THE ROLE OF LEGAL COUNSEL DURING THE
INVESTIGATION AND PROSECUTION STAGES
Authored by:
Juventhy M. Siahaan, S.H., M.H.
Managing Partner, JBD Law Firm
I. Introduction
Structural imbalance in the criminal justice system is most evident during the investigation and prosecution stages. The State is present with the full force of its apparatus, investigators with the authority for coercive measures, and public prosecutors with full control over the construction of the indictment, facing an individual who, though not yet proven guilty, is practically placed in a defensive position. Here, the presence of legal counsel is not merely a right guaranteed by law, but a balancing mechanism that determines whether the process undertaken by the client is a genuine due process of law or merely a procedure that satisfies formal requirements.
Law Number 20 of 2025 concerning the Criminal Procedure Code (The New KUHAP), which became effective on January 2, 2026, paradigmatically shifts the position of advocates: from parties present by the tolerance of investigators to law enforcement officers whose standing is recognized as equal within the system. Concurrently, SEMA Number 1 of 2026 was issued by the Supreme Court as an implementation guideline regulating concrete mechanisms for restorative justice, guilty pleas, and deferred prosecution agreements, making it a mandatory reference for advocates litigating in the era of the New KUHAP. This article outlines how these changes operate in practice, including the precise normative boundaries that must be understood to avoid expectations that exceed what is actually guaranteed by law.
II. Advocates as Law Enforcement Officers: Normative Consequences and Limits
The New KUHAP places advocates as law enforcement officers equal to investigators, public prosecutors, and judges within the judicial ecosystem. When an advocate is recognized as an integral part of the system, rather than a guest admitted at the discretion of the apparatus, every hindrance to their function normatively shifts into a procedural violation that can be judicially tested. This consequence fundamentally changes the calculation of the apparatus: obstructing an advocate is no longer an ethical risk resolved internally, but a legal risk that potentially becomes the object of a pre-trial hearing (praperadilan).
This framework is supported by the Chief of Police Regulation (Perkap) No. 8 of 2009 concerning the Implementation of Human Rights Principles and Standards (Perkap HAM 8/2009). Its function is often under-realized: this regulation is not just an internal code of conduct, but an external instrument that legal counsel can use to measure the legality of every investigative action based on three cumulative principles: legality (is there a clear legal basis?), necessity (is the action truly required?), and proportionality (is the intensity of the action commensurate with the threat?). These are technical criteria that can be operationalized in pre-trial arguments. A note on the hierarchy of norms: as a Police Regulation, Perkap 8/2009 is subordinate to the New KUHAP. As long as the two do not conflict, and within the standards of human rights in investigations, they reinforce each other, this regulation remains valid and can be cited directly.
III. The Role of Legal Counsel in the Investigation Stage
A. The Right to Legal Assistance: Gradation of Obligations and Consequences of Violation
The New KUHAP brings layered changes to the assistance regime. Article 31 mandates investigators to inform suspects of their right to legal assistance before the examination begins without exception, regardless of the criminal penalty threshold. Meanwhile, Article 142 letter b formulates the suspect's right to an advocate's assistance as an inherent right. This is the true paradigmatic shift: the obligation to notify of the right is now universal. However, the obligation for the mandatory appointment of an advocate by officials for suspects who do not have their own counsel still follows the gradations in Article 155: paragraph (1) mandates appointment without financial capability requirements for offenses punishable by death, life imprisonment, or 15 years or more; paragraph (2) mandates appointment for indigent suspects for offenses punishable by 5 years or more.
The practical implications of this distinction must be mastered precisely. When an investigator fails to inform a suspect of the right to assistance, a violation of Article 31, the defect is universal. When an official fails to appoint an advocate for a suspect who meets the Article 155 criteria, the defect opens a window for judicial review. However, a procedural defect does not automatically nullify the case file. The impact depends on whether the defect is substantive, materially affecting the quality of the statement, or merely administrative. An advocate bringing this argument to a pre-trial hearing must be able to demonstrate that substantive impact: the skill of constructing causality arguments, rather than merely inventorying violations, is what is decisive. Perkap HAM 8/2009 Article 27 reinforces this operationally: investigators are obliged to provide suspects the opportunity to contact a lawyer before examination and explicitly prohibit nighttime examinations without assistance absent valid reasons, a prohibition that can be quoted verbatim in a pre-trial petition.
B. Supervision of Examination and the Strategic Value of Documenting Objections
The advocate's function in the examination room is not one of passive presence. Article 32 paragraphs (1) and (2) of the New KUHAP grant active authority: advocates may raise objections if investigators engage in intimidation, ask entrapment questions, force confessions, or ask questions irrelevant to the case. More crucially, Article 32 paragraph (3) mandates that such objections be recorded in the Examination Report (BAP), making it a procedural obligation for the investigator, not just an advocate's right that can be ignored. The strategic value of this record extends beyond the pre-trial hearing: in the main trial, a recorded objection serves as evidence that a particular statement was obtained under contested conditions, the foundation for contesting its evidentiary value before the judge.
C. Access to BAP Copies: A Tangible Breakthrough with Open Enforcement
The obligation to deliver a copy of the BAP no later than one day after the examination is completed, explicitly regulated in Article 153 of the New KUHAP, is one of the most impactful changes. For decades, advocates operated under severe information asymmetry: BAP copies were only accessible once the file was transferred to the court, at a point where the investigative construction was already locked and the momentum for intervention had passed. With early access, advocates can immediately check the consistency of the client's statements against the facts recorded by the investigator, identify distortions or omissions, and evaluate whether the elements of the alleged offense are met. It must be honestly noted: the New KUHAP has not yet regulated strict sanctions for violations of this obligation. Advocates facing a non-compliant investigator must document that refusal in writing, as the refusal itself becomes another ground for pre-trial arguments.
