Objection to Final Judgment Pretrial restriction in the Criminal Code unconstitutional

The Constitutional Court declared Article 83 paragraph (2) of Law No. 8 of 1981 on Criminal Proceedings (Criminal Code) against the Constitution. This article reads: "Excluded from the provisions of paragraph (1) is a pretrial ruling that set it unlawful termination of the investigation or prosecution may be sought for the final decision to the High Court in the jurisdiction in question."

Whereas Article 83 Paragraph (1) Criminal Code it states, "The decision of the pretrial hearing in the matter referred to in Article 79, Article 80 and Article 81 cannot be appealed."

Thus it was stated by the Court in case number 65/PUU-IX/2011 decision. The case was filed by Alexander Tjetje a civil servant (police members). According to the Court, the subject petition is legally proven. "Petitioner reasoned legal argument for the most part," said Chief Justice of the Constitutional Court, Moh. Mahfud MD, Tuesday (1/5) at Plenary Room.

According to the Court, Article 83 paragraph (2) Criminal Procedure Code was contrary to Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution because it did not equate the position of citizens before the law and the government does not provide legal certainty and fair.

In other words, the Court continued, the article being tested is treated differently between the suspect / defendant on the one hand and the investigators and prosecutors on the other party in making an appeal against a pretrial ruling. Such provisions are not in accordance with the philosophy of the holding of a pretrial agency that actually guarantees the rights of suspects / defendants in accordance with the status and dignity as human beings.

According to the Court, because the philosophy of the institution holding the judicial pre-trial fast, to give equal treatment of suspects / accused and the investigator and the prosecutor then stated against the 1945 Constitution is the provision of right of appeal to the investigator and the prosecutor referred to in Article 83 paragraph (2) Criminal Procedure Code.

"By eliminating the right of appeal to the parties referred to the testing of the constitutionality of Article 83 paragraph (2) Criminal Procedure Code unwarranted by law, while the petition of testing the constitutionality of Article 83 paragraph (1) Criminal Procedure Code is not unreasonable under the law," said Court. (Dodi / mh/Yazid.tr)

Wednesday, May 02, 2012 | 07:17 WIB 109