Advanced Search

Test The Material Constitutional Court No. 1/ppu-Xi/2013 2013

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 1/PPU-XI/2013 Tahun 2013

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

RULING Number 1/PUU-XI/2013

FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY

CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA

[1.1] That prosecuting constitutional matters at first level and last,

dropping the ruling in case of Test Number 1 Year

1946 on the Book of Criminal Law and Law Number 8

Year 1981 on the Law of Criminal Events against the Basic Law

The State of the Republic of Indonesia in 1945, which was submitted by:

[1.2] Name: Oei Alimin Sukamto Wijaya

Job: Private

Address: Road Alert Number 98 Surabaya

In this matter based on Special Power Letter dated December 10, 2012

gives power to Muhammad Sholeh, S.H., Imam Syafi'i, S.H., Yun Suryotomo, S.H., Muhammad Achyar, S.H., Abdul Holil, S.H., Ahmad Sahid, S.H., and Adi Darmanto, S.H., Advocates at the Law Office of Sholeh and Partners address offices at Jalan Genteng Muhammadiyah Number 2B Surabaya, acting

for and in the name of the power giver;

Next is called as ------------------------------------------------------------ Applicants;

[1.3] Reading the applicant's request;

hearing the applicant's description;

hearing and reading the Government's description;

hearing and reading the statement of the House of Representatives;

Hearing the applicant's caption;

Checking the applicant 's evidence;

Reading the Government' s conclusions;

2

2. SITTING LAWSUIT

[2.1] A draw that the applicant has applied with

a letter of application dated December 13, 2012 which is accepted in Kepaniteraan

Constitutional Court (subsequently called Kepaniteraan) On the date

December 13, 2012, based on the Certificate Receipt of the Number

1/PAN.MK/ 2013 and has been noted in the Book Registration Book on

on January 3, 2013 with Number 1/PUU-XI/2013, which has been corrected

with the repair of the plea and received in the Court ' s Kepaniteraan on

on February 1, 2013, which in the point describes things as

following:

CONSTITUTION OF THE CONSTITUTIONAL COURT

That the provisions of Article 24C paragraph (1) of the Constitution of 1945 state that the Court

Constitution authorities prosecute at the first and last level which

The verdict is final to test Act against the Law

Basic. Article 10 paragraph (1) of the letter a Law No. 24 of 2003 on

The Constitutional Court as amended by Law Number

8 Year 2011 on Changes to the Law No. 24 Year 2003

on the Court The Constitution (later called the MK Act) affirm that

same, that is to mention the Constitutional Court in order to prosecute in

the first and last level of which the verdict is final, among other things " testing

Act on the State Basic Law of the Republic of Indonesia

Year 1945 ", severing the dispute over the authority of a state agency that

its authority was granted by the 1945 Constitution, severing the dissolution of the political party

and severing the dispute about the outcome of the general election.

Similar enforcement was also put forward by Act Number 48 Years of 2009

of the General Judicial Court of Justice, which states: "The Constitutional Court of authority

to prosecute at first and last degree the verdict is final for"

among others " testing the Act against the Act. "Constitution of the Republic of Indonesia in 1945". While the provisions of Article 9 of the paragraph (1) Invite-

Invite Number 12 Year 2011 on the Establishment of the Act of Invitation-

Invitation states " In the event of an Act of thought contradictory

3

with the Constitution of the Republic of Indonesia in 1945,

The pronunciation is performed by the Constitutional Court ";

Based on the above description, then the applicant is confident, that the Court

The Constitution is authorized. to bring to trial the testing application of this Act

at the first and final level of which the verdict is final.

B. LEGAL STANDING (LEGAL STANDING) PEMOHON 1. That Section 51 Verse (1) of the MK Act, states the applicant is the party

that considers the rights and/or its constitutional authority be harmed by

the enactment of the Act, i.e.:

a. Individual citizens of Indonesia;

b. the unity of the indigenous law society as long as it is alive and appropriate

with the development of the community and the principle of the Republic of the Republic of the Republic

Indonesia that is set in undang-Undang;

c. the public or private legal entity, or;

d. state agencies.

2. Explanation of Article 51 of Article 51 (1) of the Act of MK states that in question

with "constitutional rights" is the rights set forth in the 1945 Constitution;

3. That the applicant is a citizen of Indonesia;

4. That on 5 August there had been an act of persecution that

experienced the applicant, in which the applicant was persecuted at the Hotel Meritus Surabaya and

which carried out the act of persecution was the owner of the Surabaya Meritus Hotel

which named Haryono Winata aka Mingming. As a result of the a quo persecution,

the petitioner faces a lebam-lebam so the applicant must be opname

a few days in the hospital (vide proof P-4). 5. That after the incident the applicant went to the office

Police Sector Genteng Surabaya with the intention of wanting to report, and arrived at

the Police station at 01.00 WIB. Shortly after getting to Polsek the applicant

was told to wait in the waiting room by the Police who were on the picket, after one

(1) hour waiting for the new applicant to enter the reception room of the report

and there made a report that had been beaten by Haryono Winata alias

Mingming and at that time the report was typed and given an STPL with a Number

LP/427/VIII/2012/JATIM/RESTABES/RESTABES/SEK GTNG (vide proof P-5). After making a report ago the applicant was told to enter the investigator room for

providing advanced details relating to the report, will

4

but which is very suspicious when the applicant is questioned regarding the

chronological event the Investigator does not type even also does not note

about what the Investigator is asking and what the applicant is Say.

This incident lasted until +-0600 WIB and the most

surprise, after which the applicant was told to wait in the outside waiting room

by the Investigators, and not long-lapse brother Haryono Winata arrived-

arrived and immediately entered the KANIT Rescream Polsek Genteng

Surabaya. A few years ago the applicant was told to enter and the applicant

saw Kanit Rescream easily following what was told to be by

Haryono Wiinata.

6. That after what the applicant has reported there is the most

fundamentals that make the Applicant Suspicious, where in this case there

changes the STPL Number of the Genteng Polsek that in this case is from

Number LP/427/VIII/2012/JATIM/RESTABES/SEK.GTNG changed to

Number LP/106/VIII/2012/JATIM/RESTABES/SEK.GTNG.

7. That in its development to this day the case of the applicant at Polsek

Genteng is not actionable in accordance with the SOP of the State Police

Republic of Indonesia, which is up to September 11, 2012

The applicant received letter (SP2HP) from POLSEK Genteng Surabaya with

Number B/110/IX/2012/RESCREAM (vide proof P-6) which contains about still being called extension of the investigation for 30 days, whereas

already examined 12 witnesses and the applicant already provided the information that

at the Meritus Hotel there is a CCTV that can It serves as evidence.

but Polsek genteng was impressed to rule out the issue and

showed less professional in handling the case.

8. Because of her fears, seeing as powerful and powerful Haryono Winata in

Polsek Genteng Surabaya and not understanding it, the applicant

was asked to replace the loss to Haryono Winata CS, who initially asked

Rp. 3 Billion finally dropped to Rp. 500,000,000, (five hundred million rupiah)

and the applicant was already a transfer of Rp. 200,000,000, (two hundred million

rupiah) to a Muljono Bank BCA Day account Number 3631359688 (vide proof P-7).

9. That because there is no settlement and the applicant is being blackmailed, cause

The applicant is the victim of the persecution is being asked for money as much as

5

Rp.200,000,000, (two hundred million rupiah). Finally the applicant reported

the act of persecution and the presence of extortion attempts by

Haryono Winata et al to SPKT Polda East Java with STPL Number

LPB/641/VIII/2012/SPKT (vide proof P-8) dated On August 30, 2012, in the hope that the Police Department's handling of the case could be more

professional and neutral without any pressure. However, what happens instead

looks at a game pattern that's been cordinated with very

neatly by the parties that make it as if the elements of the report

The applicant is not proven that in this regard with SP2HP POLDA

JATIM Number B/1169/SP2HP-3/XI/2012/Ditreskrimum (vide proof P-9). 10.That with the more pressing the applicant seeks justice to make

Haryono's brother Winata Selaku the famous Meritus Hotel owner is immune

with the law getting sultry and trying to criminalize the applicant

in various ways The applicant must go to jail.

11.That the alleged pattern of a game is neatly for

criminalising the applicant may be reviled with the designation

The applicant is as a suspect committed by POLSEK Genteng Surabaya

with the release letter number SPG/107/IX/2012/Rescream and

SPG/123/X/2012/Rescream dated September 24, 2012 and date 09

October 2012 in the alleged unpleasant deeds (Article 335

KUHP) which in which case the pronunciation is Haryono Winata, there is no report

it created Haryono Winata with STPL Number

LP/107/VIII/2012/JATIM/RESTABES/SEK. GTNG dated August 05, 2012.

In this case the case reported Haryono Winata was extremely weak

proof, but easily the applicant could be set as

the suspect in time is not too long and also the

the handler against the applicant is to be seen in the Detention Order Letter SP.Han/123/X/2012/JATIM/RESKRIM (vide proof P-10). And it really makes the applicant feel that justice is indeed

only owned by the legal mafia and the wealthy.

