The main purpose of the verstek system in procedural law is to encourage the parties to obey the procedural rules, therefore the process of examining the settlement of cases is to avoid from anarchy or arbitrariness. If the law determines that for the validity of the case examination process, the parties must be present, such a provision can certainly be used by the defendant in bad faith to thwart the settlement of the case. Every time he is called to attend a hearing, the defendant does not obey him with the intention of hindering the examination and settlement of the case.
What is Verstek ?
Verstek itself is a decision which states that the defendant is not present, even though according to procedural law he must come. Verstek can only be stated if the defendant is not present on the day of the first trial. Regarding the notion of verstek, it is closely related to the function of proceedings in court, and this cannot be separated from the imposition of decisions on dispute cases, which authorizes judges to make decisions without the presence of the defendant. This is regulated under Article 125 paragraph (1) H.I.R / Article 149 paragraph (1) R.Bg. :
Article 125 paragraph (1) H.I.R / Article 149 paragraph (1) R.Bg.
"If on the appointed day, the defendant is not present and he also does not ask another person to be present as his representative, even though he has been properly summoned, the lawsuit is accepted with a decision of not attending (verstek), unless it turns out to the Court that the lawsuit is against right or unreasonable."
On this basis it is clear that if the Defendant is not present on the appointed day, even though he has been duly summoned but he still does not attend and does not send his representative, the Judge can settle the case with a verstek decision. This can be excluded if it turns out that according to the Court that the lawsuit has no legal basis or reason, even though the Defendant is not present, the Judge can decide that the lawsuit cannot be granted.
Conditions for the Verstek Decision
The main task of the judiciary is to receive, examine, adjudicate and resolve cases that are submitted to it. In order to carry out these main tasks, judges are obliged to make decisions or stipulations on all cases that are being tried. In the procedural law concerning Verstek, it has been regulated in articles 125 – 129 H.I.R and articles 149 – 153 R.Bg. According to M. Yahya Harahap, in accordance with Article 125 paragraph (1) H.I.R, Verstek decision can be imposed if it has fulfilled the following conditions:
- The Defendant has been officially and appropriately summoned;
- If Defendant does not come to attend the determined examination session without a valid reason;
- The Defendant did not file challenge regarding the authority;
- Plaintiff is present at the court; and
- Plaintiff asks for decision;
- In such a case, the judge renders a verstek decision which contains the dictums:
- Granting the claim entirely or partially, or
- Stating that the lawsuit cannot be accepted if the lawsuit has no legal basis.
If the lawsuit is not based on law, that is, if the events as the basis for the claim do not justify the claim, then the lawsuit will be declared unacceptable (niet ontvankelijk verklaard). If the claim is unreasonable, if there is no event that justify the claim, the lawsuit will be rejected. The decision not to be accepted is intended to reject a lawsuit outside the subject matter of the case, while rejection is a decision after consideration of the subject matter of the case. If the decision is not accepted, in the future the plaintiff may still file his claim again, but in current practice it is not uncommon for an unacceptable decision to be appealed, while in this case the refusal does not open the opportunity to file the lawsuit a second time to the same judge (ne bis in idem).
Therefore, the verstek decision does not always mean that the plaintiff's claim is always granted. In essence, the Verstek is to accommodate the principle of audi et alteram partem, hence the interests of the defendant must also be considered, therefore the judge should ex officio study the contents of the lawsuit. But in practice it is often found that the plaintiff's claim is granted in the Verstek decision without first studying the lawsuit.
Implementation of Verstek in Court Practice
Judges are not only obliged to use Article 149 paragraph (1) R.Bg. / Article 125 paragraph (1) H.I.R., but also should be guided by the results of the plenary meeting of the Chamber of Religion and the Civil Chamber of the Supreme Court of the Republic of Indonesia. dated December 11, 2015, From the formulation of the results of the plenary meeting of the Supreme Court Chamber, the Supreme Court provided clearer instructions, among others, on the completion of the verstek event as stated in the Circular Letter of the Supreme Court (SEMA) Number 3 of 2015 dated December 29, 2015, as follows:
- In a divorce case, it still has to go through the evidentiary process, the Plaintiff is burdened with evidence against the argument of his lawsuit by presenting witnesses in accordance with the provisions of the legislation, namely Article 22 paragraph (2) of Government Regulation Number 9 of 1974 concerning Instructions for the Implementation of Law Number 1 of 1974 About Jo's Marriage. Article 76 of Law Number 7 of 1989 concerning Religious Courts as amended by Law Number 3 of 2006 and lastly amended by Law Number 50 of 2009;
- In a non-divorce case, the Plaintiff does not need proof, but is obliged to show the basis of his rights to something he controls/owns and is not against the law. what is the meaning of rights? is a legal relationship between himself as a subject and the object of the right he controls, meaning that the basis of the right must be able to explain clearly, straightforwardly and firmly about how a person can control an object he has, not against the law, meaning that the act does not conflict with other people.
