Introduction

Soehandjono,SH

In Indonesia prosecution service is under the control of the Attorney General. The authorities which are given by law to the Attorney General do not relate only to criminal cases but also to civil cases as well as to administrative cases. This paper, however, discusses the authority of the Attorney General, which relates only to criminal case, especially in the field of prosecution.

Basically the Indonesian Code of Criminal Procedures (KUHAP) strongly differentiates investigation from prosecution. Investigation is basically under the authority of Police, whereas prosecution is under the authority of prosecution, service. Only in relation to certain cases is a prosecutor authorised to conduct investigation.

The cases, which can be investigated by a public prosecutor, are known as "special crimes" or "specific crime". Previously, the example of this kind of crime is corruption or subversive crime. Presently, the act on subversive crime has been abolished and, consequently, people who commit any crime, which endangers state security, are prosecuted under law provisions relating to general crimes.

Further, the act on smuggling has also been replaced by a new act. Under this new law smuggling is considered not as a special/specific crime but as a general crime. Consequently the investigation is this case is not conducted by prosecutor

Recently, the act on corruption has also been changed. According to this law the Attorney General has the authority to co-ordinate law enforcement on corruption cases whose burden of proof is complicated (see Article 27) and to co-ordinate preliminary investigation, investigation and inquiry on corruption cases which are committed mutually by civil and military personnel (see Article 39). -According to the new law (especially articles 31,32 and 33) a civil suit should be filed against anyone causing any loss to state’s financial or economic condition, if investigation, prosecution or adjudication in his corruption case is terminated. The civil suit can be filed by the Attorney General's Office or by the government agency or company, which suffers from financial loss in that case.

As we know, recently Indonesia is carrying out reform program (reformasi). This program produces lots of laws, which influence the authority of prosecution service in relation to investigation.

The relation between investigation and prosecution

Theoretically, investigation can not be separated from prosecution. The aim of investigation is to produce a dossier describing how a crime is committed the person, who commits the crime, as well as the evidence and the witnesses. The aim of prosecution is to describe before a criminal court that the content of the dossier is legally acceptable so that the person who commits the crime should be sentenced.

In short we can say that a prosecutor has a duty to convince the judge in a criminal case that the content of the dossier is really true. How can a prosecutor fulfil this duty if he himself is not convinced by the content of the dossier, which is produced in the investigation stage?

From the point of view as described in the previous paragraphs it is understood that in many countries investigation is regarded as a part of prosecution so that investigation is under the control of prosecution service. Unlike in these countries, in Indonesia investigation and prosecution are basically regarded as two activities. The former is mainly under the control of Police, where as the latter is under the control of persecution service. A prosecutor has no authority to conduct, except in relation to certain crimes known as "special/specific crimes"

It has to be noted, however, that recently there is a strong public pressure demanding for the review of the Indonesian Code on Criminal Procedures (KUHAP) or Law No. 8 of 1981. In other words, there is a need to have a new law on criminal procedures, which is more effective than the present law (KUHAP) l

Problems relating to speedy trial in Indonesia

"Speedy trial" does not mean speedy adjudication process before a court. In relation to criminal cases "speedy trial" should mean a speedy criminal law enforcement process, which includes speedy preliminary investigation, speedy investigation, speedy prosecution, speedy adjudication and speedy execution of court judgements in criminal cases.

In Indonesia the followings problems are still found in relation to the efforts to implement the principle of speedy trial:

* The law requires an investigator to give a report on the commencement of investigation to the prosecutor every time an investigator starts with an investigation. - Unfortunately, this requirement is not fully complied with so that lots of investigations are conducted with no report to the prosecutor.

This Practice raises a problem because in the absence of such a report it is difficult to determine when an investigation has really started and when it should be supposed ended. With no report on the commencement of investigation it is also difficult for a public prosecutor to start with co-ordination aimed at assisting the investigator in overcoming all problems faced in the stage of investigation.

* After an investigator produces a dossier, the law requires him to hand the dossier to a prosecutor. In this case the law gives only a period of 14 days for a prosecutor to determine whether the content of the dossier has been complete. If the prosecutor considers the dossier incomplete he should give a written guidelines to the investigator about how to complete the dossier. Unfortunately, the law does not limit the period for the investigator to fulfil the guideline given by the prosecutor in order to have the dossier complete. This hampers the effort to implement the principles of speedy trial, since it may take months or probably years for an investigator to strive for the completion of the dossier by fulfilling the guideline given by the prosecutor.

The discretion of prosecution service

In relation to criminal cases a prosecutor has the following discretion:

*In relation to the cases of special/specific crimes a prosecutor has authority to conduct investigation and has the discretion to terminate the investigation if be finds any of the following reasons;

* In relation to all criminal cases a prosecutor has an authority to prosecute and has the discretion to terminate the prosecution due to the same reasons as the ones described above.

Further, the Attorney General of the Republic of Indonesia who becomes the Prosecutor General or the Supreme Prosecutor of the Republic has also the discretion to terminate a prosecution for the sake of pubic interests.

This discretion does not hamper the implementation of the principles of speedy trial, since if there is a certain reason to not proceed with investigation or prosecution (like due to the lack of evidence), or if public interests require the case should be terminated. It is better to terminate the prosecution or investigation than wasting time by continuing the case to the adjudication on processes.

Prosecution as the centre for regional and international co-operation in crime prevention and criminal justice

It is understood that prosecution service plays an important and central role in criminal justice system. Even though an investigation is conducted by an investigator (not necessarily a prosecutor) the investigation should relate to prosecution service, since the dossier produced by the investigator should be handed to a prosecutor. Basically, prosecution can only be conducted by a prosecutor. A prosecutor plays also an important role in adjudication, because he attends the adjudication proceedings before a criminal court and his submissions are pivotal for the court judgement. Finally, the execution of a court judgement in a criminal case is also under the control of a public prosecutor.

Since, as previously described, the prosecution service plays an important and central role in criminal justice system, the international or regional co-operation in criminal justice system should also regard the prosecution service as the centre for such a co-operation.

In this globalisation era international or regional co-operation in criminal justice is really necessary. It is easy for a criminal to go from a state to another or to commit a crime not only in his own country but also outside the territory of his country. Further it is also easy for a criminal to conceal his proceeds of crime abroad.

In the absence of regional or international co-operation in criminal justice system, it is difficult to enforce criminal law provisions upon a criminal who has escaped from his own country or from the country where he has committed a crime as well as to confiscate the money and assets emanating from crimes which are concealed abroad.

Conclusion

There are lots of issues for discussions about prosecution service. It may take days or probably weeks to discuss all of them. This short paper, however, tries only to highlight the main issues found in relation to prosecution service in Indonesia.

Jakarta, 10 November 1999

Soehandjono,SH