Indonesian Civil Procedure Essay Example for Free

Indonesian Civil Procedure Essay a.Executive Summary Indonesian is not the signatory of the Haque Convention. Indonesian Civil Procedure guidance is based on two regulations, which were adopted from the Dutch Colonial system, which are Herziene Inlandsch Reglement (HIR) and Rechtsreglement voor de Buitengewesten (RBg.). Furthermore, based on the Temporary Law to the Emergency Condition Law No. 1 of 1951 on the provisional considerations state that to those two regulations remained in force up to the new regulations in relation to the Civil Procedure Process will be issued in purpose of ensuring uniformity in the administration, competency and procedure of the civil courts. However, in relation to the matters of obtaining the evidences and the subjects that are parts of the Civil Case, the Burgerlijk Wetbook/the Codes of Civil Procedure Book/Kitab Undang-Undang Hukum Perdata. I. Service Process I.1The First Court Process in District Court The first court in the civil procedure in relation to the civil case should process is the District Court (Pengadilan Negeri). The first process should be the plaintiff registers their claim with the registrar office of a District court through the Head of the Clerk Court. Afterwards, the head of the District Court will resume the claim in relation to appoint a single judge or a panel of judges to examine the case. Generally, a lot of cases are heard and examined by a panel with three judges. The appointed judge or judges will sit for hearings, examinations, and, finally, will issue a decision. The court will schedule dates of hearings and will summon parties to appear before the court. However, if the address of the parties is unknown and/or unrecognized, the notice of the court hearing’s schedule and also the content of the summons should be conducted and announced through the advertisement in a national newspaper. After the notice of the schedule of hearing have been delivered and well received by the Parties or the representatives and/or the assignees, there will be eight hearing phases in the District Court. At the first court hearing, if the plaintiff and defendant attend the hearing session, the judge or the panel of judges will ask both parties whether or not they have attempted to do mediation or a settlement outside the Court prior to appearing before the court. If the parties agree to do the mediation, the panel of judges has the obligation to mediate between the parties or order that they resolve this matter through external mediation outside the court. If the mediation process conducts, the parties will draw up, enter and sign a Settlement and Release Agreement (Akta Perdamaian). This Settlement and Release will have the same effect enforceable as a court judgment as stipulated in the verdict. If the mediation fails and the dispute settlement cannot be reached, therefore the parties should proceed to litigation and the first court hearing will be scheduled by the judge or by the panel of judges. If a defendant or their attorney or appointed lawyer does not appear in the first hearing, the panel of judges will schedule another hearing and ask for the defendant to be properly summoned by the Clerk Court. The judge or the panel of judges may also, however, issue a default judgment in the absence of the defendant. Furthermore, if the plaintiff or their attorney and/or their appointed lawyer fails to appear on the scheduled hearing, the judge or panel of judges will declare the lawsuit null and void. As to be highlighted that, the litigation process in Indonesia for the process is more of a paper process than an oral one. The first court hearing is proposed to the plaintiff giving their arguments and submitting their facts of the case. Furthermore, in this first court hearing, the Plaintiff’s demands should be made and submitted in relation to their expectations to the panel of judges to be decided. The plaintiff has to start reading their lawsuits in the forms of the â€Å"Claim and Demand†. After hearing the plaintiffs lawsuit, the judge or the panel of judges will give an opportunity for the defendant to propose the second court hearing as the rebuttal hearing. Then, the judge or panel of judges will decide and schedule the rebuttal hearing with the sufficient time in relation to giving the defendant preparing the written rebuttal (kopensi). Afterwards, the second court hearing, the court will ask the defendant read their written rebuttal. Furthermore, the defendant also has the option to file a counter suit (rekonpensi) against the plaintiff. This counter suit will make the Defendant as a plaintiff at the same time. The judge or panel of judges has responsibility to issue two verdicts at the same time. At the third court hearing, the judge or panel of judges will hear the plaintiffs rebuttal against the argument made by the defendant at the second court hearing. At the fourth court hearing, the panel of judges will hear the defendants arguments with respect to the plaintiffs rebuttal as submitted in the third court hearing. The fifth and sixth court hearings are proposed to examining evidence and presenting and hearing any witnesses, including expert witnesses. The plaintiff is firstly let to