A friend recently told me about a case of suspected fraud he is dealing with and
finished up by saying that he wanted to report the situation to the Bali police,
and “do you know a good criminal lawyer?”
This brings up a whole range of interesting issues. Anyone with knowledge of a crime in Indonesia
is required by law to report it to the police. But in practice reporting may be pointless,
or worse.
First, my friend – let’s call him “Bill” – should not really need a criminal lawyer.
Criminal lawyers defend suspects against accusations of crime. In Bill’s case he
is the victim, so he should be able to go to the police and report a crime, the
police will interview Bill and then start an investigation, call witnesses, call
the suspect, and if the crime is proven to their satisfation, they will send the
file on to the prosecutor’s office—the Kejaksaan—for trial.
That is the theory, anyway.
Making a report to the police
Let’s look first at what happens when you report a crime to the Bali police.
After you explain your situation to the front desk receptionist and then to several
other officers, your first report to the police will be dissappointingly short.
A receiving officer will type up a single page letter called a Surat Tanda Penerimaan
Laporan (Letter of Proof for Receipt of Report) or STPL for short which lists your
name, address, passport number and so on, then a very short description—two or three
sentences—of a description of the alleged crime, information about a possible suspect,
perhaps a section of the Criminal Code (the KUHP) which might apply in this case,
and that’s it.
You have made your report. Hold on to the STPL because as your case advances, the
STPL will be an important document. Under Indonesian law, the police are required
to investigate to conclusion any case which has been reported to them, and the STPL
is your proof of report.
Be ready to spend many hours at the police station, because the following reports
can be lengthy.
Either the same day or with a later appointment you will make a second report as
a witness, called a BAP or Berita Acara Pemeriksaan (Report of Examination) which
will take your information in detail. The investigator or Penyidik will not be the
same officer as took your STPL.
The BAP also starts off frustratingly vague. What is your name? How old are you?
Are you of sound mind and body? Are you giving evidence of your own free will? Then
the questions of substance start and you have a chance to explain in detail what
happened.
Although the BAP should make clear whether you were a victim or only a witness,
realize that under criminal law anywhere in the world there is no real distinction
between the two. I discuss the difference between civil and criminal accusations
elsewhere, but in short, crimes are considered under law to be crimes against all
society and therefore you have no special standing or priveledges as a victim. This
can be very upsetting in crimes of violence against the person; the victim can feel
assaulted twice over, both in the original assault and then again by the callousness
of the law towards the victim. So be ready for it.
When your BAP is finished you will have a chance to read it over and make corrections
and then sign it in multiple copies. You might get to keep one.
And now the investgator will jump right on the case, call witnesses
and pursue leads and bring the criminals to justice. Right?
How the police see it
Consider first the police point of view. No matter how upset you are, the
police do this for a living. They see victims every day and they have probably seen
many cases more shocking and heartbreaking than yours. They may not mean to be callous
towards your suffering, but after years of experience they develop a certain detachment.
Further, they maintain a skepticsm at the start because it’s part of their job.
Many of the people they have to deal with are cons and liars—criminals, in fact—who
live their lives taking advantage of other people’s credulity. The police don’t
know who you are. All police have had experiences of reports of robberies which
on investigation turn out to be retaliations for bad drug deals or land frauds,
and the person originally reporting the crime sometimes turns out to be the worst
of a bad lot. So their first job is trying to figure out whether you are lying to
them. Very frustrating when you are the victim.
You also need to remember that the purpose of a police investigation is to uncover
a crime and deliver a suspect to the Kejaksaan—the public prosecutor—with enough
evidence to lead to a conviction. The conviction rate in Indonesia for cases which
advance to trial is over 95%.
The police can’t just go catch a bad guy on your say so and throw him in jail. They
need a trial. If an investigator can’t deliver a strong case, he
has wasted his time and yours.
Remember that a criminal trial will net you nothing. You probably won’t get money
back or damages paid. A criminal conviction might help you in a later civil trial,
or maybe not. So your motive for reporting a crime needs to be to get a bad guy
off the street and enjoy some satisfaction in your revenge. If you expect the police
to somehow make it right for you or make you feel better, it won’t happen.
