05. Peranan Advokat Dalam Sistem Peradilan Pidana

Summary

The speaker discusses the role of advocates in the Indonesian criminal justice system, focusing on the distinction between representing and accompanying clients in criminal cases. Emphasizing the importance of the power of attorney, the presentation outlines how advocates assist clients, especially suspects and defendants, within the framework of Indonesian criminal law (KUHAP) and the Advocacy Law (Undang-Undang Advokat No. 18/2003). The speaker also addresses the complexities surrounding the legal status of suspects, defendants, and witnesses, highlighting the necessary qualifications for legal representation and the ethical obligations of advocates.

Takeaways

• 😀 The study of criminal procedure law (KUHAP) in Indonesia often overlooks the subsystems within the criminal justice system, but this is crucial for understanding the roles of various components like advocates.
• 😀 The role of an advocate in criminal law is distinct from their role in civil law, particularly when it comes to the concepts of 'representing' versus 'accompanying' a client in legal proceedings.
• 😀 In criminal law, an advocate's duty is to 'accompany' the client (defendant) in trial, while in civil law, an advocate can 'represent' the client, meaning the client does not necessarily have to be present.
• 😀 The power of attorney, especially the 'surat kuasa khusus' (special power of attorney), is central to an advocate’s role in criminal trials, allowing them to act on behalf of the client in the courtroom.
• 😀 KUHAP uses the term 'penasehat hukum' (legal advisor) rather than 'advokat,' and this distinction emphasizes that an advocate’s role in criminal law is specifically tied to the client’s authorization and presence in court.
• 😀 Advocates are not considered full-fledged law enforcers under Indonesian law, as they only function in their role when they receive a power of attorney from the client. Without this, they are not seen as enforcers of the law.
• 😀 The Advocates Law (Undang-Undang Advokat No. 18 Tahun 2003) regulates the practices of advocates, ensuring that they are tasked with defending their clients’ legal interests in criminal cases.
• 😀 Saksi (witnesses) do not have the right to be accompanied by an advocate during criminal investigations under KUHAP, but this situation is challenged by human rights laws that allow advocates to assist witnesses in certain cases.
• 😀 The distinction between terms like 'terlapor' (person reported) and 'saksi' (witness) creates confusion in criminal law, as those reported may still be questioned as witnesses without receiving the protection of legal counsel.
• 😀 The Mahkamah Agung (Supreme Court) issued a circular on special power of attorney (surat kuasa khusus), emphasizing that it is only valid within the trial court and not during earlier stages of the criminal process like investigation or prosecution.

Q & A

What is the focus of the presentation in the script?

The presentation focuses on the role of advocates in the criminal justice system, specifically discussing the concept of 'assistance' in criminal proceedings, the role of an advocate in supporting clients, and the related legal frameworks.

Why is the discussion of subsystems within the criminal justice system considered important today?

The discussion of subsystems in the criminal justice system is considered important today because it deals with the functional differentiation and national access to legal norms, as well as addressing gaps in the legal framework that require specific regulations and technical policies.

What does the term 'advocate' refer to in the context of the script?

In the script, the term 'advocate' refers to a legal professional who provides legal assistance to individuals, as mandated by the law, especially in criminal proceedings. The role is formally recognized in the Indonesian legal system through the Law on Advocates (Undang-Undang Nomor 18 Tahun 2003).

How does the role of an advocate differ in criminal law compared to civil law?

In criminal law, an advocate's role is to 'accompany' the client, meaning the defendant must be present during the proceedings. In contrast, in civil law, an advocate 'represents' the client, meaning the client does not necessarily need to be present during hearings.

What is the significance of the concept of 'power of attorney' in criminal proceedings?

The concept of 'power of attorney' is crucial because it allows an advocate to represent and assist a client in criminal proceedings. The power of attorney must be granted by the client, and it can be either general or specific. It is essential for an advocate to obtain written authorization from the client before assuming their legal role.

What are the implications of the legal terminology used in the Criminal Procedure Code (KUHAP) regarding advocates?

The Criminal Procedure Code (KUHAP) uses the term 'legal advisor' instead of 'advocate.' This reflects a distinction between the roles of advocates and other legal professionals, even though the practice in the courtroom is similar. Additionally, the KUHAP does not explicitly allow for advocates to represent witnesses or other parties, leading to legal ambiguities.

Why is the concept of 'accompanying' emphasized over 'representing' in criminal proceedings?

The concept of 'accompanying' is emphasized because it aligns with the principle that the defendant must be present during the trial. Unlike civil law, where representation is sufficient, criminal law requires the defendant to actively participate in the process, and the advocate's role is to guide them through it.

How does the Law on Advocates (Undang-Undang Nomor 18 Tahun 2003) impact the role of advocates in criminal trials?

The Law on Advocates (Undang-Undang Nomor 18 Tahun 2003) formalizes the role of advocates in legal proceedings, ensuring they can provide legal assistance and defend clients in criminal trials. It specifies that advocates are professionals who cannot be prosecuted for actions taken in the course of their duties, provided they act in good faith.

What is the role of the advocate in the legal process when the client is a witness or a suspect?

When the client is a witness or suspect, the advocate's role is to provide legal guidance and ensure the client's rights are upheld during the investigation or trial. Although the KUHAP does not mandate that witnesses be accompanied by advocates, human rights laws allow for advocates to assist witnesses if necessary.

Why does the script discuss the historical development of legal terminology and procedures in Indonesia?

The script discusses the historical development of legal terminology and procedures to highlight the evolution of Indonesian law from its colonial origins to its current form. It points out that while certain legal practices were inherited from Dutch law (such as civil procedure codes), others, like the KUHAP, are uniquely Indonesian and reflect the nation's legal system's growth.