Criminal cases are high risk legal issues. Often, they are disruptive to everyday business operations – companies are subjected to crippling fines, or public relations disasters. In Indonesia, proceedings for such cases are split into two stages: inquiry (penyelidikan), then investigation (penyidikan). In the inquiry stage, law enforcement officers try to establish whether a specific event actually constitutes a crime. If the event indeed constitutes a crime, an investigation, which includes the gathering of evidence and finding of suspects, will ensue.1
During the process, investigators are authorized to carry out certain legal actions, such as interrogating relevant individuals, making arrests, as well as conducting search and seizures.
Most search and seizure operations on company premises happen without notice – as such, these operations are often referred to as ‘dawn raids’. When a company is subjected to a search and seizure for investigation, this should be treated as a legal emergency, and in-house legal counsel should be notified immediately and serve as first responders. How this counsel handles the situation is critical, and can heavily influence whether a company and/or its employees are implicated further in criminal allegations. Unfortunately, not all in-house counsel are trained to handle criminal matters – or worse yet, some companies don’t employ in-house counsel at all.
Following these guidelines can help save your company should it be subjected to search and seizure operations:
- Stay calm
The most important thing for every legal counsel assigned to “guard” the investigation process is to remain calm. Investigators who arrive as part of these ‘dawn raids’ do so suddenly, and often create shock and panic throughout the organization. Legal counsel need to be able to calmly assess the situation, and gather as much information on the purpose of the search – the nature of the alleged crime, its connection or relevancy to the company, etc.
If you, as in-house legal counsel, have not arrived at the premises, contact the person in charge at your company, who is already on the ground. Ask him/her to monitor the process and comply with investigators. Communication between your team and the investigators is key.
- Inspect the Warrant presented by the investigator
Every search and seizure must be based on a Warrant issued by the local district court.2 By law, only properties which are relevant to the investigation (e.g. objects acquired from or used in the suspected crime, and/or objects that have been used to obstruct the investigation) can be seized. Nevertheless, in practice, investigators tend to deem “relevant” properties quite liberally, seizing more than they may actually be legally entitled.3
It is the legal counsel’s job to ensure that all actions conducted by the investigators comply with the law. You should pay attention and take note of the following information specified in the Warrant:
- The identity of the investigators
- The alleged crime under investigation, including the suspect
- The designated premises for the search
- The properties to be seized
- The issuer of the Warrant (confirming it is a local district court)
- The time limit for the Warrant’s validity
If you suspect something is not right, do not hesitate to ask questions politely and/or take notes. There may be legal claims you can make in the future for an unlawful search. Keep the original copy of the Warrant provided by the investigators.
- Accompany the investigators
Investigators that come to the search location usually operate as a team. Therefore, it is best if there is more than one legal counsel present at all times. You and the other counsel or company staff should accompany each investigator to monitor their actions.
The investigators will not necessarily like being accompanied, but always remember that by law, you have the right to do so.4
- Do not tamper evidence!
Never try to delete, remove, or damage any property on the premises, as they may be classified as evidence. Doing so could potentially be deemed as obstruction of justice or evidence tampering.
- Request and check the seizure documents
In the event that any of the company’s property is seized, always make a complete and detailed note of the items being confiscated. This note can later be compared with the list specified in the Warrant provided by investigators. Only sign the minutes of seizure if you are positive all items were cited properly in the Warrant. You will need them to retrieve back the items, as well as to make sure that your company is not implicated by seized items outside this list.
- Contact us!
High risk legal issues require specialist legal counsel. The right choice of lawyers can help save your company from potential incrimination. Schinder Law Firm’s team of lawyers are experienced and experts in disputes and contentious matters, including criminal litigation. One of our key practice areas is white collar crime.
If you have any questions regarding the investigation process or any criminal matters, do not hesitate to contact us.
See Articles 1.4 and 1.5 of the Criminal Procedures Law.
Article 33 of the Criminal Procedure Law.
Article 39 of the Criminal Procedure Law.
Article 33 of the Criminal Procedure Law and Article 59 (2) of the Regulation of Chief of the State Police of the Republic of Indonesia No. 14 Year 2012.
About the author:
Morales Sharoz Sundusing
Morales is a qualified Indonesian advocate. He specialises in litigation and other contentious matters. He has extensive experience in handling high profile corruption cases as well as general election disputes, i.e. 2014 Presidential Election, before the Indonesian Constitutional Court.