12.That a neat game pattern to criminalize the applicant as well

could be reviled with the designation of the applicant as a suspect which

was done again by Polsek Genteng Surabaya with

on the release letter Number SPG/83/IX/2012/Rescream (Copy

6

Terlampir) dated 11 September 2012 in the alleged unpleasant deeds [Article 335 paragraph (1) KUHP] or destruction of the goods which in this case is Hary Moeljono which is still the guy from Haryono Winata, there is a report on the STPL Number LP/105/VIII/2012/JATIM/RESTABES/SEK.GTNG dated 05 August 2012 (vide evidence P-11. In this view from the number of STPL issued by Polsek Genteng is very suspicious, because the difference

report number is only one number difference from Lap made with

The applicant (LP/105/VIII/2012/JATIM/RESTABES/SEK GTNG with

LP/106/VIII/2012/JATIM/RESTABES/SEK.GTNG) despite the fact that the applicant

is the one who first reports and no one else

makes the report. The applicant 's suspicions are further strengthened by

the fact the question STPL issues are being magically altered as already

we explain above, that' s what proves that there is interference

hands and ocnum-ocnum games which is very unprofessional and not

neutral.

13.That, the alleged pattern of criminalizing the applicant may also

be reviled with the applicant as the suspect in a case the applicant has never committed. In this case the designation as

suspects can be seen from the presence of a summons issued

POLRESTABES Surabaya Number S-Pgl/3567/X/2012/RESKRIM dated October 25, 2012, the letter is based on a report from JEnny. Kosasi aka Cucu with STPL Number LP/K/1113/IX/2012/JATIM/RESTABES.Sby dated September 07, 2012 in a crime case against decency and deed is not

fun. Where in this case the applicant has never known

Jenny Kosation let alone do as he disfigured, now the applicant

just knows it turns out Jenny Kosation aka Cucu is still one of the conspirators with Haryono Winata (vide evidence P-12).

14.That the presence of criminalising the applicant may also be seen with

the presence of terror and intimidation allegedly carried out by the TNI-AD apparatus.

In this case it was TNI-AD who carried out the terror attempt to allow the applicant to

continue the persecution report carried out by HARYONO WINATA

known to be Major Chb Sudrajat from Pa Pudik Intelstrad Kodiklat TNI-

7

AD. As for the intimidation and terror it has already been reported on POM-

AD KODAM V Brawijaya East Java with the Number Aduan

TBLP/11/VI/IDIK/2012 dated 09 August 2012 and until then there has not been a follow up (vide evidence P-13).

15.That the applicant was able to call a summons from Polsek Genteng Surabaya for

a case title in the molestation case of the applicant that

no follow-up on December 10, 2012, was abruptly cancelled

by the Police Department replaced the applicant's call will be submitted to

The Prosecutor in the case of unpleasant conduct [Article 335 paragraph (1)

KUHP] over the report of HARYONO WINATA in which the applicant in this case

has already been Detained. That the invocation is very suspicious and

The applicant is afraid to be detained again, eventually the call of the December 10

not signed. And that day also the applicant was able to call to 2 from Polsek

Genteng Surabaya to be confronted with the prosecutor on Thursday

on December 13, 2012. What's going on, what's wrong with it? Is this

the corruption case that the police are so enterpassionate about and lusting to resolve

the case of the petitioner.

16.That the applicant to this day is set to be a suspect in 3

the case with a cage committing a criminal offence violates Article 335 paragraph

(1) as in (vide proof P-10, vide proof P-11 and vide proof P-12). 17.That Section 335 paragraph (1) of the Criminal Code is a rubber section that is on its way

its history becomes a tool for criminalizing any citizen to be able to

be withheld as Article 335 paragraph (1) of the Criminal Code according to Article 21 of the Criminal Code (KUHAP)

(4) the letter b is an exception to the exception of (vide bukti-10).

18.Pemapplicant only says; "hey if you dare not mucoome here (your hotel) if you dare to fight in Suramadu". The question is whether the applicant's words a quo could already be qualified as

unpleasant acts as set out in Section 335 paragraph (1)

KUHP? If it can be Article 335 of the paragraph (1) of the Criminal Code, which

lenders can be intimately connected to anyone who is considered to do the deed is not

please.

19.That with the provision of the Applicant section strongly felt the rights

the constitutionality was violated and harmed proved the applicant was ever detained

8

due to the Section 335 paragraph (1) of the Criminal Code, which is corroborated by section a quo

as guaranteed by the Constitution of 1945, especially in section 28D paragraph (1)

The Basic Law of 1945. As such, in the opinion of the applicant

then the applicant has fulfilled the qualification as referred to in

the provisions of Article 51 of paragraph (1) of the letter of the MK Act.

20.That referred to the Court of Justice since the termination of No. 006 /PUU-III/

2005, dated 31 May 2005 and Putermination Number 11 /PUU-V/2007, dated 20

September 2007 as well as subsequent rulings, the establishment that

rights loss and/or constitutional authority in question

Article 51 paragraph (1) The MK bill must meet 5 (five) terms, namely: 1. the right

and/or the constitutional authority of the applicant given by UUD 1945;

2. The rights and/or constitutional authority by the applicant are considered

aggrieved by the enactment of the testing Act; 3.

such constitutional losses must be specific (special) and actual or

At least a potential that according to reasonable reasoning can be

is not available; 4. the presence of causal relationships (causal verband)

between the intended losses and the expiring Act

testing; 5. It is possible that with the request of a request,

then the constitutional loss as the postured will not be or no longer

occurs;

21.Thus then there are 5 (five) absolute terms that must be met in the

test the Act against UUD 1945. The first term, is

the qualification of the applicant as a citizen of Indonesia, to act as

The applicant as affirmed in Article 51 of the paragraph (1) of the MK Act. Terms

second, with the enactment of an Act of rights and/or authority

the constitutional applicant is harmed. The third term, the constitutional loss

is specific. The fourth term, the loss arises as a result of

the enactment of the Act of Begging. The fifth term, the loss

will not occur again if this request is granted.

22.That 5 (five) terms as referred to above are described again by

the Court through the Decree Number 27 /PUU-VII/2009 in formil testing

The Second Amendment of the Supreme Court Act (page 59), which

mentions as follows:

9

23.From the practice of the Court (2003-2009), individual WNI, primarily payer

taxes (tax payer; vide Putermination Number 003 /PUU-I/2003) various associations and

NGO/NGOs that concern against an Act for the sake of interests

public, legal entities, local governments, state institutions, and others, by

The court is considered to have legal standing to apply

testing, either formyl or materiel, the Act against UUD 1945

(see also Lee Bridges, and friends. In " Judicial Review in

Perspective, 1995) ";

24.That based on the description the applicant stated above

proves that the applicant (the individual citizen of Indonesia)

has a legal position (legal standing) to act as the applicant

in the request of testing this Act.

25.That based on those criteria the applicant is a party that

has a causal relationship (causal verband) between the loss

constitutional by the enactment of the Act be mohoned for

being tested because of Article 335 verse (1) to the length of the phrase something else

or unpleasant treatment and something else

nor the unpleasant treatment of the Number 1 Year Act

1946 on the Code of Criminal Law (Penal Code) and Article 21 of the paragraph

(4) the letter b along the word phrase Section 335 paragraph (1) Act No. 8 of 1981 on the Code of Criminal Event Law (KUHAP)

contrary to the Article 28D paragraph (1) of the Basic Law of 1945

26.That it is if it is the case a quo does not provide legal protection and

legal certainty for any citizen, whereas the applicant has a right

constitutional basis guaranteed the Basic Law of 1945. As such,

The applicant argues that the applicant has a legal position (legal

standing) as a party in the application of the Act

against the 1945 Constitution.

27.That the applicant is concerned if Article 335 paragraph (1) to the length of the phrase something

other deeds and unpleasant treatment and something

other deeds and mistreatment of the Act

Number 1 Year 1946 on the Code of Criminal Law (KUHP)

and Article 21 of the paragraph (4) of the letter b along the phrase Article 335 paragraph (1) Invite-

Invite Number 8 Year 1981 on the Event Law Act

10

Criminal Justice (KUHAP) is not cancelled by the Constitutional Court, the right

Constitutional Court of the applicant guaranteed the Basic Law of 1945

factual and potential aggrieved.

B. THE SUBJECT OF THE QUERY was taken from the book titled KUHP and KUHAP Asa Mandiri print to May 7, 2007

Article 335 of the Criminal Code states;

(1) It is threatened with a prison criminal for most of the year or a fine of the most

many four thousand five hundred rupiah:

1. Anyone against the law compels others to

do, not do or let anything, by using

violence, anything else or the treatment that is not

fun, or use the threat violence, something else

or unpleasant treatment, either against the person itself

nor anyone else ".

2. Anyone forcing someone else to do, not do or

let something with the threat of pollution or contamination

written.

(2) In terms of being formulated in item 2, the crime is only prosecuted

for the complaint of the affected person.

KUHP is taken from the book titled KUHP and KUHAP convener SALAHUDIN

first print July of 2007 The Transmedia Library's publication

Article 335 paragraph (1) of the Penal Code states;

(1) It is threatened with a prison criminal for most of the year or the most fine

many four thousand five hundred rupiah:

1. Anyone against the law compels others to

do, not do or let anything, with violence,

with something else or by treatment that is not

fun, or with a threat violence, with threats

other deeds or with the threat of unpleasant treatment,

either against the person alone or anyone else.

