Criminal acts of theft under Article 365 paragraph (4) Book of the Criminal Justice Act (Penal Code) is not a very serious crime (the most serious crimes). Because theft is not a crime that affects the cultural and political foundations of public economics (adversely affect the economic cultural and political foundations of society). Based on the positive law in Indonesia, an offense classified as the most serious crimes such as terrorism, narcotics and human rights violations.

As stated by Rangga Lukita Desnata, legal counsel to the Petitioners, in proceedings in the Constitutional Court on Tuesday (3/13/2012) Afternoon. The trial of the petition for the improvement agenda 15/PUU-X/2012 number of test cases of Article 365 paragraph (4) of the Criminal Code was filed by Herman King Syahrial alias alias Wak Fadli alias Raja Ancap and Deli. Both were sentenced to death a theft accompanied by violence that currently inhabits the Tembesi Correctional institutions, Batam.

Article 365 paragraph (4) states "threatened with death sentence or imprisonment for life or for a specified time no later than twenty years, if the act resulted in serious injury or death, and performed by 2 (two) or more persons with the ally, accompanied by one of the things described in no. 1 and 3. "

According to the Petitioners, the provisions of Article 365 paragraph (4) of the Criminal Code are contradictory to Article 28A and Article 28I paragraph (1) of the 1945 Constitution. Article 28A: "Everyone has the right to live and to defend life and living." Article 28 paragraph (1): "The right to life, the right not to be tortured, the right of freedom of thought and conscience, freedom of religion, the right not to be enslaved, the right to be recognized as a person before the law and the right not to be prosecuted on the basis of a retroactive law is a human right that can not be reduced under any circumstances.”

In addition, Article 365 paragraph (4) of the Criminal Code is no longer relevant to the provision in Article 6 paragraph (2) of Law Number 12 Year 2005 regarding Ratification of International Covenant on Civil and Political Rights (ICCPR). Article 6 paragraph (2) of Law 12/2005 states that the death penalty may be imposed only on a very serious crime. While the crime is contained in Article 365 paragraph (4) of the Criminal Code does not include serious crimes so that the death penalty should not apply anymore.

Rangga Lukita Desnata before a panel of judges Ahmad Fadlil Sumadi (Panel Chair), accompanied by two members, Maria Farida Indrati and Harjono, describes improvements to the application as counsel in the trial judge last month, Friday (17/02/2012). Improvement is regarding four issues, namely the problem of writing, the authority of the Constitutional Court, legal status (legal standing) and the substance of the petition.

Rangga further postulates the existence of significant differences between Article 365 paragraph (4) of the Criminal Code which tested his client, with Article 340 of the Penal Code Article 340 of the Criminal Code on premeditated murder. "Since Article 340 of the Criminal Code, intent, intention, from the perpetrator intended to destroy a human life," the argument Rangga.

Unlike the case with Article 365 paragraphs (4) of the Criminal Code, the intention of the perpetrator just stealing. However, because the victim caught him and then cried, then there was a murder. "The main intention is to steal," explained one of the founders of this Street Lawyer of LBH.

According to Rangga, an offense under Article 365 paragraph (4) of the Criminal Code is a blue color crime. "Unlike the drug lord and human rights violations," Rangga said. Therefore ask the Court stated Rangga Article 365 paragraph (4) of the Criminal Code are contradictory to Article 28A and Article 28I paragraph (1) of the 1945 Constitution. (Rosihin Nur Ana / mh/Yazid.tr)