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

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Read the untranslated law here: http://peraturan.go.id/inc/view/11e44c50448f8d20a59b313232373135.html

RULING No. 1/PUU-XI/2013 for the SAKE of FAIRNESS UPON the DIVINITY of the ONE TRUE GOD of the CONSTITUTIONAL COURT of the REPUBLIC of INDONESIA [1.1] who adjudicate matters the Constitution on the first and last levels, dropping a verdict in the case of testing Act No. 1 (1946) of the book of the law of criminal law and Act No. 8 of 1981 on the law of criminal procedure against the Constitution of the Republic of Indonesia in 1945, proposed by : [1.2] name: Oei Alimin Sukamto Wijaya Job: private address: Street Number 98 Surabaya Alert in this regard on the basis of a special power of attorney dated 10 December 2012 authorizes Muhammad Saalih, S.H., Imam Al-Shaafa'i, S.H., Yun Suryotomo, S.H., Muhammad Achyar, S.H., Abdul Holil, S.H., Sahid Ahmad, S.H., and Adi Darmanto, S.H., advocate at the Law Office of Sholeh and Partners located Office on Jalan Surabaya Muhammadiyah Number 2B Tile , acting for and on behalf of the giver of power; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-Appellant; [1.3] Read the petition of the applicant; Hearing a description of the applicant; Heard and read a description of the Government; Heard and read the description of the House of representatives; Hearing a description of the applicant's expert; Examine the evidence the applicant; Read the conclusions of the Government;

2 2. SITS MATTERS [2.1] considering that the applicant had filed a petition with the application letter dated 13 December 2012 are received at the Constitutional Court Registrar (hereinafter referred to as the clerk of the Court) on 13 December 2012 based on deed of receipt of the Application File number 1/URPAN.MK/2013 and has been recorded in the book the registration Matters of the Constitution on January 3, 2013 with the number 1/PUU-XI/2013, which had been repaired with the repair of the plea and accepted in Court Clerk on February 1, 2013 , which in essence outlines the following matters: a. The AUTHORITY of the CONSTITUTIONAL COURT That the provisions of article 24C paragraph (1) the Constitution states that the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution. Article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court as modified by law No. 8 year 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court (hereafter called the ACT the COURT) confirms the same thing, namely the mention of the Constitutional Court is authorized to adjudicate on the first and last level that an award is final, among others "testing legislation against the Constitution of the Republic of Indonesia in 1945" , severing of disputes the State agencies the Authority those powers granted by the Constitution, severing the dissolution of political parties and break the disputes about election results. Similar affirmations are also expressed by Act No. 48 of 2009 about general Justice stated: "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final for the" among others "testing legislation against the Constitution of the Republic of Indonesia in 1945". While the provisions of article 9 paragraph (1) of the Act No. 12 year 2011 about the formation of Laws-the invitation States "in terms of an act alleged to be at odds with the Constitution of the Republic of Indonesia in 1945, done is done by the Constitutional Court"; Based on the above description, then the applicant believes, that the Constitutional Court is authorized to prosecute the application for testing the legislation at the level of the first and last of which an award is final. B. the POSITION of the LAW (LEGAL STANDING) the APPLICANT 1. That Article 51 paragraph (1) of the ACT, the COURT declared the Applicant is a party which considers the right and/or authority konstitusionalnya harmed by the enactment of the Act, namely: a. the individual citizen of Indonesia; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entity, or; d. State institutions. 2. Description of article 51 paragraph (1) of the ACT the COURT stated that the definition of "constitutional rights" are the rights regulated in the Constitution of 1945; 3. That the applicant is a citizen of Indonesia; 4. That on August 5, the action has occurred the persecution experienced by the claimant, where the claimant was persecuted in the Meritus Hotel Surabaya and who perform acts of persecution is the owner of Hotel Meritus Surabaya named Haryono alias Winata Mingming. Due to the persecution of a quo, face the applicant suffered a hematoma hematoma-so the applicant must opname a few days in the Hospital (vide evidence P-4). 5. That the applicant's persecution after the event came to the police station roof tiles Sector Surabaya with intent to want to report, and arrived at the police station at 1 am GMT. Shortly after arriving at Polsek Applicant is told to wait in the waiting room by the police who are on duty, after one (1) hour of waiting Applicants new asked into the acceptance of reports and there make a report that depleted beaten by Winata Haryono alias Mingming and typed reports and provided with the LP STPL/427/VIII/2012/JAVA/RESTABES/SEK GTNG (vide evidence P-5). After you create a report and then the applicant is told to go into space investigator to provide information related to the report about advanced, will be 4 but that is very suspicious when the applicant was asked about the chronological events related parties the investigator not typing even also not recorded on what parties the investigator ask and what the applicant. This event lasts until 06.00 PM +-and most surprising, after which an applicant is told to wait in the waiting area outside by the investigators, and not long ago the brother Haryono Winata suddenly come and go straight keruang KANIT Reskrim Polsek Tile Surabaya. The lapse of time the claimant was told to enter and the applicant viewed Kanit Reskrim easily follow what is told by Haryono Wiinata. 6. That after what was reported by the applicant were the most fundamental ones make where the suspect, the appellant in this case there is a change in the number of parties to Polsek STPL Tile which in this case from your LP/427/VIII/2012/JAVA/RESTABES/SEK. GTNG changed to Number LP/106/VIII/2012/JAVA/RESTABES/SEK. GTNG. 7. That in its development to this day the case of the applicant in not Tile Polsek acted upon in accordance with SOPS of baku State police of the Republic of Indonesia, which where until on September 11, 2012, the applicant received a letter (SP2HP) from POLSEK Tile Surabaya with the number B/110/IX/2012/RESKRIM (vide evidence P-6) which contains about still needs investigation extension for 30 days, but already check the 12 witnesses and the applicant has given information that at the Hotel Meritus there is CCTV that could serve as a evidence. But parties Polsek tile impressed put aside these issues and show less professional in handling the matter. 8. Because of his fear, looking strong and remarkably begitua Haryono Winata Polsek Tile in Surabaya and don't understand the law, the applicant thus requested to indemnify Haryono Winata CS, who originally asked for Rp 3 billion eventually dropped to Rp 500,000,000, (five hundred million rupiah) and the applicant is already a money transfer of $ 200,000,000., (two hundred million rupiah) to account BCA Muljono Day Number 3631359688 (vide evidence P-7). 9. That is because there is no settlement and the applicant feel squeezed, because the applicant was a victim of persecution thus requested money for