2. Who's forcing someone else to do, not do or

let something with the threat of pollution or pollution

11

written. (2) In the event referred to in number 2, the crime is prosecuted

only for the complaint of the person affected by it.

Article 21 paragraph (4) of the letter b KUHAP throughout the phrase section 335 paragraph (1) (1) The restraining order or detention continued to be performed against an

suspect or a suspected defendant committing a criminal offence

based on sufficient evidence, in the event of circumstances that elicits

the concern that the suspect or defendant will be running, damaging

or eliminating evidence items and or repeating a felony.

(2) Detention or follow-up detention is performed by investigators or prosecutors

general of the suspect or the defendant by giving a warrant

the detention or assignment of a judge who has noted the identity of the suspect

or the defendant and mention the reason for the detention as well as the brief description

the crime of the accused or dismayed as well as the place he

was detained.

(3) A warrant for a restraining order or continued detention or designation

the judge as referred to in the paragraph (2) must be provided to

her family.

(4) Such detention may only be imposed against a suspect or

a defendant who committed a criminal and or an experiment or

granting aid in such a felony in the case of:

a. The felon was threatened with a prison criminal five years or more;

b. As defined in Section 282 paragraph (3), Section 296,

Section 335 paragraph (1), Section 351 paragraph (1), Section 353 paragraph (1), Section 372, Section 378, Section 379, Section 453, Section 454, Section 454, Section 455, Section 459, Section 459, Section 480

and Section 3 506 Criminal Law Code, Article 25 and Article 26

Rechtenordonnantie (violation of Customs Ordonancy and Excise,

last modified with Staatsblad 1931 Number 471), Section 1, Article 2

and Article 4 of the Act Immigration Criminal Act (Act

Number 8 Drt. In 1955, the State Sheet of 1955 Number 8), Article

36 verses (7), Article 41, Article 42, Article 43, Article 43, Article 47 and Article 48 of the Invite-

invite Number 9 Year 1976 on Drugs (State Sheet

1976 Number 37, Extra Sheet State Number 3086).

Next Constitution of 1945 reads:

The passage of Article 28 D paragraph (1):

12

"Everyone is entitled to the recognition, assurance, protection and certainty of a fair law, as well as the same treatment before the law".

1. That of the Penal Code, though promulred in 1946, was actually called the Code of Penal Code of Indonesia (KUHP) from the Dutch colonial era in Indonesia (Nederlandsch Indie), so

If there is a difference only on the use of the term and sentence arrangement

only.

2. That it must be recognized in the contents of the Penal Code, many of which are already

obsolete, and are no longer compatible with natural conditions

democracy now. But the fact that our government has not been able to do

a revision of the Criminal Code, even if it was promised there would be a revision but the fact is not

has ever happened.

3. That in criminal law an unpleasant conduct as

has been called above is set in Chapter XVIII on Crime Against

Independence Persons Section 335 paragraph (1) of the Code of Criminal Law

that is rumour reads: (1). Threatened with the longest prison criminal

1 (one) year or a fine of at least three hundred rupiah: anyone who

against the law forces others to commit or allow

something, by using force, something else or

unpleasant treatment, or by using a threat

violence, something else or unpleasant treatment,

either against the person himself or someone else.

4. Unflattering things as set by Article 335

paragraph (1) The Code of Criminal Law can be held detention

despite the threat of his sentence at least 1 (one) year. This

as set out in Section 21 of the (4) letter (b) of the Code

The Criminal Event Law (KUHAP). The qualifying qualification of a suspect

in a matter of unpleasant conduct still refers to a

legal reason as it is suspected to be a criminal offence based on evidence

that is sufficient, in the event of circumstances which Raises concerns

suspects or defendants will flee, damage or eliminate

evidence and or repeat the criminal acts. In the warrant

his detention, an institution of interest (investigators, the public prosecutor or

13

judges) must specify the reason for his detention. Without any mention of the reason

detention, then the detention being committed is a legal flaw and can be in

preperadiadvertised.

5. That the practice of law, a suspect in the matter of conduct is not

fun generally often carried out incarceration as experienced

by the applicant. The interest in conducting detention is a trait

that is very subjective that is measured under the valid

subjective authority. Because it is subjective in the end many commandments

the detention is issued which does not correspond to the detention reasons

as contemplated and regulated by Article 21 of the paragraph (4) of the letter b KUHAP. That,

Article 21 of the paragraph (4) of the letter KUHAP gives full power to

the investigator, the public prosecutor and the judge to conduct the detention, whereas

the threat is only one year. And this section clearly does not contain

legal protection and legal certainty to the applicant as in

Guarantee in Article 28D paragraph (1) of the 1945 Constitution.

6. That, in the context of the incarceration experienced by the applicant [pursuant to Article

21 verse (4) the letter b KUHAP] is certainly very subjective and discriminatory that

was done by Polsek Genteng Surabaya. First, the molestation report

experienced by the applicant was completely unactionable by Polsek

Genteng Surabaya. While Haryono Winata's report was immediately responded

quickly with the request of the applicant Breaking Article 335 paragraph (1) of the Criminal Code

due to the applicant saying the words "If you dare not mucoome me in your hotel let us duel in Suramadu". While the words were spoken after the applicant was mauled by Haryono Winata to the round

were beaten, meaning the words of money were spoken by the petitioner not suddenly. So

reasonable applicant issued the words a quo. The applicant considers that

Article 21 paragraph (4) of the letter b of the KUHAP clearly does not provide warranty and

recognition of the applicant's right as a protected Suspect

for not having to be detained. Thus, the applicant considers that Article 21 of the paragraph

(4) of the letter KUHAP is clearly contrary to Article 28D of the paragraph (1) of the 1945 Constitution.

7. That according to Supriyadi Widodo Eddyono, S.H. in an online legal clinic dated November 8, 2010 said Article 335 paragraph (1) of the Criminal Code requires the fulfillment of two elements of "use of force"

or "threat of violence". This delicary proof is enough to keep it up.

14

one of the two elements. In practice, the application of Article 335

paragraph (1) of the Penal Code by the Supreme Court of R.I. (MA) will emphasize that

the interpretation of "compulsion elements" as the primary element must exist

in an unpleasant series of deeds. The element of coercion,

according to MA, is not always translated in the form of physical coercion, but it can be

also in the form of psychic coercion.

8. In the Decree 675 K/Pid/1985 dated 4 August 1987 which

corrects the free ruling (vrijspraak) of the Court of State Ende Number

15 /Pid.B/ 1984 dated 26 March 1985, MA has qualified the deed

criminal Which is not fun is: " With something done,

against the law forces people to let something." Meaning, there

a series of defendants ' actions that are against the law giving birth

result of another person or victim Didn't do anything to be forced to.

letting something happen. He didn't agree or didn't want to.

That, but she can't.

has psychic ability and psychic ability. refusing, obstructing,

shy of the occurrence of acts that are against such laws.

9. That if understanding the judgment of the Supreme Court is above, of course

the element delik unpleasant deeds should require an element

compulsion, whether it be physical coercion or psychic coercion. That in the case

The applicant, at all times the applicant does not do compulsion either psychic nor

the physical coercion. The applicant's words were only the effect of his being reconstructed by

reporting, and why Polsek Genteng Surabaya had already considered the word

The applicant was already in the element of unpleasant conduct. Finally

The applicant comes to the conclusion if Section 335 paragraph (1) of the Criminal Code (1) is completely

section of the rubber disadvantased the right of the applicant as set in

Article 28D paragraph (1) of the 1945 Constitution.

10.That in practice, the police tend to easily apply the Article

335 paragraph (1) of the Criminal Code under the pretext of proof later on court matters. If

already like this suspect's right to be powerless. In addition to the

article 21 of the paragraph (4) of the letter b KUHAP, Section 335 paragraph (1) is the exception of the "exception", which may be held in detention. The applicant became a victim of the subjectivity

investigator Polsek Genteng Surabaya. Where only the petitioner

15

is considered unpleasing to the por, the applicant is detained by Polsek Genteng

Surabaya. Is n' t that so section 335 paragraph (1) of the Criminal Code and section 21 of the paragraph

(4) the letter b KUHAP violates the rights of the applicant guaranteed by Article

28D paragraph (1) of the 1945 Constitution.

11.In law or in the sense of criminal law, the deed is not

fun can be fatal for the culprit if the deed is not

The fun is not preferred or unacceptable to the party

being the victim of an unpleasant act, though the result of

does not harm the soul of the victim or sufferer, but there

a feeling that the sufferer or victim

already has.

could report to the police.

12.That it has become apparent the legal norm delik the deed no fun

very broad meaning like rubber, it can be drawn everywhere. It should be

in criminal law a criminal delik must clearly mean the meaning of its understanding, for example

theft is the stuff of who takes things, all of which or in part to others, with the intent to be owned by against the law, threatened with theft, with a five-year-old prison criminal or a penal fine of at least nine hundred rupiah. In the rumour deliciness of theft is very clear, what it takes is not his own property, with the intention of having

against the law. As well as a delical of embezzlement crimes

also the elements are clear, Whoever by accident and against the law has something entirely or partially belongs to someone else, but which is in his power. Not for crimes being threatened with embezzlement, with a prison criminal for the longest four years or a penal fine of at least nine hundred rupiah. It is very different from an unpleasant act that anyone considered doing an unpleasant deed could

reportedly violate Article 335 of the paragraph (1) KUHP.

