SEMA 3 of 2026: Guidelines for the Examination of the Merits of a Case Amidst a Pre-Trial Motion

Introduction

On 18 August 2026, the Supreme Court of the Republic of Indonesia (Mahkamah Agung or “MA”) issued Supreme Court Circular Letter Number 3 of 2026 (“SEMA 3/2026”). This circular letter regulates the referral and conduct of proceedings on the merits of a case where a pre-trial motion has been filed. SEMA 3/2026 is addressed to all Chief Judges of High Courts and District Courts in Indonesia.

The issuance of SEMA 3/2026 is stated to be related to the provisions of Article 163 paragraph (1) letter e of Law Number 20 of 2025 concerning the Criminal Procedure Code, which stipulates that, as long as the pre-trial proceedings have not been completed, the examination of the merits of the case before the court may not be conducted.

Through the issuance of the circular letter, the Supreme Court provides technical guidance on the implementation of the referral and handling of criminal cases that overlap with pre-trial motions. These provisions are stated to be intended to provide legal certainty and support the realization of the principles of simple, expeditious, and low-cost justice.

Key Provisions

• Referral of Case Files While Pre-Trial Proceedings Are Ongoing

If a pre-trial motion has been registered or is being examined by a district court, the merits of the case may still be referred by the public prosecutor. However, the examination of the merits of the case at trial may not be conducted until a pre-trial judgment has been issued.

• A Pre-Trial Motion Filed After Referral Does Not Prevent the Trial on the Merits

If a pre-trial motion is only registered after the case file concerning the merits of the case has been formally referred to the court, the existence of such pre-trial motion does not prevent the examination of the merits of the case from being conducted. The trial of the principal criminal case may continue to proceed.

• Procedure for Handling and Judgment Declaring the Motion Inadmissible

With respect to a pre-trial motion filed after the referral of the case on the merits, the district court remains required to register, hear, and formally adjudicate the motion. However, the judge must decide the motion by issuing an order expressly declaring that the pre-trial motion is inadmissible (niet ontvankelijk verklaard).

Closing

SEMA 3/2026 provides guidelines for handling criminal cases relating to the existence of pre-trial motions, particularly with respect to the timing of the referral of case files and the conduct of proceedings on the merits of the case. In principle, the existence of a pre-trial motion does not always prevent the referral of a case to the court. However, if a pre-trial motion has been filed before or while the pre-trial proceedings are still ongoing, the examination of the merits of the case must await the issuance of a pre-trial judgment.

Conversely, if a pre-trial motion is only filed after the merits of the case have been referred to the court, the examination of the merits of the case may continue. With these guidelines in place, it is expected that there will be uniformity in the application of the law and the handling of cases before the courts, while also providing legal certainty and supporting the administration of justice that is simple, expeditious, and low-cost.