A preliminary hearing of the judicial review of the Criminal Procedure Code (KUHAP), Wednesday (12/20/2023). Photo by MKRI/Ilham W.M.

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JAKARTA (MKRI) — Imam Subekti, a mason/builder from Malang, East Java Province has filed a petition for the material judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP). In case No. 163/PUU-XXI/2023, he alleges that his constitutional rights and authority have been harmed by the enforcement of Article 82 paragraph (1) letter d of the KUHAP.

“Pretrial Decision No. 1/Pid.Pra/2021/PN.Ffk states that the [my] pretrial motion was dismissed,” the Petitioner said at the preliminary hearing in the Constitutional Court on Wednesday, December 20, 2023, which he attended via video conference.

The Petitioner alleges that Article 82 paragraph (1) letter d of KUHAP does not give a clear limitation on the dismissal of a pretrial motion. It can allow the investigator, prosecutor, and/or others to dismiss the pretrial motion.

The Petitioner argues that trial for case No. 73/Pid.B/2021/PN Ffk on alleged maltreatment as referred to in Article 351 paragraph (1) of the Criminal Procedure Code with suspect by the name of Aldi Yudhistira, did not begin in line with statutory provisions. He claims that the trial began with the intent and purpose of aborting the pretrial motion.

The Petitioner registered his pretrial motion on November 9, 2021 according to the Fakfak District Court case tracking information system (SIPP). He requested that the Fakfak District Court rule that the respondent’s acts, in this case the Fakfak Police Resort Criminal Investigation Unit, were unlawful and not in line with the law.

Case No. 73/Pid.B/2021/PN Ffk started to be heard on November 23, 2021 before a pre-trial decision had been handed down. On November 26, 2023, the Fakfak District Court declared the pretrial motion dismissed.

The Petitioner alleges that dismissal was due to Article 82 paragraph (1) letter d of the KUHAP. Therefore, he requests the Court to declare it not legally binding.

Justices’ Advice

In response, Constitutional Justice Enny Nurbaningsih reminded that the Court is not an institution that solves a concrete case or legal actions when a pretrial motion is dismissed. It conducts judicial review related to norm constitutionality, so the Petitioner should elaborate the conflict between the norm being challenged and the 1945 Constitution, including his constitutional loss due to said norm.

“Not Mr. Imam Subekti’s concrete case. You described the concrete case, but you have not explained whether the article in question is contrary to the Constitution or not,” said Justice Enny in her advice.

Next, Constitutional Justice Anwar Usman reminded that this petition is not the first case against Article 82 paragraph (1) letter d of the KUHAP. Based on legal principle ne bis in idem, articles that have been challenged cannot be re-challenged unless there are different reasons.

“Please see past decisions. Does the argument you presented have any similarity with cases that have been decided by the Constitutional Court before?” Justice Anwar asked.

Meanwhile, Constitutional Justice M. Guntur Hamzah (panel chair) suggested the Petitioner to learn Decision No. 102/PUU-XIII/2015, reinforced by Decisions No. 66/PUU-XVI/2018, 27/PUU-XXI/2023, and 123/PUU-XXI/2023 related to the same norm. He said that the Petitioner’s arguments could be the same as and have been answered in these decisions.

“So, there have been several decisions that have answered [the petitions] but this needs to be learned by the Petitioner,” he said.

However, if the Petitioner does not agree with the Court's legal reasonings in these decisions, he may revise the petition by submitting different arguments or reasons for the petition and convincing the constitutional justices. He can revise the petition and submit it no later than Tuesday, January 2, 2024 at 09:00 WIB. 

Author       : Mimi Kartika
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Nyi Mas Laras Nur Inten Kemalasari/Yuniar Widiastuti (NL)

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.

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