Quo Vadis Protection of Human Rights in
Coercive Confiscation Efforts
Taufik Tri Prabowo 1 ,
Ade Saptomo 2
Universitas Borobudur,
Indonesia
[email protected]
1 , [email protected] 2
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Abstract |
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Human rights protection in the context of compulsory
confiscation efforts remains a topic of debate in legal practice in
Indonesia. Expropriations are often carried out without regard to the basic
rights of individuals, thus potentially violating human rights, especially
those concerning property rights and justice. This study aims to examine how
human rights protection is applied in confiscation procedures carried out by
law enforcement officers. The research method used is normative juridical,
using an approach based on laws and regulations, case studies, and legal
doctrine analysis. The data collected were analyzed qualitatively through a
literature review and evaluation of relevant cases. The findings show that
although there are regulations governing confiscation procedures, their
implementation is often inconsistent with human rights principles. There is
an urgent need for improvements in oversight and accountability mechanisms in
the confiscation process to prevent abuse of power. This study recommends
strengthening standard operating procedures that comply with respect for
human rights and strict supervision in every confiscation action. Keywords:
Forced Confiscation, Human Rights, Law
Enforcement, Legal Protection. |
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*Corresponding Author: Taufik Tri Prabowo
Email: [email protected]
INTRODUCTION
Protection of human rights (HAM) is a global agenda
that continues to be a concern in the international legal system. The practice
of forced confiscation as part of the legal process often triggers human rights
violations, especially when the rights to property and privacy are not
adequately protected. According to
In Indonesia, the practice of forced seizure in legal
processes often presents a dilemma between the interests of law enforcement and
human rights protection.
The urgency of this discussion lies in the importance
of legal reform to ensure a balance between the authority of law enforcement
and the protection of human rights.
Historical and legal perspectives on human rights have
been widely discussed by
In the context of national law,
Legal reform is a major agenda to address the
challenges of forced confiscation that violates human rights.
This study aims to examine the extent to which the
regulation and practice of forced confiscation in Indonesia meet international
human rights protection standards. In addition, this paper aims to provide
legal recommendations to improve confiscation regulations to be more humane and
in accordance with human rights principles regulated by
RESEARCH METHOD
This study uses a normative legal approach. This
approach is carried out by examining various legal sources such as relevant
laws and regulations, legal doctrines, and court decisions. This approach was
chosen because it is appropriate for examining legal problems based on
applicable theories and norms.
The type of research used is descriptive-analytical
legal research. This research aims to provide a clear picture of the
application of law in a particular case and analyze it based on applicable
legal principles.
The population in this study includes all laws and
regulations, legal doctrines, and court decisions related to the topic
discussed. The sample was selected purposively by considering the relevance and
contribution to the legal analysis conducted.
Data were collected through literature studies,
including Legal Documents, Legislation, court decisions, and other related
legal documents. Academic literature, Books, scientific journals, and relevant
articles. Expert Opinions, Comments and Analysis from Legal Experts through
Scientific Writings.
The data obtained were analyzed qualitatively through
the following steps: Data Reduction, Grouping relevant data according to the
legal issues being studied. Data Display, Presenting data in the form of
narrative descriptions that make it easy to understand. Conclusion and
Verification: Drawing conclusions based on the legal analysis carried out, by
conducting verification to ensure the validity of the data.
RESULTS AND DISCUSSION
A.
Human
Rights Protection Implemented in Confiscation Procedures
Human rights (HAM) have various definitions
according to different experts and countries, depending on the perspective and
understanding developed in each society. Despite these variations, in
principle, human rights are recognized as basic rights owned by every
individual with the same essence: rights that must be respected and protected
universally. Differences in this understanding often arise because of different
views of society about the truth. Human rights are inherent, eternal, and
universal rights bestowed by God, which should not be discriminated against or
taken away by anyone, including any institution.
In the context of criminal investigation of
suspects, law enforcement officers must comply with applicable legal rules and
must not act beyond their authority. The term "suspect" refers to an
individual being investigated by the police, while the term
"defendant" is used when the suspect enters the trial process in
court. Meanwhile, the term "convict" relates to a defendant who has
been sentenced by a final and binding legal decision (inkracht) by the
presiding judge.
