcers to keep uphold justice and
implement the general criminal trial process in Indonesia.

Conclusion
The emergence of COVID-19 has forced the criminal justice system to adjust its system of work to
the unexpected pandemic. The law enforcers must have an alternative to the resolution of criminal
cases that simultaneously comply with the social distancing policy. Through the Supreme Court and
Attorney General, the policies addressed to the law enforcers are established for them to be able to
implement the general criminal trial process in Indonesia during the COVID-19 pandemic. The
general criminal trial can be implemented remotely via teleconference to prevent the COVID-19
dissemination. It also can be implemented conventionally by attending the court, still, it has to be
implemented by conducting health protocols and restricting the court’s visitors. The adjusted
policies were established by noticing and utilizing technological development as a facility to
conduct the general criminal trial process. Still, the adjusted process is implemented by not ignoring
the rights of the defendants, victims, and witnesses. The general criminal trial process has been
implemented differently by adjusting to the current situation. The COVID-19 pandemic must not be
a hindrance for the law enforcers to keep uphold justice by still respecting the rights of the parties
involved in the process.