Court: Without Saying Detention Status, Criminalization Decision Letter Not Null For Law
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A sentencing decision without saying a requirement that the defendant be detained or kept in custody or released does not make a sentencing decision null and void. The Constitutional Court in its decision to interpret Article 197 paragraph (2) letter "k" Law No. 8 of 1981 on Criminal Code (Criminal Code) against the 1945 Constitution, if interpreted sentencing decision letter which does not include the provision of Article 197 paragraph (1) letter k Act resulted in the decision null and void.

Article 197 paragraph (1) letter "k" himself stated sentencing decision letter must contain the requirement that the defendant be detained or kept in custody or released. While subsection (2) Criminal Procedure Code to determine if these provisions are not met then the resulting decision null and void.

Similarly, most of the core sound decision number 69/PUU-X/2012 read out by the Chief Justice of the Constitutional Court, Moh. Mahfud MD. He is assisted by eight other constitutional judges on Thursday (22/11). However, in the ruling of the Constitutional Court rejected the petition filed by the applicant H. Parlin Riduansyah. 

"Article 197 paragraph (2) letter" k "Law No. 8 of 1981 on Criminal Proceedings against the 1945 Constitution, if interpreted sentencing decision letter which does not include the provision of Article 197 paragraph (1) letter k Act resulted in a quo decision null and void. Article 197 paragraph (2) letter "k" Law No. 8 of 1981 on Criminal Procedure has no binding legal effect, if interpreted sentencing decision letter which does not include the provision of Article 197 paragraph (1) letter k Act resulted in a quo decision null and void," said Mahfud.

In addition, the Court also stated that Article 197 paragraph (2) Criminal Procedure Code to be more, ‘Non-compliance of the provisions of paragraph (1) letter a, b, c, d, e, f, h, j and l of this article resulted in the decision null and void by law ‘"

According to the Court in its legal considerations, Article 197 paragraph (1) letter k formally Criminal Code provision is imperative or mandatory to the court, the judge in this case the judge, that when the court or the judge did not include them in the decision he made, it will have an effect laws. Nevertheless, according to the Court, materially-substantive imperative or mandatory qualification its entire provisions of Article 197 paragraph (1) Criminal Procedure Code can not be said to be equal or equivalent, especially when associated with reading other articles as an integrated system settings. It is as stated in Section 197 subsection (2) that, "Non-compliance of the provisions of paragraph (1) letter a, b, c, d, e, f, h, j, k and l of this article resulted in the decision null and void" , but the explanation stated, "Unless mentioned in letters a, e, f and h, in case of mistakes and errors in writing or, the mistakes and or writing or typing errors do not lead to the annulment of the decision by law."

"Thus, if a sentencing decision does not include the provision of Article 197 paragraph (1) letter G and the letter i because it is not mentioned in Article 197 paragraph (2), as well as oversight and or error occurred in the writing or typing material as provided for in Article 197 paragraph (1) which excludes the letters a, e, f, and h, it does not cause the cancellation of the decision by law. Therefore, the material-substantive imperative or mandatory qualification of the entire provision in Article 197 paragraph (1) a quo can not be said to be equal or equivalent, "explained one of the judges of the constitution.

In addition, the Constitutional Council explained in a criminal verdict still need to have a statement that the defendant was arrested, kept in custody, or released as part of the clause to affirm the ruling of the materials that have been stated that the defendant is guilty and should be punished, but presence or absence of such a statement can not be used as a reason to deny the truth of the material that has been declared by the judge in the injunction ruling. Considering that, as defined in Article 197 paragraph (2) Criminal Procedure Code is true that the decision was declared null and void from the beginning regarded the decision was never there (never Existed) so it does not have any power (legally null and void, nietigheid van rechtswege) .

