“The law enforcement official must obtain the approval from the Notaries’ Court of Honor prior to the summoning of notary as a witness in an investigation of criminal case.”
Notary often to be summoned as a witness when there is a case related to the deed they had drafted. In facts, it is common for notary to be the accused in a police report.
As a public official, notary has the privilege in the criminal trial to protect his/her position. Hence, there are conditions that must be met by the law enforcement to summon a notary.
The conditions are set in Article 66 of Law Number 2 of 2014 jo. Law Number 30 of 2004 on Position of Notary (Law on Position of Notary):
- If it is deemed necessary by the law enforcement on judicial proceedings, investigators, prosecutors, or judges with the approval of the Notaries’ Court of Honor may summon a notary to be present before the court. The letter of request is submitted to the Notaries’ Court of Honor.
- Within the maximum period of 30 working days from the receipt of the letter of request, the Notaries’ Court of Honor shall provide the answer.
- If, the Notaries’ Court of Honor did not provide the answer within the period of time specified, the Notaries’ Court of Honor is deemed to approve the request. Thus, the law enforcement may summon the concerned notary.
- The law enforcement, after obtaining the approval from the Notaries’ Court of Honor, is authorized to:
- Request and collect the photocopy of minutes of deeds or letters attached to the minutes of deeds in the notarial protocol.
In relation to collect the photocopy of such documents, the investigator will draft a minute of acceptance to be handed over the notary.
- Summon the notary to be present before the court in the investigation of a case related to the deed they had drafted, or within the notarial protocol.
The provisions above are due to the obligation of the notary to ensure the confidentiality of deeds he/she made, including the information provided by clients in the process of drafting the deeds. Hence, a notary is bound by the oath and notaries’ code of ethics.
Article 66 of Law on Position of Notary, it is stated that the law enforcement is only entitled to take the photocopy of minutes of deeds or letters attached to the minutes of deeds in the notarial protocol. This would be different if a witness summoned is not a notary, but rather civil person.
There is exception set in Article 43 of the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana), when there is a statutory obligation to keep the letter or document confidential. As long as the state secret is not concerned, a document may be confiscated by the consent of concerned party or by permission of the Chairman of the local district court, unless the Law states otherwise.
However, the investigator may ask the notary to bring the original deed to be examined at the Forensic Laboratory Center to verify of the signatures and/or thumbprints of the parties in the deed.
Fairus Harris, S.H., M.Kn.