Human rights can be broadly defined as
encompassing various aspects of individual and societal life. Some generally
recognized rights include:
1. Everyone has the right to protection of
personal integrity, family, honor, dignity and property rights.
2. Everyone has the right to be recognized as a
legal subject wherever they are.
3. Everyone has the right to feel safe and
receive protection from threats that create fear for their choices.
4. Individuals' right to privacy, especially
where they live, must not be violated by any party.
5. Everyone has the right to freedom and
confidentiality in communicating, including electronic communications, which
may not be interfered with except by court order or authority in accordance
with applicable law.
6. Everyone has the right to freedom from
torture, cruel and inhuman punishment or treatment, enforced disappearance and
arbitrary deprivation of life.
7. No one may be arrested, forced, tortured,
exiled or transferred arbitrarily without a strong legal basis.
Everyone has the right to live in an orderly,
peaceful and harmonious society and state where human rights and basic human
obligations are respected, protected and fully implemented in accordance with
laws and regulations.
At the time of arrest, suspects must be
informed of the reasons for their arrest and the factual circumstances and
classification of the alleged crime. They have the right to a defense, and in
addition to the rights mentioned above, they are entitled to other rights as
provided for in existing legislation and international law, including:
1. After arrest, suspects must receive written
notification and an explanation of their rights from the pre-investigation
agency, investigator, or prosecutor.
2. Suspects have the right to legal counsel after
their arrest or may refuse legal counsel and choose to defend themselves.
3. Prior to interrogation, suspects have the
right to meet confidentially and without hindrance with their legal counsel,
for as long as necessary. If there is a need to take action involving suspects
outside of standard procedures, the pre-investigation agency or investigator
may limit the time of the meeting, giving prior notice to the suspect and their
legal counsel. The time allowed to meet with their legal counsel shall not be
less than two hours.
4. Suspects have the right to be examined in the
presence of their legal counsel. They may also express objections which must be
documented in the examination record.
5. The suspect has the right to give testimony or
refuse to testify.
6. Suspects have the right to inform their close
relatives of their place of detention and the reasons for their detention,
which must be communicated within 12 hours of arrest.
7. The suspect is entitled to other rights as
regulated by applicable laws and regulations.
For suspects detained in prison for the
purposes of investigation or awaiting trial, there are standard rules regarding
their treatment, including:
1. Individuals who are arrested
and imprisoned for criminal prosecution, but whose legal process has not been
completed and who have not been sentenced, are referred to as �pre-trial
detainees.� This group is presumed innocent and should be treated as such. They
should be separated from convicted detainees. Juvenile detainees should also be
separated from adults and housed in special facilities.
2. Pre-trial detainees, whenever
possible, can sleep in separate quarters.
3. Pre-trial detainees are
allowed to receive food from outside, purchased by themselves, their families
or friends, or through prison management if this is not possible.
4. Prisoners may wear their own
clothing as long as it is clean and appropriate. If they wear prison clothing,
it must be different from that worn by convicted prisoners.
5. Pre-trial detainees can work
but are not required to do so. If they choose to work, they will receive
compensation.
6. Prisoners may purchase books,
newspapers, stationery or other equipment using their own funds or with the
help of third parties, as long as it does not compromise prison security.
7. Prisoners may receive visits
and be treated by their own doctor or dentist if there is a legitimate reason,
at the expense of the prisoner.
8. Detainees must be promptly
permitted to notify their families of their detention and must be permitted to
communicate with family and friends, and to receive visits, unless restricted
for security and order purposes.
9. In the interests of defence,
pre-trial detainees should be allowed free legal aid where available. Detainees
may receive visits from their lawyers to prepare their defence in confidence.
Conversations with lawyers may be monitored, but should not be overheard by
prison staff or police.
