FORGIVENESS

FORGIVENESS JUDGE, A BREAKTHROUGH TO REDUCE THE CANDIDATES RESIDENTS HOTEL WITHOUT COST

BY: H. SANTHOS WACHJOE Prijambodo, SH.MH

A. Introduction
It should be recognized that the development of information technology (Information Technology / IT) greatly affect the number and quality of evil that exists in Indonesia. Previously, a person committing a crime, just rely on the tools that are conventional, such as a knife, a piece of wood, and so on, but this time, the offender has been more adept and clever when planning and committing a crime.
Offender when planning a crime often uses the power of information technology to obtain the necessary data. These data not only about the data potential victims but also information menganai latest ways in having committed a crime.
As adigium in the world of black crime, that crime can occur not only because the intention of the perpetrators of criminal acts but also because of the opportunity for the offender to commit criminal acts. Opportunity in this case includes not only the opportunity offender to commit criminal acts but also includes the opportunity offender to gather the information they need, whether information regarding potential victims but also information on the latest ways of a crime which is now very easy to get out of the channel online easily accessible to everyone.
Based on the data from the online channel, then offenders can get the latest techniques contained in conducting criminal acts that are increasingly difficult in proof when the perpetrators are caught and carried by law enforcement process. It jugaa exacerbated by laws written in Indonesia is still a relic of the Dutch government, which of course, the provisions in the legislation is already very behind compared with the development of criminal offenses and growing, both from the type, quantity and quality.
Against the foregoing to overcome would require a thorough enforcement process that starts from the study of a criminal offense report, which followed the investigation of a crime, the prosecution, the trial process, the court decision and the execution of the court's decision. When an offense is proven in court, the consequence is that the offender will be punished in the form of punishment, which of course will increase the number of occupants "hotel without cost" or Penitentiary (Prison).
B. Problems
That of the description as mentioned above, it would emerge a permaslahan, namely "Could method of Forgiveness Judge be one way to reduce the number of potential occupants of the hotel without cost?";
C. Discussion
To law enforcement efforts, .ali Mansyur, in his VARIOUS LEGAL ISSUES (Issue Agreement, and Pembaharuaan Consumer Law), states that "In a State of Law, the rule of LAW should obtain the proper place, the function of law in material sense which seeks to provide protection to people with memperlaakukan every citizen the right to work and a decent living for humanity and provide top notch law for everyone. "
Particularly regarding law enforcement in court, based on Article 183 of Law No. 8 of 1981 on the Law of Criminal Procedure Code (Criminal Code) which states, "The judge must not convict someone unless at least two items of evidence he obtained a legitimate belief that a crime actually occurred and that the defendant is guilty of doing it ". In the explanation of Article 183 of the Criminal Procedure Code only mentions "This provision is to ensure the upholding of truth, justice and legal certainty for someone". Therefore we need the precision of the Judges on trial, resulting in court will get the legal facts that actually happened to prove guilt or absence of someone who has been alleged to have committed a crime.
It should be understood that the law is a system of the most important in the implementation of a series of institutional power. The law will become meaningless if human behavior is influenced by the law and if the public is to use the law to obey his behavior. The law itself is divided into several areas, namely criminal law or public law, civil law or personal law, and procedural law, constitutional law the State, the law of State administration or administrative law state, international law, customary law, Islamic law, agrarian law, business law, and environmental law. Of these laws each have the same goal, which is aimed at ensuring legal certainty in the community and the law must also be based on justice, the principles of justice from the public.
As mandated in the Constitution of the Republic of Indonesia, Amendment fourth in Article 27 paragraph (1) which states that "Every citizen is equal before the law and the government obliged to uphold the law and the government without any exception", it is already on where if the state treats every citizen is equal before the law. So tdak cause behaviors that discriminate based on any reason in law enforcement efforts.
Until now still often the case, the implementation of law enforcement that wounded sense of justice. This is not only because of the behavior of law enforcement officials, but also because of public ignorance of the rules were infringed upon. Law enforcement in Indonesia is still very unfair, because they look at the background and the position of a person. Law only favor those who have power, while those who do not have power, they are still oppressed.