The difference between the term proof and the word shows the basis of rights and is not against the law, namely the proof must meet the formal, material requirements and the minimum limit of evidence, while showing the basis of rights and the statement is not against the law, the Plaintiff explains how he can control an object that does not conflict with other people. For example, in an inheritance case, the Plaintiff must be able to show the death certificate of the heir, the family tree of the heir.
Remedy Against Verstek's Decision
In this case the Defendant is handed a verstek decision, the Defendant can file a legal countermeasure (Verzet). Based on Article 129 paragraph (1) H.I.R which states that "the defendant who is sentenced while he is not present (verstek) and does not accept the decision, can file Remedy against the verdict". In general, the term verzet means resistance. Resistance is a legal remedy against a decision. Verzet is classified as an ordinary legal remedy that is temporarily stopping the execution of the decision. In addition to verzet, which includes ordinary legal remedies are appeals and cassation. against the verstek decision. If the Defendant submits a verzet, the examination will be continued by summoning the parties back to the trial.
So, if a verstek decision is imposed on the lawsuit, and he objected to it, the defendant may file a verzet, not an appeal. Against the Verstek decision, an appeal is closed, therefore the appeal against it is formally flawed, and thus cannot be accepted. According to Yahya Harahap in his book entitled Civil Procedure Law, Verzet itself is associated with the verstek decision which means:
- The Defendant is trying to fight the Verstek decision or the Defendant is filing against the Verstek decision;
- The aim is that the decision be re-examined thoroughly in accordance with the contradictor examination process with a request that the Verstek decision be canceled and at the same time request that the plaintiff's claim be rejected.
Thus, the purpose of Verzet is to provide a normal and reasonable opportunity for the defendant to defend his interests for his failure to attend the trial in the past.
Conditions of Resistance (Verzet)
There are several Verzet requirements mentioned in Article 153 R.Bg / 129 H.I.R, namely:
- Defendants who are defeated by a verstek decision and do not accept the verdict, may file a challenge (verzet) against the decision;
- If the decision is notified to the Defendant himself, the challenge (verzet) can be received within 14 days after the notification. If the decision is not notified to the Defendant himself, then the challenge (verzet) is still received until the 8th day after the warning as referred to in Article 207 R.Bg/196 HIR or in the case of not being present after being properly summoned, until the day 14th (R.Bg) or the 8th (H.I.R) after the execution of the warrant as stated in Article 208 R.Bg./197 H.I.R;
- The opposition (verzet) against the verstek is filed and the verdict is examined in the usual way as in a civil lawsuit;
In accordance with Article 129 H.I.R/153 R.Bg., the Defendants/Defendants sentenced to Verstek have the right to file a verzet or resistance within 14 (fourteen) days after the date of notification of the verstek decision to the original Defendant if the notification is directly delivered to the person concerned. (Article 391 HIR: in calculating the grace period, the date/day when the time calculation starts is not counted). Meanwhile, the judge who examines the verzet case on the verstek decision must examine the lawsuit that has been decided by the verstek in its entirety. And if in the verzet examination the plaintiff is not present, then the examination is continued in a contradictoire manner, but if the Defendant is not present, the Judge renders the verstek decision a second time. Against the Verstek decision that was handed down for the second time, no objections could be filed, but an appeal could be filed (Article 129 paragraph (5) H.I.R and Article 153 paragraph (5) R.Bg.).
This article is generally made for the purpose of ANR Law Firm publication only and should not be treated as legal advice for your legal problem. Shall you have any further questions regarding this topic, you may contact the Advocate who authored this article at firstname.lastname@example.org.
Author : Brain Ratur Tarigan, S.H.