The rights of suspects in the investigation
and interrogation process as regulated in the Rome Statute relating to the
International Criminal Court (ICC) are also relevant to the Human Rights Court
in Indonesia, including:
1. During the investigation, the
suspect has the following rights:
a. Not be forced to give
self-incriminating testimony or confess.
b. Not be subjected to violence,
coercion, threats, torture or other forms of cruel, inhuman or degrading
treatment or punishment.
c. If the investigation is
conducted in a language that the suspect does not understand, they have the
right to competent free interpretation, enabling them to understand the process
and comply with the principles of justice.
d. A suspect may not be arrested
or detained arbitrarily, and their freedom may only be restricted under legal
procedures established in this law.
2. If there are reasonable
grounds to believe that a person has committed a crime within the jurisdiction
of the Court, and is questioned by a prosecutor or national official upon a
request for international cooperation, they have the following rights:
a. To be informed before questioning of the
compelling reasons indicating their involvement in crimes under the
jurisdiction of the ICC.
b. Remain silent, and this right cannot be used
as a basis for establishing their guilt.
c. To have legal assistance of their own choice.
If the accused does not have legal counsel, they may have a lawyer provided for
them, especially if justice requires it, free of charge if they cannot pay.
d. To be questioned in the presence of legal
counsel unless the suspect expressly chooses not to exercise this right.
Furthermore, confiscation is defined as a
series of actions taken by investigators to take over or place under their
control both movable and immovable property, both tangible and intangible, for
the purpose of evidence in the investigation, prosecution and trial process. In
its implementation, regardless of whether the suspect, as the owner of the
property (whether movable, immovable, tangible or intangible), agrees or
disagrees, investigators have the authority to forcibly take over the goods.
This action constitutes a restriction on human rights (HAM) regarding the right
to own property.
There is an example of a case that clarifies
illegal seizure according to law. Seizure is defined in Article 1 paragraph 16
of the Criminal Procedure Code (KUHAP) as: "Seizure is a series of actions
carried out by investigators to take over or place under their control movable
or immovable property, both tangible and intangible, for the purpose of
evidence in the investigation, prosecution, and trial process."
Furthermore, Article 39 of the Criminal
Procedure Code stipulates that:
1. Items that may be confiscated
include:
a. Goods or claims belonging to the suspect or
accused which are suspected of originating in whole or in part from a criminal
act or the proceeds of a crime;
b. Items used directly to commit or prepare a
crime;
c. Items used to obstruct the criminal
investigation process;
d. Items specifically made or intended to commit
a crime;
e. Other items that have a direct relationship to
the crime committed.
2. Goods that have been
confiscated in civil cases or due to bankruptcy can also be confiscated for
criminal proceedings, as long as they fulfill the provisions of paragraph (1).
Under this provision, confiscation may only be
carried out on items that are directly or indirectly related to the crime. If
the seized items fail to show any connection to the alleged crime, they must be
immediately returned to their rightful owners.
The legal consequence of unlawful seizure is
the return of the seized goods to the rightful party. This return must be made
in accordance with the judge's decision and applicable legal provisions.
Article 82 paragraph (3) letter d of the Criminal Procedure Code states that if
the decision determines that the seized goods are not evidence, the decision
must include an order to immediately return the goods to the suspect or to the
party from whom they were seized.
In Decision Number 1/Pid.Pra/2020/PN, it is
stated that the confiscation of evidence by investigators was declared unlawful
because it was not related to the alleged crime. Therefore, the confiscated
evidence did not meet the criteria set out in Article 39 of the Criminal
Procedure Code. There are three aspects of judicial consideration in which the
judge deliberates. The first is the legal aspect and legal basis, as the main
elements underlying the review of each case, which must comply with applicable
laws and regulations. In the Decision of Case Number 1/Pid.Pra/2020/PN talk,
the judges used various relevant legal provisions, including Article 77 in
conjunction with Article 1, paragraph 10, Article 1, paragraph 16, Article 1,
paragraph 17, Article 18, paragraph (3), Article 32, Article 33, Article 38,
Article 39, Article 75, Article 82, paragraph (3), letter d, Article 125,
Article 126, Article 127, Article 128, Article 129, Article 130, Article 131 of
Law Number 8 of 1981 concerning Criminal Procedure Law. In addition, the legal
basis also includes Article 16 of Law Number 12 of 2005 concerning Ratification
of the International Covenant on Civil and Political Rights, Article 5 of Law
Number 39 of 1999 concerning Human Rights, Constitutional Court Decision Number
3/PUU-XI/2013, Constitutional Court Decision Number 21/PUU-XII/2014, and
Supreme Court Regulation Number 4 of 2016 concerning Prohibition of Review of
Pretrial Decisions. All of these regulations are referred to as valid legal
bases for handling pretrial cases.