13.That the fact shows investigators if it wants to hold a temporary suspect

His passport threat is not up to 5 years, then the investigator will slip

Article 335 paragraph (1) of the Criminal Code to allow the suspect to be detained. Because of the article

anything if it is echoed with Article 335 paragraph (1) of the Criminal Code to

the comfort. This can be seen in case the applicant is redeemed.

16

Polrestabes Surabaya which is accused of criminal Article 281, because

threat not up to 5 (five) years, finally supplemented Article 335 paragraph (1)

KUHP (vide proof P-12) 14.That in Prof. J.E.'s opinion Sahetapy, SH., MA., as quoted

in Constitutional Court Number 013-022/PUU-IV/2006

states that Article V Act No. 1 of 1946 is the tester stone

about the relevance and the raison d' etre post-section KUHCriminal referred to

stating " The laws of the criminal law entirely or partly

now cannot be run, or contrary to the position

The Republic of Indonesia as an independent state, or has no meaning anymore,

must be considered entirely or partially temporary. not applicable ";

15.That, the provisions of Article 21 of the paragraph (4) of the letter b state that the deed

is not pleasant in the category of crime that can be withheld. This article

clearly has harmed the constitutional rights of the applicant. If you want to be fair,

the threat of Article 335 paragraph (1) of the Criminal Code is only one year. Then the ideal is not able

detained. However, because of the Code 21 paragraph (4) the letter b gives

an exception. Finally, the petitioner was detained by the Genteng Polsek. It should be the phrase

an exception to the letter b does not include Section 335 verses (1). Its implementation

is extremely dangerous, where this section is often used by Investigators and Prosecutors

The General Prosecuting as the last section to ensnare the actions of the perpetrator. Try

imagine, if any act of origin isn't pleasing someone else

The culprit can be held? How many people can be detained may be because

things are trivial as long as "unpleasant" others. This is the case

that occurred to the applicant. Where is the legal protection of the country

as guaranteed by Article 28D paragraph (1) of the Constitution of 1945?

16.That the delik of Article 335 verse (1) of the Criminal Code states, whose goods are

against the law forces others to perform, do not perform or

allow something by using violence or threats of violence.

Unless Throughout the phrase word of something else or unpleasant treatment and something else or unpleasant treatment that does not contain legal protection and legal certainty as guaranteed in Section 28D. verse (1) UUD 1945.

That with the applicant in which the issue is not clear,

makes the applicant very harmed. If it turns out in the applicant's court

17

not guilty, how with the loss of the applicant ever detained

by Polsek Genteng Surabaya, who gave the damages up?

17.That according to the prevailing prevailing doctrine "power tends to corrupt,

absolute power corupt absolutely", due to police, prosecutors and judges

is given full authority to be able to withstand if the suspect/defendant

expected to violate Article 335 paragraph (1) KUHP, then the tendency of the apparatus

law enforcement will abuse its power more openly. Apparatus

law enforcement is easily committed arbitrarily to

the authority is owned and attached to his post. This is proven

as experienced by the applicant, is not constitutional rights

The applicant is protected under Article 28D paragraph (1) 1945 so ignored.

18.That the control Ultimum Remedium, (last means) is pertinated with

the issue of how to determine can be criminalised or incriminalised

an act committed intentionally or by negligence. In

the case experienced by the applicant, Polsek Genteng Surabaya never

acting fair let alone try to reconcile the petitioner, instead the applicant's position

was put on hold and then taken prisoner. Thus being a suspect with the same article

i.e. Section 335 paragraph (1) KUHP.

19.Kesconclusions of all unsavable treatment can be denounced to

the police force, if ever needed police investigators can

conduct detention against the suspect as experienced by the applicant.

Anything What is the category of unpleasant treatment?

The answer is all deeds that are not accepted by the complainants or that

it does not please her heart. This is where the delical weakness of Article 335

paragraph (1) of the Penal Code along the phrase something else or unpleasant treatment and something else or unpleasant treatment and the weakness of Article 21 of the verse (4) letter b throughout the phrase Article 335 paragraph (1) KUHAP.

20.That After being reviled and read carefully the contents of Article 335 of the paragraph

(1) throughout the phrase something else or unpleasant treatment and something else is unpleasant and unpleasant treatment. Law No. 1 of 1946 on the Code of Criminal Law (Penal Code) and Article 21 of the paragraph (4) letter b

throughout the phrase Article 335 paragraph (1) Act No. 8 Year 1981

18

on the Code of Criminal Proceed Law (KUHAP) does not meet

the sense of justice both in the glass of the constitution and in the glasses

the sociologist for the applicant.

21.That Article 335 paragraph (1) to the the phrase something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 of 1946 on the Code of Criminal Law (KUHP) and the Article

21 paragraph (4) the letter b throughout the phrase Article 335 paragraph (1) Act No. 8 Year 1981 about the Criminal Event Law Code

(KUHAP) reflects the distinction of position and treatment (unequal

treatment), injustice (injustice), legal uncertainty (legal uncertainty).

Would not that it be so reasonable that the applicant considers the following article

a quo contrary to Article 28D of the paragraph (1) of the Basic Law of 1945

22.That based on the description above, it is clear the existence of Article 335

paragraph (1) throughout the phrase something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 of 1946 on the Penal Code of Laws (KUHP) and Article 21 paragraph (4) of the letter b

throughout the phrase Section 335 paragraph (1) Act No. 8 Year 1981 on the Book of Criminal Event Law (KUHAP) contradictory

with Article 28D of paragraph (1) of the Basic Law of 1945.

23.So thus the provisions of Article 335 paragraph (1) throughout the word phrase

something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 1946 on the Code of Law

Criminal (Criminal Code) and Article 21 paragraph (4) of the letter b throughout the phrase Article 335 paragraph (1) Act No. 8 of 1981 on the Code of Criminal Event Law (KUHAP) must be stated. "does not have binding legal power".

24.That the applicant is now in a state of fear of depression

against the Police call, by fear of being held. Although there is a

call of stage to II by Polsek Genteng Surabaya to be confronted with

The Prosecutor on Thursday 13 December 2012. For the sake of

the protection and legal certainty against the applicant.

19

The applicant requested to the chairman of the Constitutional Court for the hearing of the case

a quo accelerated in order for legal certainty to the applicant.

D. PETITUM Based on everything described above, the applicant pleads for the Court

The Constitution gives its amused verdict as follows:

1. Grant the applicant's request entirely;

2. Stating:

Article 335 paragraph (1) to the length of the phrase something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 of 1946 on the Book of Criminal Law (Penal Code) and Article 21 paragraph (4)

letter b throughout the phrase Article 335 paragraph (1) Act No. 8 of 1981 on the Code of Criminal Events Law (KUHAP)

contradictory Article 28D paragraph (1) The Basic Law of 1945.

3. Stating:

Article 335 paragraph (1) to the length of the phrase something else or unpleasant treatment and something else or unpleasant treatment Act No. 1 of 1946 on the Book of The Criminal Law (KUHP) and Article 21 of the paragraph (4)

letter b throughout the phrase Article 335 paragraph (1) Act No. 8 of 1981 on the Penal Code Law (KUHAP) not

has the power of the law tying;

4. Ordering the loading of this ruling in the Republic of the Republic of Indonesia News

as it should be;

Or, if the Constitutional Court argues otherwise, please a fair ruling-

be fair (ex aequo et bono).

[2.2] weighed that to prove its control, the applicant has

submitted a letter of letter proof/writing that was given a proof of P-1 to

P-15 proof, as follows: 1 Proof of P-1 Photocopy of the Basic Law Country of the Republic of Indonesia

In 1945; 2 Evidence P-2 Photocopies of the Code of Criminal Proceed Law (KUHAP); 3 Evidence P-3 Photocopies of the Code of Criminal Law (KUHP);

20

4 Evidence P-4 Requesting Photos With Lebam Conditions; 5 Evidence P-5 Photocopy of POLRI EAST JAVA RESORT CITY

LARGE SURABAYA SECTOR GENTENG SECTOR

Police LP/427/VIII/2012/JATIM/RESTABES/SEK GTNG

5 August 2012; 6 Evidence P-6 Photocopy of the POLRI AREA EAST JAVA RESORT

LARGE SURABAYA SECTOR GENTENG Number

B/110/IX/2012/Rescream on September 11, 2012; 7 Evidence P-7 Photocopy Evidence Deposits Central Asia; 8 Evidence P-8 Photocopy of the Republic of Indonesia State Police

EAST JAVA REGION Evidence Report with STPL

LPB/64/VIII/2012/SPKT; 9 Evidence P-9 Photocopy of the State Police Department of the Republic of Indonesia

JAWATIMUR DIRECTORATE OF THE CRIMINAL RESERSE

UMUM Number B/1169/SP2HP-3/XI/2012/Ditreskrimun dated 2

November 2012; 10 Evidence P-10 Photocopy of the POLRI AREA EAST JAVA RESORT

LARGE SURABAYA SECTOR GENTENG Number

SP.Han/123/X/2012/Rescream dated October 15, 2012; 11 Evidence P-11 Photocopied Mail Call Number SPG/83/IX/2012/Rescream

date, 11 September 2012 East Java Regional Police Resort

The Big City Surabaya Sector Genteng; 12 Evidence P-12 Photocopy of the State Police of the Republic of Indonesia

REGIONS OF JAVA EAST RESORT CITY MAJOR SURABAYA

Number S-Pgl/3567-A/X/2012/Satrescream dated October 25

2012; 13 Evidence P-13 Photocopy Letter POM-AD KODAM V Brawijaya East Java

Aduan number TBLP/11/VI/IDIK/2012 dated 09 August

2012; 14 Evidence P-14 Photocopy Letter of POLRI EAST JAVA RESORT CITY

LARGE SURABAYA SECTOR GENTENG MAIL CALL

No. SPG/123/X/2012/Rescream on 09 October 2012; 15 Evidence P-15 Photocopy KTP ID Number 09:3171050612700006

21

In addition, the applicant also submitted an expert namely

Dr. M. Sholehuddin, S.H., M.H., which he had heard under oath in the February 21, 2013 trial, which described as

following:

Dr. Sholehuddin, S.H., M.H. thought about what was requested

to the expert on the issues of the delict formula

contained in Article 335 of the paragraph (1) of the Criminal Code.

