Pasal 263,264,266 KUHP
Problems with contracts, marriage and birth certificates, business founding documents, land purchase or rental agreements,
and many other issues frequently encountered by expatriates are covered by three Sections or Pasal of the Criminal Code (KUHP) involving False Documents.
A short take-away: many Indonesians and expatriates incorrectly believe that once an official document
such as a land title or a marriage certificate is acquired, even if the situation certified
by the document is false, the document is valid and can be used in a court of law.
Completely untrue: Creating an official document with false information is a crime. Using an official document
knowing that the information is false is also a crime.
Using a false document is a separate and distinct crime from the creation
of the false document, occuring at the time of use, although it is charged under the same Section of the Criminal Code.
See
Foreign Marriage and Registration for a more technical Expert Legal Opinion
about meaning and application of Pasal 263 and 266 KUHP.
The exact code is as follows, but it is best understood with help of explanations and jurisprudence.
Pasal 263 KUHP (Section 263 of the Criminal Code)
(1) Whosoever makes a false document or falsifies a document that can create a right, a tie or a release of a debt, or is intended to be used
as legal evidence about something other than the actual truth with intention to use or to cause another person to use that document
as if the contents are true and not falsified, can be charged with falsification of a document, with a criminal sentence of imprisonment
for a maximum of six years.
(2) Can be charged with the same sentence, whosoever intentionally uses a false document or a document falsified as if it is true,
if the false document can cause a loss.
Pasal 264 KUHP (Section 264 of the Criminal Code)
(1) Falsification of a document carries a maximum sentence of eight years imprisonment if it is done with:
- Akta Otentik (an official legal document),
- A letter or certificate of debt by a country or a province / state or from a public institution,
- A letter of share ownership or debt or a certificate of share ownership or debt from an organization, a limited company, or a public carrier,
- A certificate of rights to dividends or interest arising from documents as in 2 and 3 above, or another document that is issued
as if in replacement of those letters,
- A letter of credit or document of trade intended to be used.
(2) Can be convicted with the same sentence whosoever intentionally uses a document as in section (1) above,
in which the contents are not true or have been falsified as if true and not falsified, if the falsification of that document can cause a loss.
Pasal 266 KUHP (Section 266 of the Criminal Code)
(1) Whosoever orders false information to be entered into an Akta Otentik (official legal document)
about the basis for which that document is intended, with the purpose of using or causing another person to use the document
as if the contents of the document are true, can be sentenced if the use of that document can cause a loss, by imprisonment
for a maximum of seven years.
(2) Can be convicted with the same sentence whosoever intentionally uses such a document as if the contents are true,
if the use of that document can cause a loss.
Meaning of “Legal Document”
False Documents cover all kinds of official documents, letters, receipts, possibly even photographs with the important condition “a document
that can create a right, a tie or a release of a debt, or is intended to be used as legal evidence.” (from Pasal 263 KUHP)
The meaning of legal evidence or bukti in Indonesian law is very specific and is based upon what
a court can accept as legal evidence in trial or is accepted by other legal institutions.
Of course an Akta Otentik or Official Legal Document is intended by its nature to be used as possible evidence in trial.
Examples of Akta Otentik include a KTP or Identity Card, a Marriage Certificate, a Birth Certificate, a Family Registration Card,
a Divorce Certificate, or anything else issued by a government agency which can be used as evidence of a legal event or status.
Official documents from a Notaris are also intended to be used as legal evidence and are also Akta Otentik.
Examples include an Agreement to Buy / Sell Property, Agreement to Lease Property, Establishment of a Corporation, a Prenuptial Agreement, and so on.
Documents issued by individuals or corporations may also be intended with the possibility of use as evidence in trial.
This include contract agreements, debt agreements, payment receipts, etc.
Possibly a legal document
Personal letters and photographs are not created with the purpose for use as evidence in trial. So falsification of documents
that are not legal documents are not necessarily covered by Pasal 263, Pasal 264, and Pasal 266 KUHP.
Letters or photographs or other personal documents might be presented in trial or in other circumstances, however, and they might be accepted
as legal evidence, and in that case it is possible—but not certain—that they would then fall under the conditions of Pasal 263 and Pasal 266.
But if proven false they could also fall under the meaning of Pasal 378 KUHP for Penipuan or Fraud.
Private agreements not executed in front of a Notaris are questionable. They might or might not be accepted as evidence in a trial,
but their actual use in a trial is not a necessary condition for the crime of False Documents.
BUT if someone does present a false document of any kind in a court proceeding or to a government office or notaris as evidence of a legal status,
that USE would probably fall under Pasal 263, 264, or 266, regardless of whether the document was originally produced intentionally
with false information or bad intent.
Determining the boundaries of what other kinds of documents might be covered by “False Document” quickly leads us into
one of those dark uncharted territories in the “vast and tangled jungle” that is Indonesian law.
Not a legal document
A private letter which is not used as legal evidence is not a legal document as covered by Pasal 263, Pasal 264, and Pasal 266 KUHP.