5 Rp. 200 million, (two hundred million rupiah). Finally the applicant reported acts of persecution and an attempt blackmail carried out by Haryono Winata et al to the East Java Police with SPKT STPL Number LPB/641/VIII/2012/SPKT (vide evidence P-8) dated August 30, 2012 with the hope that the police in handling the matter could be more professional and neutral without any pressure. But that happens even visibility a pattern game is already in kordinasikan with very neatly by the parties make as if the elements of the report Applicant not proven that in this EAST JAVA POLICE SP2HP in accordance with the Number B/1169/SP2HP-3/XI/2012/Ditreskrimum (vide evidence P-9). 10. That with the incessant Applicant seeking justice make Brother Haryono Winata As Meritus Hotel owners of the well-known immune to the law increasingly steamy and tried to criminalize the petitioner with a variety of important ways that an applicant has to go to prison. 11. That alleged has happened a neat game patterns to mengkriminalisasikan the applicant can be observed with the designation of the applicant as the suspect conducted by POLSEK Tile Surabaya with issuance of summons Number SPG/107/IX/2012/Reskrim and SPG/123/X/2012/Reskrim dated 24 September 2012 and the date 09 October 2012 in the alleged deeds is not fun (article 335 of the CRIMINAL CODE) which in this case is the rapporteur Haryono Winata , as for the reports created by Winata Haryono STPL Number LP/107/VIII/2012/JAVA/RESTABES/SEK. GTNG dated August 05, 2012. In this case the reported that Winata Haryono very weak evidence, however, the Applicant can be easily defined as a suspect within a time not too long ago and also there is a beam towards the applicant it can be seen in the detention Warrant Number SP. Han/123/X/2012/JAVA/RESKRIM (vide evidence P-10). And it really makes the applicant felt that justice was only owned by the mafia the law along with the rich people only. 12. That pattern of neat games to mengkriminalisasikan the applicant can also be observed with the designation of the applicant as a suspect being performed again by the Tile Polsek Surabaya with issuance of summons Number SPG/83/IX/2012/Reskrim (Copy Attached 6) dated September 11, 2012 in the alleged deeds of no fun [article 335 paragraph (1) of the CRIMINAL CODE] or destruction of goods in this case the complainant is Hary Moeljono which are still telling people from Haryono Winata , as for the report made a number LP STPL/105/VIII/2012/JAVA/RESTABES/SEK. GTNG dated August 05, 2012 (vide evidence P-11). In this case the views of Number STPL issued Polsek Tile is very suspicious, because the difference in the number of reports is only one lapse of number of Laps made by Applicant (LP/105/VIII/2012/JAVA/RESTABES/SEK with GTNG LP/106/VIII/2012/JAVA/RESTABES/SEK. GTNG) when in fact the applicant was the person who first reported and there is no other person who made the report. Suspicions strengthened by the presence of the applicant of the fact the Applicant modified STPL problems magically as we have explained above, that proves that the existence of interference and games persons-persons who are very unprofessional and not neutral. 13. That alleged the existence of patterns, criminalize the petitioner can also be observed with the establishment of the applicant as a suspect in a case that has never been done by the applicant. In this case the designation as a suspect can be seen from the presence of the summons issued POLRESTABES Surabaya Number S-Pgl/3567/X/2012/RESKRIM dated 25 October 2012, as for the letter based on a report from JEnny Kosasi aka Grandchildren with Number LP STPL/K/1112/IX/2012/JAVA/RESTABES. Sby dated 07 January 2012 in the case of crimes against decency and deed is not fun. Where in this case the applicant had never get to know Jenny Kosasi let alone did as disangkakan, now new Applicants know it turns out Jenny a.k.a. Kosasi Grandson is still one of the plot with Haryono Winata (vide evidence P-12). 14. That the existence of the applicant's mengkriminalisasikan pattern can also be seen by the existence of terror and intimidation allegedly perpetrated by members of the TNI-AD agencies. In this case the TNI-AD persons who make an effort so that applicants are not terror continued reports of mistreatment committed by HARYONO WINATA known named Mayor Chb Sudrajat from Pa Pudik Intelstrad Kodiklat TNI-AD 7. As for intimidation and terror has been the applicant's Report in the POM-AD KODAM V Brawijaya in East Java with the number Complaint TBLP/11/VI/IDIK/2012 dated 09 August 2012 and there also has been no follow-ups (vide evidence P-13). 15. That the applicant can call letters from Polsek Tile Surabaya to do titles matter in the case of the persecution report applicants no follow-ups on December 10, 2012, suddenly cancelled by police replaced the summons the applicant will be handed to the Prosecutor's Office in the case of works not fun [article 335 paragraph (1) of the CRIMINAL CODE] statements HARYONO WINATA where Applicants in this case have been arrested. That calling this very suspicious and the applicant's fear of being arrested again, finally calls on 10 December was not didatangani. And that very day the applicant can call to 2 from Surabaya to Polsek roof tiles are exposed to the Prosecutor on Thursday December 13, 2012. What is this, how come that fast? Is this a matter of police corruption is so enterprising and lusting for resolving the matter lightly temeh the applicant. 16. That the applicant has been assigned to this day become a suspect in the 3 things with supposition do criminal acts in violation of article 335 paragraph (1) as in (vide evidence P-10, P-11 evidence vide and vide evidence P-12). 17. That Article 335 paragraph (1) of the CRIMINAL CODE is a rubber article in the course of its history became a tool to criminalize every citizen to be detained due to Article 335 paragraph (1) of the CRIMINAL CODE according to the CODE of CRIMINAL PROCEDURE chapter 21 verse (4) letter b is the article exceptions can be done anchoring (vide evidence-10). 18. The applicant just said; "hey if you dare don't mukuli I here (hotelmu) reply dare come fight at Suramadu". The question whether the applicant's words could be a quo can already dikualifikasi as unpleasant deed as set forth in article 335 paragraph (1) of the CRIMINAL CODE? If can certainly Article 335 of the CRIMINAL CODE subsection (1) is article elastic rubber, can ensnare anyone considered doing the deed is not fun. 19. That the Applicant with the provisions of article strongly feel konstitusionalnya rights violated and harmed the applicant proved to be ever arrested 335 Article 8 paragraph (1) of the CRIMINAL CODE that strengthened by article a quo as guaranteed by the Constitution particularly Article 28D paragraph (1) of the Constitution of 1945. Thus, the applicant's opinion then the applicant has met the qualifications referred to in the provisions of article 51 paragraph (1) letter a LAW COURT. 20. That refers to the Court ruling since the verdict Number 006/PUU-III/2005 of 31 May 2005 and decision number 11/PUU-V/2007, dated September 20, 2007 and subsequent rulings, held that the loss of rights and/or constitutional authority as intended by article 51 paragraph (1) of the ACT the COURT must meet five conditions, namely: 1. the existence of rights and/or constitutional authority the applicant given olehUUD 1945; 2. the rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; 3. the constitutional harm must be specific (Special) and the actual potential or at least according to a reasonable reasoning can dipastikanakan occur; 4. the existence of a causal relationship (causal verband) between the losses in question and the enactment of legislation which petitioned testing; 5. the existence of a possibility that with the dikabulkannya application, then a constitutional disadvantage as postulated would not or no longer occur; 21. Thus there are 5 (five) the absolute requirement that must be met in the test legislation against the Constitution. The terms of the first, was the applicant's qualifications as a citizen of Indonesia, to act as the applicant as defined in article 51 paragraph (1) of the ACT the COURT. The second requirement, with the enactment of a law the rights and/or constitutional authority the applicant harm. The third requirement, the specific nature of the constitutional harm. The fourth requirement, the loss incurred due to the enactment of the Bill is requested. The terms of the fifth, the constitutional losses won't happen again if the petition is granted. 22. That five terms as mentioned above is explained by the Court through a verdict of the Number 27/PUU-VII/2009 in testing formyl second amendment Supreme Court Act (page 59), which mentions the following:


9.23. from the practice Court (2003-2009), private CITIZENS, especially tax-payer (tax payer; vide Verdict Number 003/PUU-I/2003) a variety of associations and NGOS/NGO which concern against the legislation in the interest of the public, legal entities, local governments, State agencies, and others, by the Court is considered to have legal standing to apply for testing, both the formyl or materially, the legislation against the Constitution (see also Lee Bridges , and his friends. In "Judicial Review in Perspective, 1995)"; 24. That based on a description of the applicant's already stated above proves that the applicant (individual citizens of Indonesia) has the position of law (legal standing) to act as the applicant in the application for testing these laws. 25. That on the basis of these criteria the applicant is the party that has a causal relationship (causal verband) between a constitutional disadvantage with the enactment of laws that petitioned to be tested because of article 335 paragraph (1) along the phrase said something the other deeds or treatment that is not fun and something other deeds or treatment that is not pleasing Undang-Undang No. 1 (1946) of the book of the law of criminal law (PENAL CODE) and article 21 paragraph (4) subparagraph b of article 335 words phrases along the paragraph (1) of law No. 8 of 1981 about the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE) contravenes against Article 28D paragraph (1) of the Constitution of 1945 26. That nyatalah if article a quo does not provide legal protection and legal certainty to every citizen, even though the Applicant had constitutionally guaranteed Constitution of 1945. Thus the applicant argues that the applicant has the legal position (legal standing) as a party to the application for testing legislation against the Constitution. 27. That the applicant concerned if Article 335 paragraph (1) along the phrase said something the other deeds or treatment that is not fun and something other deeds or treatment that is not pleasing Undang-Undang No. 1 (1946) of the book of the law of criminal law (PENAL CODE) and article 21 paragraph (4) subparagraph b of article 335 words phrases along the paragraph (1) of law No. 8 of 1981 on the book of the law of Criminal Law 10 (CODE of CRIMINAL PROCEDURE) is not cancelled by the Constitutional Court the applicant's constitutional rights, which guaranteed the Constitution 1945 factually and potential harm. B. SUBJECT MATTER of the PETITION of the CRIMINAL CODE is taken from the book of the PENAL CODE and CODE of CRIMINAL PROCEDURE prints the Independent Asa May 2007 Article 335 of the CRIMINAL CODE States; (1) was threatened with imprisonment of not longer than one year or a maximum fine of four thousand five hundred dollars: 1. those who are against the law to force the other person so to do, do not do or allow something, using violence, something other deeds or treatment that is not good, threats of violence, or wear something other deeds or treatment that is not fun, either against themselves or others ". 2. Anyone who compels another person so doing, do not do or allow anything with the threat of pollution or contamination. (2) in matters as formulated in point 2, the crimes are prosecuted only upon complaint of people affected. The CRIMINAL CODE is taken from the book of the PENAL CODE and CODE of CRIMINAL PROCEDURE penghimpun SALAHUDIN first printing July 2007 issue Transmedia Library Article 335 paragraph (1) of the CRIMINAL CODE States; (1) was threatened with imprisonment of not longer than one year or a maximum fine of four thousand five hundred dollars: 1. those who are against the law to force the other person so to do, do not do or allow something, with violence, with something another deed or with treatment that is not fun, or with the threat of violence, with the threat of another deed or by the threat of a treatment that is not fun , either against themselves or other people. 2. Anyone who compels another person so doing, do not do or allow anything with pollution or threat of pollution 11 writing. (2) in the case referred to in numbers 2, crimes were prosecuted only upon complaint people affected by crime. Article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b all phrases article 335 paragraph (1) (1) the continued detention or restraining order made against a suspect or defendant who allegedly doing criminal acts based on sufficient evidence, in respect of the existence of the circumstances that give rise to concern that the suspect or the accused will flee, destroy or remove evidence or repeat the crime. (2) further detention carried out by the investigator or the Prosecutor against the suspect or defendant by granting warrant detention or assignment judge who mencatumkan the identity of the suspect or the accused and mentioned the detention reasons as well as a brief description of the matter of crimes dipersangkakan or didakwakan as well as the place where he was detained. (3) copies of a warrant of further detention or the determination of a judge referred to in subsection (2) must be given to his family. (4) the Detention may only be imposed against a suspect or defendant who commits a criminal offence and the trial or grant or in such criminal acts in terms of: a. the crime was threatened with imprisonment of five years or more; b. the criminal offence referred to in Section 282 paragraph (3), Article 296, article 335 paragraph (1), Article 351, paragraph (1) of Article 353 paragraph (1), article 372, article 378, 379 a Chapter, Article 453, 454, 455 Article Article, article 459, article 480 and article 506 of the book the laws of criminal law, article 25 and article 26 Rechtenordonnantie (offences against customs and Excise Ordinance, last modified in 1931 Staatsblad Number 471) , Chapter 1, article 2 and article 4 of the Act the immigration criminal act (Act No. 8 of Drt. 1955 1955 State Gazette number 8), article 36 paragraph (7), article 41, article 42, article 43, article 47 and article 48 of the Act No. 9 of 1976 on Narcotics (State Gazette Number 37 in 1976, an additional State Gazette Number 3086). Next Constitution reads:  Article 28 D paragraph 12 (1): "everyone is entitled to recognition, guarantees, protection and legal certainty are fair, as well as equal treatment before the law". 1. That the CRIMINAL CODE even though enacted in 1946 sebenarrnya the CRIMINAL CODE comes dariWetboek van Strafrecht or the book of the law of criminal law (CRIMINAL CODE) from the colonial era in Indonesia Netherlands (Nederlandsch Indie), so if there is a difference only in the use of the term and the order of the sentence only. 2. it must be admitted That the contents of the articles in the criminal code a lot of outdated, and no longer fit with the natural condition of democracy now. But the fact that our Government has not been able to do a revision of the CRIMINAL CODE, although from the first promised there will be a revision but in fact never took place. 3. That in the criminal law of unpleasant deed as referred to above is set out in Chapter XVIII about the crimes against the people of Independence Article 335 paragraph (1) the book of the law of criminal law that rumusannya reads: (1) Threatened with imprisonment of not longer than 1 (one) year or a maximum fine of three hundred dollars: those who are against the law forcing others so do or allow something using violence, something other deeds or treatment that is not fun, or using the threat of violence, something other deeds or treatment that is not fun, either against themselves or other people. 4. The matter unpleasant deed as set forth by article 335 paragraph (1) the book of the law of criminal law can be done despite the threat of imprisonment sentence was the longest one (1) year. This is stipulated in article 9 paragraph (4) subparagraph (b) the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE). The qualifications of the detention of a suspect in the case of works not fun stick refers to a legal reasons such as allegedly doing criminal acts based on sufficient evidence, in respect of the existence of circumstances which give rise to concerns of the suspect or the accused will flee, destroy or remove evidence or repeat the crime. In his arrest warrant, agencies concerned (the investigator, public prosecutor or


