PRE TRIAL
BY: H. SANTHOS WACHJOE P, SH.MH
As part of the citizens are aware of and compliance with the law, of course, would make every individual in the community will prioritize the settlement of any dispute or matter in a peaceful way to always give priority to the principle of deliberation. Nevertheless, there will always be a case or dispute that can not be resolved by deliberation and consensus, so that should be resolved in court.
Settlement of a case through trial would require proof that telling techniques so that what is wanted can be granted by the Court. For those seeking justice, all kinds of methods of proof would be conducted, with the purpose of the argument into a proven and can get what is requested or demanded. Therefore, the argument of rigor in evidence in a case, is absolutely necessary, so do not waste time and effort in vain.
The legal process in general can be seen as aligning the interests of society and the result is justice or a fair law. A good law is the law that is fair and right, have validity and binding, obliging and can be forced to run to create a sense of justice, harmony and common good of the objectives of the law itself.
Settings mengeni ordinance enforcement process of criminal law has actually been regulated in Law Number 8 of 1981 on the Law on Criminal Proceedings (Criminal Procedure Code), which has set detailed tasks for each of the law enforcement authorities, starting the police report as well as the existence of a complaint of a crime complaints up to the execution of the Court decision by the Attorney as executor of the Judge's decision and the execution of punishment by the Penitentiary (Prison). In the Book of the Law of Criminal Law (Criminal Code) has been described in detail the duties of their respective law enforcement authorities and also explained about the rights and obligations of the suspect / defendant or the rights and obligations of witnesses / victims , It aims to facilitate the process of law enforcement (pro justisia) beginning of the investigation until the execution of the Court decision.
One of the law enforcement process that is currently of concern to the community, which is about the pre-trial. The existence of a pre-trial is actually useful as a tool of introspection of law enforcement officials, especially the police and the Attorney General in carrying out their duties and functions as an institution that has the authority to investigate and prosecute a crime.
Definition of Pretrial according to Hartono is the proceedings before the trial subject matter his case to trial. Understanding the basic case is the case material, while in pretrial proceedings only test process procedure of investigation and prosecution, not to the subject matter alone. As for the meaning to its subject matter is the case material, such as cases of corruption, its subject matter is the corruption cases.
Pretrial, if interpreted in the terminology or separate pre anatara word and justice. Pre beratti before, while justice is the process of law enforcement in seeking justice in an institution called the court (adjudication). If so, praperdilan be interpreted as the same term prajudikasi. Whereas prajudikasi more on the level of investigation, inquiry, and after that the case file transferred to the court by the public prosecutor in the form requisitor who enter the court area. The process of examination in court referred to as adjudications. Pre-adjudication paired with improper pretrial. Article 1, point 10 gives a different meaning. Pretrial not be interpreted in the process of inquiry and investigation alone, but their rebuttal by the accused, their legal representatives, heirs, against it unlawful actions of the investigator in an effort forced by the investigators to arrest (arrest), detention (detention), penggelerdahan (searching) and confiscation ( seizure) and arguments that can be submitted to court the country to be judged by a single judge with a quick investigation, which concluded within seven days by the district court.
B. PRE-TRIAL AS A TOOL Introspection
In general, pre-trial set forth in articles 77-83 the Code of Criminal Procedure, which states. Article 77 states, "District Court is authorized to examine and decide in accordance with the provisions stipulated in this Law concerning:
a. The validity of the arrest, detention, investigation cessation or termination of prosecution;
b. Compensation and rehabilitation of a criminal case was stopped at the level of investigation or prosecution. "
Elucidation of Article 77 of the Criminal Procedure Code is only mention of the suspension of prosecution, saying, "What is meant by the cessation of prosecution excluding penyampingan case in the public interest that the authority of the Attorney General." This explanation can certainly lead to the interpretation that is different, so there should be an explanation that the term of arrest, detention, discontinuation or termination of the investigation and the prosecution of compensation or rehabilitation refers GENERAL PROVISIONS Article 1 as contained in the Criminal Procedure Code.