First experts tell a layman the law once delivered

to the expert, who once boarded an economic train from Surabaya to Jakarta,

for his seat facing someone taking off his shoes,

Take off his shoes and then get his socks off because it might stink and

know there's a cop who took him when he stopped at the station. That cop

took him in and thought it or accused him of doing nothing

fun because of the smell. Then, the expert friend thought, though he was a layman

the law due to the discipline of Indonesian language and literature. " Lho, if you take off

shoes only then smell, it can be reported to the police with no

fun, when I was not happy to ride the train that was

too loud, yes. It also makes my displeasure, "he said," but what can

be reported? ";

The story of this story then reminds the expert that indeed in the practices

the law in Indonesia Article 335 paragraph (1) of the Penal Code is often said to be The following

criminal acts are no fun. When it is seen from

the sentence structure, it is misused actually because of a copy of the Dutch

it onaangename bejegening. It was taken just as just that onaangename,

not fun, with no regard for the word of his connection

bejegening which means treat. So actually treat

people are unpleas, not unpleasant deeds because

unpleasant deeds are high and objectionable

low. So that everything forms of deeds that we perceive

subjective, relative, unpleasant, it could be included.

The idea that in the judicial practice in Indonesia is mainly when the process is at the stage

the investigation process as a front-runner in the affirmation of criminal law,

such practices arose and were often asked to experts because of experts

22

coincidentally is often asked to provide expert information, either at the BAP

nor at the trial. While it was actually wrong, a fatal mistake would be

resulting in a multitapation later;

the point that the actual Article 335 of the Criminal Code is in Nederland Wetbook

van Straafrecht, is in article 284 and there is no listed the phrase or

element delik as an alternative delik about unpleasant deeds

or with the threat of unpleasant deeds. So in article 284

Nederland Wetbook van Straafrecht, does not list it and only

at Nederland Wetbook van Straafrecht for Hindi for Indonesia, it exists.

The idea that the expert is saying In fact, it's not an act.

It's fun, but treating people isn't fun, this

is different. Moreover, the different is the sanal, if in the Dutch Penal Code it is 9

the prison month, but in the Indonesian Penal Code WVS Indonesia 1 year, it

is the difference. Then here because of the developments in practices like this, Prof. Dr.

Andi Hamzah once delivered when the meeting of the Law Teaching Association

Criminal and Indonesian Criminology then in practices

developments And there is a law among the law. One thing that pretenses

erroneously to the meaning of the deeds is unpleasant and up to now

continues, even Prof. Dr. Andi Hamzah proposes that the element delik

or the phrase of the act is unpleasant or with the threat

unpleasant deeds were removed in the concept of the national Criminal Code bill

and then on the final concept of the element/the phrase indeed

omitted.

The idea that the final concept of the 2005 Penal Code bill is already on the table

President. Prof. Muladi was requested to be present to explain but until

now it has not been discussed which bill of the national Criminal Code was. The concept of the Criminal Code bill

national, the phrase was removed. This is indeed for the first time a proposal or

delivery of Prof. Andi Hamzah, as it is considered often abused

and in principle of criminal law, contrary to the principle of criminal law

must contain the delik of that delicity is lex scripta, lex certa, and lex stricta.

Not even Prof. Andi Hamzah has ever delivered, one day in 1997

came to him a man named Rusdi at Ujung Pandang

delivering a police summons that was explained in it.

It's no fun because it's the land he's got so that

23

The fence is blocking the view from other people ' s lands. It was reported to

the police, there was a no-fun call letter. Then he

astonisted, this preclude that view is not the realm of criminal law, that is the realm

the civil law. Why being put into a criminal act is not

fun.

Later, according to the expert that the problem was

normanya, the norm is set in that phrase. That's what's giving rise to the

problem-problem. So it's not in his interpretation, it's the norm that

raises the problem so that bias, ambiguity, multitapism, etc.

is actually contrary to the principles of criminal law.

The related subjects with Article 21 of the KUHAP, the laws of the law. The legal criminal exists in Section 21

paragraph (1) the letter b of the Criminal Code that lists the phrase Article 335 paragraph (1), can

be withheld, so in the practice of expert experience, often Article 335 paragraph (1)

the application of the motive is for the culprit. can be withheld, so that any

form of deeds is considered to be not fun that subjectate it

high, basket trash terms in legal practice. It becomes one

an expert problem that can be concluded that the phrase there is one element delik in the Article

335 paragraph (1) of the Criminal Code (1) of the other or unpleasant acts,

or with the threat of non-action fun is too subjective

so high that it is biased, multitafsir, that is contrary to principle-

the principle of criminal law and therefore in the latter case of the Criminal Code bill

the phrase is gone unwell Again.

[2.3] A draw that against the request of the applicant, the Government

indicated on February 21, 2013, and has

submitted the written caption received by the Court of Justice

on May 28, 2013 at the point of explaining it as follows:

1. The Constitution of 1945 also expressly acknowledges that it is an honor, as well.

dignity, as a constitutional right and therefore protected by

the constitution. Article 28G paragraph (1) of the 1945 Constitution reads, " Every person is entitled to

personal protection, family, honor, dignity, and property

under his power, and entitled to a sense of safety and protection.

of the threat of fear to do or not to do something

is a fundamental right ". While in verse (2)-his is asserted, " Every man

24

reserves the right to be free from torture or degrading treatment of degrees

human dignity and entitled to obtain political asylum from another country"

2. Understanding the legal norm in Article 335 paragraph (1) of the Criminal Code must be placed

as a single entity of the criminal law norms contained in the chapter and the section

of the Section 335. Article 335 of the Penal Code is contained in Chapter XVIII on

The Crime Against the Independence of People. That is, the legal norm is loaded

in Article 335 of the Criminal Code as one of the criminal legal norms that contains

a ban for performing certain acts that threaten independence

people.

3. The criminal law contained in Chapter XVIII is to protect

against the independence of people by all its forms and modes.

The ministry of the person needs to be protected by the law (contained in the regulations

laws) and the prohibition of doing deeds that attack

to the independence of people (loaded in criminal law), because

People ' s independence has been guaranteed by the 1945 Constitution.

4. Thus, any form of action that attacks the honor or

good name, freedom, makes people afraid to do or not to do,

physically attack, and acts of the kind that are at its core

attack People's independence is prohibited and the ban

is poured in various laws, including in

the Penal Code contained in the Chapter XVIII. The legal norm is contained in

Article 335 of the Criminal Code is one part of the effort to give

protection against people ' s independence.

5. That the formulation of Article 335 of the Criminal Code, either as a whole, or

in particular Section 335 paragraph (1) to 1 Penal Code, is a delicality

that is formile that any violation complies with the delicality

that is, then The felon has been voltoid (sufficient formula

delik), so that the formulation is more a prevention that aims

to protect individual people as victims of the perpetrators of the crime.

6. That the core formula of a delik (delicts bestanddelen) Section 335 of the Criminal Code,

is:

a. The perpetrator is whose goods, means any person (person) who performs the deed is capable of being responsible according to the law.

25

b. The form of the deed is forcing, where the "force" is telling people to do something (or not

do something) so that the person does something (or does not

perform something) as opposed to its own will (R. Soesilo).

c. The object was people, that the force forced it to be addressed to the person.

d. Performed with against the law, in short was a deed in defiance of the law both objective and objective.

in the subjective sense and both written and unwritten laws (see

Arrest HR January 6, 1905 and Arrest H.R. 31 January 1919).

e. How to do deeds (alternatively), which is done well:

1) with violence; for violent elements, see Section 89 of the Criminal Code, where being equated by violence is making people

fainting or helpless again .. where according to R. Soesilo, "not

powerless" means no power or power at all

so it cannot hold any resistance or with other acts nor with unpleasant deeds.

2) with the threat of violence or with the threat of other actions nor with the threat of unpleasant conduct.

f. The purpose of the creator does the work (alternate):

1) the person or someone else to do something. 2) that person or someone else in order not to do something. 3) that person or someone else is letting something.

7. That further formulation of the provisions of the law as

is formulated in Article 21 of the letter b of the KUHAP, it is a

policy in the application of a law of positive (materiel law) to

in formyl law. Thus, in the presence of formyl law a quo

the material law can be enforced, and the formulation of the provisions of Article 21 paragraph (4)

the letter b of the KUHAP as above is more repressive and

formulated. limitative as a guide to law enforcement apparatus

(investigators and the public prosecutor) in conducting a restraining act.