present evidence and their witnesses, and then, the judge or panel of judges gives the next chance to the defendant to present the evidences, witnesses or testimony that it would support of its case. The seventh court hearing is for the court to hear both parties give their conclusions in the case. The eighth and last court hearing is when the panel of judges has to make the decision to the case and read its verdict. The courts verdict, however, does not immediately take effect and become enforceable. The verdict is effective after fourteen days since the date of the verdict was read, if there is no appeal submitted. If one of the parties submits an appeal to this verdict, the verdict will not take effect and be unenforceable. I.2The Appeal Court to the High Court For doing the appeal from the District Court are heard before the High Court (Pengadilan Tinggi). The High Court, which located in each of the Provinces in Indonesia, and also called as a District Court of Appeal. The High Court will examine and review the case through all paper materials submitted by the parties at the District Court at least 14 (fourteen) days after the announcement date of that verdict The parties will not be needed to do physically hearing as required in the first phase in the District Court. The High Courts verdict will take effect and become enforceable in fourteen days if no cassation/appeals to the Supreme Court, which located in Jakarta, as the highest court in Indonesia, is submitted. There are no restrictions and the mechanism, except for time limits, with respect to challenging a verdict of the High Court to the Supreme Court. I.3The Highest Appeal to the Supreme Court/Cassation The Supreme Court has responsibility to review and examine a cassation appeal (kasasi), which the appeal to the Supreme Court is a final appeal from lower courts.   However, it can also conduct a case review (Peninjauan kembali) in the conditions that new evidences should be found, which justifies a re-hearing. The Supreme Court renders decisions concerning disputes of competency amongst the types of court in the first and last instances. The Supreme Court can overrule a verdict of a lower court on any of three grounds: the court in question lacked jurisdiction or acted beyond its jurisdiction; the court applied the law incorrectly or violated prevailing law; and, the lower court neglected to satisfy certain requirements imposed by law. The Supreme Court will review the same materials presented at the District Court, which has been submitted to the High Court; the Supreme Court will not admit new evidences and also ask for another court hearings. The process at the Supreme Court is the similar with the High Court. Generally, the Cassation is possible only if no other ordinary means of obtaining justice is available. If there is a possibility of bringing the case for appeal to the court of second instance (High Court) then the cassation will not succeed. Cassation will be successful if the decisions do not comply with the formal requirements as set forth in the regulation, pertaining to nullification. It is also possible when the lower courts in rendering their decision exceed their jurisdiction. Finally, cassation is possible if the regulations and rules of law have been improperly applied to the case or, if there rules are violated by the Court, or if the Court apply the wrong rules to the case. II.Taking Evidence Abroad There are five types of evidence recognized and set forth in the fourth chapter of the Rules of Civil Procedure Book as follows: * documentary evidence which consists of ordinary documents, notarial deeds and privately executed agreements; * verbal testimony of witnesses under oath in open court; * inferences; * confessions; and * written witness statement sworn in the presence of a notary public. In addition to the five forms of evidence, the following evidence is also recognized in practice: â€Å"Judicial Notice†: The court has discretion with its own knowledge of relevant facts and circumstances, what is known in some jurisdictions as â€Å"judicial notice.† Furthermore, the Judicial notice without inquiry is taken where facts are many parts of the common knowledge that they do not need to be proved at all. Judicial notice is proposed to assist the party, which would otherwise bear the burden of proof in relation to a fact in issue. Furthermore, the Indonesian’s judicial system, the judges themselves are allowed to give questions of witnesses and request other relevant evidence. In relation to the Electronic Documents, pursuant to the Electronic Information and Transactions Law of 2008 that was issued in 2008, the courts are now allowed to accept electronic information and/or electronic documents and correspondence as valid legal evidence. However, this kind of legal evidence excludes those documents that are required by law to be in written form with legalized by the public notary, or in a notarial deed form or required to be made by land deed officials. Furthermore, Indonesia does not have pre-trial discovery procedures like in the Common Law system, however, the Indonesian Civil Procedural Law does state the broad principle that † a person who claims to have a right, or refers to a fact to substantiate his