13 judges) shall state the reason for his arrest. Without mention of the reason for the detention, then the detention law is flawed and done can be praperadilankan. 5. That the practice of law, a suspect in the case is generally unpleasant deed often carried out detention as experienced by the applicant. the benefit to doing a detention is a very subjective nature is measured based on the authority that is subjective anyway. Because of the subjective nature in the end many detention orders were issued which does not accord with the reasons for the detention as intended and regulated by article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b. That, article 21 paragraph (4) letters of the CODE of CRIMINAL PROCEDURE gives full power against the investigator, the public prosecutor and the judge to conduct the detention, even though the threats are just one year old. And this article definitely contains no legal protection and legal certainty as to the applicant's guarantee in article 28D paragraph (1) of the Constitution. 6. That, in the context of the incarceration experienced by the applicant [in accordance with article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b] certainly very subjective and discriminatory conducted by Polsek Tile Surabaya. First, report the persecution experienced by the applicant in no way actionable by Polsek Tile Surabaya. While reports of direct responded quickly Haryono Winata accused the applicant Violates Article 335 paragraph (1) of the CRIMINAL CODE because the claimant spoke the words "If you dare don't mukuli I in hotelmu let us duel in Suramadu". When the words are spoken after the appellant molested by Haryono Winata to battered, meaning that the words spoken by the applicant are not money suddenly. So a reasonable Applicant issued words of a quo. The applicant considers that Article 9 paragraph (4) of the CODE of CRIMINAL PROCEDURE clearly the letter b does not give warranties and recognition of the rights of the applicant as a suspect who reserved the right not to have to be put on hold. Then the applicant considers that Article 9 paragraph (4) letters of the CODE of CRIMINAL PROCEDURE clearly contrary to Article 28D paragraph (1) of the Constitution. 7. That according to Alwi and Widodo Eddyono, S.H. in online legal clinic on 8 Nov 2010 says 335 Article paragraph (1) of the CRIMINAL CODE requires the presence of the fulfillment of the above two items i.e. "wearing violence" or "threat of violence". Proof of this is enough to satisfy delik 14 one of the two elements. In practice, the application of Article 335 paragraph (1) of the CRIMINAL CODE by the Supreme Court (MA) Safety will be emphasized on the interpretation of "the element of compulsion" as the main elements that must exist in a series of works that are not fun. The element of coercion, according to MA, not always translated in the form of physical coercion, but can also be in the form of psychic coercion. 8. The award Number 675 K/Pid/1985 dated August 4, 1987 that fixes the verdict (vrijspraak) from Ende District Court number 15/Pid. B/1984 date of 26 March 1985, MA has given the qualification of Criminal deeds are no fun: "with something deeds, is against the law to force people to let something." That is, there is a series of works of the defendant that is against the law that gave rise to a result that is another person or the victim did not do anything so it was forced to allow the occurrence of something he (the victim) do not agree or do not want the occurrence of something, either because he doesn't like or because he did not allow the occurrence of something, but he doesn't have the ability to refuse physical and psychological state, blocking , avoid the occurrence of any act that is against the law. 9. understand that if the Supreme Court's verdict reasoning above, certainly unpleasant deed delik element should require an element of compulsion, whether it is physical or psychological coercion coercion. That in the case of an applicant, the applicant at all doesn't do good psychic coercion or physical force. The applicant's speech only the effect of the dipukulinya reported by the applicant, and why Polsek Tile Surabaya already considers the applicant's sayings have entered the elements of the Act. Finally the applicant concluded if Article 335 paragraph (1) of the CRIMINAL CODE is really very rubber article is detrimental to the rights of the applicant as set forth in section 28D subsection (1) of the Constitution. 10. That in practice, the police tend to be easy to apply Article 335 paragraph (1) of the CRIMINAL CODE on the pretext of proof later on the Affairs of the Court. If you have this kind of suspects being disempowered. Moreover, according to Article 9 paragraph (4) letter b CODE of CRIMINAL PROCEDURE, article 335 paragraph (1) is article exceptions can be done the detention. The applicant becomes a victim of subjektifitas investigators Polsek Tile Surabaya. Where the Applicant's remark only 15 are deemed objectionable, the applicant was arrested by the rapporteur Polsek Tile Surabaya. Is it not reply so 335 article paragraph (1) of the PENAL CODE and article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b violated the rights of the petitioner guaranteed by article 28D paragraph (1) of the Constitution. 11. In the law or in the sense of criminal law, the Act is not fun can be fatal for the culprit if the deed does not like or can not be accepted by the parties who are victims of acts that are not pleasant, though due to his actions do not harm the soul of victims or survivors, but there is a feeling of being really bad is felt by the sufferer or the victim can report to the police. 12. That already became clear legal norms delik unpleasant deed very broad meaning like rubber, can be pulled around the town. Should be in the criminal law criminal delik should be clear understanding of meaning, e.g. theft is anyone who took something, which is entirely or partly belongs to another person, with the intent to unlawfully owned, was threatened because of theft, with imprisonment of not longer than five years or criminal fines at most nine hundred dollars. In formula very clear theft delik, what it takes is not his own, with the intent to have a broadly against the law. So also in the crime of embezzlement delik also its elements clearly, anyone who intentionally and unlawfully possess something that is entirely or partially belonged to others, but that is in his power not because of the crime because of the embezzlement, was threatened with imprisonment of not longer than four years or criminal fines at most nine hundred dollars. This is very different from the unpleasant deed that anyone considered doing unpleasant can reportedly violated Article 335 paragraph (1) of the CRIMINAL CODE. 13. the fact that the investigators if they want to detain a suspect while the threat because it was not until 5 years, then the investigator will slip a 335 Article paragraph (1) of the CRIMINAL CODE so that the suspect could be arrested. Because any article if coupled with article 335 paragraph (1) of the CRIMINAL CODE be connected. This can be best demonstrated in respect of the case of the establishment of the applicant by 16 Polrestabes Surabaya which accused criminal Article 281, because the threat is not up to 5 (five) years, finally added 335 Article paragraph (1) of the CRIMINAL CODE (vide evidence P-12) 14. That according to the opinion of Prof. J.E. Sahetapy, sh.., MA., as cited in the ruling of the Constitutional Court Number 013-022/PUU-IV/2006 States that article V of the ACT No. 1 (1946) is a rock about the relevance of testers and raison d ' être KUHPidana articles in question States "entirely criminal law Regulations or part of it is now may not start, or contrary to the position of the Republic of Indonesia as an independent country, or have no meaning anymore, must be considered in whole or in part while not applicable "; 15. That the provisions of article 21, paragraph (4) of the CRIMINAL PROCEDURE CODE letter b States the unpleasant deed within the category of crimes that can be held. This article clearly has been detrimental to the applicant's constitutional rights. If you want fair, the threat of article 335 of the CRIMINAL CODE subsection (1) only one year. Then it should ideally not be detained. But due to the CODE of CRIMINAL PROCEDURE Article 21 paragraph (4) letter b gives exceptions. Finally the applicant was arrested by Polsek Tile. They should phrase the letter b does not include an exception to article 335 paragraph (1). The implementation is very dangerous, where this article is often used by Investigators and Prosecutors as the last chapter in order to catch the perpetrators of the deed. Just imagine, if the deeds of origin where no fun others the culprit can be held? How many people can be detained probably because things that are trivial as long as "no fun" of others. The case is what happened to the applicant. Where the location of the legal protection of the State as guaranteed by article 28D paragraph (1) of the Constitution? 16. That delik 335 Article paragraph (1) of the CRIMINAL CODE States, whoever is against the law in force, so that others do not do or allow something using violence or threats of violence. Unless all other deeds something words phrases or treatment that is not fun and something other deeds or treatment that is not much fun that does not contain legal protection and legal certainty as guaranteed in article 28D paragraph (1) of the Constitution. That the applicant retained when the issue is unclear, making the very impaired Applicants. If it turns out in court the applicant