When a person has to deal with the law either as a suspect / defendant or as a witness the victim, it would be faced with difficulties in the procedures in the law enforcement process. Especially at this time is still quite a lot of people without legal literacy and reluctant to come into contact with the law given so complicated and convoluted process of law enforcement, not to mention there are law enforcement officers who still like "flirting" for personal gain.
Someone who must deal with the law will want to get justice, especially for people becoming victims of crime. Although it should be understood that there are multiple interpretations of the meaning of justice, which is not the same between one's understanding with others.
C1. meaning of Justice
There are many interpretations of the meaning of JUSTICE, which each saw justice from the point of view each and have the characteristics of each.
Understanding Franz Magnis-Suseno justice by saying his opinion about the state of human sense of justice is treated equally in accordance with the rights and obligations of each. Definition of justice according Notonegoro who argue that justice is a condition said to be fair if it complies with applicable laws and regulations. Definition of justice according to Thomas Hubbes saying that the notion of justice is fair if the deed is said to have been based on an agreed arrangement. Plato's notion of justice which states that the definition of justice is beyond the ability of ordinary human beings where justice can only exist in the laws and regulations made by the experts that particular thought about it. Definition of justice according W.J.S Poerwadarminto saying that the notion of justice is not biased, should not be arbitrary. Definition of justice by definition Imam Al-Khasim is taking the rights of the person obliged to give it and give it to those who deserve it.
Another opinion says, justice is morally ideal conditions truth about something, either in relation to objects or people. According to most theories, justice has a great interest rate. John Rawls, the philosopher United States is considered one of the political philosophers of the leading 20th century, states that "Justice is the excess (virtue) first of social institutions, as well as the truth of systems of thought" But, according to most theories, too, justice has not again reached : "We do not live in a just world." Most people believe that the injustice must be confronted and punished, and many social and political movements around the world who are fighting for justice. However, the large number and variety theory of justice gives the idea that it is not clear what is required of justice and the reality of injustice, because the definition of what justice is itself unclear. justice boils down to is putting everything in place.
While Aristotle says, that there are five types of conduct are classified as fair. Five types of justice put forward by Aristotle are as follows:
• Commutative justice, namely commutative justice is a treatment to someone with no view services have been provided.
• Distributive Justice, namely Distributive justice is a treatment against a person in accordance with the services rendered.
• Nature of Natural Justice, namely the nature of natural justice is to give something in accordance with what is given by others to our own.
• Conventional Justice, which is the conventional justice is a condition whereby if a citizen has to obey all laws and regulations that have been issued.
• Improvement of Justice, the Justice improvement is if someone has been trying to restore the good name of someone who has been contaminated.
In Justice Pancasila, there will be a consequence of the values ​​of justice, which must be realized in a common life include:
1. Distributive justice: Aristotle argued that justice will be done when things are equally necessary in the same way and things are not the same need not be the same (just ice is done when equelz are treated equally). Justice distributive justice itself is a relationship between the State against its citizens, in the sense of the state which shall satisfy justice in the form of equity share, in the form of welfare, assistance, subsidies and the opportunity to live together based on rights and obligations;
2. Legal Justice (Justice obedient): It is a relationship of justice between the citizens of the state and in this issue the wargalah which shall meet justice in the form of obeying laws and regulations in force in the State. Plato argued that justice and law are the common spiritual substance of the people who make and into unity. In a just society everyone performs according to its nature best suited to him (the man behind the gun). Plato called moral justice, while the other is called legal justice;
3. Cumulative Justice: That is a relationship of justice between the citizens of one another reciprocally. Justice aims to maintain public order and the general welfare. For Aristotle's sense of justice is ases coherence and order in society. All actions are patterned extremes make injustice and would undermine or even menghancurakn ties in the community.
The values ​​of justice must be the basis of which should be realized in a state of living together to realize the goal of the State, namely the welfare of all citizens and protect all its citizens and territory, educate all citizens. Similarly, the values ​​of justice as the basis in the association between the State fellow nations in the world and the principle want to create order to live together in an interaction among nations in the world on the basis of a principle of independence for every nation, lasting peace and justice in life together (social justice).
