Constitutional Justice Suhartoyo reading out the Court’s legal considerations at the ruling hearing of the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code, Monday (10/31/2022). Photo by MKRI/Ifa.
Monday, October 31, 2022 | 14:53 WIB
JAKARTA (MKRI)—The Constitutional Court (MK) handed down a new interpretation of the phrase ‘null and void’ in Article 143 paragraph (3) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP). In the legal considerations read out by Constitutional Justice Suhartoyo, the Court asserted that legal certainty and fairness can only be achieved if the phrase is interpreted to mean that a revised indictment can only be refiled one more time after it is declared null and void by a judge. Such was the Decision No. 28/PUU-XX/2022, which was pronounced on Monday, October 31, 2022 in the plenary courtroom.
Justice Suhartoyo added that if an objection is still raised against the fulfillment of the formal and material requirements of a second indictment refiled by the public prosecutor, the judge must examine the indictment along with the subject matter of the case in the final decision.
“With Article 143 paragraph (3) of the KUHAP reinterpreted by the Constitutional Court, cases where the prosecutor’s indictment has been declared null and void, either once or more by a judge, the indictment can be refiled for one more time and then the judge examines it along with the subject matter of the case. Meanwhile, for cases for which an indictment has never been filed by the public prosecutor in court, the provision as decided in this decision will apply,” he said.
Also read:
Provision on Indictment in Criminal Procedure Code Challenged
House: Criminal Procedure Code Does Not Regulate Deadline for Prosecutor’s Indictment
Govt: Implementation of Provisions on Indictment under Judge’s Purview
Attorney General’s Office Says Indictment Defends Defendant’s Rights
Constitutional Rights Violated
Furthermore, Justice Suhartoyo said that without clarity on the status and deadline of a case completion, constitutional rights would be violated. Normatively, the cause of this is not solely the implementation of the law, because in legal practice it is possible to file an indictment repeatedly for the same case after revision, after it previously being declared null and void. However, this can occur as a result of the lack of clarity in the KUHAP on the interpretation of Article 143 paragraph (3), which was decided based on an interlocutory decision. Thus, he added, there is a regulatory gap on the improvement of the indictment, which may lead to legal uncertainty and injustice, both for the defendant and/or the victim of the crime. Universally, this is not in line with the principle litis finiri oportet, which emphasizes that every case must have an end.
“Therefore, it is quite reasonable for the Court to emphasize how many times the public prosecutor can perform revision to an indictment so that a defendant can be brought back to court, and how many times a judge can pass an interlocutory decision on the indictment that is a defendant or their legal counsel objects to,” call Suhartoyo.
Also read:
KUHAP Does Not Explain “Legally Invalid” in Provision on Indictment
Andi Hamzah: Indictment Null and Void Without Time and Place of Crime
Attorney General’s Office’s Witnesses Testify on Tax Cases for Hearing on KUHAP Law
Right to Object Indictment
Justice Suhartoyo added that Article 156 paragraphs (1) and (2) of the KUHAP does not stipulate that it is mandatory for a judge to hand down an interlocutory decision on any objection from the defendant or their legal counsel relating to the court not having authority to hear the case. This is because the provision is not optional and serves to create legal certainty and justice for the defendant and victim of a crime as well as for public interest, thus it is the foundation for the restriction on the filing of indictments. When a judge passes an interlocutory decision on the defendant’s objection, the court is not authorized to hear the case in question because the indictment cannot be accepted or must be cancelled.
The opportunity to file an objection to the prosecutor’s indictment is a right and not an obligation, so the limit of revision to an indictment that has been declared ‘null and void’ will not reduce the defendant’s rights, because the judge can freely examine a criminal case along with other formal requirements. The final decision may also be passed at the same time. This is in line with the principle of fast, simple, and low-cost justice. In addition, Justice Suhartoyo added, such a restriction can also avoid cases exceeding the statute of limitation for prosecution as stipulated in Articles 78 and 79 of the KUHAP.
“[The Court] grants the Petitioner’s petition in part; declares the phrase ‘null and void’ in Article 143 paragraph (3) of the KUHAP unconstitutional and not legally binding conditionally as long as it is not interpreted ‘to the indictment of the public prosecutor that has been declared null and void by a judge can be revised and re-filed in a trial once, and if an objection is still raised by the defendant/legal counsel, the judge immediately examines, considers, and decides along with the main material of the case in the final decision,” said Chief Justice Anwar Usman reading out the verdict.
Umar Husni, Director of PT Karya Jaya Satria, asserted that Article 143 paragraph (3) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) was in violation of Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution. Article 143 paragraph (3) of the KUHAP reads, “An indictment that does not meet the provision as intended in paragraph (2) letter b shall be legally invalid.” In his petition, the Petitioner requested that the Court declare the phrase “legally invalid” in Article 143 paragraph (3) of the KUHAP conditionally unconstitutional and not legally binding insofar as not be interpreted “the case be returned to the investigator with revision limited to only 1 (one) time.”
Writer : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 11/1/2022 09:24 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.
Monday, October 31, 2022 | 14:53 WIB 169