Richard Ness : Blog : Appeal Not Permissible under Indonesia’s Law

Appeal Not Permissible under Indonesia’s Law - 04 May 2007
by Eric

The moment the gavel fell for the third time, the chatter about appealing the verdict started. First it was prosecutor Purwanta who commented on the 24th of April 2007 that the there would be an appeal. Then on 25-April 2007, Deputy Hoetomo informed the press that the Ministry of Environment would support the appeal. This of course was a clear reversal of his earlier statement because on the 24th of April, 2007, Mr. Hoetomo had commented that they respect the decision of the judges. And once again on the 3rd of May, 2007 the Jakarta Post quoted prosecutor Purwanta’s intent to file an appeal on 7-May-2007.

While this kind of rhetoric regarding the appeal is a perfectly normal reaction from the prosecutors, the most pertinent question is whether or not an appeal is legally permissible in a situation of such an airtight acquittal? And a closer look at Indonesia’s law reveals that an appeal is indeed NOT permissible if the defendants are acquitted of all charges.

I carefully checked the text of the verdict and it states the following:

Considering that the Defendants have been acquitted of all Public Prosecutors’ indictments then the cost of this case is to be born by the state. Considering Law No.23 of 1997 and Article 191 (1) of the Criminal Code and other laws, the relevant party adjudicates;

4. Stating that Defendant I, PT NMR, and Defendant II, Richard Bruce Ness, have not been legally and convincingly proven guilty of having committed a crime in the primary indictment, subsidiary indictment, more subsidiary indictment, even more subsidiary indictment and charges of the Public Prosecutor;

5. Stating acquitting Defendant I, PT NMR, and Defendant II, Richard Bruce Ness, from all indictments and charges of the Public Prosecutor;

6. Stating to restore the right of Defendant I, PT NMR, and Defendant II, Richard Bruce Ness, to the capacity, position and honor as well as dignity;

Then, I was informed by my Dad’s lawyers about Article 67 and Article 244 from the Law on Criminal Procedure. According to these articles an appeal is not permissible if there is a complete acquittal. In fact the text of these two articles is self-explanatory even to a non-legal reader, and the exact wordings of these articles are as follows:

Article 67: A defendant or public prosecutor shall have the right to appeal against a decision of a court of first instance except against a decision of acquittal, a dismissal of all charges related to a matter of inappropriate application of law and a court decision under express proceeding.

Article 244: The defendant or the public prosecutor may file a request for an examination of an appeal to the Supreme Court against a decision on a criminal case rendered at the final instance by a court other than the Supreme Court, except with regard to an acquittal.

In fact on 3-May-07, The Jakarta Post quoted my Dad’s lawyer, as saying that: “according to Article 244 of the Criminal Law Procedures Code, no appeal can be made when a court acquits the defendant of all charges”.

So, it appears that if the government follows its own legal precedent, an appeal is not permissible in my Dad’s case. It will be interesting to see how the Indonesian government handles this issue.

It is evident that the legal wrangling on the Buyat case is not yet over. The verdict delivered by the judges on the 24th of April was supposed to put a definitive end to this controversy. But once again politics has started to interfere with the justice system and is attempting to disrupt the rule of law.

The Buyat case has been fraught with extrajudicial activities. And these forces have surfaced again to derail the process of restoring public trust in Indonesia’s justice system. The verdict was based on more than eighteen months of extremely transparent legal process. Now we will see if the backdoor dealings can overturn what was accomplished on the 24th of April. The next few days would confirm whether or not the rule of law prevails over the rule of politics.