Of the various terms regarding JUSTICE, then presumably can be drawn a conclusion that justice grow and evolve based on the values ​​that live in the community, so that justice that exist in an area and at a certain time will vary with justice in other communities and in time different. Although g laidemikian, all these opinions have one purpose and that every person has the same rights and obligations, and everyone should respect the rights of others.
Even though a person who made a suspect or defendant, still have the right to be treated humanely, because not all criminal offenses committed by the perpetrator carried out with intent but no crime committed due to negligence or inadvertence by the culprit.
During the law enforcement process, from inquiry, investigation, prosecution, trial and run the executable on the Court decision, a person who becomes the perpetrator remains to get their rights.
C.1.1. Stage Research and Investigation
In this stage of the investigation, Investigator at the behest of investigators authorized to make arrests (Article 16, paragraph (1) Criminal Code) and then, for the purpose of investigation, Pemyidik ​​and Investigator Assistant authorized to make arrests (Article 16, paragraph (2) Criminal Procedure Code) and the arrest order made against a person suspected hard with a criminal offense based on sufficient preliminary evidence (article 17 criminal Code). On the arrest of a criminal, there are the rights of people arrested is the officer who made the arrest of both the investigator and the investigator must present a letter of assignment and give to those who arrested (the suspects) arrest warrant mention the identity of the suspect and mentioning the reasons for the arrest and brief description alleged crime cases as well where he was examined (article 18 paragraph (1) Criminal Procedure Code) and the arrest warrant should be given to the family immediately after arrest (article 18 paragraph (3) Criminal Code).
In addition to the arrest, the investigator has the authority to commit against a person suspected of committing a crime and tehadap concerned has made the arrest (Article 20 (1) Criminal Code). Against this detention, there are the rights of detained persons, ie there must be a warrant arrest / detention continued with a copy given to the suspect's family (article 21 paragraph (2) and (3) Criminal Code). At the level of the investigation, the investigator has the authority to divert the type of containment and redirection arrest warrant, copies should be given to the suspect or his family and to the institution concerned (Article 23 of the Criminal Procedure Code) and the submission of a copy of the transfer of arrest warrant to the suspect or his family is the right of a suspect.
The other thing about the rights of suspects in peyidikan process is suspect has the right to get an immediate examination by the investigator and then be submitted to the public prosecutor (article 50 paragraph (1) Criminal Code). Then, the suspect has the right to be informed clearly in a language understood by him what coercing him at the time of the examination starts (article 51 paragraph (1) Criminal Procedure Code), and the suspect in the examination at the level of the investigation, the suspect has the right to provide information freely to the investigator (Article 52 Criminal Code).
Other matters as the rights of suspects in the level of investigation is, the right to an interpreter (Article 53 paragraph (1) Criminal Code), the right to legal assistance of legal counsel either self-selected or appointed and have a right to be visited by counsel (article 54, article 55, article 56 and article 57 Criminal Code), the suspect also has the right to contact and receive visits his personal physician (article 58 of the Criminal Procedure Code). The suspect also has the right to be informed about his detention to his family (article 59 Criminal Code) and the suspect has the right to contact and receive visits from those who have kinship or more in order to obtain a guarantee for the surety or to attempt to get legal assistance (article 60 Code of Criminal Procedure), the suspect also has the right to contact either directly or through his legal adviser, relatives in the case that has nothing to do with the case against the suspect (article 61 of the Criminal Code), the suspect is also entitled to carry out activities of correspondence (article 62 of the Criminal Code), the suspect also has the right to contact and receive visits from clergy (article 63 of the Criminal Code), the suspect also has the right to call witnesses favorable to him (article 65 of the Criminal Procedure Code and the suspect has the right to sue for damages and rehabilitation (article 68 Criminal Code).
Against the suspects also apply the provisions on legal aid as stated in Article 69 through Article 74 of the Criminal Procedure Code.
