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Chairman of the panel of justices Justice Saldi Isra giving advice to the Petitioner\'s legal counsel related to the review of the Criminal Code (KUHP), Tuesday (31/10) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The regulation on embezzlement as stipulated in the Criminal Code (KUHP) is tested materially in the Constitutional Court (MK). Sugihartoyo, a lecturer, is the Petitioner for Case No. 83/PUU-XV/2017. Sugihartoyo reviews Article 374 of the Indonesian Criminal Code which reads, "Embezzlement committed by any person who has possession of the property on account of his personal service or of his profession or for monetary compensation, shall be punished by a maximum imprisonment of five years.”

The Petitioner, represented by his legal counsel Andy Firasadi, argues that his rights have been violated by the enactment of Article 374 of the Criminal Code. According to the Petitioner, the article is unclear and gives rise to multiple interpretations. "The Petitioner has suffered constitutional impairment with the enactment of Article 374 of the Criminal Code, which contains ambiguity of the legal norm on the phrase “on account of his personal service or of his procession or for monetary compensation” is not interpreted as having a condition of material loss," said Andy in a hearing led by Constitutional Justice Saldi Isra.

In other words, Andy continued, the legal standing of the informant of embezzlement in office is necessary to determine the quality and accuracy of the report, in order to avoid misuse for bad faith, such as the deprivation of dignity and honor, deprivation of independence by detention, and extortion against the informant. "The Petitioner has potential constitutional impairment due to the application of the article, then in essence he wishes that the next process will not harm the Petitioner," said Andy.

Andy explained that the harm suffered by the Petitioner is also specific, among others in the current status of the Petitioner as a suspect in the investigation by the East Java Regional Police by being charged with Article 374 of the Criminal Code. Whereas according to the Petitioner, the complainant has no legal standing in the case of embezzlement in office. "Because of being charged as a suspect, the Petitioner has suffered constitutional harm in obtaining legal protection from arbitrary actions," said Andy.

Therefore, the Petitioner requests that the phrase “on account of his personal service or of his procession or for monetary compensation” in Article 374 of the Criminal Code be declared conditionally contradictory to the 1945 Constitution and having no binding legal force as far as the phrase “on account of his personal service or of his procession or for monetary compensation” is not interpreted as a criminal report against the case of the a quo article requires a civil relationship.

Justices’ Advice

In response to the arguments presented by the Petitioner, Justice Saldi advised that the Petitioner clearly states that the root of the matter lies in the review of the norm, not of concrete incident, nor of the application of the law. "[Application of the law] is not the territory of the Constitutional Court," Justice Saldi said.

Secondly, Justice Saldi highlighted the legal standing of the Petitiones. "The Petitioners may submit the concrete case that he is facing, but it must then be explained in the context of the legal standing requirement contained in the Constitutional Court Law, the Constitutional Court Regulations, as well as in the decisions of the Constitutional Court related to legal standing," Justice Saldi explained.

Meanwhile, Constitutional Justice Aswanto considered that the format of the Petitioner’s petition had fulfilled the requirements of the Constitutional Court Law. However, he continued, he requested that the legal harm suffered be elaborated.

"However, in certain parts there needs to be further elaboration, for example in the legal standing. Further elaboration of the legal certainty in question must be related to the norms contained in the articles of the 1945 Constitution. Therefore, it will be clear that the problem presented by the Petitioner is not just a concrete case, but a problem of the norm," said Justice Aswanto. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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