So the investigator is evaluating you and your evidence and the possibility of advancing
a case to trial as he takes your report. He needs to know that you have reasonable
expectations about how the case will proceed.
One of the biggest problems for the Bali police in dealing with crime against tourists
is that the victims are tourists. In criminal cases, the victim is often the key
witness. The police need to consider whether, after weeks of investigation, the
eventual apprehension of a suspect, and the lengthy preparation for trial, will
the tourist be present in the courtroom to give testimony? If not, the suspect will
go free and the investigator gets a big zero in his evaluation file.
How a victim sees it
The victim takes the crime very personally, of course.
A story of rape and abuse in Bali...
A few years ago a friend called me to meet a Canadian girl—call her Marie—who had
been raped and felt traumatized not only by the rape but by her experience with
the police. Her story was indeed sad and she choked and held back tears many times
as she talked.
She had been at a nightclub in Kuta a week earlier, meeting new friends, dancing,
not drinking, and she fell into casual conversation with a young man about her age.
He told her he was Hungarian, his name was George, and he would be going on to Sydney
from Bali in a few days. Marie began to feel ill after a couple of hours and she
accepted George’s offer to help her back to her room.
She woke the next morning to find herself sick and naked on her bed with the door
to her room wide open. As she tried to stir, she felt tremendous pain, but it took
her nearly an hour before she was concious enough to crawl to the bathroom. She
looked at herself in the mirror with horror: she had been raped, beaten, and cut
in her genitals with a razor blade. Everything she had was gone except her clothes
and passport.
For the next three days she cried in her room until she eventually gathered the
courage to go down to the street to find someone to help. By good fortune she met
an American woman living in Bali who took her to the hospital for treatment, took
her into her home, and eventually took her to the police station to make a report.
When I met her a week later she was upset that the police had shown little interest
in her case. Now she was just waiting for the arrival of an air ticket from her
parents so she could go home to her family in Canada. I felt very sad for her, but
I wasn’t clear what she wanted me or anyone to do.
After all my time with the police, I had to imagine it from their point of view.
Marie had waited a week to report to them. She had gone to the hospital after three
days, but no rape analysis had been done and there was no direct evidence. Even
if there had been sperm recovered, there is no way to do DNA testing in Bali.
Marie had no witnesses from the nightclub who had seen her with George. Under Indonesian
law, and Continental law in general, two witness are required for a criminal conviction.
But Marie hadn’t been awake during the assault, so even she couldn’t give direct
testimony about what had happened.
Marie was an artist and had drawn a sketch of George for the police. But there was
nothing distinctive in his face, probably even less for Indonesian eyes less familiar
with Western features. Maybe his name was George, maybe he was Hungarian, maybe
he was going to Sydney. But if he was a bad guy, he probably lied.
If they caught George, his defense would undoubtedly be that he had walked Marie
to her room and left her safely; someone else must have entered the room after he
left. But it would never come to trial because the only witness, Marie, had already
said she was returning immediately to Canada and she would never return.
The police had nothing, and whatever sympathy they could offer Susan was useless
to heal the trauma Marie had experienced.
Reports with domestic violence or crimes against women and children
There has been considerable interest in Indonesia over the last decade at modernizing attitudes
towards domestic violence and crimes against women and children. Special units comprised
of and headed by
women police officers are now part of the Reskrim or Criminal Investigation division
where they are known as Departmen Kekerasan Terhadap Wanita dan Anak-Anak. They have
their own private rooms to receive victims, and they are available in most police
jurisdictions. If they are not available in the local Polsek, you can find them
at the higher level Polda.
Even at the local Polsek level, many police take domestic violence or abuse crimes
seriously.
If you are in a situation of immediate danger, go to the Polsek. For follow up, find
a unit for Kekerasan Terhadap Wanita dan Anak-Anak
Also for crimes involving children, there are two organizations KNPA and KPAI who can actively
intervene and advocate for children’s rights.
Reports with physical evidence
The police also like clear physical crimes with obvious evidence. If you, for instance,
discover your wife having an affair with another man, and you go over to his house
and smash out the windows of his car with a hammer while he and your wife watch
you from the window, and then they report you to the police, the police will certainly
investigate—you, not the boyfriend. Unless they think they can break in and catch
your wife naked.