C.1.2. phase Prosecution
At this stage of the prosecution, the public prosecutor have the authority to make an arrest continuation of the investigation process. It is stipulated in Article 20 paragraph (2) Criminal Procedure Code and, as in the investigation process, then in terms of detention by the Public Prosecutor are the rights of the accused to be met, namely a copy of the arrest warrant should be left to the defendant or his family (article 21 paragraph (3) Criminal Code). In addition the defendant also has the right to obtain a copy of the warrant the transfer of detention (article 23 paragraph (2) Criminal Procedure Code), the suspect also has the right to file promptly brought to court (article 50 paragraph (2) Criminal Code), the defendant has the right to be informed clearly in a language understood by him about anything against her (article 51 paragraph (2) Criminal Procedure Code). The defendant also has the right as stipulated in article 54 to article 65 Criminal Procedure Code and the defendant also has the right to legal assistance as provided for in Article 69 through Article 74 of the Criminal Procedure Code.
C.1.3. stage trial
At this stage of the trial, the defendant also has the right as stipulated in the investigation / investigation and in the prosecution. In addition the defendant also has the right to file a pre-trial lawsuit against it, as stipulated in Article 77 of the Criminal Procedure Code which is based on the decision of the Constitutional Court Number 21 / PUU-XII / 2014, the object of pre-trial extended to include determination of the suspect as one of the pre-trial object. The provisions as applicable at the stage of inquiry / investigation and prosecution are also applicable in the court process.
After undergoing the process persidanan, the defendant has the right to file legal action against the decision of the judge, both against the decision of the first level judge, appellate and cassation, so that the provision in article 233 up to 269 Criminal Procedure Code is applied which is also the right of the defendant.
C2. forgiveness Judge
When the trial, the defendant was also given the opportunity to make representations after their Requisitor of Public Prosecutor and generally defendant confessed and begged for leniency for criminal acts that he did, although in some cases, the defendant still denies his actions and refused to be punished or ask released. In this case, the required carefulness Judge on trial if submitted by the defendant actually has been in accordance with the facts in the trial or not.
If we look to the Islamic law, there are two objectives in convictions for a mistake, namely:
1. Prevention
Definition of prevention is to resist those who do jarimah so he would not repeat the act jarimahnya. Or so he would not continue to do jarimah tersebut.Disamping prevent perpetrators, prevention also means preventing anyone other than the offender not to commit jarimah bandwagon, because he may know that the punishment imposed on the offender will also be imposed on others.
2. Education and Repair
The second objective of sentencing is to educate the perpetrator jarimah that he become a good man, and realized his mistake.
The second purpose of awarding the punishment, there are requirements that must be met, namely:
1. The penalty should be no basis of Personality '(Principle of Legality):
Laws considered to have a basic (Syari'iyah) if it is based on sources such as Algur'an Personality, As-Sunna, ijma, or the law applied by the competent institutions (ulil amri) like in the penalty ta'jir (Punishment pedagogical);
2. The punishment should Characteristically Personal (Personality Principle):
In this case means the punishment must be individual. This implies that the punishment should be meted out to those who have committed a crime and not about other people who are innocent. This requirement is one of the basic principles established by the Islamic Shari'a and this has been discussed with regard to accountability.
3. Penalties must apply General (Asas Aquality Before The Law):
This means that the punishment should apply to everyone without discrimination, regardless of rank and kedudukanya. In the criminal law of Islam, the perfect equation solely in Had penalties and Qisas, as kesuanya is a punishment that has ditetukan by Personality. Anyone committing such Hudud jarimah Zina, theft and so on, will be punished according to penalties in accordance with jarimah does. For ta'jir punishment for the concentration equation is certainly not equivalent tap penalty the judge has broad authority to choose the appropriate punishment that are educational.
Presumably what is stated in the terms of the judgment in daam Islamic law also applies in national law in force at the moment, certainly in a different point of view, particularly regarding the principle of legality, ie Islamic law rooted in the provisions of the Qur'an and Al Hadith while the National law rooted in the legislation in force, whereas the requirement that penalties are personal as well as equality before the law, both of which are things that applies equally well in Islamic law and National law.