However, it must be understood that a judgment must be true and lawful and therefore also legally binding on the parties intended by this decision before any other court decision that declared nullification verdict. Related to the above description then it was certainly the decision was valid and binding. The existence of nullification of the decision though based on something that the Petitioner norms bright enough, but legally must be considered so, because for cancellation still needed a decision. Something clearly is not or has not been able to abort the existence of something that has been obvious. In the framework of the protection of human rights, the rule of law provides an opportunity to undertake legal action in the form of opposition or appeal or an appeal or reconsideration of the decision of the court to conduct surveillance and observation in order to gain assurance that the court properly implemented.

"Based on the considerations above the law and to ensure fair legal certainty [vide Section 28D (1) of the 1945 Constitution] and to avoid the arbitrariness of law enforcement officers in carrying out their duties and obligations that potentially posed a threat to a person’s fear to do or not do something, according to the Court, the arguments of the petition related to Article 197 paragraph (1) letter k in conjunction with Article 197 paragraph (2) of Law 8/1981 are not unreasonable under the law. Considering that since the petition is groundless all requests by law interpretation as requested, but the provisions of Article 197 paragraph (2) letter "k" is certainly not in line with the fulfillment of material truth in the enforcement of the criminal law for the sake of a fair legal certainty, the Court meant that Article 197 paragraph (2) letter "k" is contrary to the 1945 Constitution if interpreted sentencing decision letter which does not include the provision of Article 197 paragraph (1) letter k Law 8/1981 resulted in the decision null and void, "explained one of the judges constitution.

 

Dissenting Opinion

In the ruling, two judges declared the constitution of different opinions (dissenting opinion), the Constitutional Court Justice M. Akil Mochtar and Hamdan Zoelva. According to Akil, the effectiveness of criminal justice depends on three interrelated factors: 1) the existence of good laws, 2) the implementation of a fast and sure, and 3) adequate and uniform punishment. Thus, it is reasonable if the legal consequences as set forth in Article 197 paragraph (2) Criminal Procedure Code asserts that it does not include the provision of Article 197 paragraph (1) letter k can lead to the decision to be null and void. This consequence is to prevent such abuse for defendants / convicts in detention. Therefore, the requirements set out in Article 197 paragraph (1) letter k KUHAP absolute must have.

In addition, Akil found the court is a crown that shows the image and prestige of the judiciary. Therefore, negligence or Negligence of the judge or judges should be minimized by not afforded a great deal of tolerance though the grounds were full of human nature err and not infallible. When you give a large space on Negligence tolerance to errors in the court’s decision opens the possibility of the occurrence of abuses and irregularities by the trial judge. Implementation of surveillance systems and strict control mechanisms of writing and loading of judicial decisions is needed in order to create a reliable and authoritative judiciary.

"Therefore, in order to prevent any injustice, especially against the legal status of seeking justice, the Court should grant the applicant by stating that Article 197 paragraph (1) letter k Law 8/1981 is an absolute requirement that there must be a punishment verdict in letter and it does not include requirements resulted in a decision letter ruling becomes null and void," he explained.

Meanwhile, the Constitutional Court Hamdan Zoelva expressed decision offense at the district court and the High Court shall order the defendant put on hold, or remains in custody or be released by the threat null and void. That, to avoid negligence or arbitrariness courts or prosecutors to hold, or have held or acquit defendants who have not obtained a court ruling which legally enforceable, so there is no legal guarantee of the rights of the accused. If no such imperative obligation, would potentially result in the violation of the rights of the accused because there is no certainty, whether the defendants were arrested, kept in custody or released until a court decision that has legal force. It may be a toy and abused by law enforcement officers are dishonest.

"Therefore I think the petition should be granted for the most part. The Court did not need to add or define another Article 197 paragraph (2) letter k Law 8/1981 because it was clear in the description of the consideration of the Court that Article 197 paragraph (2) letter k is not imperative that the petition be denied. If the Court gives another meaning of Article 197 paragraph (2) letter k Law 8/1981, then it is, beyond the authority of the Court to decide something beyond even completely contrary to the petition, "said Hamdan. (Lulu Anjarsari / Miftakhul Huda/Yazid.tr)


Thursday, November 22, 2012 | 19:28 WIB 102