Robberies and burglaries are good because there are broken locks and stolen objects.
Beatings are good because there are bruises.
Reports with naked women
Reports of Selingkuhan or adultery may also be investigated with great enthusiasm.
Indonesian criminal law actually recognizes two type of crimes and reports. Crimes
which are unconditionally criminal are reported with a Laporan, or Report. But some
crimes are only criminal if the victim complains about it, like Selingkuhan, are reported with a Pengaduan, or Complaint. The difference is that in theory
a Pengaduan
can be withdrawn later by the victim, but a Laporan cannot.
This is a wise provision for Selingkuhan. Because when a victim files a Pengaduan,
it must be against both offenders equally. It isn’t possible to blame just your
spouse’s lover and not your spouse. One can imagine the millions of Pengaduans
that
have worked themselves out and been withdrawn over the decades.
But Selingkuhan, like other crimes, requires two witnesses. And as an investigator
at Polda Bali once explained to me, “any crime can be either achieved or attempted.
For Selingkuhan, if the police break into the room and he has his thing inside of
her thing, that’s Selingkuhan. If he’s trying to get his thing inside of her thing,
but it isn’t there yet because he can’t get it in, that’s attempted Selingkuhan.”
So it’s pretty specific.
There are reported arrests for Selingkuhan every week in the Bali Post, and when
I asked an investigator why the police were so diligent with Selingkuhan investigations,
he said “because we get lots of reports and we are required by law to investigate
to our best abilities.” For Selingkuhan of course, that means breaking into hotel
rooms and checking things.
Reporting frauds
Crimes of fraud or embezzlement, however, can present problems. Some of the reasons are obvious:
do you have documents, do you have witnesses, do you have anything more than “he
said, she said” testimony? Evidence of fraud is not always as obvious as smashed
windows or bruises.
But the police do investigate and prosecute frauds. In the case of Julie Edmond
and the KantorKita office in Sanur, Julie Edmond was accused of embezzling 1.5 million
dollars from a client in a land deal as well as multiple other frauds against other
clients. She was convicted in 2009 and served a two year sentence in the
prison at Krobokan.
Julie Edmond was an unusual case. I knew Julie and I used KantorKita services several
times for help with immigration. She was Indonesian, true name Esti Yuliani, but
she became Julie Edmond when she married an Australian. She spoke perfect English,
opened KantorKita in 2001, seemed professional, and I had no reason to doubt her
claim that she had a law degree.
She had a good reputation as far as I knew. And yet by 2009, multiple frauds were
reported against her, and she was investigated, charged, and convicted.
Numerous other cases of alleged fraud, however, are never investigated, or investigations
are shut down despite apparently clear evidence of a crime. Sometimes people or
lawyers are involved who have what some people consider a “bad reputation”, meaning
they are are rumored to have been involved in other frauds, but nothing has ever
been proven against them. The alleged frauds were never prosecuted. The alleged
victims left Bali.
But when Julie Edmond was accused of fraud, it was her first time.
So why does Bill need a lawyer to report fraud?
Fraud and embezzelment reports get complicated so the police may be reluctant to talk to
you unless you have a lawyer.
Without clear physical evidence like bruises or broken windows, fraud and embezzelment reports
depend on probably complex tales of events and documents which are difficult to explain in
broken English. Few police speak English, so how are you going to make a report unless you
have an interpreter?
Further, Indonesian criminal law is very specific because the underlying law code or KUHP
is brief but vague, and reports often quickly turn to discussions over which section of the
KUHP might apply to the reported crime. Victims tend to feel violated and outraged over the
crime, but under law only certain aspects of a series of events may be criminal. If both parties
have engaged in confrontations, there may be potential crimes committed by both parties.
A lawyer knows the law and knows the police, and of course a lawyer speaks Indonesian.
But a bigger problem with fraud and embezzlement is that usually money is involved, maybe
a lot of it, and it becomes difficult to know whose side anyone is on. Police may expect money
to change hands, and for that they need to talk to your lawyer, not to you.
Few lawyers specialize in criminal or civil law; every lawyer handles everything.
In theory Bill doesn’t really need a lawyer to report a crime to the police. In practice,
he probably does.
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