Indonesian Litigation Procedure on Civil Law/Case is basically regulated by two regulations, the Herziene Inlandsch Reglement (HIR) and the Rechtsreglement voor de Buitengewesten (RBg.).
Indonesian trial systems do not use juries. Instead, decisions are made by a panel judges. One of these judges is the Chair (ketua) and is usually more senior than the other judges. Lawyers are placed off to the sides.
Generally, a civil lawsuit must be based on one of the two following legal reasons: breach of contract (Wanprestasi) or unlawful acts/tort (Perbuatan Melawan Hukum).
General Litigation Proceeding in a Civil Lawsuit
A. District Court Level
- The litigation proceeding in Indonesia commences with the plaintiff submitting a lawsuit (“Gugatan“) to the District Court and pay official fee to the District Court. In general, the location of the District Court is a district court which covers the defendant domicile (please note that there can be exceptions on the court domicile);
- The court then informs in writing to the defendant along with an order for the defendant to appear in first court hearing (summon letter). If the defendant do not appear at the first court hearing, then he is summoned to a second hearing and, if necessary, to a third hearing. If the defendant has failed to make an appearance by the third hearing, the court is able to issue a default decision (“Putusan Verstek“). Such a default decision is subject to appeal and is therefore not binding;
- If both parties appears (the plaintiff/the plaintiff’s attorney and the defendant/the defendant’s attorney), the judges then orders the parties to select a mediator for mediation process. If the parties do not want to select a mediator, the judge then will select a mediator (usually mediator judge in the court) for the mediation. If the mediation is successful, the judges will affirm the win-win agreement and incorporate it into a decision (Putusan Dading), which is not subject to appeal and is therefore final, binding and executable;
- If the mediation process is unsuccessful , the mediator returns the matter to the judge in order to further examine the case and make a ruling. The main arguments between the plaintiff and the defendant during the course of the trial are in the form of written submissions;
- The defendant is then ordered to submit a response to the plaintiff’s lawsuit, which is called a “Jawaban”. The defendant may also file a counter lawsuit against the plaintiff’s lawsuit simultaneously with his Jawaban;
- After receiving the defendant’s Jawaban, the plaintiff is given the opportunity to submit a counter plea or “Replik” in order to respond to the defendant’sJawaban;
- The filing of the the plaintiff’s Replik triggers the requirement for the defendant to file a response to the Replik. The defendant’s response to the Replik is called the “Duplik“;
- After written submissions have been completed (Gugatan, Jawaban, Replikand Duplik), the court session moves to evidentiary session where the plaintiff shall submit written exhibits, then if so desired, witnesses in support of the arguments of the plaintiff’s lawsuit/Gugatan;
- the defendant is then given the opportunity of rebuttal by means of providing to the court written exhibits, then if so desired, witnesses in support of the arguments of the defendant’s Jawaban;
- After the evidentiary sessions have been finalized, each of the parties is given the opportunity to submit their closing arguments on the same court day. This closing arguments is called “Kesimpulan”; and
- After both plaintiff and defendant have filed their closing arguments orKesimpulan , the court renders its judgment and announces it at the final hearing.
The time period until judgment in accordance with Supreme Court rules is must be less than 6 months. If for whatever reason a case cannot be completed within 6 (six) months period, the District court must report the reasons of the delay to the relevant High Court.
Law on Evidence
The law on evidence for the court hearing is regulated under Indonesian Civil Procedural Law (Het Herziene Indonesisch Reglement), and evidences that could be admissible to the district court are as follows:
- Documents (ordinary documents, notarial deeds and privately executed agreements);
- Witness (person/s who know or had the reason to know the situation faced by the parties);
- Inferences (judge conclusion about something from known facts or evidence).
- Confession; and
- Solemn vow.
In addition to the five forms of evidence, by virtue of Law No. 11 of 2008 on Electronic Information and Transactions, the courts are now permitted to accept electronic information and/or electronic documents and correspondence as evidence. However, this does not apply to documents that are required by law to be in written form or in a notarial deed form or required to be drawn up by land deed officials.
All document based evidence to be submitted to the District Court must be charged a stamp duty of IDR 6,000 and then legalized by the District Court. Documents that are not in the Indonesian language must be translated into Indonesian by a sworn translator.
B. Appeal to High Court (Pengadilan Tinggi)
The losing party is entitled to appeal to the High Court. The Appeal to the High Court is called “Banding”. The appeal/Banding is required to be filed to the High Court by the appellant within 14 days from the date of issuance of the decision if the appellant attended the final court session.
If the appellant did not appear in the final court session, the time to file an appeal is calculated 14 days from the time the appellant received the notice of decision.
The appellant shall sign the deed of appeal (“Akta Banding“) in the same District Court which rendered the initial decision and to pay the appeal fee. The appellant could also file ground for appeal or “Memori Banding”, however there is no obligation for the appellant to file the Memori Banding. The High Court shall have their ruling with or without the appellant Memori Banding. If a Memori Banding is filed, the respondent to the appeal may file a counter statement or “Kontra Memori Banding”, but there is no obligation to do so.
The decision of the High Court may take a year or more until judgment.
C. Appeal to Supreme Court (Mahkamah Agung)
The appeal to the Supreme Court is called “Kasasi”. If any party is displeased or refused the judgment of the High Court level/Banding judgment, therefore such party is entitled to appeal to the High Court or file a “Kasasi“. The application forKasasi has to be filed with the original District Court. This appeal/Kasasi must be filed within 14 days calculated from the time the party received the notice of the judgment of the High Court level/Banding judgment. The party who filed theKasasi must also file ground of appeal or “Memori Kasasi” within the 14 days period. The respondent, if he so desires, may also submit a counter statement or the “Kontra Memori Kasasi“, within 14 days calculated from the date that he received a copy of the Memori Kasasi.
The Supreme Court does not review facts but only decides on matters of the law, including the issue of whether the lower courts properly applied the law.
The judgment of the Supreme Court at the Kasasi level will be final and binding.
The losing party has an extraordinary legal remedy of civil review or “Peninjauan Kembali“. The civil review or Peninjauan Kembali could be submitted to the Supreme Court which is only available for certain reasons as follows:
- The decision was based on a lie or fraud of the opposing party/adversary.
- There is new substantial written evidence after the decision was issued.
- The decision exceeded what was requested by the parties.
- The decision conflicts with other decisions issued by the same court, or another court at the same level, in the same case involving the same parties.
Before the judgment of civil review or Peninjauan Kembali, the winning party can enforce the judgment of the Supreme Court (Kasasi Judgement) without delay.
D. Execution or Enforcement of Judgment
If the plaintiff wins with a final and binding judgment, the final and binding judgment is enforced by the original District Court examining the case and, if necessary, the State Auction Agency. To execute the judgment, the applicant must submit an application to the District Court, and then the District Court orders the defendant to fulfill the judgment within eight days. If the defendant does not fulfill his obligations, the defendant’s assets are attached (for the purpose of enforcement) and sold by way of a public auction. Such a public auction is effected by a special administrative board (“Juru Lelang“) under the jurisdiction of the Ministry of Finance.