From a sociological perspective, the
above-mentioned decision reflects the cultural values prevailing in society.
The judge considered the human rights of the community, including the rights of
the applicant or the party seeking a copy of the Search Record within two (2)
days after the search. This was done as a form of protection and guarantee of
the applicant's rights. The investigator's failure to submit a copy of the
Search Record contradicts the provisions of Article 33 paragraph (5) of the
Criminal Procedure Code; Therefore, the judge decided that the search was
invalid and had no legal force.
Meanwhile, the philosophical aspects that
include truth and justice are the basis of the law applied. In trying this
case, the judges not only considered the legal and sociological elements, but
also weighed the philosophical aspects proportionally. In this case, the Panel
of Judges decided to grant the applicant's request and mandate the return of
evidence that was illegally confiscated by investigators. This decision
embodies a balance between applicable legal rules and the principles of
justice, thus producing results that are in line with relevant norms and laws.
To ensure order and tranquility in society,
especially in supporting the implementation of development, a conducive
atmosphere is needed. In this case, law enforcement and legal protection are
very important. However, this should not be a justification for arbitrary
actions, such as deprivation of individual or group freedom without a clear
basis or reason for alleged violations of the law. The implementation of
development must continue to respect human rights (HAM).
In line with this, the Criminal Procedure Code
(KUHAP) has embedded protection related to human rights, both regarding the
actions of perpetrators of violations of the law by individuals or groups or
the actions of law enforcement officers in carrying out their duties and
functions. Law enforcement must be carried out with the aim of providing legal
protection to all parties without exceeding the limits or violating human
rights as stated in the applicable legal provisions. As a result, actions that
violate or infringe upon human rights can be avoided in accordance with
existing regulations.
B.
Challenges
in Implementing Human Rights Protection in Confiscation Procedures
Respect for property rights is a fundamental
aspect of human rights protection. In the context of confiscation, which
involves seizing or gaining control of a person�s property for the purpose of
an investigation, serious attention must be paid to the property rights
guaranteed by law. The right to property is recognized as part of an
individual�s human rights, and any action that threatens or violates this right
may constitute a human rights violation.
One of the main challenges in carrying out
seizures is ensuring that the process is carried out transparently and legally.
Law enforcement must have clear and strong reasons before starting a seizure,
complying with applicable legal procedures as regulated by the Criminal
Procedure Code (KUHAP). Seizures carried out without a strong legal basis can
be considered arbitrary, potentially harming the targeted individual.
Therefore, it is important for law enforcement officers to respect individual
rights, including property rights, at every stage of their investigative
actions.
Unlawful seizures not only cause material
losses to property owners but can also lead to psychological trauma and reduced
trust in the legal system. For example, if the seized items are not related to
the crime being investigated or if the seizure was carried out without clear
procedures, property owners have the right to request the return of their items
and to hold the officials who carried out the seizure accountable. In this
case, the protection of property rights becomes very important to ensure justice
and prevent abuse of power by law enforcement officers.
Proper and proportionate legal procedures
related to confiscation are a key component of law enforcement that respects
human rights. Here, law enforcers are required to comply with the provisions
set out in the Criminal Procedure Code (KUHAP). Every confiscation action must
be based on an official warrant from the court and must be based on strong
suspicion that the items to be confiscated are related to criminal acts. Thus,
the confiscation procedure does not only function as a formality but must reflect
compliance with the principles of justice and the protection of individual
rights.