So for instance if your jealous ex-girlfriend forges a letter in your name, or alters a letter you wrote, to tell your current girlfriend
that you no longer love her, she looks like a monkey, and you never want to see her again, you cannot take this to the police under Pasal 263, Pasal 264, and Pasal 266 KUHP.
Definition of “False Document”
“False document” may have several meanings, all of which are covered by Pasal 263, Pasal 264, and Pasal 266 KUHP: The document may be:
- An actual document from an authorized government office, notaris, business, or individual, in which the contents of the document are untrue
due to the accused giving a false explanation to the persons issuing the document.
The document is false whether the government official did or did not know that the contents are false.
(And so, for instance, if a government official has been bribed to issue a document, the document is still false
if the person obtaining or using the document knows that the contents are false);
- An actual document which was once true, but due to a change of circumstances is not longer true. An example might be
a Marriage Certificate claiming status “married” although in fact the marriage is already ended by divorce.
- An actual document as above but which has been altered by someone so that the contents no longer coincide with the original document
as issued;
- An entirely counterfeit document.
But a problem with these sections of law about False Documents is that Indonesian legal language is vague,
and the meaning of “false document” may be debated among different lawyers, professors of law, police, prosecutors, and courts.
Making versus Using a False Document
Pasal 263, Pasal 264, and Pasal 266 KUHP all recognized two separate possible conditions:
- Making a false document involves the intitial creation of the document which could involve either creating the document oneself
or providing false information to a public official or notaris to be included in the document.
Under Pasal 263 and Pasal 266 this is not criminal unless there is intention to use the false document,
but under Pasal 264 making one of the listed false documents is always criminal regardless of intent.
- Using the document knowing it is false. The person using the document is commiting a separate crime from that of creating the document.
The person using the document may or may not be the same person as the creator of the document. A client handing a false document to a lawyer
to register at the Public Records Office (KCS or Kantor Catatan Sipil) while knowing the document is false,
is committing a crime regardless of whether the lawyer knows or does not know that the document is false.
If the lawyer knows the document is false, the lawyer is also committing a crime when he registers it at the the KCS.
The lawyer’s knowledge that the document is false does not relieve the client of her own criminal responsibility.
Overlap
The three sections Pasal 263, Pasal 264, and Pasal 266 KUHP all overlap, and often police, prosecutors, and judges are confused
and argue among themselves about the meanings. Most often Pasal 263, Pasal 264 and Pasal 266 are reported together
to avoid any gaps in understanding that could cause the report / investigation / criminal trial to fail.
For example, a false Certificate of Marriage—meaning a Certificate of Marriage based upon false documents including a false KTP,
false Statement of Unmarried Status, false Statement of Marriage Ceremony—is a false Akta Otentik. It is covered by
all three Sections. In fact they seem to be in some conflict, because conviction under Pasal 263 carries a sentence of six years,
Pasal 264 carries a sentence of eight years, and Pasal 266 carries a sentence of seven years.
Reading more carefully,
Pasal 263 part (1) covers making a false document with intention to use or to cause another person to use that document,
while part (2) covers intentionally using a false document if its use can cause a loss.
Pasal 264 part (1) covers making a false Akta Otentik or other specific legal documents as listed regardless of whether
there is intention to use them. The reason is clearly because these listed documents are intented by law specifically to be used
as evidence of a legal status, and so there is no valid reason for anyone to make a false document of this sort except
with the intent to misuse them. Part (2) covers intentionally using a false document if its use can cause a loss.
Pasal 266 part (1) covers providing false information for an Akta Otentik (official legal document) about the basis for which
that document is intended, with the purpose of using or causing another person to use the document,
while Part (2) covers intentionally using a false document if its use can cause a loss.
Do you see the difference?
I don’t. But that’s all right, because police and judges don’t always agree on the difference either. That’s
why the police and prosecutors use Pasal 263 and Pasal 266 together—and Pasal 264 if the document in question is in the list.
IF the police are investigating an Akta Otentik and tell you they are only using Pasal 263 because Pasal 264 and Pasal 266
are not necessary, this is a red flag.
There is a slight-of-hand logic sometimes used by the police along the lines of “all dogs have noses, you are not a dog,
therefore you do not have a nose.” With that reasoning, since Pasal 264 and Pasal 266 specifically discuss Akta Otentik,
and Pasal 263 does not, an investigator, jaksa, or judge can claim that Pasal 263 only applies to documents which are not Akta Otentik
because Akta Otentik are covered by Pasal 264 and Pasal 266—case dismissed.
Don’t let this happen: you must have Pasal 266 as well as Pasal 263 if your case involves an Akta Otentik.
Jurisprudence
The brief law codes in the KUHP cannot possibly describe all possible implementations of law, so actual application of law is provided
by jurisprudence, which consists of important court decisions with analysis by professors of law to establish basic principles
and applications of statutes.