right, or to contradict someone else’s right, must evidence the existence of that right or that fact. II.1Default Summary Judgment Options Generally, in a practice, a default judgment is allowed to be issued, if the defendant or his appointed attorney fails to appear after three consecutive hearings in the District Court phase, and have been properly served. Furthermore, the defendant may file an objection to the default judgment. All legal process is served by officers of the court itself and not by private process servers. Summary judgment is not recognized under the Indonesian civil procedural law. III.Enforcement of Foreign Judgments In relation to enforcing a foreign judgment in Indonesia, the general principle referred to in Indonesian law is the territorial principle. However, as a general rule, foreign judgments are not enforceable in Indonesia. The foreign judgments from the foreign courts cannot be executed by any Indonesian’s courts as a judgment, as well as delivered in a country does not have the requisite force of law in some other jurisdiction. However, although foreign judgments are not generally enforceable in Indonesia, if Indonesia has a bilateral or multilateral treaty with the relevant country issuing the arbitral award, it is possible for a foreign judgment to be enforced. III.1. The Enforcement of International Arbitration Judgments Indonesian courts have historically prohibited to enforce international arbitration judgments without first confirming that judgment or award through the Indonesian judicial system. However, Indonesia has already ratified Convention on the Recognition and Enforcement of Foreign Arbitral Award (New York Convention 1958) through the provisions of Presidential Decree No. 34 of 1981. However, Article 5 of this convention stipulates that the enforcement of an international arbitration judgment can be refused if it breaches public policy or would be detrimental to public order. The Indonesian and foreign mass media seized on this refusal to issue the Writ of Execution as evidence that Indonesia was not only reluctant but would not enforce foreign arbitral awards. b.Department of State Summary DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL. PROVISO: This flyer seeks only to provide information; it is not an opinion on any aspect of U.S., foreign, or international law. The U.S. Department of State does not intend by the contents of this flyer to take a position on any aspect of any pending litigation. OBTAINING EVIDENCE VOLUNTARY DEPOSITIONS: Depositions of willing witnesses may be conducted in Indonesia without the interposition of Indonesian authorities regardless of the nationality of the witness, provided the testimony is voluntary and no compulsion is used. The witnesses may refuse to take an oath or refrain from answering any or all questions. Oral depositions or depositions on written questions may be taken by U.S. consular officers or by private attorneys from the U.S. or Indonesia. Voluntary depositions may take place on U.S. consular premises or at other locations such as offices or hotels, and are taken either on notice or pursuant to a commission. See our general flyer on Obtaining Evidence Abroad for details. ARRANGING FOR U.S. CONSULAR ASSISTANCE: If the services of a U.S. consular officer are required to administer an oath to the witness, interpreter and stenographer, such arrangements must be made in advance with the U.S. Embassy directly. Contact the U.S. Embassy in Indonesia to schedule a deposition of willing witnesses directly on U.S. consular premises, to arrange the participation of a consular officer to administer oaths off-site, or to obtain information about court reporters, stenographers or interpreters. Our general flyer, Obtaining Evidence Abroad , include a checklist of the specific information inquirers should include in requests to the U.S. Embassy. ARRANGING FOR U.S. CONSULAR ASSISTANCE IN DEPOSITIONS : The Office of American Citizen Services information flyer entitled Obtaining Evidence Abroad includes step-by-step instructions for what information you should fax to U.S. consular officers at the American Embassy in Indonesia to arrange for voluntary depositions. PARTICIPATION BY LOCAL, STATE OR U.S. GOVERNMENT OFFICIALS : Local, State or U.S. Government officials must have formal U.S. Embassy and Host Country clearance before traveling to a foreign country to conduct informal interviews related to judicial assistance matters or depositions. If participation of such officials is envisioned, they should contact the East Asia and Pacific Division of the Office of American Citizens Services which will transmit the request for host country clearance to the U.S. Embassy in Jakarta for transmittal to the Foreign Ministry of Indonesia. Police clearance does not constitute formal host country clearance. Compulsion of Evidence Indonesia is not a party to the Hague Convention on Obtaining Evidence Abroad. Compulsion of evidence is obtained pursuant to a letter rogatory. A letter rogatory is a request from a court in the U.S. addressed to the Appropriate Judicial Authority of the foreign country. See our general information flyer, Preparation of Letters Rogatory for details about the process. There are no laws or regulations