5 not guilty, what about the harm the applicant has ever been arrested by Polsek Tile Surabaya, who gave change disadvantages? 17. That according to generally accepted doctrines "power tends to corrupt, absolute power absolutely corupt", because of the police, prosecutors and judges are given full authority to be able to resist if the suspect/defendant's alleged violation of article 335 paragraph (1) of the CRIMINAL CODE, then the tendency of law enforcement officials will misuse his authority more open. Law enforcement officials to easily do arbitrarily against the authority owned and inherent in his position. This is evident as experienced by the applicants themselves, wouldn't the applicant's constitutional rights protected by article 28D paragraph (1) 1945 so neglected. 18. That proposition Ultimium Remedium, (means) that is related to the problem of how to determine the can are convicted or are convicted of an act done intentionally or with gross negligence. In the case of experienced by the applicant, Polsek Tile Surabaya has never acted fair let alone try to reconcile an applicant, the applicant's position is quite the dipojokkan and then arrested. So it becomes a suspect with the same article, namely Article 335 paragraph (1) of the CRIMINAL CODE. 19. The conclusion of all the unpleasant treatment can be complained to the police, when police investigators have to prove it can do against the detention of the suspect as experienced by the applicant. What is meant by the category of unpleasant treatment? The answer is that deeds was not accepted by the plaintiff or where not please him. Here lies the weakness of delik 335 Article paragraph (1) of the CRIMINAL CODE all other deeds something words phrases or treatment that is not fun and something other deeds or treatment that was not pleasant and weaknesses of article 21 paragraph (4) subparagraph b of article 335 words phrases along the paragraph (1) of the CODE of CRIMINAL PROCEDURE. 20. That after the scrutiny and read carefully the contents of Article 335 paragraph (1) along the phrase said something the other deeds or treatment that is not fun and something other deeds or treatment that is not pleasing Undang-Undang No. 1 (1946) of the book of the law of criminal law (PENAL CODE) and article 21 paragraph (4) subparagraph b of article 335 words phrases along the paragraph (1) of law No. 8 of 1981 18 Year Book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE) do not meet the sense of Justice in either glass eyes Constitution as well as in the sociological eye glass create applicant. 21. That Article 335 paragraph (1) along the phrase said something the other deeds or treatment that is not fun and something other deeds or treatment that is not pleasing Undang-Undang No. 1 (1946) of the book of the law of criminal law (PENAL CODE) and article 21 paragraph (4) subparagraph b of article 335 words phrases along the paragraph (1) of law No. 8 of 1981 on the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE) reflects the distinction between status and treatment (unequal treatment) , injustice (injustice), the uncertainty of the law (legal uncertainty). Is it not when it's so reasonable Applicant considers in article a quo contravenes against Article 28D paragraph (1) of the Constitution of 1945 22. That based on the descriptions above, then obviously the existence of Article 335 paragraph (1) along the phrase said something the other deeds or treatment that is not fun and something other deeds or treatment that is not pleasing Undang-Undang No. 1 (1946) of the book of the law of criminal law (PENAL CODE) and article 21 paragraph (4) subparagraph b of article 335 words phrases along the paragraph (1) of the Act No. 8 of 1981 on the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE) contrary to Article 28D paragraph (1) of the Constitution of 1945. 23. And thus the provisions of article 335 paragraph (1) along the phrase said something the other deeds or treatment that is not fun and something other deeds or treatment that is not pleasing Undang-Undang No. 1 (1946) of the book of the law of criminal law (PENAL CODE) and article 21 paragraph (4) subparagraph b of article 335 words phrases along the paragraph (1) of law No. 8 of 1981 on the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE) should be stated "do not have binding legal force". 24. That the applicant now in conditions of depression that ensured the fear of Police calls, because of fear of arrest. When there is a call to the stage II by Tile Surabaya to Polsek are exposed to the Prosecutor on Thursday December 13, 2012. For the sake of legal certainty and the protection of the accomplished against the applicant themselves.

19 the applicant appealed to the Chairman of the Constitutional Court in order to make the Council a matter is accelerated so that there's quo legal certainty for the applicant. D. PETITUM Upon everything outlined above, the applicant requested the Constitutional Court gave a verdict that is amarnya as follows: 1. Granting the applicant's pleas in their entirety; 2. State: 335 Article paragraph (1) along the phrase said something the other deeds or treatment that is not fun and something other deeds or treatment that is not pleasing Undang-Undang No. 1 (1946) of the book of the law of criminal law (PENAL CODE) and article 21 paragraph (4) subparagraph b of article 335 words phrases along the paragraph (1) of law No. 8 of 1981 on the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE) contravenes Section 28D subsection (1) of the Constitution of 1945. 3. State: 335 Article paragraph (1) along the phrase said something the other deeds or treatment that is not fun and something other deeds or treatment that is not pleasing Undang-Undang No. 1 (1946) of the book of the law of criminal law (PENAL CODE) and article 21 paragraph (4) subparagraph b of article 335 words phrases along the paragraph (1) of law No. 8 of 1981 on the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE) do not have binding legal force; 4. Orders the loading of this ruling in the news of the Republic of Indonesia as it should be; Or, if the Constitutional Court holds other, please seadil-fair Award (ex aequo et bono). [2.2] considering that to prove the evidence if possible, the claimant has submitted evidence that writing letters/marked evidence of P-1 to P-3 evidence, as follows: 1 P-1 photocopy of Proof of the Constitution of the Republic of Indonesia in 1945; 2 proof of P-2 photocopies of the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE); 3 proof of P-3 a photocopy of the book of the law of criminal law (the CRIMINAL CODE);

20 4 proof of P-4 photos of the applicant with the condition of the Hematoma; 5 proof of P-5 Photocopying Letters POLICE RESORT EAST JAVA CITY of SURABAYA LARGE TILE SECTOR police report Number Police LP/427/VIII/2012/JAVA/RESTABES/SEK GTNG August 5, 2012; 6 P-6 proof of Photocopying a letter POLICE RESORT EAST JAVA TOWN of SURABAYA TILE SECTOR LARGE Numbers B/110/IX/2012/Reskrim September 11, 2012; 7 proof of P-7 a photocopy of proof of Deposit Bank Central Asia; 8 proof of P-8 a photocopy of the letter of STATE POLICE of the REPUBLIC of INDONESIA'S EAST JAVA Proof Report with Number STPL LPB/64/VIII/2012/SPKT; 9 P-9 proof of Photocopying a letter of INDONESIAN NATIONAL POLICE DIRECTORATE JAWATIMUR RESERSE AREA PUBLIC CRIMINAL Number B/1169/SP2HP-3/XI/2012/Ditreskrimun on November 2, 2012; 10 P-10 proof of Photocopying a letter POLICE RESORT EAST JAVA CITY of SURABAYA LARGE TILE SECTOR Number SP. Han/123/X/2012/Reskrim October 15, 2012; 11 evidence of the P-11 Photocopying Summons Number SPG/83/IX/2012/Reskrim date 11 September 2012 Police Resort East Java Town of Surabaya in large sectors of the Tile; 12 evidence of P-12 Photocopying Letters STATE POLICE of the REPUBLIC of INDONESIA'S EAST JAVA RESORT BIG CITY SURABAYA Number S-Pgl/3567-A/X/2012/Satreskrim dated 25 October 2012; 13 P-13 proof of Photocopying Letters POM-AD KODAM V East Java Brawijaya TBLP/11 Complaint Number/VI/IDIK/2012 dated 09 August 2012; 14 P-14 Evidence Photocopying Letters POLICE RESORT EAST JAVA CITY of SURABAYA LARGE TILE SECTOR Summons Number SPG/123/X/2012/Reskrim date 09 October 2012; 3 proof of P-15 09.3171050612700006 ID Number ID CARD Photocopy