D. Pre-Trial (Praperadilan): Substantive Review and Jurisprudential Hurdles
The New KUHAP significantly expands the objects of pre-trial hearings, now including the validity of suspect determination, searches, seizures, termination of investigation, suspension, and deferment of detention. The review of suspect determination is the most strategic: the New KUHAP requires a minimum of two sufficient pieces of evidence as the basis for the determination. When an investigation is conducted hastily, this standard is often met in quantity but not in quality, two pieces of evidence exist, but they are weak or circularly dependent without independent evidentiary sources. The advocate's task is to demonstrate this failure of quality measurably.
One jurisprudential hurdle to anticipate: Constitutional Court Decision Number 21/PUU-XII/2014 expanded pre-trial objects to suspect determination, but PERMA Number 4 of 2016 limits pre-trial review only to formal aspects and prohibits entering the merits of the case. Some judges hide behind PERMA 4/2016 to refuse assessing the quality of evidence. However, jurisprudence is not uniform: in Decision Number 2/Pid.Pra/2024/PN JKT.SEL (Edward Omar Sharif Hiariej vs. KPK), Judge Estiono nullified a suspect determination precisely by assessing the origin and evidentiary value of the evidence; witness statements obtained at the inquiry (penyelidikan) stage did not yet have pro justitia value and thus could not be counted toward the minimum requirement. This proves that arguments on evidence quality can be accepted in pre-trial hearings, provided the advocate explicitly distinguishes the quality assessment as part of the formal requirement review rather than a merits assessment, which is outside pre-trial jurisdiction.
IV. The Role of Legal Counsel in the Prosecution Stage
A. Pre-Indictment Intervention: Strategy Without Formal Rights
When the case file is transferred to the public prosecutor, marked by the mechanisms of P-19 (file returned for completion) and P-21 (file declared complete), the advocate enters what is potentially the most effective phase for changing the case's direction without meeting in the courtroom. It must be clearly admitted: there is no formal mechanism granting an advocate the right to be heard by the public prosecutor before the indictment is finalized. The principle of dominus litis places the public prosecutor in full control, and they are not procedurally bound by the suspect's input.
However, this is not lobbying; it is a litigation strategy based on institutional risk calculation. Structured written communication to the public prosecutor, questioning the factual and legal fulfillment of offense elements, the sufficiency of evidence, or the existence of grounds for justification (rechtvaardigingsgrond) or excuse (schulduitsluitingsgrond), works not because of a formal right, but because it places before the prosecutor an analysis that, if brought to trial, potentially ends in an acquittal. A prosecutor aware that a weak file tarnishes the institutional track record has a real incentive to consider a P-19 or a Decree for Termination of Prosecution (SKPP).
B. Restorative Justice and Plea Bargaining: The Mandate of Honesty and Ethical Limits
The New KUHAP formally recognizes restorative justice and plea bargaining as alternative dispute resolution mechanisms, shifting the advocate's function from an adversarial defender to an evaluator and facilitator. Within the restorative justice framework, the advocate must evaluate feasibility thoroughly: not only whether normative requirements are met, but whether the drafted agreement truly protects the client's interests. A settlement that appears beneficial can be a trap if it contains a de facto admission of an unproven act.
In a plea bargain scheme, the same risk exists with greater weight because a guilty plea is final. The New KUHAP does not regulate a mechanism for withdrawing a plea after an agreement is finalized, meaning errors at this stage are almost irreversible. An advocate recommending a plea bargain without a proper evaluation base potentially faces ethical liability before the Ethics Council and, in extreme situations, civil lawsuits for unlawful acts (perbuatan melawan hukum).
C. Advocate Immunity: Reach and Limits
Article 149 paragraph (2) of the New KUHAP expands the right to advocate immunity: an advocate cannot be prosecuted either civilly or criminally in the performance of their professional duties in good faith for the interest of the client's defense, both inside and outside the court. The expansion of the phrase "outside the court" closes the interpretive loophole that previously limited immunity to the courtroom, as affirmed by Constitutional Court Decision Number 26/PUU-XI/2013, stating that good faith is a constitutive element determining whether an advocate's action is protected.
V. Unresolved Structural Challenges
The normative updates of the New KUHAP do not automatically close the gap between legal text and field practice. Three structural issues are most pressing. First, the inherent conflict of interest in the appointment of an advocate by an investigator: the party directly interested in the investigation's success is given the authority to determine who supervises that investigation.
Second, the formalization of rights as a substitute for the fulfillment of rights. Notifying a suspect of their rights merely to satisfy formal requirements, without ensuring the suspect understands the right to remain silent, the consequences of signing a BAP, and the implications of every statement, is a violation of the substance of the New KUHAP.
Third, factual barriers rather than legal ones: withheld information on detention locations, complicated communication under technical pretexts, or pressure on suspects to state they do not require an advocate. The New KUHAP provides one relevant instrument: the mandatory recording of examinations via CCTV as part of the Integrated Electronic Criminal Justice System (SPPT-TI). If operational, the presence or absence of an advocate will be recorded automatically and cannot be manipulated.
VI. Conclusion
There is one distinction that determines the quality of legal counsel during investigation and prosecution: the ability to distinguish between substantive procedural violations, which materially affect the suspect's rights and the quality of evidence obtained, and administrative defects that are insufficient to change the case's direction.
The New KUHAP provides a set of tools that is normatively far more complete: access to BAP copies within 24 hours, pre-trial hearings with expanded objects, formal recognition of the advocate's position as a law enforcement officer, and institutionalized restorative mechanisms. However, every tool is accompanied by boundaries that must be understood with equal precision. The mastery over both the tools and their limits is what distinguishes an effective defense from one that is merely active.