In the currently prepared National Law reform, especially in the field of Criminal Justice. This renewal has actually been going on since the late 1970s, but the process was never completed given the various constraints and also there are additions in the material in the Bill. But at least there is a strong desire to have an independent National Law which is not a duplication of foreign law. It is also influenced by the development of criminal law globally, especially after several rounds of UN Congress on the Prevention of Crime and the Treatment of Offenders, the discourse on criminal law experience significant overhaul. One perkembangnnya is the orientation of punishment is more "humanizing" the offender (offenders) in the form of coaching (treatment). Based on this development, then at the time of renewal business criminal law (material) to be encouraged, Indonesia renew pemidanannya system is rigid and it becomes imperative criminal system that emphasizes the humanitarian aspect to take ideas criminal individualization.
In addition to the setting types of offenses may be liable, in the renewal of the national criminal law there is also a change has been the inclusion of about FORGIVENESS BY JUDGE
 (Rechtelijk pardon). Guidelines for forgiveness judges is an implementation of the idea of ​​individualization pidana.Pedoman forgiveness judge mentioned in Article 55 paragraph (2) as follows:
(2) The lightness of the act, the perpetrator's personal circumstances or the circumstances at the time of the act or that ensues, can be used as a basis for consideration to not convict or apply measures taking into account the aspect of justice and humanity.
On this basis, the future judge is allowed to forgive those who obviously committing a crime by reason of personal circumstances of the author and humanitarian considerations. Rules forgiveness judges does not exist in the Criminal Code.
Subject forgiveness judges, it is true there is also in Islamic law, which in the case of the murder, although the judge dropped the decision in the form of qisas, but the punishment may be aborted by the following causes:
a. Death Killer;
b. forgiveness;
c. atonement;
d. Demands Inheritance Qisas (ITRI al-dam);
While specific about forgiveness, in Islamic law are subject to the terms as follows:
(A) adamya pardon of the family and those who forgive are people who are of legal age and sane sense his thoughts. Does that mean if he is still a child right then there should not be accepted kemaafannya. Likewise, if he was a wild man should not be accepted kemaafannya;
(B) The person who gave it to his willingness to forgive is yourself and not because forced, at no coercion was made by mengugut, hitting or seizing his property and so on, as long as people are forced can not fight it;
(C) forgiveness was given by people who have the right, does that mean if it is given by an unauthorized person to forgive, there is no any impression of forgiveness because giving forgiveness that mean abort their rights and no one is allowed to abort their rights but the person who has the right , The person entitled in case of injury limb dicederakan body is a man whose body weight. But the person who has the right to forgive the murder case was not agreed by ulamak (which will dibincang later);
(D) Forgiveness is given by all the guardian ad-dam. Thus if only sebahagian guardian sahaja forgiving qisasi penjenayah the penalty should not be disqualified thereof in the opinion of Imam Malik. However Narrow Majority opinion ulamak forgiveness by one wali al-dam may abort qisas based on the history that says THAT a killer had been brought before Sayyidina Umar. Then the children come to kill prey, sebahagiannya penjenayah forgives them. Then Umar asked the opinion of Ibn Mas'ud, he replied, "the killer apart than the penalty kill."
Regarding the purpose of the draft Law Book Criminal Justice Act 2005 can be described briefly as follows:
The goal is to respect and uphold human rights; To comply with the legal and political development of the nation and state of Indonesia. The cornerstone of the draft Law Book of the Criminal Law Act 2005, namely Pancasila and the Constitution they 1945. Criminal Code Bill of 2005 consisting of two (2) The book, which is the book I have 6 Chapter consists of 211 Articles, and Book II. There were 35 Chapter consists of 741 Articles. Institutions remission in the draft Criminal Code in 2005 has been formulated in several chapters and several articles such as:
A. Chapter. I. The scope of applicability of Criminal Legislation;
Part of unity by Time: Article 1 (3) and (4). Article 1 (3) the provisions referred to in paragraph (1) Without prejudice to the law live in a society that determines
that someone should be convicted even though such actions are not stipulated in the legislation. (4) Applicability of law in the society as referred to in paragraph (3) to the extent consistent with the values ​​of Pancasila and / or the general principles of law recognized by the community of nations.
