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The judicial review of Article 39 of the Criminal Code (KUHP) and Article 46 of the Criminal Procedure Code (KUHAP), Tuesday (10/12) in the Panel Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The judicial review of Article 39 of the Criminal Code (KUHP) and Article 46 of the Criminal Procedure Code (KUHAP) was held by the Constitutional Court (MK) on Tuesday (10/12/2019). The Petitioners of case No. 81/PUU-XVII/2019 are Pitra Romadoni Nasution, David M. Agung Aruan, Julianta Sembiring, and Yudha Adhi Oetomo.

Article 39 of the Criminal Code reads, “(1) Objects belonging to the sentenced person, acquired by means of a crime or with which a crime deliberately has been committed, may be forfeited; (2) By a verdict on account of a crime not intentionally committed, or on account of a misdemeanor, a similar forfeiture may be pronounced in the cases determined by statutory provision; Forfeiture may be pronounced against the person found guilty who is placed at the disposal of the Government, however only of objects which have been confiscated.”

Article 46 of the Criminal Code reads, “Confiscated objects shall be returned to the person or to those from whom they have been confiscated, or to the person or those who are the most entitled to them, if: a. they are no longer needed in the interest of investigation and prosecution; b. the case in question has been dropped because of the lack of sufficient proof or it having turned out to be no criminal offence; c. the case in question has been put aside in the public interest or closed for the sake of law, except when the objects have resulted from a criminal act or have been used for committing a criminal offense. (2) If the case has been decided, the objects confiscated shall be returned to the person or to those mentioned in the decision, except when according to the decision of the judge the objects shall be seized for the state, in order to be destroyed or damaged in such a way as to be no longer usable or if the objects concerned are still needed, to be used as evidence materials for another case.”

"The Petitioners argued that the provisions of the a quo articles were detrimental or potentially detrimental to the Petitioners\' constitutional rights and victims of criminal acts whose rights were not returned because [their belongings] were confiscated by the Government and were not returned," said Pitra Romadoni Nasution, one of the Petitioners. 

The Petitioner in this case mentions one example of a case related to confiscation of evidence in the case of PT. First Anugerah Karya Wisata or First Travel by a judge, which is not returned to pilgrims who were victims of the umrah scam case. Evidence seized in the case was objects obtained from the results of criminal acts. Pilgrims who fell victim to First Travel are in the thousands.

The Petitioners are individuals who feel that their constitutional rights have been violated due to the enactment of the articles because in the future it may harm other citizens if their belongings are confiscated by the state even though they are victims of the First Travel case. 

The victims’ belongings have not been returned despite the Cassation Decision No. 3096 K/Pid.Sus/2018, "[It is a proven] fact at the trial [that] the evidence is the result of a crime committed by the defendants and confiscated from the defendants. In addition to committing [a scam], they were also proven to have committed money laundering. Therefore, based on the provisions of Article 39 of the Criminal Code juncto Article 46 of the Criminal Procedure Code, the evidence was confiscated for the state." 

Constitutional Justice Saldi Isra advised that the Petitioners consider adding people who were truly disadvantaged by the provisions. "[Are the Petitioners sufficient] or do you still need people who were aggrieved by the provisions? Because it is far more complex for potentially disadvantaged people to argue the constitutional impairment compared to people who are factually harmed," he stressed. 

Constitutional Justice Arief Hidayat advised the Petitioners to complete the number and year of the law being reviewed. "What you are reviewing is the Criminal Code and the Criminal Procedure Code. [Those] are popular terms. Please complete this petition. What number are the Criminal Code and Criminal Procedure Code that you are reviewing? Similarly, [please] complete the designation for the 1945 Constitution," he said. 

He also advised the Petitioners to explain their legal standing. "Of these four Petitioners have potential losses or actual losses? [Please] explained [it] in the petition," he asked.

Constitutional Justice Manahan M. P. Sitompul wants to confirm the identity of the Petitioners. "Is it true that all Petitioners work as advocates? I see that one Petitioner is an entrepreneur," he asked. Said Petitioner explained that he is both an advocate and entrepreneur. (Nano Tresna Arfana/NRA)

Translated by: Yuniar Widiastuti

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