E/CN.4/2000/4/Add.2 page 10 37. At any time during the procedure, from the time of arrest, the detained individual (or his/her family or relatives) can present to a judge designated for this purpose by the President of the tribunal a request for an order declaring the arrest or detention (or the charges themselves) to be illegal (art. 79). 38. The judge must, within three days, set a date on which the request will be examined. After having heard the applicant and the investigating authorities, he must give his decision at the very latest within seven days. His decision is not subject to appeal. If the judge declares the detention to be illegal (or the charges unfounded) the person concerned must immediately be released by the authority under whose jurisdiction he is being detained. It should be noted that the “pretrial hearing” procedure is not envisaged if the case is examined by a military jurisdiction. 4. The trial stage 39. The procedure is oral, adversarial (“cross examination”), and public. The accused can be legally represented (this is compulsory as noted above, if he risks the death penalty or a sentence exceeding 15 years). He can - as can the Prosecutor - call witnesses, including military ones, subject to authorization by the president of the court. Before the Court of Appeal, there is no oral hearing and matters are decided on the basis of written submissions. In the event of cassation, the Supreme Court only decides on legal issues. B. States of emergency and other matters concerning national security 40. Under article 12 of the Constitution, the President of the Republic “declares the state of emergency. The conditions for such a declaration and the measures to deal with the emergency shall be governed by law”. The application of this principle encounters numerous difficulties in practice, given the multitude of special laws adopted at any given period in the history of Indonesia and never abrogated, and their apparent interference with, or incompatibility with, other norms in the Code of Criminal Procedure concerning national security. 1. Emergency laws and measures States of Emergency (Law No. 12/1951) 41. This is the oldest emergency law, going back to the period when Indonesia was fighting for its independence. Never formally abrogated, it would appear that it was invoked during the first half of 1997, during ethnic troubles and riots in West Kalimantan and, for a certain period, in East Timor. It prohibits in particular the possession, use or transport of explosives or arms. According to some allegations, it was at times invoked in cases where the detained person carried a pocket knife. The Group was told that the application of this law, which apparently should only have extended to acts committed by persons having entered the territory illegally, was subsequently, irregularly, extended to the entire population.