Constitutional Justice Wahiduddin Adams at the ruling judicial review hearing of the Criminal Code, Tuesday (1/31/2023). Photo by MKRI/Ifa.
Tuesday, January 31, 2023 | 20:48 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the judicial review petition of Law No. 1 of 1946 on the Criminal Code (KUHP) filed by Robiyanto, an entrepreneur. The ruling hearing for Decision No. 86/PUU-XX/2022 took place on Tuesday, January 31, 2023 in the plenary courtroom.
“[The Court] adjudicated, rejects the Petitioner’s petition in its entirety,” said Chief Justice Anwar Usman reading out the verdict.
The Petitioner challenged Article 78 paragraph (1) point 4 of the Criminal Code. His father, Taslim, died on April 14, 2002 after being brutally murdered at the Balai Malam Market, Karimun Village, Tebing Subdistrict, Karimun Regency, Riau Islands Province. He reported it to the Karimun Resort Police. Two people were sentenced to prison for 15 years for the crime, while five others were on the wanted list (DPO). However, the investigation of the two court-ruled suspects was terminated by the National Police on the expiry of the statute of limitation following Article 78 paragraph (1) point (4) of the Criminal Code.
In its legal considerations read out by Constitutional Justice Wahiduddin Adams, the Court asserted the a quo norm (“The right to prosecute shall lapse by lapse of time: in eighteen years for all crimes upon which capital punishment or life imprisonment is imposed.”) regulates the statute of limitation of prosecution, which concerns the state’s right to prosecute any prohibited acts or ius puniendi, i.e. the time limit for the state’s right to prosecute suspects or defendants of criminal acts or restrictions on the state’s rights to impose punishment on crimes. “Therefore, the expiration of the prosecution period is a manifestation of the principle of due process of law in order to provide recognition, guarantee, protection, and legal certainty as one of the characteristics of a constitutional rule of law,” Justice Wahiduddin Adams said.
In addition, the a quo article is a form of protection by laws and regulations in casu the Criminal Code, which aims to protect perpetrators and victims of crimes from limitless prosecution by the state.
“A suspect or defendant is deemed an innocent legal subject until a judge decides his [crime] can be proven and the decision has permanent legal force, also known as presumption of innocence. Therefore, in essence, regardless of suspicion or criminal charge and as long as [the suspect or defendant’s crime] has not been proven, it is important that the state continue prioritizing guarantee of legal protection of their human rights,” Justice Wahiduddin said.
Victims of crimes continue to be given legal protection for the losses they suffer, he added, as well as the wider community for the disturbance of peace and security. This is in line with the constitutional mandate of Article 28D paragraph (1), which requires the state to provide recognition, guarantee, protection, fair legal certainty, and equal treatment before the law to its citizens without exception.
The Court further emphasized that the statute of limitation of criminal prosecution, as regulated in Article 78 of the Criminal Code, is also an essential part in order to realize legal certainty and justice. It depends on the type of crime and the severity of the punishment (strafmaat). The Court asserted that the issue the Petitioner challenged concerned this article. Such statute universally has a very strategic role in supporting the legal certainty and justice not only for suspects or defendants but also for victims and/or their families and the community. It ensures that suspects or defendants are not threatened by prosecution indefinitely.
“A suspect/defendant who is waiting for prosecution does not do so merely to avoid criminal prosecution, but might also be because there are issues in the investigation or prosecution process. Thus, [they receive] a separate ‘punishment,’ both morally (stigma) and sometimes also physically, because many have been forced by law enforcement officials (pro justitia), both by deprivation of independence and property, for example the determination of suspects, detention, searches, seizures, and prohibition from traveling abroad,” he emphasized.
Statute of Limitation
Constitutional Justice Suhartoyo read out another legal consideration that criminal prosecution is the state’s authority in representing the public interest through a legal action or law enforcement in uncovering a criminal act. As such, law enforcement officials must carry out research, investigation, and prosecution, which have different levels of difficulty. Moreover, criminal cases have complicated evidentiary dimensions and involve many parties, i.e. suspects/defendants and witnesses. Thus, statute of limitation of criminal prosecution is also a form of legal certainty for victims of criminal acts and the general public because it can be used as a reference for the victims to take constitutional steps to obtain legal certainty and justice.