8. It is clear that Article 335 of the paragraph (1) of the Criminal Code is intended

clearly and bright to protect people's independence and strengthen the norm

the laws of the constitution as contained under Article 28G of the Constitution of 1945. Norm of law

26

The criminal confirming constitutional norms is constitutional and must

be maintained. That in the practice practices of the a quo provision is not

regardless of the obstacles or obstacles that may be encountered

law enforcement officials but that does not make the a quo article

contrary to the provisions of the Constitution of the Republic of the Republic

Indonesia Year 1945.

9. That up to the current article a quo, still applies. This is in line

with the asas presumptio iustae causa, that the laws

remain in effect for the rest of the revocation.

[2.4] weighed that against the request of the applicant, the House of Representatives

The people gave a statement in the trial on February 21,

2013 and had submitted the written caption received by Kepaniteraan

The court on March 26, 2013, at the point of explaining it

following:

The applicant against the opinion of the applicant who expressed the threat of punishment The action

is not pleasant as referred to in Section 335 paragraph (1) of the Criminal Code

only 1 (one) year it is ideally not to be withheld, and that

is considered the applicant there is no legal protection from the state as

guaranteed in Article 28D paragraph (1) of the Constitution of 1945. The DPR provides the following

as follows:

a. Article 21 of the KUHAP already clearly governs that a person suspects

or a defendant may be held not only based on consideration

objectives such as based on sufficient evidence, punitive measures 5 (five)

years or more and certain types of criminal acts as

listed in Section 21 of the paragraph (4) KUHAP, will but incarceration against

suspects or defendants may also be based on subjective considerations

law enforcement as set forth in Article 21 of the paragraph (1) KUHAP

ie: In terms of the circumstances that inflict The concern that the suspect

or the accused will escape, damage or remove any evidence

and/or repeat the criminal act.

b. That in addition to Article 21 of the KUHAP that authorizes

law enforcement to conduct detentions against suspects or

defendants based on objective considerations and/or subjectives, KUHAP

also set the legal effort The pretrial that can be done by

27

suspects, defendants, families or their families who feel aggrieved by

the presence of a restraining order by law enforcement as

is feared by the applicant. The legal effort is set up in Article BAB

X, Article 77 of the letter a KUHAP which reads as follows: " Court

the country is authorized to check and disconnect, in accordance with the provisions

which is set in This legislation is about:

a. lawful or illegal arrest, detention, inquiry termination or

termination of prosecution ";

c. That the pretrial effort as set in the Criminal Code is

one of the forms of legal protection to the suspect or

the accused who felt harmed by the act of imprisonment by enforage

the law. For this reason it has been in line and not contradictory

with the provisions of Article 28D paragraph (1) of the 1945 Constitution

The terms of the description and explanation as described above,

the provisions of Article 335 paragraph (1) The Penal Code, and Article 21 of the verse (4) of the letter b KUHAP are not

contrary to the 1945 Constitution.

Thus the House statement in the case trial Number 1/PUU-

XI/2013 may this description be a matter of consideration for the Majleis

The Supreme Court of Justice is in the check, discharges and prosecuting Perkara

a quo with the ruling:

1. Overall House Description;

2. Stating the provisions of Section 335 paragraph (1) of the Penal Code and Section 21 of the paragraph

(4) letter b of the Law No. 8 of 1981 on Criminal Event Law

not contradictory with the provisions of the Constitution of the Republic of the Republic of the Republic

Indonesia 1945.

3. Stating the provisions of Article 335 paragraph (1) of the Penal Code and Section 21 of the paragraph

(4) Act B of the Law No. 8 of 1981 on Criminal Events Law

remains a binding legal force.

[2.5] A draw that the Government has delivering a written conclusion

received in the Court of Justice on May 28, 2013 which in

still remains on its attachment;

[2.6] weighed that in order to shorten the description in this ruling,

Everything that happened at the trial was quite appointed in the news of the show

28

the trial, which is one unseparable unity with

this ruling;

3. LEGAL CONSIDERATIONS

[3.1] A draw that the main legal issue of the applicant is

testing of the constitutionality of Article 335 (1) paragraph 1 of the Law No. 1

of 1946 on the Laws of the Criminal Law or the Book Law Law

Criminal juncto Act of the Republic of Indonesia Number 73 Year 1958 on

Declaring the Law No. 1 Year 1946 Republic

Indonesia on Criminal Law Regulation For The Whole Region Republic

Indonesia And Amend The Book Of Criminal Law (Sheet

Country number 127 in 1958, additional state sheet No. 1660 Year

1958, subsequently called KUHP) stated, " Whose stuff

against the law forces others to do, not do or

let something, by using violence, something else

nor unpleasant treatment, or by using the threat

violence, something else or unpleasant treatment,

either against the person himself or someone else;"throughout the phrase, " something else or the treatment unpleasant " and Section 21 paragraph (4) of the letter b Stating, "The arrest may only be imposed

against a suspect or a defendant committing a felony and or

trial and assistance in such a criminal act in case of: ...

. As defined in Section 282 paragraph (3), Section 296,

Section 335 paragraph (1), Section 351 of the paragraph (1), Section 353 paragraph (1), Section 372, Section 378, Section 379, Section 453, Section 454, Section 455, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459, Section 459 Section

506 The Code of Criminal Law, Section 25 and Section 26

Rechtenordonnantie (violation of the Customs and Excise Ordinance, last

amended with Staatsblad in 1931 Number 471), Section 1, Article 2 and Article 4

The Immigration Penal Code Act (Law Number 8 Drt. Years

1955, State Sheet of 1955 Number 8), Article 36 of the paragraph (7), Article 41, Article

42, Article 43, Article 47, and Section 48 Undangundang Number 9 Year 1976

on Drugs (State Sheet of 1976 Number 37, Tambähan

Country Sheet Number 3086)"throughout the phrase,"Article 335 paragraph (1) " Invite-Invite Number 8 Year 1981 on the Criminal Event Law Code

29

(sheet state of the Republic of Indonesia in 1981 No. 76, subsequently called

KUHAP) against Article 28D of the paragraph (1) of the Constitution of the Republic of the Republic

Indonesia in 1945 (subsequently called UUD 1945) which stated:

Section 28D paragraph (1):

"Everyone is entitled to the recognition, guarantee, protection, and legal certainty

the fair as well as the same conduct before the law"

[3.2] Draw that before considering the subject of the plea,

The Constitutional Court (later called the Court) was first going

considering the following:

a. The Court's authority to prosecute a quo;

b. Legal standing (legal standing) Applicant;

Against those two, the Court argues as follows:

The authority of the Court

[3.3] weighing that under Article 24C of the paragraph (1) of the 1945 Constitution, Article 10

paragraph (1) letter a Law Number 24 of 2003 on the Court

The Constitution as amended by Act Number 8 of the Year

2011 on Changes to the Law Number 24 Year 2003 concerning

Court Constitution (State Of The Republic of Indonesia Year 2011 Number

70, Additional List of State of the Republic of Indonesia Number 5226, next

called Act MK), Article 29 paragraph (1) letter a Law No. 48 Year 2009

on the Power of Justice (State Sheet of the Republic of Indonesia Year

2009 Number 157, Indonesia Republic of Indonesia Number 5076),

one of the Court's authority is to prosecute at the first level

and the final on which the verdict is final to test the Act

against the 1945 Constitution;

[3.4] weighed that by due to the applicant's request regarding

materiel testing Bill, in casu KUHP and KUHAP against UUD

1945 then the Court of Justice judges the plea a quo;

30

Legal Standing (Legal Standing) The applicant

[3.5] weighed that under Article 51 of the paragraph (1) MK Act, which may

act as the applicant in testing an Act against

UUD 1945 is those who regard the right and/or authority

its constitutionality is harmed by the enactment of the required Act

testing, i.e.:

a. Individual citizens of Indonesia, including groups of people

have shared interests;

b. the unity of the indigenous law society as long as it is alive and in accordance with

the development of the society and the principle of the Republic of the Republic of Indonesia

which is set in Undang-Undang;

c. the public or private legal entity; or

d. state agencies;

Thus, the applicant in testing the Act against

The 1945 Constitution must explain and prove first:

a. The position of the applicant is referred to in Article 51 of the paragraph

(1) of the MK Act;

b. the constitutional rights and/or constitutional authority granted by the Constitution

1945 resulting from the enactment of the required Act

testing;

[3.6] It is also that the Court has since the Decree No. 006 /PUU-

III/2005, dated 31 May 2005 and Putermination Number 11 /PUU-V/2007, dated

September 20, 2007 and subsequent rulings have established that

loss of rights and/or constitutional authority as referred to in

Article 51 paragraph (1) The MK bill must meet five terms, namely:

a. the rights and/or constitutional authority of the applicant given by

Constitution of 1945;

b. the rights and/or the constitutional authority by the applicant is considered

aggrieved by the enactment of the testing Act;

c. the rights and/or constitutional authority should be

specific and actual or at least a potential that according to reasoning

which is reasonable to be certain will occur;

31

d. Due (causal verband) relationship between losses referred to

by the enactment of the testing Act;

e. It is possible that with the request of a request, then

the rights and/or constitutional rights losses such as the postured is not

will or no longer occur;