21 Moreover, the applicant also filed an expert, namely Dr. m. Sholehuddin, S.H., M.H., who has heard his statement under oath in the trial on February 21, 2013, which explains as follows: Dr. Sholehuddin, S.H., M.H.  Before expertly conveys the trees thoughts on what prompted it to experts about the problems of formulation delik contained in Article 335 paragraph (1) of the CRIMINAL CODE relating to the CODE of CRIMINAL PROCEDURE. First expert tells a layman of law ever pass on to experts, once the economic train ride from Surabaya to Jakarta, because the seats face to face someone who took off his shoes, took off his shoes and then the legs removed because it might smell and know there are police officers who took it when it stops at the station. Police took her and thought she was doing the deed or accuse no fun because of the smell. Then, experts think, when he lay the law due to his discipline of language and literature of Indonesia. "Why, if removing the shoes alone then the smell, it can be reported to the police with no fun, when I last unhappy ride the trains that sounds too hard, Yes. It also made my displeasure, "he said," but what could be reported? ";  This story then reminded the experts that indeed in legal practices in Indonesia Article 335 paragraph (1) of the CRIMINAL CODE is often described as a criminal offence any act not fun. But behold, if seen from the sentence structure, it is misguided because the actual copy of the language of the Netherlands it onaangename bejegening. It's just taken for granted his onaangename, unpleasant, with regardless of the word disconnected bejegening which means it treats. So the real treat people are no fun, not nasty doings by not fun it subjektifitasnya high and low objektifitasnya. Deed forms so that everything we think subjectively, relatively, no fun, it can be included.  That in practice the judiciary in Indonesia especially when the process at this stage of the process of investigation as the leading guard in the enforcement of the criminal law, such practices appeared and frequently asked questions to experts because experts 22 incidentally often asked to provide expert information, either on the BAP or in court. Whereas it is indeed wrong, wrong will result in fatal multitafsir later;  that Article 335 of the CRIMINAL CODE the parallel in Nederland Wetbook van Straafrecht, exist in articles 284 and there not included the phrase or delik Alternatively delik about unpleasant deed or deeds with the threat of no fun. So in the article 284 Wetbook Straafrecht van Nederland, doesn't include it and only in Nederland Wetbook van Straafrecht for Hindi to Indonesia, it is there.  That the experts tell us indeed not a deed is not fun, but treat people are no fun, it's different. In addition, the sanksinya is different, if the Netherlands CRIMINAL CODE it was 9 months in jail, but in the CRIMINAL CODE Indonesia Indonesia WVS 1 year, that was the difference. Then here because of developments in practice like this, Prof. Dr. Andi Hamzah never delivered when meeting Teachers Association of criminal law and Criminology Indonesia which later in development practices and then arose among legal practitioners. One thing that ostensibly wrong against the significance of the deed is not fun and until now still continues, even a Prof. Dr. Andi Hamzah proposed so that the elements of such deed or phrases delik distasteful or unpleasant deed with a threat to be eliminated in the concept of the national PENAL CODE BILL and then at last the element concept/phrase is omitted.  that the ' concept of the last BILL of the CRIMINAL CODE in 2005 already on the desk of the President. Prof. Muladi that time already requested present explains but until now have not covered the national CRIMINAL CODE BILL that. The concept of the national PENAL CODE BILL, the phrases are omitted. This is indeed over the first proposal or submission of Prof. Andi Hamzah, because it is considered often misused and in principle of criminal law, at odds since the principle of criminal law should contain a formula that is lex scripta delik, lex, and lex certa stricta.  Even Prof. Andi Hamzah had also been delivered, one day in 1997 he came upon a man named Admin in Ujung Pandang police calls delivered a letter which described doing unpleasant because guarding the land that he had so that the fence was 23 obstruct the view of the land belonging to another person. This was reported to the police, the call letters of the Act there is no fun. Then he surprised that obstruct the view, this is not the realm of criminal law, it is the realm of civil law. Why is inserted into a criminal offence any act not fun.  Then according to that troubled it is strictly regulated, norms in that phrase. That's what brings out the problem-problem. So it's not on a strictly interpretasinya, cause problems so biased, ambiguity, multitafsir, and others are indeed contrary to the principles of criminal law.  Associated with article 21 CODE of CRIMINAL PROCEDURE, criminal law formilnya there is in article 9 paragraph (1) letter b CODE of CRIMINAL PROCEDURE which included the phrase of article 335, paragraph (1) may be detained, so that in practice the experience of experts, often 335 Article paragraph (1) the application of motive is so that the perpetrators can be held, so that any acts that are considered high subjektifitasnya unpleasant, wastebasket terms in the practice of law. It becomes a question of who can be the experts conclude that the phrase is no one element delik in article 335 paragraph (1) of the CRIMINAL CODE i.e. the deed or deeds is not fun, or with the threat of unpleasant deed is too subjective in nature that are so high that bias, multitafsir, contrary to the principles of criminal law and therefore in the concept of the BILL of the CRIMINAL CODE that last phrase was gone not listed anymore. [2.3] considering that the petition against the applicant, the Government provides information in the trial on February 21, 2013 and have submitted affidavits received by the Registrar of the Court on 28 may 2013 in anyway explains as follows: 1. the Constitution also unequivocally acknowledge that honor, dignity, as well as constitutional rights and therefore is protected by the Constitution. Article 28G paragraph (1) of the Constitution reads, "everyone has the right to protection of personal self, family, honor, dignity, and property under his control, as well as the right to security and protection from the threat of fear to do or not do something which is a human right". While at paragraph (2) of his asserted, "each person 24 reserves the right to be free from torture or degrading treatment that the degree of human dignity and the right to obtain political asylum from another country" 2. Understand the legal norms in article 335 paragraph (1) of the CRIMINAL CODE should be placed as one unified criminal law norms contained in the chapter and part of Article 335. Article 335 of the CRIMINAL CODE contained in Chapter XVIII about the crimes against the independence of the people. That is, the legal norms contained in article 335 of the CRIMINAL CODE as one of the norms of criminal law that contains a prohibition to do certain deeds which threatens the independence of the people. 3. Criminal law contained in Chapter XVIII that wish to protect against the independence of people with all forms and modes of operandinya. Kemerdekan people need to be protected by the law (contained in regulations) and the ban on engaging in acts that attack to the independence of the (contained in criminal law), because the independence people have been guaranteed by the Constitution. 4. Thus, any acts that attacked the honour or good name, freedom, make people afraid of doing or not doing, physically attacked the outwardly, deeds and the like are on the point of attacking the independence of persons is prohibited and the prohibition set forth in the various laws and regulations, including in the criminal code contained in Chapter XVIII. Legal norms contained in article 335 of the CRIMINAL CODE is one part of the effort to give protection against the independence of the people. 5. That the formulation of article 335 of the CRIMINAL CODE, both overall, and in particular Article 335 paragraph (1) 1 of the CRIMINAL CODE, it is a formulation of the nonprofit delik formyl so that any violation of the formula delik meet, then the criminal offence has been voltoid (have sufficient deductions delik), so that the formulation of more prevensi which aims to protect the individual as a victim of society from the perpetrators of the crime. 6. That the formulation of the core delik (delicts bestanddelen) Article 335 of the CRIMINAL CODE, such as: a. the offender is anyone, meaning that each person (person) who is doing the deeds that are able to take responsibility according to law.