One of the significant challenges facing law
enforcement officials is ensuring that any seizure is carried out in a
proportionate manner. Proportionality in seizure refers to the balance between
the need to enforce the law and respect the rights of individuals. For example,
seizures should only be made if necessary to achieve the objectives of an
investigation and should not unduly disrupt the daily life of the property
owner. This is critical to preventing arbitrary actions that could harm
innocent individuals.
In practice, law enforcement officers must
offer clear and valid justification when conducting a seizure. They must
demonstrate that the seizure is a necessary and appropriate step in the context
of the investigation. Ambiguity or lack of adequate justification can lead to
the seizure being considered unlawful, potentially violating the property
owner's rights. In addition, law enforcement officers must also maintain
transparency in every seizure process, so that the public can observe and
understand the reasons behind the actions taken.
The importance of proper and proportionate
legal procedures in seizures also plays a role in maintaining public trust in
the legal system. When the public perceives that law enforcement is carried out
fairly and transparently, it fosters greater trust in law enforcement agencies.
Conversely, arbitrary seizures carried out without following proper procedures
can lead to public distrust, which ultimately undermines the legitimacy of the
legal system. Thus, strict regulations regarding seizure procedures not only
protect individual rights but also strengthen the integrity and fairness of the
justice system as a whole.
Transparency and accountability are important
aspects in maintaining human rights during confiscation actions by law
enforcement officers. When law enforcement officers conduct confiscation, they
have considerable authority, which, if not controlled by transparency, can be
abused. In certain cases, confiscation can be used as a tool to coerce or
intimidate suspects, ultimately resulting in violations of individual rights.
Therefore, it is very important to ensure that any confiscation action is
carried out responsibly and within a clear legal framework.
One effective approach to achieving
transparency in seizures includes requiring law enforcement to publicly report
each seizure. Each seizure should be thoroughly documented in an official
record, detailing the reason for the seizure, the items seized, and the
procedures followed. This official record should be readily accessible to
interested parties, including suspects and their legal counsel. This method
allows those involved to verify that the seizure was conducted in accordance
with applicable legal procedures, reducing the potential for abuse of power by
law enforcement officials.
Lack of accountability in confiscation actions
can lead to serious human rights violations. If confiscation actions are not
held accountable, individuals or groups in authority can carry out arbitrary
confiscations without consequences. This not only threatens the rights of
affected individuals but can also erode public trust in the legal system.
Therefore, it is important to implement effective oversight mechanisms to
ensure that law enforcement officials are held accountable for their actions.
Building a system of transparency and
accountability also contributes to a positive public image of law enforcement
agencies. When the public perceives that the confiscation procedure is carried
out fairly and transparently, they are more likely to trust the judicial
entity. Conversely, if the public detects ambiguity or abuse of power in the
confiscation process, it will create skepticism and dissatisfaction with law
enforcement. Thus, maintaining transparency and accountability is essential not
only to protect the human rights of individuals but also to affirm the
legitimacy and effectiveness of the judicial system itself.
Seizing items that are unrelated to alleged
criminal activity presents significant challenges to fair law enforcement. The
basic principle of seizure dictates that only items that are directly related
to a crime can be seized. This requirement is intended to protect the rights of
property owners and prevent abuse of power by law enforcement officials.
However, in practice, seizures are carried out broadly and excessively,
resulting in items that are unrelated to alleged crimes also being seized.
When investigators conduct a seizure, they
must have a strong legal basis and clear evidence that the items involved are
related to the alleged crime. However, in some cases, seizures may be based on
weak suspicion or invalid assumptions. This discrepancy results in items that
should not be seized�such as personal items unrelated to the crime�being seized
unlawfully. Such situations can cause financial loss and emotional distress to
innocent property owners, worsening reputational damage and affecting their
lives.
It is important to recognize that unlawful or
irrelevant seizures not only harm individuals but also undermine public
confidence in the justice system. If the public perceives that the seizure was
arbitrary, they are likely to lose their faith in the fairness of the justice
system. In addition, the seizure of irrelevant items can place an additional
burden on law enforcement agencies in terms of returning these items once their
irrelevance to any crime has been established. This can cost resources and time
that should be allocated to more productive investigations.
