Litigation is one of dispute resolution methods which is used to resolve dispute in Indonesia. A civil litigation in Indonesia is heard in the district courts which are within the Indonesian general courts (Peradilan Umum). The general courts also hear criminal litigation proceedings as well as other proceedings in its special chambers, i.e., commercial courts for bankruptcy and intellectual property litigations, and industrial relations courts for industrial relation disputes. In addition to general courts, there are also other courts with their special jurisdictions in Indonesia. They are (i) religious courts, which are special courts for Muslims to resolve family law issues, i.e., marriage and inheritance; (ii) military courts, which have jurisdiction over criminal cases involving members of Indonesian armed forces; (iii) administrative courts, which deal with cases involving matters on states administrative decision; and (iv) tax courts, which have jurisdiction over tax disputes.
A civil litigation in Indonesia can be heard under a small claim settlement procedures or ordinary procedures. A small claim settlement procedure is a procedure in court of civil claims with material value of not more than Rp. 200,000,000 (two hundred million rupiah) and settled with a simple procedure and evidentiary. This writing will only describe the ordinary civil litigation procedures in Indonesia.
1. Commencement of Civil Proceedings at District Court
Filing a Claim
A typical civil proceeding begins when the plaintiff registers its claim with the relevant district court as the court of first instance. Generally, this is the court where the defendant or any of defendants are domiciled, but may also in some cases at the parties’ choice of court or at the district court having jurisdiction over the location of the object of the dispute. When registering the claim, the plaintiff shall be required to pay a registration fee to the court.
Upon registration of the claim, the court will then schedule the date of the first hearing and will summon the defendant and plaintiff to appear before the court on such date. The bailiff will physically deliver the summons to the defendant in person, unless (i) the domicile of the defendant is unknown where the summons shall be published in the relevant district court, or municipality office or advertised in newspapers or (ii) the defendant is domiciled in another country, in which case the summons shall be delivered through the Indonesian embassy in the relevant country. The summons shall include a copy of the claim filed by the plaintiff.
The First Hearing
At the first hearing, the plaintiff is obliged to appear before the court. If the plaintiff fails to appear, then the plaintiff’s claim is discharged without prejudice to the right of the plaintiff to re-file and recommence its claim. Prior to discharge the claim, however, the court may also order that the plaintiff is summoned once again to appear before a hearing in another day.
If the defendant fails to appear before the first hearing, the court will normally deliver the second summons the defendant to appear before a hearing in another day, and if remain not appearing, the court will commonly deliver the third summons. If the defendant does not appear following the delivery of the third summons, the court may examine the claim without the appearance of the defendant and issue a default judgment (“Putusan Verstek”). A default judgment is subject to appeal and therefore not conclusive.
At the first hearing where the plaintiff and defendant appear before the court, the judges will check the identity of the parties, the authority of the persons who appear in court, relevant powers of attorney (if represented by attorneys) and must ensure that the parties attempt to resolve their dispute amicably by way of mediation.
At the first hearing where the plaintiff and defendant appear, judges must order the parties to the dispute to undergo a mediation. During the mediation period, the judges will adjourn the hearing until the mediation period ends. If the mediation process is successful, the parties and the mediator shall sign a Settlement Agreement (Kesepakatan Perdamaian). The Parties may thereafter ask the judge to strengthen the legal binding power of the Settlement Agreement into a Deed of Settlement (Akta Perdamaian). Pursuant to Supreme Court Regulation No. 1 of 2016 on Mediation Procedures in Court, Deed of Settlement is a deed containing a settlement document and court judgment strengthening the settlement agreement. If the parties do not wish to strengthen the Settlement Agreement into Deed of Settlement, then the Settlement Agreement must contain a clause regarding the withdrawal of the claim.
If mediation is not successful, the court will proceed with further hearing of the case where the plaintiff reads out its claim. After hearing the claim of the plaintiff, the court will normally adjourn the hearing for certain period of time to give the opportunity to the defendant to prepare and submit its response.
Defendant may respond to the claim of the plaintiff in the form of (i) “exception”; (ii) response to the substance or merit of the claim; and (iii) counterclaim.
Exception is basically an objection or defense of the defendant on matters which are not directly related to the substance of the case. These defenses relate to procedural aspects of the case, i.e., exceptions or defenses on the jurisdiction of the court to examine the case and exception on formality of the claim.
There are also substantive exceptions or defenses that consist of (i) “eksepsi dilatoir” which is a substantial defense arguing that the claim of the plaintiff are not yet ripe – they are prematurely filed and thus cannot be granted; and (ii) “eksepsi peremptoir” which a substantial defense arguing that the court is prevented from the granting the requested relief, for example, the claim is filed after the lapse of period of limitation for bringing a legal action.
Exception or defense on territorial jurisdiction of the district court (relative competency) must be filed at the beginning of the case. Exception or defense on jurisdiction of the court which relate to attribution of jurisdiction between different types of chambers or courts in Indonesia (absolute competency) may however be filed at any time during the pendency of the matter. The district court will decide whether or not it has jurisdiction before considering the substantive aspects of the case. In the event the defendant wins the exception, the case is dismissed. If the defendant loses the exception, the defendant may file an appeal to the High Court and failing victory in the High Court, the defendant may appeal to the Supreme Court. During the defendant’s appeal, the district court will commence or continue to examine the substantive aspects of the claim.
Exceptions other than those relating to jurisdiction of the court must be submitted in the first response of the defendant or they are waived. Decisions on these other forms of exception will be granted with the judges’ decision on the substantive issues of the case.
