MLA IN CRIME MATTERS
Mutual legal assistance in criminal matters in Indonesia is implemented based on treaties. In the absence of treaties, mutual legal assistance may still be granted on the basis of international relation and the principles of reciprocity. Reciprocity means that:
- the Requesting Countries need to declare its assurance to assist Government of Indonesia subsequently or that the Requesting Countries need to provide reciprocal undertaking within the request letter, promising legal assistance to the Government of Indonesia, and
- Government of Indonesia will take into consideration of any assistance record.
In order to ensure that the requests of mutual legal assistance are executed efficiently, it is imperative for the Central Authority of Requesting Country to be attentive on the following notes when submitting MLA request to the Government of Indonesia:
- Law enforcement agency proposing request of legal assistance may need to consult with Central Authority of Requesting Country in submitting the request.
- Having due regard of the compatibility of the request and proportionalityof the crime with the relevant Indonesian laws.
- Indicate mechanism being used to propose request of assistance or provide undertaking of reciprocity.
- Stating the law enforcement institution requesting the assistance and its legal basis in accordance with the law of the requesting state.
- Explain case summary pertaining to the legal assistance request and applicable criminal law to the case in which the assistance is being sought and the sanctions.
- Identify assistance being requested and its confidentiality.
- Declare the undertaking to comply other requirement and on the use of evidence.
- Government of Indonesia will also require that following assurance and undertaking from requesting countries when any MLA request is transmitted to the Central Authority:
- MLA request is not related with investigation or prosecution of a person, that had it been occurred in Indonesia, it would have constituted an offence under military law in Indonesia;
- MLA request is not made for the purpose of prosecuting and investigation or otherwise causing bias prejudice to a person on account that person’s colour, race, origin of ethnic, sex, religion, nationality or political preferences;
- Unless Attorney General of Republic of Indonesia provides consents otherwise, any evidence obtained pursuant to the MLA request will not be used for the purpose of matter other than criminal matter in respect which the request was made;
- Should Attorney General require the return of any evidence obtained pursuant to the MLA request at the conclusion of the criminal proceeding and all consequential appeals, the evidence will be returned to the Attorney General of Republic of Indonesia. Should the evidence will be used for the purpose of matter other than criminal matter in respect which the request was made, the Requesting Country shall request for approval to Central Authority of the Republic of Indonesia prior the utilization.
- Describe time urgency and provide contacts.
Any country may submit MLA request to Indonesia either be delivered directly or transmitted through diplomatic channels. The flowchart of MLA request execution conveyed by the Central Authority of Foreign Country to Indonesian Central Authority is depicted in the following:
Notes:
- Submission of Mutual Legal Assistance Request to Indonesian Central Authority
- Request is assessed and request letter drafted
- Request letter transmitted, coordinated and monitored
- Fulfillment of assistance request from Indonesia and feedback from Requesting Country
Requests pertaining to search and seizure of items, objects or asset
Requests for assistance for conducting search warrant and seizure of goods, items, objects or assets in Indonesia should be based on a warrant and/or court order for the purpose of investigation or examination before the court. Moreover, the request must enclose search and seizure warrant/order issued by a competent authority.
It should be noted that such assistance may only be given if the requesting country guarantees that it shall return the requested goods, objects or assets.
Requests pertaining to the service of documents If the document to be serviced is a summons, the request for assistance must be submitted at least 45 days prior to the date the person is required to appear, as well as a guarantee that the person shall not be detained, prosecuted or tried for any violation of the law of the Requesting State alleged to have been committed by the Person before he left Indonesia;
Request to follow up on a final judgment Assistance related to follow-up of court ruling may be granted in the following cases:
- Confiscation of assets;
- Imposition of penalty; and/or
- Indemnification of state money/payment of compensation Template of MLA Request The Central Authority also provides an MLA Request Form which should be taken into consideration in fulfilling any requirements or information.
| (Attachment File: Template of MLA Request-Incoming) | Download Here |
MLA request is generally implemented based on treaties. In the absence of treaties, MLA request may still be granted on the basis of international relation and the principles of reciprocity.
In order to ensure that MLA request executed in efficiently, it is imperative for the competent authority to be attentive on following notes when proposing submission of MLA request to Ministry of Law and Human Rights of the Republic of Indonesia:
- Law enforcement agency proposing MLA request may need to consult with Ministry of Law and Human Rights of the Republic of Indonesia in submitting the request.
- Having due regard of the compatibility of the request and proportionalityof the crime with the relevant Indonesian laws.
- Indicate mechanism being used to propose request of assistance.
- Stating the law enforcement institution requesting the assistance and its legal basis in accordance with the law of the requesting state.
- Explain case summary pertaining to the legal assistance request and applicable criminal law to the case in which the assistance is being sought and the sanctions.
- Identify assistance being requested.
- Describe time urgency and provide contacts.
The flowchart of MLA request execution conveyed by Indonesian Central Authority to the Central Authority of Foreign Country to is depicted in the following:
Notes:
- Submission of Mutual Legal Assistance Request Proposal from Competent Authorities to Indonesian Central Authority
- Assessment and Drafting of the Mutual Legal Assistance Request
- Submission of Request to Requested Country, Coordination and Monitoring of Mutual Legal Assistance Request
- Fulfillment of Mutual Legal Assistance Request from Requested Country and Feedback
Request to obtain statement, document, and other evidence voluntarily
For the request pertaining to statements shall attach a list of questions and/or statement that may be taken.
Request to search and seizure of items, objects, or property
MLA cooperation covers assistance request to conduct search and seizure procedure of an item, object, or property in other jurisdictions under permit and/or court’s appointment for the purpose of an investigation or examination at court trial. In the assistance request, the competent authority must also enclose a search and confiscation warrants issued by competent authority of Indonesia as the Requesting Country.
Request to execute final judgment
Assistance related to follow-up of court ruling may be granted in the following cases:
- Confiscation of property;
- Imposition of fines; and/or
- Indemnification of state money
Template of MLA Request
Central Authority also provides model form of Mutual Legal Assistance Request Letter which should be taken into consideration in fulfilment of the requirements or information.
| (Attachment File: Template of MLA Request-Outgoing) | Download Here |
