Legal counsel Azwar at a judicial review hearing of the Criminal Procedure Code (KUHAP), Tuesday (1/16/2024). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — Another material judicial review hearing of Law No. 8 of 1981 on Criminal Procedure Code (KUHAP) for case No. 158/PUU-XX/2023 was held by the Constitutional Court (MK) on Tuesday, January 16, 2024 in one of its panel courtrooms. The case was filed by Arwan Koty, who was convicted of the crime of slander based on Supreme Court Decision No. 897 K/Pid.Sus/2022 on September 29, 2022. He was sentenced to 6 months after becoming a wanted person and had only been arrested on September 12, 2023. He challenges Article 102 paragraph (1) and Article 108 paragraph (1) of the KUHAP.

At the petition revision hearing chaired by Deputy Chief Justice Saldi Isra, the Petitioner’s legal counsel Azwar delivered the revisions to the petition on the argument of constitutional loss. “We try to elaborate it one by one on pages 7, 8, and 9. [Based on the justices’] advice we have included several articles on investigation process. There are no changes to the reasons of the petition,” he said.

The Petitioner had added a petitum requesting the Court to grant the petition and declare Article 102 paragraph (1) of the KUHAP unconstitutional and not legally binding if not interpreted to mean that “An interrogator who knows, receives a report or complaint about the occurrence of an event which can reasonably be presumed to be a criminal act shall be obliged to immediately carry out the necessary inquiry except on the basis of an investigation termination warrant” and declare Article 108 paragraph (1) unconstitutional and not legally binding if not interpreted to mean that “Anyone who experiences, sees, observes, and/or becomes a victim of an event which constitutes a criminal act has the right to submit a report or complaint to the examiner and/or investigator orally as well as in writing except on the basis of an investigation termination warrant.”

Also read: Provision on Investigation Termination Warrant Challenged

Article 102 paragraph (1) of the KUHAP reads, “An interrogator who knows, receives a report or complaint about the occurrence of an event which can reasonably be presumed to be a criminal act is obliged to immediately carry out the necessary examination.” Meanwhile, Article 108 paragraph (1) reads, “Anyone who experiences, sees, observes, and/or becomes a victim of an event which constitutes a criminal act has the right to submit a report or complaint to the examiner and/or investigator orally as well as in writing.”

The Petitioner filed the petition because he believes there is a difference in treatment before the law based on “investigation termination warrant,” which resulted in the Petitioner being convicted for a crime. There has never been any person prosecuted based on such a letter or be followed by law enforcement (pro justitia) if the police report is terminated after investigation, except at the investigation stage, or when there is a legally binding court decision as the basis for a slander complaint report. Therefore, the Petitioner feels that his constitutional rights have been violated if this form of law enforcement only applied to him.

The Petitioner has been processed by the law enforcement based on an investigation termination warrant, so he was sentenced to six months for the criminal offense of slander. In addition, based on the principles of law enforcement and human rights protection that have been decided by the Constitutional Court in Decision No. 34/PUU-XI/2023 on March 6, 2014, it can be concluded that Article 102 paragraph (1) and Article 108 paragraph (1) of the KUHAP are not in accordance with the principle of due process of law and do not provide fair legal certainty.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Andhini S.F.
Translator  : 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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