The attorneys of Case No. 42/PUU-XV/2017 attending judicial review hearing of the Criminal Procedure Code (KUHAP), Tuesday (10/10) in the Constitutional Court. Photo by PR/Ifa.

The Constitutional Court (MK) decided to reject the petition of review of appeal rules in pre-trial process of Law No. 8/1981 on Criminal Procedure Code (KUHAP), Tuesday (10/10) at the Plenary Hall of the Constitutional Court. "The Petitioner’s petition is groundless according to law," said Chief Justice of the Constitutional Court Arief Hidayat reading the verdict on Case No. 42/PUU-XV/2017. 

In the opinion of the Court read by the Deputy Chief Justice of the Constitutional Court Anwar Usman, the Court provides opinion on the Petitioner’s arguments that requested that Article 83 paragraph 1 of the Criminal Procedure Code along the phrase "shall not be appealed" contradictory to the 1945 Constitution and has no binding and conditional legal force. According to the Court, the petition is excessive, considering that it is clear from the nature of a pre-trial that cases must be resolved quickly, and also the norm in the a quo article clearly prohibits appeal. Especially within logical reasoning, other legal measures (cassation and judicial review) will essentially take much longer. 

"In addition, the Court\'s argument is in line with the provisions of Article 45A of Law No. 5/2004 on the Amendment to Law No. 14/1985 on the Supreme Court, of which principal states that cassation shall not be filed for pretrial decisions,” Justice Anwar stated in the hearing petitioned by Anthony Chandra Kartawiria, former Director of PT Mobile 8 who became a suspect in tax refund corruption case of PT Mobile 8 period 2007-2009. 

Furthermore, on other sections petitioned by the Petitioner, the Court also interprets "As such, the investigators may not republish an investigation warrant unless there are at least 2 (two) new pieces of evidence that are valid and have never been submitted in a pretrial hearing, which are different from the previous evidences related to the material of the case.” The Court also maintains the same opinion with the previous ruling, that against a suspect who has been acquitted by a pretrial judge can still be investigated ideally and correctly. It should be understood that as long as the investigation procedure is in accordance with the provisions of the law, a new investigation can still be undertaken. Regarding the requirements of at least 2 (two) new valid pieces of evidence that have not been presented in the pre-trial hearing and are different from previous ones regarding the material of the case, the Court does not agree with the Petitioner\'s argument. 

"Considering the fact that the evidence presented in the new investigation is that the evidence used in the earlier investigation was rejected, possibly because of unfilled formalities that can only be substantially met by the investigators in the new investigation, thus making the actual, old evidence new evidence. The new evidence collected by the investigator should not be ruled out and can still be used as basis for a new investigation and for re-establishing a suspect," Justice Anwar said. 

In relation to the Petitioner’s concerns on the potential of the investigator issuing a warrant and charging the suspect for the same legal subject repeatedly with the same evidence and making only slight changes to the case material, according to the Court it is not a matter of the constitutionality of Article 83 paragraph (1) of the Criminal Procedure Code (KUHAP). Constitutional Court Justice Manahan M.P. Sitompul explained that it is a matter of implementation and as such does not reduce the Petitioner\'s right to use pretrial mechanism against it. The Petitioner\'s concerns need not occur if the investigators had followed the decision of the Court. Particularly, the use of evidence as a basis for re-investigation is an evidence substantiated by the Court, that is, although the evidence is not new and is still related to the previous case, it has been substantiated and does not merely serve as a formality, that the proof has become a new piece of evidence that is different from the previous evidence. "Thus, there will be legal certainty not only for a suspect who is not easily charged again as a suspect but also for law enforcers who will not easily release someone from criminal offense," said Justice Manahan.

As to the issue of concern to the Petitioner that investigators can potentially issue an investigation warrant and charge a suspect for the same legal subject repeatedly, the Court is of the opinion that this matter is not a matter of the constitutionality of the a quo norm, but of implementation. "Therefore, in response to the argument that the a quo article may reduce the Petitioner\'s right to use pretrial mechanisms and may potentially violate constitutional rights (the right to a sense of security and protection from threats and the right to guaranteed protection of human rights in accordance with the rule of law), the Petitioner is unreasonable under the law," explained Justice Manahan. (Sri Pujianti/LA/Yuniar Widiastuti)