Pretrial law in Indonesia is similar to a pre-trial in the legal systems in the United States or countries other adherents of the common law, even the law of pretrial Indonesia can be the adoption of the legal system there. The historic moment of transition from the colonial system of criminal procedure code of criminal procedure system to independent Indonesia lies on a changing view of the status of a person involved in the criminal justice system.
In countries that memganut sistemn law Anglo Saxon, known by the term of the Investigating Judge (Investigating Judge), which is one actor who became tunpuan expectations, in order to ensure there is no violation of the rights of suspects and victims in the stage of pre-trial (pre trial justice. Meanwhile, in the legal system in Indonesia to adopt legal system Continental Law, there is no regulation regarding the Investigating Judge or in the draft Penal new event called Preliminary Examining Judge, one of them as stipulated in article 58 paragraph (2) draft Law Invite the Criminal Procedure Code.
Pretrial is one of the court's discretion and the application of the force by the police and prosecutors include:
• Legitimate or not the arrest, detention, discontinuation or termination of the prosecution investigation that may be filed by the investigator or the prosecutor or interested third parties (Article 80 of the Criminal Procedure Code);
• The compensation and / or rehabilitation for a person who terminated the criminal case in the investigation or prosecution (Article 77 of the Criminal Procedure Code);
• Legitimate or not the object is confiscated as a means of proof (Article 82, paragraph (1) b and paragraph 3 of the Criminal Procedure Code);
• Claims for damages by the suspect or his heirs for the arrest or detention and other measures without any reason based on law or in error about the person or legal entity that applied to the case is not filed with the District Court (Article 95 paragraph (2) Criminal Procedure Code);
• Requests for rehabilitation by the suspect upon arrest or detention without any reason based on law or error about the person or legal entity that applied to the case is not filed with the District Court (Article 97 paragraph (3) Criminal Code).
If we look at the arrangements concerning the implementation of the pre-trial, then, briefly of the investigators, both from the police, judiciary and the Corruption Eradication Commission (KPK) has complied with the restrictions in the performance of its duties in conducting the investigation or prosecution.
Regarding the provisions of article 77 letter a Criminal Procedure Code, the Constitutional Court in its decision number 21 / PUU-XII / 2014, has passed a decision that confirms the terms of pretrial stipulated in Article 77 letter a Criminal Code unconstitutional to the extent not interpreted as including the designation of suspects, searches, and seizure , Besides the Constitutional Court also includes the meaning of "at least two items of evidence" rated Court embodies the principle of due process of law to protect human rights in the criminal justice process. As a formal law in the criminal justice process in Indonesia, there are still some phrases in the Criminal Code that require clarification in order to be fulfilled the principle of lex certa and the principle of lex stricta in order to protect a person from arbitrary actions of investigators and investigators.
Of the Court's decision would konstusi accurate to say that in the practice of law, it often happens that the provisions of Law - Law can not reach treatment fact that law enforcement agencies is a real - real is a violation of basic rights such that he would not get a real legal protection from the state.
From the beginning just checked in accordance with Article 77 of the Criminal Procedure Code rigidly, then start "timid" menerabas Article 77 of the Criminal Procedure Code, until finally penerabasan was confirmed by the Constitutional Court's decision which extend pretrial object. The following changes to the "face" of pretrial compiled by hukumonline:
1) Determination of the suspect unauthorized
Sarpin verdict may be the most phenomenal pretrial ruling in 2015. The verdict Sarpin looks striking, given the subject of the applicant's pre-trial is a candidate for police chief. In addition, the decision triggered a wave of pretrial Sarpin, particularly pretrial filed suspected corruption in the Commission. Decision Sarpin followed by Haswandi and Upiek. However, in fact, before the decision Sarpin, there has been a similar decision in November 2012. The single Judge Suko Harsono expressed action investigator Attorney General (AGO), which establishes a corruption suspect bioremediation Chevron, Bachtiar Abdul Fatah as a suspect unauthorized. Against this pretrial ruling, the Attorney General could seek to appeal. Attorney General rejected the appeals of the South Jakarta District Court, so that the AGO tried to ask for the cancellation of the Supreme Court (MA) and report to the Supervisory Board Suko MA. Finally, the decision was overturned and Suko pretrial penalized.
