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5. Prof. Dr. Eddy O.S. Hiariej, S.H., M.H. The system of universal applicable value in criminal event law

is due process of law that is simply interpreted as

a set of procedures required by law. as an event standard.

Due process was born out of the 5th and 14th amendments of the American constitution to

preventing the removal of life, liberty and property rights by the state

without a legal proceeding. Due process impossibility procedures and substances

protection against individuals. Any procedure in due process tests

two things. First, whether the public prosecutor has eliminated the life, freedom and rights of the suspect without the procedure. Second, if using the procedure, whether the procedure is appropriate to be in accordance with due process.

In the criminal justice system, Hebert L. Packer introduced the due process model, which has characteristic rejecting efficiency,

prioriting quality and presumption of innocent. When associated with

Article 1 of 2 of KUHAP sepintas flashconditions are evident, but in practice it has generated multi commentaries that violate the asas lex certa and

asas lex stricta as a Basic principles in criminal event law. Rules

laws of multi-interpretation of criminal events are clearly contrary to

fair legal certainty.

Frasa "and to find the suspect" in Article 1 of the 2

KUHAP interpreted that each investigation There must be a suspect

when it doesn't have to be. Therefore, Article 1 of the number 2 KUHAP must

be interpreted as "and based on the results of that investigation

may find the suspect" so that the investigation is no longer used

as a tool for put the person as a suspect while a

case is not supposed to be a suspect.

In a criminal case, proof is always important and kursiil.

The evidence gives the prosecution and a strong argument to the prosecution.

general to file charges. The proof is seen as something

that is impartial, objective and provides information to the judge for

taking the conclusion of a case that is being sidled. In the case

in criminal case, the proof is of the essence as being sought in

the criminal case is the materiel truth.

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In contrast to other case proofs, proof in

criminal cases have already begun from the preliminary stage, namely the investigation and

investigation up to the trial stage. The proof in criminal case

is more complicated when compared to other event laws. This is related

with basic postulates in proof in criminalibus probantiones esse

luse clarioles that in criminal cases, the evidence must be brighter

than the light. Therefore, if there is any doubt, then the judge

will hold on to the asas in dubio pro reo. That is, in doubt

The ruling should be the benefit of the defendant.

In the course of the criminal cases it is possible the forced attempt

carried out by law enforcement apparatus and the forced attempt to be related

with proof. Related to proof of Article 1 of the number 14 of the KUHAP juncto section

17 KUHAP juncto Section 21 of the paragraph (1) KUHAP contains a proof of proof

without a clear parameter resulting in uncertainties

the law. Under Article 1 of the 14 of the KUHAP, the suspect is an

for his actions or circumstances, based on evidence of a prelude to

allegedly as a perpetrator of a criminal. What more questions are

intended with 'proof of the beginning'?

The next forced attempt is an arrest. Under Article 17

KUHAP, an arrest warrant is made against a suspected crackdown

committing a criminal act based on sufficient initial evidence. In

the explanation of Article 17 is said to be "proof

sufficient beginning" is the initial evidence to suspect the existence of a "criminal" in accordance with the sound of Article 1 of item 14. Further question if

'proof of the beginning' is the same as 'sufficient initial evidence'?

Next is a detention issue as one of the efforts

force that can be done by law enforcement apparatus, whether it be police,

the public prosecutor or the judge depends on the examination stage.

Based on Section 21 of the paragraph (1) KUHAP, restraining order or detention

continued to be committed against a suspect or alleged defendant

violently committed to criminal conduct based on sufficient evidence, in case

a desecration of concern that the suspect or

the accused will flee, damage or remove any evidence and

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or repeat the criminal offense. The same question, does that

be massed with 'sufficient evidence'?

If referred to in Article 1 of item 14, Article 17 of the following explanation and

Article 21 of the paragraph (1) KUHAP there are various terms that sound the same but

in principle, the term 'initial proof', ' the evidence of the beginning of which

enough 'and' sufficient proof '. Unfortunately KUHAP does not provide

further explanation related to the difference of all three terms. Things

raises legal uncertainty in its implementation and tends

violates human rights held high in due process of law.

Expert argues that the words 'proof of the beginning' in Article 1 of the item

14 KUHAP, not only as a proof tool in Article

184 KUHAP, but may also include evidence that is in context

universal proof laws are known as physical evidence or real

evidence. Furthermore, to assess the initial evidence, it is not able to escape

of the section to be disarmed to the suspect. In the nature of the section

that will be elapsed containing the delic formula which in the context of the event law

the criminal serves as a show of evidence. That is, the proof of the act

the criminal must be subject to the criminal elements

that exists in a section.

In order to prevent the arbitrariness of the designation

a person as a suspect or arrest and arrest, then

any preliminary evidence should be confronted between one another

including the potential suspect. This is needed to prevent

what is called a unfair prejudice or a conjecline that is not

reasonable. Whether the term 'sufficient initial evidence' as

referred to in Article 17 of the KUHAP is in minimum bewijs or minimum

proof required to process a person in criminal case:

Evidence. This is still a matter of debate over two evidence tools.

Whether these two evidence tools are qualitatively or kuantitaif. If ordered

under Article 184 of the Criminal Code then there are five evidence tools in the criminal case,

each one is 1) witness description; 2) expert captions; 3) letters; 4)

the defendant's description; and 5) directions.

qualitatively two such evidence tools whether there should be a description

expert witness or expert witness or expert letter or caption

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and the letter and so on. Strictly speaking, the two proofs of the evidence referred to

qualitative are two of the five evidence tools that exist in Article 184 of the KUHAP.