[3.7] Draw that the applicant is a personal nationals

Indonesia that currently has been designated as a suspect by the Surabaya Polres

with S-Pgl/3567/X/2012/RESKRIM as the applicant is considered

has done an unpleasant deed only because The applicant

has utted the words " hey if you dare not be mucooing I am here, if

dare to fight in Suramadu", under Section 335 paragraph (1) of the Criminal Code and

Section 21 of the paragraph (4) of the letter b KUHAP;

That the applicant assumes that it has been harmed by his constitutional right

to obtain recognition, warranty, protection, and legal certainty

fair as well as the same treatment before the law by the enactment of the Article

335 paragraph (1) of the Criminal Code, " Something else or the treatment

which is not fun " and Section 21 paragraph (4) of the letter b KUHAP throughout the phrase,

"Article 335 verse (1)". According to the applicant, both sections a quo have harmed the rights

the constitutional applicant guaranteed by the Constitution of 1945 in particular Article 28D paragraph (1)

Constitution of 1945, as it contains obscure, biased, multi-letter norms of law.

interprets, elicits obscurity, unfair treatment, different treatment

in the face of the law, and of discriminatory treatment. With the enactment of the a quo,

The applicant as an established individual of the Indonesian citizen

becomes a suspect as it is deemed to have committed unpleasant conduct

aggrieved on his constitutional rights to obtain warranty, protection, and

the fair legal certainty as well as the same treatment before the law;

According to the applicant the norm contained in Section 335 paragraph (1)

KUHP throughout the phrase, " Something else. nor the treatment

please " and Article 21 of the paragraph (4) letter b KUHAP throughout the phrase, "Article 335

paragraph (1)" is highly biased, multitaphsir and tends to be forced. Therefore,

according to the second applicant section a quo has harmed the constitutional right of the applicant.

32

[3.8] A draw that under the control of the applicant, according to

the Court, the applicant is eligible for legal status (legal standing)

so that the applicant may apply for a quo;

[3.9] weighed that by due to the court of competent authorities

a request a quo as well as the applicant has a legal standing (legal standing)

to apply for a quo then the Court will be next.

consider the subject of the application;

subject to the request

[3.10] A draw that the applicant is requesting to test

the constitutionality of Article 335 paragraph (1) of the Criminal Code (1) of the phrase, "Something done

other than unpleasant treatment" and Article 21 of the paragraph (4) letter b

KUHAP throughout the phrase, "Article 335 paragraph (1)" against UUD 1945, for the reason-

the reason for the lower point is:

The case in the practice of law, a suspect in the deed is not

please It is generally often held in detention as experienced by

The applicant. Interest in holding detention is a trait that

is very subjective as measured by subjective authority

anyway, because it is subjective at the end of the many restraining orders that

is issued not in accordance with the cause of detention as intended

in Section 21 of the paragraph (4) of the letter b KUHAP;

The paragraph 21 paragraph (4) of the letter b of the KUHAP gives the full power to

the investigator, the public prosecutor and the judge to conduct the detention, whereas

the threat is only one year and this section clearly does not contain

legal protection and legal certainty to the applicant as

are guaranteed in Section 28D paragraph (1) of the 1945 Constitution;

The case in the context of the detention experienced by the applicant is very subjective and

discriminatory. The legal norm of delict unpleasant deeds is very broad

meaning it is like rubber, it can be drawn everywhere. Supposed to be in law

criminal, criminal delick must clearly mean his understanding, this is very different

with the unpleasant deeds contained in the section,

33

so that anyone considered committing an unpleasant act

may reportedly violate Article 335 of paragraph (1) KUHP;

The error that is based on the description above then clearly the existence of Section 335

paragraph (1) of the Penal Code along the phrase, "Something else or the treatment

that is unpleasant and something else and other than that of the action.

treatment

unpleasant " and Section 21 paragraph (4) of the letter b KUHAP throughout the phrase,

"Section 335 paragraph (1) " contradictory to Article 28D of paragraph (1) of the 1945 Constitution.

Thus the provisions of Section 335 paragraph (1) of the Penal Code to the extent of the phrase,

"something else or unpleasant treatment" and

"something else or unpleasant treatment", and

Article 21 paragraph (4) of the letter b KUHAP throughout the phrase, " Article 335 paragraph (1) " must

be declared to have no binding legal force.

[3.11] It is balanced that to prove its control, the applicant has

submitted a letter of proof of the letter or writing that was given P-1 proof of evidence. Until

with the P-15 evidence as well as the expert M. Sholehuddin (the expert description is contained in the Perkara section), which in turn describes as

following:

a. Article 335 of the Criminal Code in Nederland Wetboek van Strafrecht, is in article 284

but does not list the phrase or the element delik as an alternative delik about

an unpleasant act or with an action threat not

fun. Such deliccs are not unpleasant, but

treating people unpleas with different sanctions,

that is in the Dutch Penal Code nine months in prison, whereas in the Criminal Code

Indonesia one year prison;

b. Prof. Dr. Andi Hamzah proposed that the element delik deed not

please or with the threat of unpleasant conduct

is omitted in the concept of the Criminal Code bill;

c. With regard to Article 21 of the KUHAP in practice often Article 335 paragraph (1)

KUHP is used by the apparatus with the purpose of the culprit to be withheld,

so that any form of deeds is considered unpleasant that

High subjectives are already like trash baskets. It becomes

one issue that the phrase in Article 335 paragraph (1) The Penal Code, which is another act.

34

or an unpleasant act, or with the threat of deeds not

is pleasing to a very high subjective that is so biased, multitafsir,

that is contrary to the principles of the criminal law;

[3.12] In a draw against the request of the applicant, the Government has

provided the oral description in the trial on February 21, 2013

and has delivered a written statement received in the Paniteraan

Court on May 28, 2013, which is completely contained in section

Sit down The case, which in the first place represents the following:

a. To understand the legal norm in Article 335 paragraph (1) of the Criminal Code (1) of the Criminal Code must

be placed as one entity of the criminal legal norm contained in

the chapter and part of the Article 335. Article 335 of the Criminal Code is contained in Chapter

XVIII on Crime Against the Independence of the People means,

The legal norm contained in Article 335 of the Criminal Code as one of the norms

the penal law containing the prohibition to perform the deed Certain

threatens the independence of people;

b. The criminal law contained in Chapter XVIII is to protect

the independence of the person with all its forms and modes.

The independence of the person needs to be protected by the law (contained in regulations

laws) and The prohibition of attacks on the offensive

the independence of the person (contained in criminal law), because the independence of the person

has been guaranteed by the 1945 Constitution;

c. Thus, any form of action that attacks the honor or

good name, freedom, makes people afraid to do or not to do,

physically attack, and acts of the kind that are at its core

attack People's independence is prohibited and the ban

is poured in various laws, including in

the Penal Code contained in the Chapter XVIII. The legal norm is contained in

Article 335 of the Criminal Code is one part of the effort to provide

protection against the independence of people;

d. The formulation of Article 335 of the Criminal Code, both as a whole, and in particular

Article 335 paragraph (1) KUHP, which is a formyl delicality that is

formyl so that any violation complies with the delicality, then

35

The felon has been voltoid (sufficient to formulate a delik), so

The formulation is more a prevention that aims to protect

the individual community as the victim of the perpetrator evil;

e. The formulation of the provisions of the law as formulated in Article 21 of the paragraph (4)

letter b KUHAP, is a policy in the application of a kaedah

positive law (materiel law) into formyl law, so that it is

kaedah law formyl a quo of materiile law can be enforced, and formulation

provisions of Article 21 paragraph (4) of the letter b KUHAP as such above

is more repressive and limitless formulated as a guide

for law enforcement officers (investigators and the public prosecutor) in performing

actions containment;

f. Article 335 paragraph (1) of the Criminal Code is intended to be clear and clear to

to protect people's independence and to strengthen the norms of constitutional law

as contained in Article 28G of the Constitution of 1945. The norm of criminal law that

strengthenes the constitutional norm is constitutional and must be maintained;

g. In the practice of applying these provisions not regardless of the obstacles or

constraints that law enforcement officials may face but that

does not make the article a quo contrary to the provisions of the 1945 Constitution.

[3.13] weighed that against the request of the applicant, the House of Representatives

The people had delivered oral captions in the trial on 21

February 2013, which was further contained in the sitting of the Perkara, which the People had said.

on the main view as follows:

a. Against the applicant's opinion stating the threat of wrongdoer punishment

is not as pleasant as referred to in Article 335 of the paragraph (1) of the Criminal Code

only 1 (one) of the year it is ideally unable to be withheld and that

is considered the applicant no legal protection of the state as

guaranteed in Article 28D paragraph (1) of the 1945 Constitution. The DPR provides the following

as follows:

The article 21 of the KUHAP already clearly governs that a person of the suspect

or a defendant may be detained not only based on consideration

objectives as based on the evidence enough, punitive 5 (five)

years or more and certain types of criminal acts as listed

36

in Section 21 of the paragraph (4) KUHAP, will but detention of the suspect

or the defendant may also be based on the subjective considerations of enforing

the law as set forth in Article 21 of the paragraph (1) KUHAP, which is

in the event of circumstances which raised concerns that the suspect or

the accused will escape, damage or remove any evidence

and/or repeat the criminal offense;

the statement that beside Article 21 KUHAP which authorizes

law enforcement to conduct detention of suspects or

defendants based on objective and/or subjective considerations, KUHAP

also set up a pretrial legal effort that can performed by

the suspect, the defendant, his family or his power who felt aggrieved Due to

the presence of an act of containment by law enforcement as

is feared by the applicant. The legal effort is set in the BAB X,

Article 77 of the letter a KUHAP reads, " The state court is authorized to

check and disconnect, in accordance with the provisions set out in

This legislation is about: a. lawful or illegal arrest, detention,

termination of inquiry or termination of prosecution ";

The failure that the pretrial effort is set in the KUHAP is

one of the forms of legal protection to suspect or

a defendant who felt harmed by an act of detention by enforage

the law. It has therefore been in line and not contradictory

with the provisions of Article 28D paragraph (1) of the 1945 Constitution

b. Section 335 paragraph (1) The Criminal Code, and Article 21 of the verse (4) of the letter b KUHAP are not

contrary to the 1945 Constitution.