25 b. Form works is forced, where is the "force" is telling people to do something (or not to do something) so that person do something (or not to do something) contrary to the will of their own (r. Susilo). c. the object is a person, that any act of such force intended to people. d. do with are against the law, in short is contrary to the law both in respect of the meaning of the objective as well as subjective in the sense of the law and good laws written and unwritten law (see Arrest HR 6 January 1905 and Arrest HR 31 January 1919). e. how to do the deed (alternative in nature), that is done either: 1) with violence; for violent elements, see Section 89 of the CRIMINAL CODE, in which equated with violence is making people so unconscious or helpless again.. where did r. Susilo, "helpless" meaning has no strength or energy at all so it can't be to withstand the slightest or by other deeds or by deed. 2) with the threat of violence or by threat of another deed or with the threat of unpleasant deed. f. Purpose maker do the deed (alternative in nature): 1) that person or any other person so to do something. 2) that person or others not to do something. 3) that person or someone else letting something. 7. That the further existence of the formulation of the provisions of the law as formulated in article 9 paragraph (4) of the CODE of CRIMINAL PROCEDURE, the letter b is a policy in the application of a method of positive law (the law of judicial review) into the law of formyl. So by having a formyl quo law means the law of material can be enforced, and the formulation of the provisions of article 21 and paragraph (4) of the CODE of CRIMINAL PROCEDURE as the letter b above is more repressive in nature and formulated in limitatif as a guide for law enforcement officers (investigators and Prosecutor) in doing the Act of detention. 8. Clear let that Article 335 paragraph (1) of the CRIMINAL CODE clearly are meant to protect the independence and bright people and strengthen the legal norms of the Constitution as loaded Article 28G Constitution. 26 criminal legal norms that strengthen the norm of the Constitution is unconstitutional and should be maintained. That in practice the application of the provisions of a quo is not in spite of barriers or constraints that may be faced by the law enforcement agencies but that does not make the article a quo contravenes the provisions of the Constitution of the Republic of Indonesia in 1945. 9. That article up to this time a quo, is still valid. This is in line with the principle of presumptio iustae causa, that regulations remain in force throughout the revocation was not done. [2.4] considering that the petition against the applicant, the House of representatives provides information in the trial on February 21, 2013 and have submitted affidavits received by the Registrar of the Court on March 26, 2013, in anyway explains as follows:  Against the opinion of the applicant stating the penalty of unpleasant deed as referred to in article 335 paragraph (1) of the CRIMINAL CODE only 1 (one) year then it should ideally not be detained , and this is considered an applicant no legal protection from the country as guaranteed in article 28D paragraph (1) of the Constitution. The DPR provides information as follows: a. Chapter 21 CODE of CRIMINAL PROCEDURE had already been clearly set that someone is a suspect or the accused can be detained not only based on objective considerations such as based on sufficient evidence, acamanan the punishment of 5 (five) years or older and those types of specific criminal offence as stated in article 9 paragraph (4) of the CODE of CRIMINAL PROCEDURE, detention against suspects or defendants can also be based on subjective considerations of law enforcement as listed in article 9 paragraph (1) of the CRIMINAL PROCEDURE CODE i.e. : In terms of the circumstances that give rise to concern that the suspect or the accused will flee, destroy or remove evidence and/or repeat the crime. b. that the addition to Article 21 of the CODE of CRIMINAL PROCEDURE gives the authority to law enforcement to do detention against suspects or accused persons upon consideration of objective and/or subjektifnya, the CODE of CRIMINAL PROCEDURE also regulates the pretrial legal efforts can be done by 27 suspects, accused persons, families or power who feel harmed due to the action of detention by law enforcement as feared by the applicant. The remedy provided for in Section X, chapter 77 CHAPTER letter a CRIMINAL PROCEDURE CODE which reads as follows: "the District Court authorized to check and disconnect, in accordance with the conditions provided for in this Act concerning: a. valid or whether the arrest, detention, discontinuation or termination of the prosecution investigation"; c. that the pretrial efforts as set forth in the CODE of CRIMINAL PROCEDURE is one form of granting legal protections to the suspect or defendant who feel harmed due to the action of detention by law enforcement. By karenannya it would have been in line and does not conflict with the provisions of article 28D paragraph (1) the CONSTITUTION of 1945  based on description and explanation as described above, the provisions of article 335 paragraph (1) of the CRIMINAL CODE, and article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE the letter b does not conflict with the CONSTITUTION of 1945. Such a description of the HOUSE in the trial docket number 1/PUU-XI/2013 presumably this description can be a material consideration for the glorious Constitution Judges Majleis in checking, disconnect and adjudicate the matter a quo with verdict: 1. Accept the Description of the HOUSE as a whole; 2. Declaring the provisions of article 335 paragraph (1) of the PENAL CODE and article 21 paragraph (4) letter b Law – Law No. 8 of 1981 on the law of criminal procedure is not contrary to the provisions of the Constitution of the Republic of Indonesia in 1945. 3. Declaring the provisions of article 335 paragraph (1) of the PENAL CODE and article 21 paragraph (4) letter b Law – Law No. 8 of 1981 on the law of criminal procedure still have the force of law as binding. [2.5] considering that the Government has delivered a written conclusion received at the Registrar of the Court on 28 may 2013 which substantially fixed in his statement; [2.6] considering that to shorten the blurb in this ruling, everything that happens in the trial simply appointed 28 events in the news of the trial, which is a single entity which was not separated by this ruling; 3. LEGAL CONSIDERATION [3.1] considering that the principal applicant's application for legal issues is testing the constitutionality of article 335 paragraph (1) of grains 1 Act No. 1 (1946) of the rules of criminal law or the book of the law of criminal law juncto legislation of the Republic of Indonesia Number 73 in 1958 about asserting the enactment of Act No. 1 of 1946 the Republic of Indonesia concerning the regulation of criminal law For the entire territory of the Republic of Indonesia and change book of statutes of criminal law (State Gazette Number 127 in 1958 The country Gazette, an additional Number 1660 in 1958, hereinafter referred to as the CRIMINAL CODE) which States, "those who are against the law to force the other person so to do, do not do or allow something, using violence, something other deeds or treatment that is not fun, or using the threat of violence, something other deeds or treatment that is not fun, either against themselves or others;" all phrases other deeds, "something or treatment that is not fun" and article 21 paragraph (4) the letter b which States, "such Detention may only be imposed against a suspect or defendant who commits a criminal offence and the trial or grant or in such criminal acts in terms of: ... b. the criminal offence referred to in Section 282 paragraph (3), Article 296, article 335, paragraph (1) of Article 351 verse (1) Article 353, paragraph (1), article 372, article 378, 379 a Chapter, Article 453, 454, 455 Article Article, article 459, article 480 and article 506 of the book the laws of criminal law, article 25 and article 26 Rechtenordonnantie (offences against customs and Excise Ordinance, last modified in 1931 Staatsblad Number 471), Chapter 1, article 2 and article 4 of the Act the immigration criminal act (Act No. 8 of 1955 Drt. 1955 State Gazette, no. 8), article 36 paragraph (7), article 41, article 42, article 43, article 47 and article 48, Undangundang number 9 in 1976 on Narcotics (State Gazette Number 37 in 1976, State Gazette Tambähan Number 3083) "all the phrases" article 335, paragraph (1) "Act No. 8 of 1981 on the book of the law of Criminal Procedure Law


29 (State Gazette of the Republic of Indonesia Number 76 of 1981, hereinafter the CODE of CRIMINAL PROCEDURE) against Article 28D paragraph (1) of the Constitution of the Republic of Indonesia in 1945 (hereinafter the Constitution) which States: Article 28D paragraph (1): "everyone is entitled to recognition, guarantees, protection and legal certainty in a fair and equal before the law of perlakuanyang" [3.2] considering that before considering the subject matter of the petition, the Constitutional Court (hereinafter the Court) first will consider the following : a. the authority of the Court to adjudicate a petition for quo; b. the position of the law (legal standing) Applicant; Against both, the Court held as follows: the authority of the Court [3.3] considering that under article 24C paragraph (1) of the Constitution, article 10 paragraph (1) letter a Act No. 24 of 2003 on the Constitutional Court as modified by law No. 8 year 2011 about the changes to the Act No. 24 of 2003 about the Constitutional Court of the Republic of Indonesia Sheet (year 2011 Number 70 Additional Sheets, the Republic of Indonesia Number 5226, hereinafter referred to as the ACT of the CONSTITUTIONAL COURT), article 29 paragraph (1) letter a Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157, an additional Sheet of the Republic of Indonesia Number 5076), one of the powers of the Court is adjudicating in first instance that an award is final danterakhir to examine legislation against the CONSTITUTION of 1945; [3.4] considering that the applicant's plea is therefore about testing the material law, in casu the CRIMINAL CODE and CODE of CRIMINAL PROCEDURE against the Constitution then the Court is authorized to adjudicate a petition for quo;

30 Seat Law (Legal Standing) the applicant [3.5] considering that under article 51 paragraph (1) of the ACT, the COURT may act as an applicant in testing an act against the Constitution are those who assume the right and/or authority konstitusionalnya harmed by the enactment of laws that appealed the test, that is: a. an individual citizen of Indonesia, including the Group of people who have similar interests; b. the unity of Community law all still alive and in accordance with the development of society and the principle of the unitary State of the Republic of Indonesia regulated in legislation; c. a public or private legal entities; or d. the State institutions; Thus, the applicant in testing legislation against the Constitution should explain and prove in advance: a. the applicant as referred to in Article 51 paragraph (1) of the ACT the COURT; b. loss of rights and/or constitutional authority given by the Constitution arising from the enactment of law petitioned testing; [3.6] Considering that the Court Verdict since the number 006/PUU-III/2005, dated 31 May 2005 and decision number 11/PUU-V/2007, dated September 20, 2007 and subsequent rulings have held that the loss of rights and/or constitutional authority as stipulated in article 51 paragraph (1) of the ACT the COURT must meet five criteria, namely: a. the existence of rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or the constitutional authority by the applicant are considered impaired by the enactment of legislation which petitioned testing; c. loss of rights and/or the constitutional authority must be specific and actual or potential according to the reasoning at least reasonably certain will happen;

