Indonesian Extraterritorial Criminal Jurisdiction: What is the possible actions of the Indonesian Law Enforcement against suspects outside of Indonesia territory?
The kidney illegal trafficking between Indonesia and Cambodia has shocked the country recently. This is a classic example of transnational crimes which affect across national borders. In this digital era, the transnational crimes facilitated by advanced technology even pose more significant challenges for law enforcement. For instance is the online fraud syndicate, which operated servers overseas and facilitated connections between Indonesian players and foreign individuals involved in business. It demands a coordinated approached from international law enforcement; Extraterritorial jurisdiction plays a crucial role in protecting a state’s interests when dealing with crimes committed beyond its borders.
In response to such crimes occurring beyond jurisdiction, there are various legal measures possibly to take under Indonesia law, namely:
a. Extradition (if the police has identified a suspect)
Extradition in Indonesia is governed under the Indonesian Extradition Law. According to this law, extradition can only be granted if there is an existing treaty between Indonesia and the requesting country. However, in the absence of a treaty, extradition may still be granted based on the premise of a good relationship between the countries and if it serves the interests of the Republic of Indonesia. Furthermore, the Indonesian Extradition Law follows the principle of “Double Criminality,” meaning that for extradition to take place, the act committed by the suspect must be considered a crime both in the requesting country and in Indonesia.
b. Mutual Legal Assistance (MLA)
Mutual Legal Assistance in Criminal Matters (“Assistance”) in Indonesia is governed under the MLA Law. Assistance under the MLA Law refers to a request for help related to investigations, prosecutions, and court proceedings in accordance with the domestic laws and regulations of the Requested State. Assistance under MLA Law requires an agreement between countries, but Assistance may also be provided based on the principle of reciprocity.
However, the Assistance does not apply to:
- the extradition or surrender of any person;
- the arrest or detention, with a view to the extradition or surrender of any person;
- the transfer of persons in custody to serve sentences; or
- the transfer of proceedings in criminal matters.
c. Police to police (if the police has identified a suspect and declared the suspect is fugitives wanted)
The Indonesian police can seek assistance from foreign law enforcement through INTERPOL’s National Central Bureau (NCB) to locate a suspect abroad. This channel is limited to requests for cooperation or alerts allowing police in member countries to share critical crime-related information. To initiate this process, the Indonesian police need to designate the suspect as a wanted fugitive (DPO) and then proceed to request a Red Notice from INTERPOL.
However, it is essential to note that the decision to arrest the individual based on the Red Notice depends on the other countries’ independent judgment of the accusations made. Before issuing a Red Notice, INTERPOL’s General Secretariat thoroughly reviews each request. Generally, Red Notice are issued for serious ordinary-law crimes.
Written by: R. Bayu Perdana and Shabrina Hanifa
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