Bricklayer Revises Petition on Pretrial Motion Dismissal
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A petition revision hearing of the judicial review of the Criminal Procedure Code (KUHAP), Wednesday (1/17/2024). Photo by MKRI/Ilham W. M.


JAKARTA (MKRI) — A bricklayer from Malang, East Java Province by the name of Imam Subekti has revised his judicial review petition against Article 82 paragraph (1) letter d and Article 83 paragraph (1) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) at the petition revision hearing for case No. 163/PUU-XXI/2023 on Wednesday, January 17, 2024.

The Petitioner, who came without any legal counsel, believes his constitutional rights and authority have been harmed by the enforcement of Article 82 paragraph (1) letter d of the KUHAP, which reads, “The procedure of pretrial examination for such cases as intended in Article 79, Article 80, and Article 81 shall be as follows: d. in the event the trial of a case has already been started by the court of first instance (district court), while the examination of the motion for a pretrial hearing has not yet been completed, the motion shall be dropped.”

In the revised petition, the Petitioner has added Article 83 paragraph (1), which reads, “With regard to pretrial decisions in cases as intended in Article 79, Article 80, and Article 81, no motions of appeal can be filed.” He argues that the article is related to the subject matter.

The Petitioner had registered a pretrial motion No. 1/Pid.Pra/2021/PN Ffk to the Fakfak District Court, which was dismissed on the ground that the trial had started. Meanwhile, he alleges that examination into the subject matter was started despite the documents were not complete, there was pretrial motion relating to the determination of suspect and the reasons thereof at the beginning of the investigation, the investigation report (BAP) was unlawful, and the witness investigation report was still incomplete until the pretrial hearings or the hearings over the subject matter started. He alleges that these were efforts to cause the pretrial motion be dismissed.

The Petitioner believes that Article 82 paragraph (1) letter d of the KUHAP is contrary to Article 24 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution. Therefore, for the guarantee of legal certainty and judicial independence, the phrase “no motions of appeal can be filed” in Article 83 paragraph (1) of the KUHAP relating to pretrial decision should be reviewed as it is unconstitutional. Not to mention, Article 263 paragraph (1) of the KUHAP reads, “With regard to a court’s verdict that has acquired permanent legal force, except a decision of acquittal or absolution from all legal charges, the convicted or his heir can submit a request for a review to the Supreme Court.”

“The chief judge has at least been aware of the Petitioner’s reason to file the pretrial motion and after receiving the case transfer letter from the public prosecutor should at least not continue the subject matter  because the dossier was incomplete,” the Petitioner said before Constitutional Justices M. Guntur Hamzah (panel chair), Enny Nurbaningsih, and Anwar Usman.

Before concluding the hearing, Justice Guntur stated that the petition would be brought to the justice deliberation meeting (RPH), which all nine constitutional justices attend. The continuation of the case will be decided at the meeting.

Also read: Builder Challenges Pretrial Motion Dismissal in KUHAP

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 the dismissal was due to Article 82 paragraph (1) letter d of the KUHAP. Therefore, in his petitum, he requests the Court to declare it not legally binding.  

Author       : Mimi Kartika
Editor        : Nur R.
PR            : Muhammad Halim
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.


Wednesday, January 17, 2024 | 18:50 WIB 105