31 d. the existence of a causal relationship (causal verband) between the losses is the enactment of law petitioned testing; e. of the possibility that by dikabulkannya the petition, then the loss of rights and/or constitutional authority as postulated would not or no longer occur; [3.7] considering that the applicant is an individual citizen of Indonesia which is currently has been designated as a suspect by the Polres of Surabaya with a Number S-Pgl/3567/X/2012/RESKRIM because the applicant is considered to have been doing that just because the applicant had had the words "hey if you dare don't mukuli I here, dare to come fight in the Suramadu" under article 335, paragraph (1) of the PENAL CODE and article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b; Assume that the applicant has harmed the rights of konstitusionalnya to get recognition, guarantees, protection and legal certainty of fair and equal treatment before the law with the enactment of Section 335 paragraph (1) of the CRIMINAL CODE all the phrases, "something other deeds or treatment that is not fun" and article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b all the phrases "article 335, paragraph (1)". According to the applicant, the second article a quo has been detrimental to the applicant's constitutional rights that are guaranteed by the CONSTITUTION 1945 specially Section 28D subsection (1) of the Constitution, as it contains the legal norms that are not obvious, biased, cause multi tafsir, raises the obscurity, unfair treatment, different treatment before the law, and discrimination. With the introduction of article a quo, the applicant as an individual citizen of Indonesia that has been set to be suspect because it is considered to have been doing unpleasant harmed the rights of konstitusionalnya to get assurance, protection and legal certainty of fair and equal treatment before the law; According to the applicant the norm contained in article 335 paragraph (1) of the CRIMINAL CODE all the phrases, "something other deeds or treatment that is not fun" and article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b all the phrases "article 335, paragraph (1)" highly biased, multitafsir and tend to be forced. Therefore, according to the applicant the second article a quo has been detrimental to the applicant's constitutional rights.

32 [2.4] considering that on the basis of the applicant's propositions, according to the Court, the applicant qualifies the legal position (legal standing) so that the applicant can apply for a quo; [3.9] considering that because of the Court is authorized to adjudicate the petition a quo as well as the applicant has legal position (legal standing) to apply for a quo then the Court will consider the subject matter of the petition; The subject matter of the petition [3.10] considering that the claimant substantially begs testing the constitutionality of article 335 paragraph (1) of the CRIMINAL CODE all the phrases, "something other deeds or treatment that is not fun" and article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b all the phrases "article 335, paragraph (1)" against the Constitution, with the reasons substantially as follows:  in the practice of law, a suspect in the case is generally unpleasant deed often carried out detention as experienced by the applicant. The benefit to doing a detention is a very subjective nature of that authority which is measured by subjective anyway, because the subjective nature in the end many restraining order issued does not comply with the detention reasons as referred to in article 9 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b;  Article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b gives full power against the investigator, the public prosecutor and the judge to conduct the detention, even though the threats are only one year old and this article definitely contains no legal protection and legal certainty to the applicant as guaranteed in article 28D paragraph (1) of the CONSTITUTION of 1945;  in the context of incarceration experienced by the applicant are very subjective and discriminatory. Legal norms delik unpleasant deed very broad meaning like rubber, can be drawn everywhere. Should have been in criminal law, the criminal must be clear meaning delik understanding, it is very different from the unpleasant deed that contained in article 33, so anyone who considered doing unpleasant can be reported violation of article 335 paragraph (1) of the CRIMINAL CODE;  that based on the descriptions above then obviously the existence of Article 335 paragraph (1) of the CRIMINAL CODE all the phrases, "something other deeds or treatment that is not fun and something other deeds or treatment that is not fun" and article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b all the phrases "article 335, paragraph (1)" contrary to Article 28D paragraph (1) of the Constitution. Thus the provisions of article 335 paragraph (1) of the CRIMINAL CODE all the phrases, "something other deeds or treatment that is not fun" and "something other deeds or treatment that is not fun", as well as Article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b all the phrases "article 335, paragraph (1)" to be stated does not have binding legal force. [3.11] considering that to prove the evidence, the applicant has submitted evidence of a letter or writing marked evidence of P-1 to P-3 evidence and expert m. Sholehuddin (more expert information contained in the part of sitting Things) that substantially clarifies as follows: a. Article 335 of the CRIMINAL CODE in Nederland Wetboek van Strafrecht, contained in article 284 but doesn't include the phrase or delik Alternatively delik about unpleasant deed or deeds with the threat of no fun. Delik is not unpleasant, but deeds treats people are no fun with different sanctions, that in the criminal code Netherlands nine months jail, while in the criminal code Indonesia one year imprisonment; b. Prof. Dr. Andi Hamzah suggested that elements of the unpleasant deed delik or with the threat of unpleasant deed removed in draft BILL of the CRIMINAL CODE; c. Associated with article 21 CODE of CRIMINAL PROCEDURE in practice often 335 Article paragraph (1) of the CRIMINAL CODE used by the apparatus with the goal of keeping the culprit can be held, so that any acts that are considered high subjektivitasnya unpleasant has been like the Recycle Bin. It becomes a question that the phrase in article 335 paragraph (1) of the CRIMINAL CODE, i.e. other deeds