“Basically, criminal prosecution is a state authority actualized through legal action better known as the law enforcement process in uncovering a crime, which requires a verification process based on valid evidence [vide Article 184 of the Criminal Procedure Code], both how to obtain the intended evidence and the statements of witnesses and suspects/defendants who can be accounted for as required by the provisions of the law,” he said.
Therefore, he added, the elimination of the statute of limitation as requested in the a quo petition, could result in the state, in casu law enforcement officials, having difficulties in collecting valid evidence, i.e. legal facts from the statements of witnesses and suspects/defendants and evidence related to the crime. This is because without such a statute, the law enforcement officers could change, which could impact the results of the investigation or could result in the investigation having to resume from the beginning by new investigators based on possible evidence that is no longer valid.
Evidence of Criminal Acts
Long research and investigation could make evidence of a crime invalid and damaged; witnesses may forget the events due to age or other health issues, or they may even pass away. This is also the case with the statement of suspects/defendants. Thus, proving a criminal case based on evidence with vague validity will actually result in inaccurate legal facts and unobjective judicial decision that does not reflect legal certainty and hurt sense of justice.
Statute of Limitation of Criminal Prosecution
As such, Justice Suhartoyo added, the statute of limitation of criminal prosecution based on the severity of the criminal punishment (strafmaat) following Article 78 of the Criminal Code is relevant. The Court could not accept the Petitioner’s request that the provision be imposed “for life” due to the validity of the pieces of evidence and believes it would potentially lead to uncertainty and legal injustice for the suspects/defendants, victims, and society in general.
Therefore, the Court asserted that the statute of limitation of criminal prosecution following Article 78 of the Criminal Code is constitutional. Any change to the statute would be the jurisdiction of the legislatures, who represent the people’s aspiration as part of criminal policy, and may be done as long as it does not exceed authority and conflict with the principles in the 1945 Constitution. However, because the statute also concerns constitutional rights or fundamental rights of the victims and/or their families, its change must also consider the rights and interests of the victims.
The Court believes the enactment of Article 78 of the Criminal Code would not reduce the right of the victims and/or their families to the accountability of the perpetrator, who could evade prosecution due to the provision. To obtain such accountability, victims can demand compensation through a merge with the criminal charge [vide Article 98 paragraph (1) of the Criminal Procedure Code]. In the event that the statute has expired, prosecution cannot be carried out, and claim for compensation cannot be filed, the victims can file a civil lawsuit. However, because a civil lawsuit requires a lot of money, the Court emphasized that in order to provide protection, guarantees, and fair legal certainty, legislators could consider a law to regulate the state’s obligation to provide appropriate compensation to victims and/or their families, thus, creating equity and justice, which will lead to a sense of security and peace as well as foster a sense of trust in the state’s enforcement of criminal law.
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At the preliminary hearing, through legal counsel Jhon Asron Purba, the Petitioner asserted that the unfair statute of limitation could lead the perpetrators to be acquitted despite their serious, heinous, and barbaric crime that would warrant death sentence or life imprisonment. Purba added that the a quo article could also potentially harm the Petitioner’s constitutional right to recognition, guarantee, protection, fair legal certainty, and equal treatment before the law because of the statute of limitation for the perpetrators of crimes that warrant death penalty or life imprisonment only expires in 18 years. In addition, the Petitioner could potentially obtain no legal certainty of his father’s death relating to the five suspects that are still at large.
Based on these reasons, the Petitioner requested in his petitum that the Court grant the petition in its entirety and declare Article 78 paragraph (1) point 4 unconstitutional and conditionally not legally binding as long as it is not interpreted “in more than eighteen years and/or 36 years for all crimes upon which capital punishment or life imprisonment is imposed.”
Writer : Utami Argawati
Editor : Nur R.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/6/2023 16:02 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.