Constitutional Justice Saldi Isra reading out the Court’s legal considerations at the ruling hearing of the Criminal Code, Wednesday (12/15/2021). Photo by Humas MK/Ifa.
Wednesday, December 15, 2021 | 17:14 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) granted part of the judicial review petition on the KUHP (Criminal Code) for case No. 21/PUU-XIX/2021 at a ruling hearing on Wednesday, December 15, 2021. The Court declared Article 293 paragraph (2) unconstitutional and not legally binding insofar as not be interpreted “complaint can be made not only by the victim, but also by their parent, guardian, or proxy.” The verdict was read out by Chief Justice Anwar Usman alongside the other eight constitutional justices in the plenary courtroom.
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The material judicial review petition was filed by Christian University of Indonesia’s (UKI) law students Leonardo Siahaan and Fransicus Arian Sinaga. They argued that the Article 288 paragraphs (1), (2), and (3) and Article 293 paragraphs (1), (2), and (3) of the KUHP were multi-interpretive and did not provide clear legal certainty. They expressed their concern for their younger female sibling, who was vulnerable to sexual harassment of a minor and to domestic violence due to the lack of legal certainty.
They felt that the vague age limit in Article 288 shown in the phrase “not yet marriageable” could lead to a debate. Therefore, in their petitum, the Petitioners requested that the Court declare Articles 288 and 293 of the Criminal Code along the phrases “a minor” and “not yet marriageable not legally binding. They also requested that the Court declare Article 293 paragraph (2) conditionally constitutional.
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Criminal Report
In its legal considerations, read out by Constitutional Justice Saldi Isra, the Court asserted that victims of criminal obscene acts could not only be adults but also minors. Therefore, reports of such acts can be filed by the community or the victim.
He added that reports of criminal incidents can be done by the community, especially with regard to regular offenses, which do not require that the complaints be made by the victims. However, some require that the reports or complaints be made specifically by the victims so that they can be followed up on in investigation, pursuant to Article 293 paragraph (2) of the KUHP.
“With regard to the aforementioned requirements, it is important that the Court declare age or maturity a factor in whether a report exists as a formal requirement for the follow-up to a criminal incident. In this case, within the limits of reasonable reasoning, if the victim of a crime is a minor, the minor in question has many limitations in reporting the criminal incident they experienced. Thus, it is difficult for the law enforcement process, which only relies on investigations of victim reports, in casu whose victims are minors who have many limitations in terms of knowledge, psychology, etc.,” Justice Saldi said reading out the legal considerations.
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Requirements for Criminal Complaints by Minors
Crimes against minors significantly impact their future but not all victims and their families want to file a complaint, fearing that it would make the incident subject to public scrutiny. However, crimes as referred to in Article 293 paragraph (2) of the KUHP are serious crimes that cannot be justified from the perspective of religion, decency, and public order.
Thus, to balance protection for victims and law enforcement over the crime, the absence of complaints by victims cannot be used as a reason not to uncover the crime.
“Therefore, the Court is of the opinion that, in order to overcome the limitations of minor victims, in addition to reports or complaints by the minors in question, reports or complaints of criminal incidents can also be made by their parent, guardian, or proxy,” Justice Saldi added.
Based on those considerations, the Court believed the requirements for reports or complaints in relation to crimes against minors in Article 293 paragraph (2) of the KUHP must be revised to accommodate legal needs in society. As such, the phrase “upon complaint of the person against whom the crime has been committed” in the article was declared unconstitutional and not legally binding insofar not be interpreted “complaint can be made not only by the victim, but also by their parent, guardian, or proxy.”
Writer : Utami Argawati
Editor : Nur R.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 12/16/2021 16:45 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Wednesday, December 15, 2021 | 17:14 WIB 235