In the event of the court rules against the defendant in relation to exception relating to jurisdiction, the defendant must submit its response to the substance or merit of the case. The defendant is also entitled to raise counter-claims against the plaintiff.
The Plaintiff has an opportunity to file a response to the defendant’s response and counter-claims. This response is called a Replik.
The defendant has an opportunity to file a rejoinder or response to the counterplea.
Submission of Evidence
The parties shall have to present evidence to substantiate their arguments. As a general rule, a party who is arguing a matter has the burden of proof.
There are 5 (five) types of admissible evidence:
a. Documents (Surat);
b. Witnesses (Saksi);
c. Conjectures (Persangkaan);
d. Confessions (Pengakuan); and
e. Oaths (Sumpah).
As for documents, the district court will require documents which are not in Indonesian language to be translated into Indonesian by a sworn translator. Copies of documents will only be accepted if they have been verified by the court as the true copy with their originals.
After presenting evidences, the parties can submit their written conclusions where the plaintiff and defendant make closing arguments on the facts and arguments raised in the court during the previous hearings.
After the parties have closed their arguments, the judge will render a decision over the case.
According to the Circular Letter of the Supreme Court, the examination of a case at the district court as the court of first instance must be finished within 5 months of first hearing after mediation. In practice, however, the examination of a case at district court usually takes about 5 months to 1 year.
2. Appeal to the High Court (Banding)
The losing party at the district court level is entitled to appeal to the high court. Such appeal must be submitted within 14 (fourteen) days as from the issuance of the district court’s decision, if the appellant attended the final court hearing when the judge rendered a decision over the case. If the appellant did not attend the final court hearing, the time to file the appeal shall be calculated from the time the appellant receives the notice of decision from the district court.
The appellant shall file the appeal by signing the deed of appeal (akta banding) at the same district court which rendered the decision. Although it is not required, the appellant is also entitled to file a memorandum of appeal to the high court, while the respondent to the appeal may file a counter memorandum of appeal. The high court may review both matters of facts and law.
After examining the case concerned, the high court will issue its decision, which will be delivered to the parties through the district court. In practice, the decision of a high court may be issued within 1 year or more. When the decision has been issued by the High Court, the decision will be delivered by the High Court to the District Court to be further notified to the parties.
3. Appeal to the Supreme Court (Kasasi)
Any party objecting to the decision of the high court is entitled, as a matter of right, to submit a further appeal to the Supreme Court (“Cassation”). The filing of the cassation is made through the district court in 2 (two) steps:
a. 14 days after receiving the decision of the high court, the party must make a declaration of appeal; and
b. 14 days following the above date, the party must submit its memorandum of cassation.
The district court is responsible to notify the other parties concerning the filing of cassation. The other parties have the option to submit counter memorandum of cassation within 14 days as the date of notification.
Following the submission of the counter memorandum of cassation (if any), the district court will summon both parties to appear before the district court to read and check the completeness and accuracy of the documents. The district court shall then deliver the completed document to the Supreme Court. At the cassation level, the Supreme Court shall not review matters of fact, but only on matters of law.
At cassation level, the decision of the Supreme Court may be issued within 1 up to 2 years or more. Upon the issuance of the Supreme Court’s decision, the decision of the case shall be final and binding. If the decision has been issued by the Supreme Court, the decision will be delivered by the Supreme Court to the District Court to be further notified to the parties.
3. Civil Review (Peninjauan Kembali or PK)
A civil review can be defined as an extraordinary legal remedy against the final court decision at the Supreme Court which has legally binding force including any court judgment level underneath. A civil review can only be filed once and would not suspend or stop the enforcement or execution of a final and binding court decision. A civil review of a final and legally binding force of a court decision may be filed on the basis of the following reasons:
(a) if the decision was based on a lie or fraud of the opposing party that is known after the case has been decided or is based on the evidences which are stated to be false later on by the criminal judge;
(b) if after the case has been decided, it is found that there is decisive written evidences (letters) found which at the time of the case examination could not be found;
(c) if it has granted a matter that was not claimed or granted more than what was claimed;
(d) If there is part of the claim that has not been decided without considering the cause thereof;
(e) If between the same parties in respect of the same matter, on the basis of the same ground by the same court or the same level of court have been granted decisions that are contradictory to each other;
(f) If a decision contains error made by the judge or obvious mistake
The filing of Civil Review shall be made through the District Court that examined the case in the first instance no later than 180 (one hundred and eighty days) as from the following:
(a) For reason mentioned in letter (a) above: as from the lie or fraud is known or as from the decision of the criminal judge has legally binding force effect, and has been notified to the parties in dispute;
(b) For reason mentioned in letter (b) above: as from the finding of the written evidences (letters), which day and date of its finding must be stated under oath and legalized by the authorized officials;
(c) For reasons mentioned in letters (c), (d) and (f) above: as from the decision has a legally binding force effect and notified to the parties in dispute;
(d) For reason mentioned in letter (e) above: as from the latest decision and contradictory has a legally force effect and notified to the parties in dispute.
If the Head of District Court has received the Petition for Civil Review, the Clerk shall provide or deliver copy of the Petition for Civil Review to the opposing party. The opposing party will thereafter have 30 (thirty) days after the receipt of the Petition for Civil Review to make a response to such Petition for Civil Review through the district court.
The decision of the Supreme Court on Civil Review may be issued within 1 up to 2 years or more.