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.
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 in theory. Reality may be different.
Making a report
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 Berita Acara Pemeriksaan (Report of Examination) or BAP 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 penyidik will jump right on the case, call witnesses and pursue leads and bring the criminals to justice. What could possibly go wrong?
Actually, there are a few little reality checks I should mention.
How the police see it
Let me start with an appreciation of the police. No matter how upset you are, the police do this for a living. They see victims every day and they have probably seen a number of 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. Again, 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%. If an investigator can’t deliver a strong case, he has wasted his time and yours.
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.
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.
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 personnel file.
How a victim sees it
I want to relate a story. A few years ago a friend called me to meet a Canadian girl – call her Susan – 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. Susan 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. Susan 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.
Susan 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 Susan hadn’t been awake during the assault, so even she couldn’t give direct testimony about what had happened.
Susan 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 which were 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 Susan 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, Susan, 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 Susan had experienced.
What will the police investigate?
But Bill wants to report a land fraud. He has proof and will be in Bali as a witness in the criminal trial because he wants to use the conviction as evidence in a civil trial to recover his assets. Will the police investigate?
I will make a practical distinction with no basis in law for the types of crimes the police will investigate most enthusiastically. The best crimes involved naked women. If you have a naked woman in your crime you are almost guaranteed to get results.
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 or Adultry, and they are reported with a Pengaduan, or Complaint. The difference is that a Pengaduan can be withdrawn later by the victim, but a Laporan cannot.
This is a wise provision for Selingkuhan. What is more, when a victim files a Pengaduan, it most be against both offenders equally. It isn’t possible to blame just your wife’s lover and not your wife. 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. I wish the police had been that diligent with some of my reports.
The police also like clear physical crimes with obvious evidence. If you, for instance, discover your girlfriend 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 girlfriend watch you from the window, and then they report you to the police, the police will certainly investigate.
Robberies and burglaries are good because there are broken locks and stolen objects. Beatings are good because there are bruises.
What about frauds?
Crimes of fraud, 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 is now serving 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?
In Bali few lawyers specialize in criminal or civil law; every lawyer handles everything. And Bill doesn’t really need a lawyer to report a crime to the police. But it can still be useful to have a lawyer with you, because a lawyer knows how the law and the police work, and of course a lawyer speaks Indonesian. Few police speak English, so how are you going to make a report unless you have an interpreter?
When the Penyidik finishes typing up your BAP he will give it to you to read and sign if you are satisfied. But it will be in Indonesian, so your lawyer will have to interpret for you, or perhaps you can trust you lawyer to handle the details and read it for you and tell you whether it is ready to sign.
Some people might feel nervous about now. Your lawyer has just had a lengthy conversation with the police which you could not understand, then made a report which you could not understand, and now he advises you to sign a document which you can’t read. Any ideas about what could go wrong?
I said earlier that you might receive a copy of your BAP to take away with you. Actually the KUHAP or Criminal Procedure Code does not specify whether the person giving the report is entitled to a copy, so whether to get a copy or not is up to agreement between the Penyidik and your attorney. I have heard of cases, one of was them mine in fact, in which the Penyidik and the lawyer told the witness he was not allowed a copy of the BAP. Untrue, and you might wonder why the Penyidik and your attorney are unwilling to let you have a copy.
I would suggest you either make clear that you will get a copy or refuse to sign (you have that right, I will discuss it in another post). Then take it to someone else who knows nothing about your case and is fluent in Indonesian and ask him to read it to you, because it turns out it is always a good idea to find out what you really signed.
To be continued…