specifically relating to the use of Indonesian courts for the taking of depositions requested by foreign courts, nor is there clear precedent to which one can refer in determining how to approach the Indonesian courts on this matter. Requesting counsel should be aware that when letters rogatory are executed by foreign courts which compel the appearance of a witness to answer written interrogatories, the evidence is taken in accordance with the rules of the foreign court. In most cases an American attorney will not be permitted to participate in such a proceeding. Occasionally a foreign attorney may be permitted to attend such a proceeding and even to put forth additional questions to the witness. Not all foreign countries utilize the services of court reporters or routinely provide verbatim transcripts. Sometimes the presiding judge will dictate his recollection of the witnesss responses to his secretary. Generally letters rogatory worldwide, including those sent to the United States, take from six months to a year to execute. Preparing A Letter Rogatory For Use In Indonesia In addition to the general guidance in our flyer Preparation of Letters Rogatory , keep in mind that any letter rogatory intended for use in Indonesia must include the following: * Reciprocity: an offer of reciprocal assistance; * Costs: a statement expressing willingness to reimburse the Indonesian judicial authorities for costs incurred in execution of the letter rogatory;†¨ * Translations: a certified translation in Indonesian attached to the English copy (although not a requirement, this will expedite processing in Indonesia). * Authority to Issue the Letter Rogatory: The letter rogatory must include the signature of the judge and the seal of the court. Any summons accompanying the letter rogatory must include the seal of the court;†¨ * Authentication: The letter rogatory and any accompanying documents must be authenticated (also called legalized) by the Indonesian Embassy, 2020 Massachusetts Ave., N.W., Washington, D.C. 20036, tel: 202-775-5200. Contact the Consular Section of the Indonesian Embassy for details about requisite fees. Our general information flyer, Authentication of Documents for Use Abroad includes step-by-step instructions about this process. * U.S. Consular Fees : There is a $455.00 fee for consular services related to letters rogatory. The U.S. fee and any local (foreign) fees will be deducted from the $500.00 deposit check (bank or firm check/no personal checks) payable to American Embassy Jakarta which should accompany the letters rogatory and cover letter (including the complete mailing address of the court in the U.S. to which the executed request should be returned). Requests from State or Federal Government Officials If the service is on behalf of the federal, state or local government, there is no fee. If the letter rogatory is being transmitted at the request of a state or federal official no U.S. consular fee will be charged. However, local authorities in the foreign country may impose fees of their own which must be paid by the state or federal authority in the United States requesting the judicial assistance. You will be contacted if a federal appropriation number and fund code or remittance a check for foreign fees owed by state or local governments in the U.S. are necessary. Service of Process Service of process can be effected in Indonesia in a variety of ways: 1. International registered mail, return receipt requested. 2. Personal service by agent can be accomplished by retaining a Indonesian attorney who will serve the documents and execute an affidavit of service at the U.S. embassy. There is a $55.00 fee for the U.S. consular officers notarial service. Lists of attorneys are available from the Office of American Citizens Services, see Questions below. 3. Letters Rogatory (See Above). Authentication of Documents Indonesia is not a party to the Hague Legalization Convention Abolishing the Requirement for Legalization of Foreign Public Documents. Documents originating in Indonesia intended for use in the United States must be authenticated before a U.S. consular officer in Indonesia. There is a $32.00 fee per document for this service payable to American Embassy Jakarta. Likewise, documents originating in the U.S. intended for use in Indonesia must be authenticated by the Indonesian Embassy. [ 1 ]. For this purpose the study used the following books on the Law of Civil Procedure: R. Soepomo, Hukum Acara Perdata Pengadilan Negeri (The Law of Civil Procedure in District Court), (Jakarta: Percetakan Penebar Swadaya, 2002); Retnowulan Sutantio and Iskandar Oeripkartawinata, Hukum Acara Perdata dalam Teori dan Praktek (The Law of Civil Procedure in Theory and Practice), (Bandung: Alumni, 1986). Translation by Author; and also provided in http://www.aseanlawassociation.org/papers/JudicialSystem.pdf. [ 2 ]. http://www.aseanlawassociation.org/papers/JudicialSystem.pdf. Judicial System, last visited: November 1st,2011 and www.suyud.com. Indonesia Civil Procedure. Last visited: November 2nd, 2011. [ 3 ]. Id. [ 4 ]. Id. [ 5 ]. http://d-arch.ide.go.jp/idedp/IAL/IAL002100_004.pdf. Last visited: November 2nd, 2011. [ 6 ]. Id. [ 7 ]. http://www.travel.state.gov/law/judicial/judicial_651.html