B. Chapter. III Criminalization, Criminal, and measures, part of unity Punishment paragraph 1 Interest Pemidaan Article 54 paragraph (1) and (2), and Article 55 paragraph (1 (subparagraph (j) and (k), and (2);
1. Article 54. (1) Punishment aims: a. dilakukanya prevent crime by enforcing the rule of law for the sake of the community shelter b. socializing convicted by conducting coaching so as to be good and useful; (C) .menyelesaikan conflicts posed by crime, restoring balance, and bring a sense of peace in society. Paragraph (2). Criminalization is not intended to menderitakan and humble man.
2. Article 55 paragraph (1) letter (j). (K) that is the problem Guidelines Punishment; In Punishment shall be considered: (j). Forgiveness from the victims or their families. (K). Public perceptions of the criminal offense committed.
C. Chapter. Section III paragraph I type Second Criminal Code. Article 67 paragraph (1). Subparagraph (d) and (e);
Article 67 (1). Additional penalty consists of; (D). Payment for damages. (E). Fulfillment of the obligations of local customs and / or obligations under the laws of life.
D. Chapter. Second Part III Criminal Prison Paragraph 2, Article 71.
Article 71 states: Keeping into account Article 54 and Article 56 as far as imprisonment may not be imposed if found circumstances as follows: (d). the defendant has paid compensation to the victims;
E. Chapter. Paragraphs 12 Criminal Supplement III Article 99 paragraph (1) and (2),
Article 99 Paragraph (2). if the obligation to pay compensation as referred to in paragraph (1) is not implemented, shall substitute imprisonment penalty;
F. Chapter. III Paragraph 12 of Article 100 of Criminal Supplementary paragraph (1), (2), (3) and (4).
Article 100 paragraph (1); Having regard to the provisions of Article 1 (4) the judge may assess the fulfillment of the obligations of local customs and / or obligations under the laws of living:
Paragraph (2). Fulfillment of the obligations of local customs and / or obligations under the law of life as referred to in paragraph (1) is the principal criminal or preferred, if the criminal offense committed comply with the provisions of Article 1 (3);
Paragraph (3). Obligations of local customs and / or obligations under the laws of life as referred to in paragraph (1) considered comparable to a criminal fine of category I and may be subject to criminal substitute for criminal penalties, if the obligation of local customs and / obligations under the law of life is not fulfilled or not undertaken by the convict;
Paragraph (4). Criminal replacement as referred to in paragraph (3) may also be criminal damages.
G. Chapter. III The fourth part of Article 116 paragraph (2) (b) and (c);
Article 116 point (2) Criminal additional consist of: (b). Payment for damages. (C). Fulfillment of customary obligations
H. Chapter. The fifth Section III, Factors that lighten and aggravate Code, Article 132 letter (e) and (h);
Article 132 The factors that mitigate the crime includes: (e). Pembertian proper compensation or repair keruksakan voluntarily as a result of criminal offenses committed. (I). Other factors are derived from the law of life in society.
I. Section. IV. The death of the criminal prosecutorial powers and implementation of clauses 145 letter (d). Fall prosecution authority, if: outside the settlement process.
With regard to the remission of the judge, in the Netherlands there is a so-called "rechterlijk pardon" (pardon the judges since May 1, 1983). With the "rechterlijk pardon" related to financial difficulties of the accused, it is no longer needed clemency. Adaptation of the remission of the judge (rechterlijk pardon) is trying to do and applied in the renewal of national criminal laws, especially the Indonesian nation has been known as a nation that is forgiving to someone who made a mistake, of course within the limits of certain crimes and in any religion always upheld the values ​​to always give forgiveness to those who make mistakes.
Granting forgiveness of judges also must be given boundaries so that there is a criterion that against a criminal act of forgiveness can be granted by the judge.