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Petitioner\\\'s attorney David Surya delivering the petition’s principals of the judicial review of the Law on Criminal Procedure on Thursday (3/8) in the Plenary Hall of the Constitutional Court. Photo by Humas/Ifa.

The no-appeal rules in the pre-trial process as stated in Law No. 8 of 1981 on Criminal Law Procedures Code (KUHAP) was reviewed at the Constitutional Court (MK). Several individual Petitioners who work as advocates applied for the Petition Number 42-/PUU-XV/2017. The Petitioners felt aggrieved by Article 83 Paragraph (1) of the Criminal Law Procedures Code.

Article 83 Paragraph (1) of the Criminal Law Procedure Code states:

"Pre-trial decision in cases referred to in Article 79, Article 80, and Article 81 shall not be appealed."

David Surya as Principal Petitioner explained that the Petitioners who are employed in the judiciary saw a phenomenon commonly done by Investigators (Police /Prosecutors/KPK) when a pretrial decision is won by the suspect. First, the investigators will file a cassation or extraordinary legal measures in the form of a request for a Judicial Review to the Supreme Court to reconsider the pretrial ruling. Secondly, the Investigators will issue a new letter of Investigative Order (Sprindik) to repeat the investigation process with the same evidence and modify only a few suspected criminal allegations. It aims to keep the investigation and so that the pretrial ruling is disregarded.

The Petitioners explained that Criminal Procedure Code (KUHAP) guarantees the presumption of innocence by not positioning the suspect or defendant object of the investigation. On the other hand, the suspect or defendant should be positioned as subject of the investigation, as a human with dignity and equal position before the law. “However, in practice, the four sprindik issued positioned La Nyalla as object, not subject of the investigation,” Surya added.

Furthermore, one of the Petitioners Rizky Kurnia Margono considered Article 83 paragraph (1) of the Criminal Law Procedures Code, in particular the phrase "cannot be appealed" formulated that the principle of presumption of innocence as a form of protection and recognition of human rights must also consider legal certainty. In line with the provision, he explained, the case which had been decided by the judge was permanent in nature (inkracht van gewijsde)—in this case, the pretrial decision—cannot be re-filed. "Because the legal process in the pretrial, which was based on two evidences in the investigation, is not in accordance with the \\\'due process of law\\\'," he said in a hearing held on Thursday (3/8) in the Plenary Hall.

Therefore, in his petitum, the Petitioner requested that the Constitutional Court state that the phrase "cannot be appealed" in Article 83 Paragraph (1) of the Criminal Law Procedures Code was contradictory to the 1945 Constitution and would not have binding legal force as long as it was not interpreted as "is final and binding, therefore, other legal measures cannot be taken. As such, the investigators may not republish an investigation warrant unless there are at least two valid new evidences, different from the previous evidences related to the a quo matter."

Judge\\\'s Advice

Responding to the request, the Panel of Justices consisting of Constitutional Justice Aswanto and Manahan Sitompul gave suggestions for improvements to the Petitioners. Aswanto requested that the Petitioners improve their legal position, which he considered ambiguous.

"The Petitioners argues as a taxpayer, but in the posita also mentioned that they represent a third party, i.e. the community. The legal position of the Petitioners became ambiguous. This should be clarified," he advised.

Meanwhile, Manahan suggested that the Petitioners elaborated their petition. According to him, the Petitioners\\\' losses were not clearly evident in the posita. To that end, the Petitioners were expected to elaborate on the losses they suffered due to the enactment of the article.

(Lulu Anjarsari/lul/Yuniar Widiastuti)

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