Legal Action against an International Extradition Request in Indonesia

The regulation governing extradition in Indonesia is established by Law No. 1 of 1979 on Extradition (the “Extradition Law”), which then defines extradition as “the surrender by one country to another country of a person who is suspected or convicted of committing a crime outside the territory of the surrendering country and within the jurisdiction of the requesting country, as it has the authority to judge and prosecute the person.”

There are several essential aspects on extradition according to Indonesian law, including:

A. The Requirements for someone to be extradited from Indonesia

According to the Extradition Law, there are several conditions shall be met for someone to be extradited from Indonesia to another country, including:

1. Existence of Extradition Agreements: For someone to be extradited from Indonesia, there shall be an extradition treaty signed between Indonesia and the requesting country. However, according to Article 2 (2) of the Extradition Law, in the absence of a treaty, extradition may be granted based on reciprocity and subject to the interest of Indonesia.
2. Double Criminality Principle: According to Article 4 (1) of the Extradition Law, this principle states that the act forming the basis for the extradition request must be considered a criminal offense in both the requesting country and Indonesia.
3. ?Sufficient Evidence: Article 22 of the Extradition Law stipulated that the extradition request shall be fulfilled by adequate and relevant evidence indicating strong suspicion of the crimes committed by the individual sought for extradition.
4. Non-Political Offenses: Article 5 of the Extradition Law exempts political crimes from extradition.
5. No Threat of Death Sentence: Indonesia has legal provisions under Article 13 of the Extradition Law prohibiting extradition if there is a threat of death penalty in the requesting country.

The crimes for which perpetrators can be extradited according to the Annex of Extradition Law in Indonesia are as follows:

1. Homicide;
2. Intentional homicide;
3. Assault resulting in severe injuries or death, planned assault, and serious assault;
4. Rape, indecent acts with violence;
5. Abducting women through violence, threats of violence, or deceit, intentionally abducting a minor;
6. Fraud;
7. Smuggling;
8. Maritime piracy;
9. Air piracy, crimes against aviation, and crimes against aviation facilities;
10. Corruption offenses;
11. Narcotics and other dangerous drugs offenses.

However, extradition may also be carried out at the discretion of the requesting country for other crimes not in the list and can be added by government regulation.

B. The?Brief?of?the Extradition Procedure in Indonesia

1. The extradition process starts when a foreign nation seeks a fugitive in Indonesia. The requesting country initiates the procedure by sending an official extradition request to the Indonesian government through diplomatic channels. The request must contain essential information about the individual, the original document or copy of the arrest warrant, the criminal charges, and the supporting written evidence.
2. After the requirements and documents are fulfilled, the Minister of Law and Human Rights of the Republic of Indonesia sends a letter of extradition request along with its attached documents to the Chief of the Indonesian National Police and the Attorney General of the Republic of Indonesia for further examination.
3. If the criminal offense qualifies for detention under the Criminal Procedure Law of Indonesia, a warrant may be issued for the arrest and/or detention of the individual, placing them into a custody.
4. If the extradition request is deemed valid, it will be brought before the court in Indonesia. The court shall examine:

• The identity and nationality of the requested person for extradition;
• Whether the crime in question is an extraditable offense under the Extradition Law and is not a political or military crime;
• Whether the right to prosecute or the court’s decision has not expired;
• Whether a final and conclusive court decision has been made regarding the committed crime;
• Whether the crime is punishable by death in the requesting country but not in Indonesia;
• Whether the person is currently under investigation in Indonesia for the same crime.

It must be noted that during the trial process, the requested fugitive can be accompanied by an attorney. This rights is given by the Article 54 of Law No. 8 of 1981 on Criminal Procedural Law (“Criminal Procedural Law”). Article 54 of the Criminal Procedural Law stipulates that for the purpose of defense, the suspect is entitled to receive assistance from one or more attorneys during each stages of the examination. For example, in Court Decision No. 104/Pid.C-Ekstradisi/2020/PN.Jkt.Sel which examined the extradition request of Gyu Min Lee, a Korean citizen in Indonesia who was?requested for extradition by the US, was able to receive legal assistance from his attorney to defend his rights at the trial. In this case, the Judge then denied the extradition request of Gyu Min Lee.

1. Upon receiving the court’s decision, the Minister of Law and Human Rights shall submit to the President, along with the considerations of the Minister of Law and Human Rights, Minister of Foreign Affairs, Attorney General, and the Chief of the Indonesian National Police, in order to obtain a decision.
2. Upon considering the court’s decision and recommendation above, the president will issue the Presidential Decision (“Keppres”). The Keppres serves as the official authorization or denial of the extradition request. If the President approves the extradition, the fugitive can be handed over to the requesting country.

C. Legal?action that?can be?conducted?by a person targeted for extradition under Indonesian Law

Neither the extradition law nor the criminal law in Indonesia explicitly mention legal remedies that can be taken against the extradition decision. In Decision No. 73/Pid.Sus/2015/PT YYK, the panel of judges emphasized that the criminal law code does not regulate appeals against the extradition requests. Therefore, it must be declared unacceptable.

Nevertheless, with reference to Article 5 of the Extradition Law, the state retains the prerogative to withhold the surrender of individuals accused of committing political offenses by granting political asylum. It must be noted that according to Article 5 (3) of the Extradition Law, certain types of political crimes may be subject to extradition as long as it is agreed between the Republic of Indonesia and the involved count.

Written by: R. Bayu Perdana , Shabrina Hanifa and Raisa Safina

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