2) Seizure, search, and installation of unauthorized police line
MAKI NGO Coordinator, who is also the owner Boyamin Saiman "Saiman Boyamin Law Firm" never pretrial Police for installation of a line of police (police line) in Facility Support Unit Housing Project (Fasum) Apartment Slipi. Managers and occupants authorized the legal office Boyamin to memperaperadilankan Police. Because the search and seizure activity continued with the installation of a police line police officers carried out without any attachment or copy to the applicant. As a result, the sole judge of pretrial Belman Tambunan grant the applicants submitted to the West Jakarta District Court in July 2013. Belman stated foreclosure actions undertaken West Jakarta Police against unauthorized Fasum Apartment Slipi. He also ordered the sealing of West Jakarta Police release These public spaces and entrances, as well as revoke the police line in the multipurpose room, which can be used as is. Similarly, in 2008, the South Jakarta District Court also granted the request filed pretrial Director of PT IIS Semion Tarin. Based on pretrial ruling No. 10 / Pld.Prap / 2008 / PN.Jkt.Sel dated July 1, 2008, confiscation by the Director General of Taxes on hundreds of boxes of tax documents 15 subsidiary Asian Agri considered invalid.
3) Ordered to continue handling cases of protracted
In November 2010, Muspani that when it served as a member of the DPD Bengkulu prolonged pretrial matters delegated Bengkulu Governor Agusrin Najamudin to the Central Jakarta District Court. Muspani suspect AGO has issued Decree Prosecution Cessation (SKPP) Agusrin case in quietly. However, during the trial, denied the AGO has halted Agusrin case. Therefore, a single judge ordered Supraja AGO immediately bestow Agusrin case to court. Thus, Supraja admitted handling "protracted cases are not transferred to the court" as an object of pretrial.
4) State police investigators are not authorized
Pretrial ruling officials of PT Newmont Minahasa Raya (NMR) in 2005 also became one of the pretrial ruling striking at the time. Because the sole judge of the South Jakarta District Court declared John E Binti city arrest status and required to report six officials NMR is not lawful. In the judgment, John argued, police investigators judged not authorized to conduct the investigation, but investigators civil servants (investigators). He considers the investigations conducted unauthorized police investigators violated the provisions of the Joint Decree Law Enforcement Environment One Roof (SKB). Similarly, the pretrial ruling suspected cases of illegal imports of sugar, Abdul Waris Halid. In July 2004, the sole judge of the South Jakarta District Court granted the request pretrial Effendi Abdul. Effendi ordered the Police Headquarters to free Abdul for arrests and detention of unauthorized Police Headquarters. Effendi stated police investigators are not authorized to handle cases of illegal imports of sugar. Authorized investigators to handle the case of Abdul is PPNS Customs and Excise. The authority of investigation by Customs and Excise investigators that in accordance with the provisions of Article 112 of Law No.10 of 1995 in conjunction with Article 6 of Law No. 8 of 1981 jo PP 55 in 1996.
5) Recognize the legal standing of NGOs
MAKI NGO recorded several times filed a pretrial effort to South Jakarta District Court. One of them, an effort MAKI pretrial protracted Sisminbakum handling of corruption cases in the name of the suspect Yusril Ihza Mahendra AGO. However, the judge rejected the request MAKI single Ari Jiwantara.
Apanila we pay attention, the subject of law which may apply for pre-trial, it can file a Pre-trial are:
a. The suspect, ie whether the action against her detention contrary to the provisions of Article 21 of the Criminal Procedure Code, detention or charged has been run through a specified time limit Article 24 of the Criminal Procedure Code;
b. Investigators to examine the lawfulness of the termination of prosecution;
c. Public Prosecutor or interested third parties to check the lawfulness of the termination of an investigation or prosecution termination. What is meant by interested third parties, for example the victims.
The granting pretrial should also be reviewed in a fair if for some reason that is intentional or a cause that comes from outside the investigation process so that their pre-trial is to keep the investigators are not arbitrary and to oversee that process of investigation or prosecution of running with the mechanism prescribed in the Criminal Procedure Code.
