Owner’s Responsibilities for The Safety of Building

On January 15, 2008, Jakarta Stock Xchange (IDX Building) hallway collapsed, and resulted in 72 injuries. before that, the same case also occurred in 2008, where the pillars of the West Jakarta District Court collapsed and killed 1 lawyer and injured 3 other lawyers.

The collapse of a building is generally caused by natural events such as earthquakes or whirlwinds. But in the two cases above, there is no natural element that causes damage to buildings, so it cannot be said to be a force majeure event. Therefore, such cases are entirely due to human error, both by the owner and/ or building management.

It would be very dangerous if public buildings such as office centers, shopping centers or government buildings are not safe in terms of structure or building feasibility. Moreover, these buildings are visited by many people. Such things should be anticipated and predicted by the owner when the development plan is implemented.

By law, the government has issued Law No. 28 of 2002 on Building. As mandated by Article 37 of the Building Law, the construction of a building must meet the requirements of a functional society. In addition, Article 37 was also bearing liability for the owners undertake the periodic maintenances to meet the eligibility requirements of the building. So, if a building is damaged without natural disasters even though the age of the building is not too old, then it becomes a question how the feasibility and safety of the building?

If this happens, it can be ascertained the alleged violation of the term’s airworthiness buildings.

Furthermore, the provisions of Article 41 paragraph (2) Building Act regulates the responsibility of the owner of the building. Responsibilities included:
a. utilizes buildings in accordance with their functions;
b. maintains and / or caring for the building on a regular basis;
c. complete guidelines / instructions for the implementation of building utilization and maintenance;
d. Implement the periodic checks on the appropriateness of building functions.
e. repairing buildings that have been determined to
be inappropriate in function;
f. dismantles buildings that have been set are not eligible to function and cannot be repaired, it can pose a hazard in use, or do not have a building permit, with no threat to public order.

In addition, as mandated by Government Regulation Number 36 of 2005 Concerning the Implementation of Building Laws jo. Regulation of the Minister of Public Works of the Republic of Indonesia Number 25 / PRT / M / 2007 of 2007 concerning Guidelines for Appropriateness of Building Functions, every building must be certified for a building, both private and government agencies. This certification aims to realize buildings that are always reliable and meet the administrative and technical requirements of buildings according to their functions, in order to realize functional buildings, in accordance with building arrangements that are harmonious and in harmony with their environment, which are organized in an orderly manner to ensure the technical reliability of buildings building, as well as the realization of legal certainty in the implementation of building construction as mandated by Article 2 paragraph (2) of the Ministerial Regulation.

But, in reality not all building owners obey the rules above, the proof of events such as the example above cases still often occur. And the government itself lacks firmness in enforcing these rules. However, if from the beginning everything meets the requirements as stipulated in the laws and regulations below, then the buildings will be safe for the community and of course similar events can be prevented and there are no fatalities.

Civil Liability and Criminal Liability of Building Owners

Of the two examples above cases, clearly there are casualties, both dead and wounded. The incident was caused by the element of negligence or possibly deliberate by the owner who did not meet the requirements mandated by the rules. Based on legal procedures, victims and their heirs can file lawsuits against the building owner as the responsible party. These lawsuits can take the form of civil damages and criminal liability.

In civil law, victims or their heirs can file a lawsuit for damages by reference to the provisions of Article 1365 of the Civil Code. These demands can be compensated medication and / or other losses such as lifetime disability and loss of life.

Although the owners must pay damages, but based on the doctrine of criminal law, recovery of losses does not eliminate the criminal liability (onrechtmatige daad). The Building Law specifically stipulates the criminal provisions that can be imposed on building owners as stipulated in the provisions of Article 46 and Article 47, which in full states as follows:

Article 46

1. Each building owner and / or user who does not meet the provisions in this law, is threatened with a maximum imprisonment of 3 (three) years and / or a maximum fine of 10% (ten percent) of the building value, if so, resulting in the loss of other people’s property.

2. Each building owner and / or user who does not meet the provisions in this law, is threatened with a maximum imprisonment of 4 (four) years and / or a maximum fine of 15% (fifteen percent) of the building value, if it therefore results in an accident for others which results in a lifetime disability.

3. Each building owner and / or user who does not meet the provisions in this law, is threatened with a maximum imprisonment of 5 (five) years and / or a maximum fine of 20% (twenty percent) of the building value, if it results in the loss of another person’s life.

4. In the judicial process for the actions referred to in paragraph (1), paragraph (2), and paragraph (3) the judge shall consider the consideration of the building expert team.

5. Provisions regarding the procedure for imposing sanctions as referred to in paragraph (1), paragraph (2), and paragraph (3) shall be further regulated by Government Regulation.

Article 47

1. Any person or entity who due to negligence violates the provisions stipulated in this law resulting in inadequate building functions that can be subject to confinement and / or fines.

2. Criminal confinement and / or criminal fines referred to in paragraph (1) include:

a. imprisonment for a maximum of 1 (one) year and / or a fine of no more than 1% (one percent) of the building value if it results in the loss of the property of others;
b. a maximum imprisonment of 2 (two) years and / or a maximum fine of 2% (two percent) of the value of the building if it causes an accident for another person causing life disability
c. imprisonment for a maximum of 3 (three) years and / or a maximum fine of 3% (three percent) of the building value if it results in the loss of another person’s life.

3. Provisions regarding the procedure for imposing sanctions as referred to in paragraph (1) and paragraph (2) shall be further regulated by Government Regulation.

Referring to the provisions of Article 46 and Article 47 above, the negligent fines and imprisonment of the owner of the building which neglects the building owner and results in fatalities. But the sticking point, that under Article 46 paragraph (5) and Article 47 paragraph (3) mentioned concerning the procedures for the imposition of sanctions will be regulated in
a government regulation. But it can be Government Regulation No. 36 of 2005, this was not regulated at all, so there is still a legal vacuum (rechtvacuum). ALH