One widely respected book about the Indonesian Criminal Code is KUHP dan KUHAP Dilengkapi Yurisprudensi Mahkmah Agung dan Hoge Raad
by R. Soenarto Soerodibroto (publisher PT RajaGrafindo Persada year 2012).
Soerodibroto includes the following points of jurisprudence in his discussion of Pasal 263 KUHP:
Falsification
The consideration of the High Court which referred to the decision of the Mahkamah Agung as “falsification of a document”
is not exact; what is correct is “making a false document.”
Mahkamah Agung No. 114K/ Kr/ 1963 date 11 September 1968
What is meant by “order to make false” in Pasal 263 KUHP, is to order to make a document with contents contrary to the truth.
Mahkamah Agung No. 134K/ Kr/ 1963 date 28 April 1964
Filling in a blank receipt does not have a criminal aspect as long as the later filling of the receipt is in fact
as intended by the signer of the receipt when he signed it.
In the case in question, the Accused is guilty of “falsifying a document” because he filled the receipt with the
words “deposit for the price of a house at Jalan Botelempangan No 14,”
although it is proven that in fact the agreement between the Accused and the signer of the receipt was for the borrowing of Rp 100,000.
Mahkamah Agung No. 40K/ Kr/ 1973 date 5 June 1975
The question of whether a document is false can depend on the moment when the documents was made.
If the contents are untrue at the time of making the document then it is not important whether the contents then become true
due to incidents that occur some hours later.
Hoge Raad 29 March 1943
Intent
Intent to cause a loss is not a condition of the crime, but only the intent to use or order to be used a false document
or a document which is falsified.
Hoge Raad 27 December 1886
In the decision which ruled the Accused guilty, it does not matter whether the Accused intended to use the document himself
or to cause another person to use the document.
Hoge Raad 2 January 1939
The Accused does not need to know in advance the possibility of the loss.
Hoge Raad 8 June 1897
The question of whether the intentions of the Accused did or did not succeed, is not necessary to the consideration of the judgment
that use of the document could cause a loss.
Hoge Raad 26 June 1922
For this crime it is necessary that the person use the document as an element to deceive another person,
and towards this person it is presented as if the contents of the document are true and not falsified.
Hoge Raad 14 January 1918
Whosoever shows or presents a false document or a document that has been falsified by another person, means that he has used that document.
Hoge Raad 26 February 1934
The use of a false document is a criminal act standing on its own aside from the falsification. For a person to be convicted of using
a false document it is not necessary that the document be made false; it is however enough that at the time the document is used
it is false and the person using it is aware of it.
Hoge Raad 29 June 1910
That the document was made at the request the interested party with full belief in the purpose of the document,
does not remove the character of obtaining the document as a false document as meant in Pasal 263 KUHP,
or relieve the making of the document from responsibility or punishment.
Mahkamah Agung No. 10K/ Kr/ 1965 date 29 May 1965
[Meaning that the person acquiring the document may have felt it her right to acquire a false document—as perhaps a false KTP or
Identity Card, a false Marriage Certificate, a false Family Registration Card—while knowing that the contents of the document
are untrue.]
Causing a loss
The condition does not require an actual loss, but only the possibility of a loss.
Hoge Raad 22 April 1907
The loss need not be only a material loss. If the use of the document can cause difficulties to a police investigation,
then the public is caused a loss.
Hoge Raad 14 October 1940
Possibility of a loss does not need to arise solely from the use of the document. To cause an actual loss always requires
a combination of other factors.
Hoge Raad 24 June 1952
The loss possibly occurring from falsification of a document as meant in Pasal 263 KUHP does not need be a material loss,
it may also include losses against the public interest, as for example if using a falsified document could cause
difficulty in determination of a legal situation.
Mahkamah Agung No. 10K/ Kr/ 1965 date 29 May 1965
Pasal 263 KUHP is not restricted to the condition that an actual loss has occurred, only that a loss could occur.
That loss need not be only a material loss, it may also be a loss to the general public which could cause a difficulty
in judicial determination or examination of truth.
Mahkamah Agung No. 142K/ Kr/ 1975 date 19 Nov 1977
Reporting false documents
Reporting false documents can be difficult, for the reasons described in Police Reporting.
The crime is not obvious, and many police investigators do not understand Pasal 263, 264, and 266 KUHP. Investigating
false documents requires more complex analysis than investigating robberies and burgleries, and the skills may be beyond
the capacity of many police.
Further, if you are an expatriate reporting an Indonesian, see Nationalism.
The crime is often committed with the intent of financial gain. Going back to the Transparency International article
Causes of Corruption in Indonesia:
Suharto’s highly concentrated and particularistic regime has left weak institutions
and clientelist social structures throughout the country... Acts of bribery and corruption,
for example, are frequently not seen by Indonesian authorities as corrupt practices.
The difficulty in reporting and prosecution these crimes in general is summarized in So What?
So although the false documents prepared or used by your business partner or spouse may be obvious, this is a difficult crime to report
and you will amost certainly need a lawyer.
Choosing a good lawyer should be done carefully.