A court summons is not merely an administrative formality. It determines the validity of the entire case examination process. The court is required to summon the parties in a lawful and proper manner as a prerequisite for examination. This obligation embodies the principle of audi et alteram partem, which is to provide equal opportunity for the parties to appear and present their defense. If the summons does not comply with the provisions of procedural law, the trial process may be formally flawed and the decision may be overturned at the judicial review level.
Expansion of the Summons Mechanism (Relaas) from Physical to Electronic
Technological developments and the need for efficiency have prompted the Supreme Court to expand its summons/notification mechanism. Through Supreme Court Regulation Number 7 of 2022 concerning Amendments to Supreme Court Regulation No. 1 of 2019 concerning Electronic Case Administration and Court Proceedings (“PERMA No. 7 of 2022”), the Supreme Court regulates summons and notifications through the electronic domicile of the parties. The court delivers summonses through the electronic system if the parties are registered and verified in the Court Information System (SIP).
However, not all parties have or activate an electronic domicile. In such circumstances, the court uses a registered mail mechanism through a delivery service. The technical procedures are regulated in Supreme Court Circular Letter Number 1 of 2023 concerning Procedures for Summons and Notification by Registered Mail (“SEMA No. 1 of 2023”).
This is where the debate arises: does delivery by registered mail meet the standards of “valid and proper” according to procedural law, and does it sufficiently guarantee legal certainty for the summoned party?
Old Mechanism vs New Mechanism
The following is a comparison of the mechanism for registered letter summons based on HIR/RBg and the mechanism for summons based on SEMA No. 1 of 2023, as follows:
| ASPECTS | HIR/RBg | SEMA No. 1 of 2023 |
| Implementing Subject | Bailiff or Substitute Bailiff (Article 338 HIR/ Article 718 RBg) | Services provided by registered mail delivery service providers designated by the Supreme Court. (Point 2) |
| Method of delivery | Delivered to the person concerned at their place of residence or domicile. (Article 390 paragraph (1) HIR/ Article 718 paragraph (1) RBg) | Delivered directly (on hand delivery) to the parties with proof of receipt and date of receipt. (Point 3) |
| If Not Meeting in Person | Submitted to the local Village Head. (Article 390 paragraph (1) HIR/ Article 718 paragraph (1) RBg) | It can be delivered to adults living in the same house, and if no adults living in the same house are present, it will be delivered to the receptionist/security guard at the residence building as long as they are not the opposing party and are willing to be photographed and submit their identity. If they refuse, it will be delivered through the village head or sub-district head. (Points 3, 5, 6, 7) |
| If the Recipient Refuses | The HIR does not explicitly regulate the mechanism for recording refusals. The bailiff records this in the report. | The clerk electronically records that the parties are unwilling to accept and/or sign. The letter is returned to the court (returned). (Point 4) |
| If the Party Passes Away | Delivered to the heirs. If unknown, it will be delivered to the Village Head. Article 390 paragraph (2) HIR) | This situation can only be confirmed by a statement from the local village chief or head. (Point 10) |
| If the Address is Unknown | The letter shall be delivered to the Regent in the area where the plaintiff resides. It shall be announced by posting it on the courtroom door. (Article 390 paragraph (3) HIR/ Article 718 RBg). | General call mechanism. (Point number 9) |
| Aspects Worth Considering | The period between the receipt of the summons and the hearing date shall not be less than 3 days. (Article 122 HIR/Article 146 RBg) | The summons must be sent by registered mail no later than 6 (six) calendar days before the hearing and duly received by the parties no later than 3 (three) working days before the hearing. (Point 11). |
Upon closer examination, HIR/RBg emphasizes the legitimacy of officials and factual verification in the field by bailiffs. Meanwhile, SEMA No. 1 of 2023 emphasizes administrative documentation, proof of receipt, and electronic recording as instruments of accountability.
What if the summons is not received?
Problems arise when the summoned party (defendant) does not physically receive the letter. Is the summons still valid?
The formal aspect emphasizes proof of delivery. If the court can show proof that the letter was sent to the official address, the summons or notification is considered valid (SEMA No. 1 of 2023 point 1). Meanwhile, the material aspect assesses whether the defendant was actually aware of the summons. If the letter is returned with a note stating that the address cannot be found or has moved without notice, then the summons/notification does not meet the principle of compliance. The judge is obliged to order a re-summons or through other mechanisms, including summons through the village head and/or public summons (SEMA No. 1 of 2023 point 10 and 9).
In the event that the summons is not received by the recipient (defendant) while the judge has issued a default judgment, the defendant may file an objection to the default judgment on the grounds that the summons is invalid and improper. The summoned party (defendant) is required to prove that the court did not carry out the summons in accordance with the provisions of SEMA No. 1 of 2023. The argument that the defendant never received the summons or summons notice does not automatically invalidate the decision, as long as the bailiff has carried out the summons in accordance with legal procedures through a delivery service. If the summons (summons notice) is not received by the defendant in a valid and proper manner, it may result in the trial being invalid and subject to annulment.
This is reflected in Decision Number 100/Pdt.Plw/2012/PN Btm. In this case, the Defendant, who was originally the Plaintiff, filed an objection to Default Judgment Number 100/Pdt.G/2012/PN.Btm. The Plaintiff explicitly argued that the summons was invalid and improper because the Plaintiff never received the court summons and therefore was unaware of the case. Default Judgment No. 100/Pdt.G/2012/PN.Btm was then revoked and declared invalid. This situation indicates the possibility of filing a legal appeal or verzet against the default judgment. However, the Defendant is still obliged to prove that the summons was invalid and improper.
The obstacles to summonses by registered mail that often become problems in practice are:
- Validity of the address of the summoned party: lawsuits often include old or incomplete addresses. Registered mail depends entirely on the accuracy and correctness of the residential or domicile addresses of the parties.
- In principle, the delivery service only plays a role in delivering the summons (relaas) for the hearing, so it does not provide information about the trial if questioned by the parties. In this case, there is a lack of initiative on the part of the delivery service to investigate the conditions and situation of the parties involved in the case.
Conclusion
Summons or written notices are currently delivered through delivery service providers that work with the courts. Although the mechanism of delivery by registered mail is more efficient, speeds up the administrative process, and reduces operational costs, from a legal certainty perspective, its effectiveness depends on the accuracy of the address data and the integrity of the delivery process. Therefore, if a judge issues a default judgment due to the absence of the Defendant that is not in accordance with a lawful and proper summons mechanism, the Defendant may file a legal appeal or objection against the default judgment by proving that the reason for their absence is valid and justified.
References
Herzien Inlandsch Reglement (HIR), State Gazette (Staatsblad) Year 1941 Number 44
Reglement Tot Regeling Van Het Rechtswezen in de Gewesten Buiten Java en Madura (RBg), State Gazette (Staatsblad) Year 1927 Number 227
Supreme Court Regulation of the Republic of Indonesia Number 7 of 2022 Concerning Amendments to Supreme Court Regulation Number 1 of 2019 Concerning Case Administration and Court Proceedings Electronically
Circular Letter Number 1 of 2023 Concerning Procedures for Summons and Notifications by Registered Mail
Author: Lasta Elfrida Sinaga, S.H.
Editor: Yohana Maranatha, S.H., M.Kn.