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Several activists Choky Risda Ramadhan, Usman Hamid, et al review pre-prosecution provision which regulated in Act Number 8 Year 1981 of the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana –KUHAP). On the preliminary session of Case Number 130/PUU-XIII/2015, they argue the formulation of Article 14 letter h and letter I, Article 109 (1), Article 138 (1) and (2), and Article 139 the Criminal Code Procedure have caused legal uncertainty.

“The Applicants of this case consist of several elements; researchers, activists, and victims of functional coordination obscurity of investigators and prosecutors. By the petition, we hope that we could involve actively in improving criminal justice system in Indonesia in order to ensure legal certainty,” said Applicants’ Attorney Ihsan Zikri on Wednesday (11/11) at Plenary Room, the Constitutional Court Building                                                                      

The Applicants argue pre-prosecution process that regulated in Article 14 letter b the Criminal Procedure Code seems to be done if there is any flaw in investigation. Article 14 letter b the Criminal Procedure Code stated “conducts pre-prosecution if there is any flaw in investigation with regard to the provision of Article 110 (3) and (4) by giving clues in order to improve investigators’ investigation.” (“mengadakan prapenuntutan apabila ada kekurangan pada penyidikan dengan memperhatikan ketentuan Pasal 110 ayat (3) dan ayat (4) dengan memberi petunjuk dalam rangka penyempurnaan penyidikan dari penyidik.”).

According to the Applicants, such provision indicates that pre-prosecution seems as separate part of criminal justice system. Moreover, the provision doesn’t provide active role to general prosecutors in initial investigation. General prosecutors only have active role at the end of investigation.

The Applicants assess that Article 109 (1) and (2) the Criminal Procedure Code have two big problems, which are the lack of confirmation on mandatory implementation of Notice of Investigation Commencement (Surat Pemberitahuan Dimulainya Penyidikan –SPDP) and the lack of confirmation on time clarity of information delivery from investigators to general prosecutors after the investigation done.

The obscurity of pre-prosecution is also contained in Article 138 (1) and (2) the Criminal Procedure Code regarding the phrases ‘within seven days’ and ‘within fourteen days’. According to the Applicants, the phrases aforementioned cannot provide certain interpretation on how many times the mechanism in Article 138 (1) and (2) the Criminal Procedure Code can be done.

“The norm formulation of Article 138 (1) and (2) causes case files goes back and forth between investigators and general prosecutors more than once without clear limitation. Such practice takes over citizen’s rights to legal certainty and contrary to Article 28D the 1945 Constitution,” said Ihsan.

Justice’s Input

Responding the petition, Justice Panel led by Constitutional Justice Aswanto questions Applicant’s constitutional rights that considered violated by the provision of Articles aforementioned.

“You don’t explain on matters which show you, or the Applicants, entitled to file the petition due to constitutional loss. Why four Principal Applicants claim that their constitutional rights violated? It shall be explained,” said Constitutional Justice Maria Farida Indrati.

Moreover, Justice Panel confirms on the signature that signed in special authorization letter attached in the petition. “There are 24 names which given authority in the special authorization letter, but only nine names signed the letter. It means that an agreement between the authorizer and the proxies is realized in form of authorization letter signing,” said Constitutional Justice Aswanto. Justice Panel also provides 14 workdays for the Applicants to revise the petition. (Lulu Hanifah/IR/Prasetyo Adi N)  

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