34 or deed is not fun, or with the threat of unpleasant deed are very high so the subjective bias, multitafsir, contrary to the principles of criminal law; [3.12] Weigh against the petition of the applicant, the Government has provided oral information in the trial on February 21, 2013 and gave the affidavits are received at the Registrar of the Court on 28 may 2013, the more information is contained in the Lawsuit, which Sits in anyway explains as follows: a. to understand the legal norms in article 335 paragraph (1) of the CRIMINAL CODE should be placed as one unified criminal law norms contained in the chapter and part of Article 335. Article 335 of the CRIMINAL CODE contained in Chapter XVIII about the CRIMES AGAINST the INDEPENDENCE of the PEOPLE that is, legal norms contained in article 335 of the CRIMINAL CODE as one of the norms of criminal law that contains a prohibition to do certain deeds which threatens the independence of persons; b. criminal law contained in Chapter XVIII wished to protect the independence of people with all forms and modes of operandinya. The independence of the people need to be protected by the law (contained in regulations) and the ban on engaging in the Act of attacking the independence of the (contained in criminal law), because the independence people have been guaranteed by the Constitution; c. Thus, all forms of acts that attacked the honour or good name, freedom, make people afraid of doing or not doing, physically attacked the outwardly, deeds and the like are on the point of attacking the independence of persons is prohibited and the prohibition set forth in the various laws and regulations, including in the criminal code contained in Chapter XVIII. Legal norms contained in article 335 of the CRIMINAL CODE is one part of the effort to give protection against the independence of persons; d. formulation of Article 335 of the CRIMINAL CODE, both overall, and in particular Article 335 paragraph (1) of the CRIMINAL CODE, it is a formulation of the nonprofit delik formyl so that any violation of the formula delik meet, then the criminal act has 35 voltoid (has an inadequate formulation delik), so that the formulation of more prevensi which aims to protect the individual as a victim of society from the perpetrators of crime; e. formulation of provisions of law as formulated in article 9 paragraph (4) of the CODE of CRIMINAL PROCEDURE, the letter b is a policy in the application of a method of positive law (law materially) into law, so that the existence of formyl means a formyl Law quo can materially upheld the law, and the formulation of the provisions of article 21 and paragraph (4) of the CODE of CRIMINAL PROCEDURE as the letter b above are more repressive in nature and formulated in limitatif as a guide for law enforcement officers (investigators and Prosecutor) in doing the Act of detention; 335. Article f paragraph (1) of the CRIMINAL CODE clearly are meant to protect the independence and bright people and strengthen the legal norms of the Constitution as loaded Article 28G Constitution. Criminal law norms that strengthen the norm of the Constitution is unconstitutional and must be maintained; g. in practice the application of such provision is inseparable from the barriers or obstacles that might be faced by the law enforcement agencies but that does not make the article a quo contravenes the provisions of the Constitution. [3.13] considering that the petition against the applicant, the House of representatives has delivered a verbal description in the trial on February 21, 2013, the more information is contained in the Lawsuit, which Sits in anyway explains as follows: a. Against the opinion of the applicant stating the penalty of unpleasant deed as referred to in article 335 paragraph (1) of the CRIMINAL CODE only 1 (one) year then it should ideally not be withheld and this is considered an applicant no legal protection from the country as guaranteed in article 28D paragraph (1) of the CONSTITUTION 1945. The DPR provides information as follows:  Article 21 CODE of CRIMINAL PROCEDURE had already been clearly set that someone is a suspect or the accused can be detained not only based on objective considerations such as based on sufficient evidence, acamanan the punishment of 5 (five) years or older and certain types of criminal offence as stated in article 21 paragraph 36 (4) of the CODE of CRIMINAL PROCEDURE, detention against suspects or defendants can also be based on subjective considerations of law enforcement as listed in article 9 paragraph (1) of the CODE of CRIMINAL PROCEDURE , i.e. in terms of the circumstances that give rise to concern that the suspect or the accused will flee, destroy or remove evidence and/or repeat the criminal act;  that the addition to Article 21 of the CODE of CRIMINAL PROCEDURE gives the authority to law enforcement to do detention against suspects or accused persons upon consideration of objective and/or subjektifnya, the CODE of CRIMINAL PROCEDURE also regulates the pretrial legal efforts can be made by the suspect, the accused, their families or power who feel harmed due to the action of detention by law enforcement as feared by the applicant. The remedy provided for in CHAPTER X, article 77 a CODE of CRIMINAL PROCEDURE which reads, "the District Court authorized to check and disconnect, in accordance with the conditions provided for in this Act concerning: a. valid or whether the arrest, detention, discontinuation or termination of the prosecution investigation";  that the pretrial efforts as set forth in the CODE of CRIMINAL PROCEDURE is one form of granting legal protections to the suspect or defendant who feel harmed due to the action of detention by law enforcement. Therefore it would have been in line and does not conflict with the provisions of article 28D paragraph (1) the CONSTITUTION of 1945 b. 335 Article paragraph (1) of the CRIMINAL CODE, and article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b is not contrary to the Constitution. The opinion of the Court [3.14] considering that the constitutional issue in the petition for a quo is whether both the same phrase in article 335 paragraph (1) of the CRIMINAL CODE 1 grain of which States, "something other deeds or treatment that is not fun," contrary to the Constitution and thus the phrase "article 335, paragraph (1)" in article 9 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b is contrary to the Constitution? [3.15] considering that against such constitutional issues, according to the Court as a formula delik, qualifying, "something the other 37 deeds nor treatment ominously" cannot be measured objectively. If any can be measured then size it is extremely subjective and based solely on the victim's assessment, the investigator, the public prosecutor and the sheer. In addition, the unpleasant thing in General is the impact of all criminal acts. Every criminal act is clearly no fun and no impact on crime. Thus, it is not something that can be distinguished unequivocally (distinctive) from the criminal acts of others; [3.16] considering that as a result of the presence of such a formulation, delik can also become opportunities for investigators and the public prosecutor to do arbitrary against others on the basis of a report. Although it must be admitted that in the end it so had to be proved in court, but if the report is proved, then it becomes reasonable and there is no arbitrariness. On the contrary, if not proven then the reported party clearly have suffered losses because of having to deal with investigators and the public prosecutor and, moreover if concerned was detained [vide Article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b]. Thus means a person has lost his independence as rights asasinya, whereas criminal law and law of criminal procedure is precisely to protect the rights of law enforcement arbitrariness. In addition, concerned morally and socially has been harmed because have experienced stigmatization as deplorable as a result of such reports; Based on the above considerations, according to the Court's phrase "Something other deeds or treatment that is not fun" in article 335 paragraph (1) of the CRIMINAL CODE 1 grain has led to legal uncertainty and injustice because it gives you a chance occurrence of arbitrariness investigator and Prosecutor in the implementation, especially for parties that reported, so that thus contrary to the principle of the Constitution that guarantee the protection of the right to a fair legal certainty in the law enforcement process [vide Article 28D paragraph (1) of the Constitution]. Therefore, the applicant's application in testing the constitutionality of article 335 paragraph (1) of the CRIMINAL CODE 1 along the grain of the phrase, "something other deeds or treatment that is not fun," reasoned according to law;


38 [3.17] considering that if Article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b all the phrases, "article 335 paragraph (1)" contrary to the Constitution? The Court held that the provision in article 335 paragraph (1) of the CRIMINAL CODE 1 grain not only contain material charges associated with norm in the phrase, "something other deeds or treatment that is not fun", so that in Article 9 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b is declared contrary to the Constitution means the overall norm in article 335 paragraph (1) of the CRIMINAL CODE 1 grain will be not legally binding. So it is not appropriate under the law. In addition, with the alleged solicitation of testing the constitutionality of phrases, "something other deeds or treatment that is not fun" in article 335 paragraph (1) of the CRIMINAL CODE 1 grains grounded according to law then testing Article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b according to the Court, that provision remains necessary, because not all the norm contained in article 335 paragraph (1) of the CRIMINAL CODE 1 grain of being contrary to the Constitution. According to the Court of testing the constitutionality of article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b all the phrases, "article 335 paragraph (1)" unwarranted under the law. As for regarding Article 21 paragraph (4) of the CRIMINAL PROCEDURE CODE letter b refers to Article 335 paragraph (1) of the CRIMINAL CODE 1 is enough grain in the implementation, refer to the material of the norm after a court ruling that declared the most strictly not legally binding; [3.18] considering that based on the entire legal considerations outlined above, the Court held the evidence the applicant's petition is grounded according to law for the most part; 4. CONCLUSION based on the above assessment of the facts and the law as outlined above, the Court concluded that: [4.1] the Court's jurisdiction to adjudicate a petition for quo; [2.6] the applicant has legal position (legal standing) to apply for a quo; [4.3] the applicant's petition is grounded according to law for the most part;

39 based on the Constitution of the Republic of Indonesia in 1945, Act No. 24 of 2003 on the Constitutional Court as modified by law No. 8 year 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia number 70 in 2011, an additional Sheet of the Republic of Indonesia Number 5226), and Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157 Additional Sheets, the Republic of Indonesia Number 5076); 5. AMAR'S RULING Judge, declare: 1. Granting the applicant's application for most; 1.1. Declaring the phrase, "something other deeds or treatment that is not fun" in article 335 paragraph (1) of grains 1 Act No. 1 (1946) of the rules of criminal law or the book of the law of criminal law juncto legislation of the Republic of Indonesia Number 73 in 1958 about asserting the enactment of Act No. 1 of 1946 the Republic of Indonesia concerning the regulation of criminal law For the entire territory of the Republic of Indonesia and change book of statutes of criminal law (State Gazette Number 127 in 1958 The country Gazette, an additional Number 1660 1958) is contrary to the Constitution of the Republic of Indonesia in 1945; 1.2. Declaring the phrase, "something other deeds or treatment that is not fun" in article 335 paragraph (1) of grains 1 Act No. 1 (1946) of the rules of criminal law or the book of the law of criminal law juncto legislation of the Republic of Indonesia Number 73 in 1958 about asserting the enactment of Act No. 1 of 1946 the Republic of Indonesia concerning the regulation of criminal law For the entire territory of the Republic of Indonesia and changed the book of the laws of the Criminal Law Act (40 Sheets 127 country number 1958 The country Gazette, an additional Number 1660 1958) do not have binding legal force; 1.3. Article 335 paragraph (1) of grains 1 Act No. 1 (1946) of the rules of criminal law or the book of the law of criminal law juncto legislation of the Republic of Indonesia Number 73 in 1958 about asserting the enactment of Act No. 1 of 1946 the Republic of Indonesia concerning the regulation of criminal law For the entire territory of the Republic of Indonesia and change book of statutes of criminal law (State Gazette Republic of Indonesia Number 127 in 1958 Additional Sheets, the Republic of Indonesia Number 1660 1958) being declared, "those who are against the law to force the other person so to do, do not do or allow something, using violence, or by using threats of violence, either against themselves or others"; 2. Rejects the application of the applicant for the addition and the rest. 3. Orders the loading of this ruling in the news of the Republic of Indonesia as it should be; The case was decided in the meeting of the Consultative Constitutional Judge by nine Judges namely m. N Deputy Mochtar, speaker and interim Member, Achmad Sodiki, Hamdan Zoelva, Arief Hidayat, Ahmad Fadlil Sumadi, Maria Farida Indrati, Harjono, Muhammad Alim, and Usman Anwar, each as a member, on Monday, the twenty-seven, the month of may, year two thousand thirteen, and is spoken in the plenary session of the Constitutional Court is open to the public on Thursdays , on the sixteen, the month of January, year two thousand fourteen, finished at 3 pm, spoken by eight Judges of the Constitution, namely, Hamdan Zoelva, as the Chair of the sitting member, Arief Hidayat, Ahmad Fadlil Sumadi, Maria Farida Indrati, Harjono, Muhammad Alim, Patrialis Akbar, and Usman Anwar, each as a member, accompanied by Hani Adhani as Clerk of the surrogate, 41, attended by the Applicant or his power, without Government or representing attended and the House of representatives or representing. 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. REPLACEMENT CLERK Usman Anwar, ttd. Hani Adhani