Hudi Suryanto representing the Police of the Republic of Indonesia delivering the statement of the relevant party in the judicial review hearing of KUHAP and KUHP, Wednesday (5/12) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The provision on the incorporation of criminal offenses (concursus) as stipulated in Articles 63, 64, and 65 of the Criminal Code (KUHP) is a criminal policy to provide remission with humanitarian considerations guaranteed in the 1945 Constitution. This was explained by Acting Director of Regulations Litigation Imam Santoso in the judicial review hearing of KUHAP and KUHP filed by Century Bank convict Robert Tantular, on Wednesday (5/12).

In the case No. 84/PUU-XVI/2018, Robert Tantular conducted a formal and material review of Article 272 of the Criminal Procedure Code (KUHAP) and Articles 63, 64, and 65 of the Criminal Code (KUHP). The formulation of the norms in the articles was deemed by the Petitioner not to reflect a sense of legal justice and expediency because its enactment had caused the Petitioner to serve a criminal sentence exceeding the regulation.

Responding to the petition, Imam stated that the Petitioner\'s argument that Articles 63, 64, and 65 of the Criminal Code had harmed the Petitioner\'s constitutional rights was laconic and groundless. Materially, Imam added, those articles have provided a legal basis for a person to receive remission of legal liability or to avoid the burden of criminal liability, even though the criminal offense is an deviant act.

On the concrete case experienced by the Petitioner, the Government was of the opinion that the type of criminal offenses he had committed were continuous offenses (voortgezette handeling), not concursus as mentioned in the four decisions related to the Petitioner which were decided with long interruption. "According to that reason, the Government is of the opinion that between the criminal offenses committed by the Petitioner and the Petitioner\'s legal process, no constitutional violations or contradictions between the a quo articles and the 1945 Constitution were found. This can be observed in the Petitioner\'s cases. The reports obtained by the investigators are different. There are new reports where the Petitioner has become a suspect. The type of criminal offense also varies. There are reports of banking-related crime, money laundering, and other general crimes where the reporters are different," Imam said before the panel of justices led by Chief Justice of the Constitutional Court, Anwar Usman.

Not Qualified as Concursus

Meanwhile, Katarina Endang Sarwestri, who represented the Attorney General\'s Office, emphasized that the offenses committed by the Petitioner was not within the category of concursus. This is because they were stand-alone crimes and there was no connection between the crime that had been tried and another that had also been tried.

Katarina also explained that in proceedings in the criminal court, the defendant was given the right or freedom to defend themselves against the alleged crime. Thus, she added, the Petitioner should have submitted objections during the trial process about the criminal offenses within the indictment so that the panel of justices could consider and decide in accordance with what was elaborated by the Petitioner. "Therefore, it is not right for the Petitioner to submit this matter to the Constitutional Court," she said.

A similar statement was also made by Hudi Suryanto, who represented the Police of the Republic of Indonesia. He said that the objects of the reports against the Petitioner as well as the report dates were different. "In addition, there is a report on the Petitioner, who at that time had become a suspect. The report had been submitted to the public prosecutor," he said.

In addition, Hudi revealed that the Petitioner was also reported for several criminal cases, that is, money laundering and general criminal offenses in different reports. (Arif Satriantoro/LA/Yuniar Widiastuti)