Therefore, although the respective law enforcement authorities, either the police, judiciary and the Corruption Eradication Commission (KPK) has had PROTAP (SOPs) and SOP (Standard Operating Procedure), but Law No. 8 of 1981 on the Code oF Criminal Code (Criminal Code) provides a broad space for the public to monitor the pelaksaanan tasks of the law enforcement authorities. An Act are not inanimate objects and sacred that can not be changed by any proposition, on the contrary an Act must adopt and also a manifestation of the theta justice in society. When people claim that a law is not in accordance with the values of justice is there, then it is time also that the Act should be renewed.
Nevertheless, before the change of an Act, particularly concerning Procedural Law, in this case is the Criminal Procedure Code, the District Court or Judges who hear cases pre-trial to stick to the provisions of the Criminal Procedure contained, though as judges still have the freedom in decisions. This is due to disuse of the existing legislation to make a decision that is generated:
1. Do not be executed (unexcecutable);
2. Potential disparities between decisions that one with another decision;
3. Potential legal uncertainty;
4. Causing confusion in the community;
5. Justice produced only apparent and can be debated (debatable);
The Supreme Court as the highest authority field Judiciary own time mengenluarkan rules regarding the conduct of the trial pre-trial, either in the form of the Supreme Court Circular (SEMA), specialized in the judiciary under the Supreme Court, the District Court, or in the form of Supreme Court Regulation ( PERMA) in the case of arranging the point of tangency implementation of pre-trial proceedings between police, prosecutors, the Corruption Eradication Commission (KPK) with the Supreme Court.
C. CONCLUSION
1) In the practice of pre-trial proceedings, there has been a paradigm perubaha thought by Judges are on trial;
2) Pre justice is not only based on the provisions of Article 77-83 Criminal Code but also menganai determination of a person as a suspect or defendant, and also about the notion of two (2) evidence;
3) The decision of the Constitutional Court should be followed by the revision of the provisions of a pre-trial in Procedural Law in Indonesia either done by making changes to Law No. 8 of 1981 on the Law of Criminal Procedure Code (Criminal Code) or change partially, article by article special chapter regulating Pre Justice;
4) The Supreme Court must issue rules regarding pre-trial either in the form of SEMA and PERMA.
5) CLOSING
This brief paper is actually very insufficient to explain the pre-trial, but at least be a little give us all that there has been a paradigm shift of thinking about the pre-trial, from which initially adhered to the provisions of Article 77-83 Criminal Code, but this time pre-trial has been extended beyond the provisions in the Criminal Code.
6) REFERENCES
Andi Hamzah - RM Surachman, Pre-Trial Justice Discretionary Justice Under the draft Different Countries, Sinar Grafika, Jakarta, in 2015
http://www.pengertianpakar.com/2015/03/pengertian-praperadilan.html, downloaded on 23 February 2016;
http://www.damang.web.id/2011/07/putusan-praperadilan-terhadap.html, downloaded on 23 February 2016;
http://s-hukum.blogspot.co.id/2015/02/opini-hukum-praperadilan-di-indonesia.html, downloaded 23 February 2016
https://slissety.wordpress.com/ruu-kuhap-2015/, retrieved February 26, 2016;
http://www.sidabukke.co.id/news_sidabukke/legal_news/50.html,diunduh dated 23 February 2016;
http://www.mahkamahkonstitusi.go.id/index.php?page=web.Berita&id=10796, downloaded on 23 February 2016;
http://www.mahkamahkonstitusi.go.id/index.php?page=web.Berita&id=10796, downloaded on 23 February 2016;
http://s-hukum.blogspot.co.id/2015/02/opini-hukum-praperadilan-di-indonesia.html, downloaded on 23 February 2016;
http://pantaukuhap.id/?p=1294, downloaded on 23 February 2016;
http://www.pn-sarolangun.go.id/index.php/prosedur-berperkara/pra-peradilan, downloaded on 23 February 2016;
http://www.lawskripsi.com/index.php?option=com_content&view=article&id=137&Itemid=137, downloaded on 23 February 2016;
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