Court opinion

[3.14] A draw that the constitutional issue in the a quo plea is

whether the same two phrases in Section 335 paragraph (1) item 1 of the Criminal Code

states, " Something done other nor unpleasant treatment "

contrary to the 1945 Constitution and thus the phrase,"Article 335 paragraph (1)"

in Section 21 of the paragraph (4) the letter b of the KUHAP is contrary to the 1945 Constitution?

[3.15] weighed that against the constitutional issue, according to

The court as a deliciness, qualifying, " Something else

37

or unpleasant treatment " cannot be quantified objectively.

If it can be measured then that size is very subjective and only

based on the victim's assessment, the investigators, and the public prosecutor alone.

In addition, it is generally unpleasant that it is the impact of

all criminal acts. Every criminal act is obviously unpleasant and not

there is a fun impact of criminal acts. As such, it is

not something that can be explicitly distinguizable (distinctive) of

another criminal offence;

[3.16] A draw that as a result of the deliciness of the delic

Thus, it can also be an opportunity for investigators and the public prosecutor

to arbitrate others based on a report.

Although it must be recognized that in the end it must be proved in

the court, however, if the report is proven, then it

Be reasonable and there is no arbitrariness. On the contrary, if not

is proven then the reported side has suffered a loss due to the need to

deal with the investigator and the public prosecutor and more if the

in question is withheld [vide Article 21 of the paragraph (4) letter b KUHAP]. Thus

means a person has lost independence as an act of entitlement, whereas

the criminal law and the criminal event law are in place to protect the rights of

the arbitrariness of law enforcement. In addition, concerned

morale and social have been harmed as having been stigmatized as

people despicable as a result of such reports;

Based on those considerations above, according to the Court phrase

"Something else or unpleasant treatment" in Section

335 paragraph (1) item 1 of the Penal Code has generated legal uncertainty and

injustice for giving the chance of arbitrary arbitrariness.

The investigator and the prosecution are common in its implementation especially for the party

reported, thus contrary to the constitutional principle that guarantees

protection of the right to obtain fair legal certainty in

the law enforcement process [vide Article 28D paragraph (1) UUD 1945]. Therefore,

the applicant's request in the constitutionality testing of the constitutionality Section 335 paragraph (1) item

1 KUHP throughout the phrase, "Something else or the treatment that is not

is fun" justified by law;

38

[3.17] weighed that on whether Section 21 of the paragraph (4) of the letter b of the Criminal Code along

the phrase, "Section 335 paragraph (1)" contradictory to the 1945 Constitution? The Court

argues that the provisions in Section 335 paragraph (1) item 1 of the Criminal Code do not only

contain the charge material associated with the norm in the phrase, " Something

other acts or treatment are not fun ", so that if

Article 21 paragraph (4) of the letter b KUHAP is declared contrary to the 1945 Constitution

means the whole norm in Section 335 paragraph (1) item 1 of the Criminal Code will be

not legally binding. This is not the case according to the law. In addition to

that, in fact, the application of the phrase constitutionality testing of the phrase,

"Something else or unpleasant treatment" in the section

335 paragraph (1) item 1 of the Criminal Code is warranted according to the law then testing Article 21

paragraph (4) of the letter b KUHAP is required,

because not the entire norm contained in Section 335 paragraph (1) item 1 of the Criminal Code

becomes contrary to the 1945 Constitution. According to the court of testing

constitutionality of Article 21 of the paragraph (4) of the letter b KUHAP throughout the phrase, "Article 335

paragraph (1)" is unwarranted according to the law. As for Article 21 of the paragraph (4)

letter b KUHAP which refers to Section 335 paragraph (1) item 1 of the Penal Code is sufficient

in its implementation refers to the norm after the Court ruling

states that some of its norms are non-binding. lawful;

[3.18] Draw that based on all legal considerations

described above, the Court argued that the applicant's request was warranted

according to law for part;

4. KONKLUSI

Based on the assessment of the facts and laws as described in

above, the Court concluded:

[4.1] The court is authorized to prosecute the a quo;

[4.2] The applicant has legal standing (legal standing) to submit

a request;

[4.3] The request of the applicant is reasonable according to the law for some;

39

Based on the Basic Law of the Republic of Indonesia Year

1945, Act No. 24 of 2003 on Constitutional Court

as amended by Law No. 8 of 2011 on

Changes To The Law Number 24 Of 2003 On The Court

Constitution (sheet Of State Of The Republic Of Indonesia Of 2011 Number 70,

Additional Of The Republic Of Indonesia State Number 5226), And Invite-

Invite Number 48 Years 2009 on the Power of Justice (State Sheet

Republic of Indonesia of 2009 Number 157, Additional State Sheet

Republic Indonesia Number 5076);

5. AMAR RULING

Prosecute,

States:

1. Grant the applicant request for a part;

1.1. Stating the phrase, "Something else or the treatment that is not

please" in Section 335 paragraph (1) item 1 Act

1 Year 1946 on Criminal Law or Book of Invite-

Invite the Law Criminal juncto Act of the Republic of Indonesia Number

73 Years 1958 on Declaring Enactment Number 1

Year 1946 Republic of Indonesia on Criminal Law Ordinance For

All Territories of the Republic of Indonesia And Change The Book Of Inviting-

Inviting Criminal Law (State Sheet Number 127 Years) 1958,

Additional State Sheet Number 1660 Year 1958) contradictory

with the Constitution of the Republic of Indonesia in 1945;

1.2. Stating the phrase, "Something else or the treatment that is not

please" in Section 335 paragraph (1) item 1 Act

1 Year 1946 on Criminal Law or Book of Invite-

Invite the Law Criminal juncto Act of the Republic of Indonesia Number

73 Years 1958 on Declaring the Act Number

1 Year 1946 Republic of Indonesia on Criminal Law Regulation For

All Regions of the Republic of Indonesia And Change The Book Of Invite-

40

Inviting Criminal Law (State Gazette Number 127 of 1958,

Additional Gazette number 1660 in 1958) did not have

binding legal force;

1.3. Article 335 paragraph (1) item 1 of the Law No. 1 of 1946 on

Criminal Law or Criminal Law Code

juncto Act of the Republic of Indonesia Number 73 Year 1958 on

Declares the Law Number 1 Year 1946 Republic

Indonesia on Criminal Law Regulations For The Whole Region

Republic Of Indonesia And Changing The Book Of Criminal Law

(sheet Of State Of The Republic Of Indonesia Number 127 In 1958,

Additional Gazette Republic of Indonesia No. 1660 Year

1958) being declared, " Whoever is against the law

forces others to do, not do or

let something, by using violence, or by wearing

the threat of violence, either against the person himself or anyone else ";

2. Reject the applicant's request for other than and for the remainder.

3. Ordered the loading of this termination in the News of the Republic of Indonesia

as it should be;

So decided in a Consultative Meeting of the Judges by

nine Constitutional Judges: M. Akil Mochtar, as the Chairman of the Republic.

Member, Achmad Sodiki, Hamdan Zoelva, Arief Hidayat, Ahmad Fadlil Sumadi,

Harjono, Maria Farida Indrati, Muhammad Alim, and Anwar Usman, respectively-

respectively as Members, on Monday, twenty-seventh date, May,

year two thousand thirteen, and spoken in the Plenary Session of the Court

The Constitution is open to the public on Thursday, the sixteenth, month date

January, year two thousand fourteen, completed pronounced at 16.10 WIB, by

the eight Judges of the Constitution, namely Hamdan Zoelva, as The co-chairs are

Members, Arief Hidayat, Ahmad Fadlil Sumadi, Harjono, Maria Farida Indrati,

Muhammad Alim, Patrialis Akbar, and Anwar Usman, respectively as

Members, with accompanied by Hani Adhani as Panitera Substitutes,

41

attended by the applicant or its ruler, without the presence of the Government or which

represents and the People's Representative Council or represents.

CHAIRMAN,

ttd.

Hamdan Zoelva

MEMBERS,

ttd.

Arief Hidayat

ttd.

Ahmad Fadlil Sumadi

ttd.

Harjono

ttd.

Maria Farida Indrati

ttd.

Muhammad Alim

ttd.

Patrialis Akbar

ttd.

Anwar Usman

PANITERA REPLACEMENT,

ttd.

Hani Adhani