Enforcing human rights during emergencies or
crises is a complex challenge that requires special attention. In emergency
situations�such as natural disasters, armed conflicts, or public health
crises�law enforcement authorities often feel compelled to act quickly to
maintain security and stability. However, in doing so, there is a risk of
ignoring established legal procedures, which can threaten individual rights.
This creates a dilemma between the need to respond quickly to critical
situations and the obligation to uphold the fundamental rights of every
individual.
When seizures are conducted without proper
protocol, the consequences can be devastating. In an emergency, expedited
action may seem justified, but when seizures are conducted arbitrarily, they
can result in significant violations of property and personal liberty. Often,
the items seized may be completely unrelated to the emergency or alleged crime
but are still seized due to the uncertainty or fear of law enforcement. This
not only leads to injustice against innocent individuals; it can also increase
social tensions and erode public trust in law enforcement authorities.
It is essential for law enforcement to
maintain adherence to basic human rights principles even in urgent situations.
Strict legal procedures, including requiring judicial authorization before
carrying out any seizure, should continue to apply. During emergencies,
procedural adjustments may be necessary to expedite the response, but this
should not be an excuse to disregard human rights protections. For example, law
enforcement officials can be trained on how to apply human rights principles in
emergency contexts, in addition to developing effective oversight mechanisms to
prevent abuse of power.
Transparency and accountability are also
essential elements in upholding human rights during emergencies. Any seizure
must be carefully recorded and made accessible to relevant parties. In
addition, steps must be taken to ensure that individuals who feel aggrieved by
a seizure have an avenue to file a complaint or seek accountability. In this
way, even in a crisis context, law enforcement can uphold its commitment to
human rights and ensure that its actions do not conflict with the principles of
fairness and justice.
Operational constraints and challenges to
inter-agency coordination in carrying out seizures in accordance with human
rights principles often pose significant obstacles to law enforcement. When law
enforcement agencies�including investigators, prosecutors, and courts�fail to
work together effectively, the risk of unlawful seizures carried out outside
legal standards increases significantly. This can lead to arbitrary actions
that violate individual rights and undermine public confidence in the justice system.
Poor coordination among various law
enforcement entities can lead to confusion regarding the implementation of
seizure protocols. For example, investigators may conduct seizures without
obtaining court authorization, or conversely, courts may not receive adequate
information about the background and reasons for a seizure. Such opaque
procedures can create loopholes that are exploited to conduct unlawful
seizures. In such circumstances, individuals targeted for seizure may not
receive the necessary protections mandated by law.
In addition, inadequate training for law
enforcement officers on the importance of human rights in the seizure process
can worsen the situation. Lacking adequate awareness of human rights
principles, law enforcement officers may be unaware of the consequences of
their actions. They may conduct seizures without considering whether their
actions violate property rights or other rights. Therefore, human rights
education and training are critical in ensuring that law enforcement officers
understand proper legal procedures and the ethical and moral context underlying
their actions.
To overcome operational difficulties and
inter-agency coordination challenges, building a more integrated system is
essential. This may involve developing clear and effective communication
mechanisms among law enforcement agencies, allowing for easier sharing of
relevant information. In addition, professional development programs that focus
on human rights and proper legal procedures should be part of law enforcement
training. In this way, it is hoped that seizures carried out will not only
comply with the rule of law but also respect and protect the rights of
individuals.
CONCLUSION
This study found that the implementation of
confiscation by law enforcement officers is often carried out on weak legal
grounds or non-transparent procedures, which have the potential to cause human
rights violations. Unlawful confiscation can cause material losses,
psychological trauma, and a decrease in public trust in the legal system.
To address these challenges, it is important
to strengthen coordination between law enforcement agencies, increase
transparency and accountability in all confiscation operations, and ensure
adequate training for law enforcement officers on human rights principles and
proper legal procedures. The study recommends the implementation of effective
monitoring mechanisms and the development of operational standards that respect
human rights so that confiscation is not misused as a tool of coercion or
intimidation.
Thus, fair, transparent and accountable law
enforcement can encourage the creation of public trust in legal institutions
and guarantee the protection of human rights in line with justice and
humanitarian values.
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