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Thursday, December 5, 2013

Overview on Civil Litigation in Indonesia – Civil Trial Procedure

Civil Litigation Indonesia
Indonesian Civil Trial Procedure is basically regulated by two regulations which were adopted from the Dutch Colonial system, the Herziene Inlandsch Reglement (HIR) and Rechtsreglement voor de Buitengewesten (RBg).

Indonesian legal system does not use juries. Instead,
judgments are made by a panel of judges. One of these judges is the Chair (ketua) and is usually more senior than the other judges. The judges face the witness who sits alone in a chair in the center of the court. Advocates are placed off to the sides.

In general, a civil suit filed in the District Court must be based on one of the two following legal reasons: breach of contract (Wanprestasi) or unlawful acts/tort (Perbuatan Melawan Hukum).

General Litigation Process in a Civil Lawsuit

A. District Court Level
  1. The litigation proceeding in Indonesia commences with the plaintiff submitting a lawsuit ("Gugatan") to the District Court and pay official lawsuit fee to the District Court. In general, the location of the District Court is a district court which covers the defendant's domicile;
  2. The court then formally informs in writing to the defendant along with the lawsuit ("Gugatan") and an order for the defendant to appear in the first court hearing (letters of summons). If the defendant does 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 at the third hearing, the court is able to issue a default judgment ("Putusan Verstek"). Such default judgment is subject to appeal and therefore not final;
  3. If both parties appear (the plaintiff or the plaintiff’s attorney and the defendant or the defendant’s attorney), the judges then order the parties to select a mediator in order to resolve the dispute through mediation. If the parties do not want to select a mediator, the judge then will appoint a mediator judge for the mediation. If the mediation is successful and reaches mutual agreement, the judges will affirm the agreement and incorporate it into a decision (Putusan Dading), which is not subject to appeal and therefore final, binding and enforceable;
  4. If the mediation process is unsuccessful or fails to achieve mutual agreement, 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;
  5. 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;
  6. 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’s Jawaban;
  7. The filing of 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";
  8. After written submissions have been completed (Gugatan, Jawaban, Replik and 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;
  9. 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;
  10. 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 argument is called “Kesimpulan”; and
  11. After both plaintiff and defendant have filed their closing arguments or Kesimpulan , the court renders its judgment and announces it at the final hearing.
According to the Supreme Court regulation, the district court should close proceedings and rule on the case within five months. If for whatever reason a case cannot be completed within 5 (five) months period, the District Court must report the reasons for 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 evidence that could be admissible in the court are as follows:
  1. Documents (ordinary documents, notarial deeds and privately executed agreements);
  2. Witness (person/s who know or had the reason to know the situation faced by the parties);
  3. Inferences (judge conclusion about something from known facts or evidence).
  4. Confession; and
  5. 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 as evidence. 

All document-based evidence submitted to the District Court must be charged a stamp duty of IDR 6,000 and 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)

Any party who is displeased or refused the judgment of the District Court level 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 with the High Court by the appellant within 14 days from the date of judgment pronouncement if the appellant attended the final court hearing.

If the appellant did not appear in the final court hearing, the time to file the appeal is calculated 14 days from the time the appellant received notice of judgment.

The appellant shall sign the deed of appeal ("Akta Banding") at the same District Court that rendered the initial judgment and pays 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 whole process from filing the appeal to judgment of the High Court may take around one year.

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 Supreme Court and file a "Kasasi". The application for Kasasi has to be filed with the original District Court. This appeal/Kasasi must be filed within 
14 days from the date the judgment is notified to the relevant party. The party who filed the Kasasi must also file ground of appeal or “Memori Kasasi” within the aforesaid 14 days period. The respondent, if he/she so desires, may also submit a counter statement or the "Kontra Memori Kasasi", within 14 days calculated from the date he/she received 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 shall 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:

  1. The losing party has found substantial evidence which was not presented during the lower courts proceedings and could change the judgment.
  2. If the judgment was based on a lie or based on evidence which was later declared counterfeit by a criminal court.
  3. If the judgment granted something that was not claimed or exceeded what was claimed by the parties.
  4. If a part of the claim has not been ruled on without considering its causes.
  5. The judgment conflicts with other decisions issued by the same court, or another court at the same level, in the same case, involving the same parties.
  6. There was manifest error or oversight in the judges' ruling.
Even though there is an ongoing civil review or Peninjauan Kembali proceeding, the winning party can enforce the judgment of the Supreme Court (Kasasi Judgement) without delay.

D. Execution or Enforcement of Judgment

After obtaining a final and binding judgment, the winning party must submit an application to the original District Court that examined and rendered the judgment in the first instance proceeding to enforce the judgment against the losing party.

On receipt of the winning party's application, the District Court shall issue an order for the losing party to voluntarily satisfy the judgment within a maximum of eight days. If the losing party fails to comply with the judgment, the district court will on request issue an order to seize the losing party’s assets and then be sold by way of a public auction.

by: tnrlawfirm

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