Whereas quantitatively, two witnesses are already counted as two tools

proof. In the practical description of the two evidence tools are

qualitative, with the exception of the witness description, the two evidence-proof tools can be qualitatively qualitatively mauantiaif. Two witness statements may be calculated

as two evidence tools if the two are standing on their own,

but one description with the other description agrees.

Next to the term ' proof of which enough ' to do

incarceration as referred to in Article 21 of paragraph (1) KUHAP.

A systematic grammatical interpretation of the provisions of Article 21 of the paragraph (1)

KUHAP is that which is massed with 'sufficient evidence' in

section a quo, not only of the evidence of the criminal acts that are discreted

or dismayed against a suspect or a defendant, but also includes evidence

that the suspect or the accused will flee, damage or

remove any evidence or repeat the criminal act. That is, 'proof

sufficient' here in addition to referencing a minimum of two evidence tools for the action

the criminal discharges or dismayed against a suspect or defendant,

also refer to the minimum two evidence tools for concern that the suspect

or the accused will escape, damage or remove any evidence

or repeat the criminal.

Next to the prejudicial authority as intended

in Section 77 of the Criminal Code. In essence, the prajudiciary is an instrument for

controlling the arbitrary act of law enforcement apparatus against

a forced attempt made possible in the KUHAP. Unfortunately, not all

forced attempts in the KUHAP can be controlled by prejudicial instruments

so this is contrary to the basic principles in due process

of law which mutatis mutandis conflicting with the principle of the country

the law as it is in Article 1 paragraph (3) of the 1945 Constitution.

That the pretrial concept in its nature is the process

protects human rights with regard to the use of forced attempts

by law enforcement, because through pretrial it will

be assessed the suitability of the use of such forced attempts by the procedure

determined by the Act. In the perspective of the criminal law

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international, any forced attempts on one side may be carried out by a apparatus that

authorized, but on the other hand the suspect has the right to submit

a lawsuit over any forced attempt. This is save

guarding rules to prevent the country's arbitrariness against

individuals who are committed to commit a criminal offense.

Harkeep is recognized that the KUHAP we have today is more inclined

at the crime control model that preferred quantity in a way

thus ignoring the rights of suspects as warranted in

the universal declaration of human rights and in the covenants of rights civil

and the political rights of every citizen. A person specified as

a suspect, as long as it is not withheld, there is no time limit until when

the status of the suspect will be held by him. This is clearly contrary to

the human rights of universal and high regard by the nation-

the civilised nations of the world.

The finite and limitative Rumusan is also contrary to

Article 28D of the paragraph (1) and Section 28I paragraph (5) The Constitution. Thus for the material

charge of Section 77 of the letter a in accordance with the due process of law which

is guaranteed by Article 1 of the paragraph (3), Section 28D paragraph (1) and Section 28I paragraph (5) UUD

then the charge material of Article 77 of the letter a must also contain other forced attempts

so that Article 77 of the letter a KUHAP must be declared contrary to

Constitution of 1945 on conditional (conditionally unconstitutional) and not

has the power of the law binding throughout the not to be defined as

s or the suspect's assignment, shakedown, foreclosure,

mail check.

Related Articles 156 verses (2) KUHAP, need an expert to explain the following:

First, the phrase " otherwise is not accepted or the judge argues it can only be broken up after the examination, then the hearing

continued" raises injustice for the accused who performs

the appeal of the injunctive verdict that rejects the defendant's exception because

under Article 156 of the paragraph (2) of the Criminal Code that examined the case

it can remain Continue the subject matter, though

The defendant made an appeal to the Court. High.

Second, after the due process of law principle guaranteed by Article 1 of the paragraph (3), Section 28D paragraph (1) and Article 28I paragraph (5) of the 1945 Constitution

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90

Legal Standing (Legal Standing) The applicant

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

The explanation, which may apply for testing of the Act

against the 1945 Constitution is those who consider the rights and/or authority

the constitutionality given by the 1945 Constitution is harmed by the enactment of a

Act, i.e.:

a. Individual citizens of Indonesia (including groups of people

have common 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

the loss of rights and/or constitutional authority as referred to 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 the reasoning

which is reasonable to be certain to occur;

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d. Due (causal verband) between the rights loss and/or

the constitutional authority is referred to by the Act

which is being moveed to test;

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

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

will or no longer occur;

[3.7] Draw that based on Above, next

The court will consider the legal standing (legal standing) the applicant

as follows:

a. The applicant in his request postulate as a private person

the state of Indonesia (a P-3 proof vide), and the applicant has a constitutional right

over "recognition, guarantees, protection, and fair legal certainty" and

rights constitutional of due process of law as provided by Article

28D paragraph (1) UUD 1945. According to the applicant of this constitutional right

has been harmed by the enactment of Article 1 of 2, Article 1 of 14, Article 17,

Article 21 of the paragraph (1), Section 77 of the letter a, Article 156 of the paragraph (2) of the KUHAP because

against the applicant has been Enforced by the criminal process is the designation

The applicant as a suspect, the arrest and detention of the applicant

is performed on the basis of the provisions contained in Section 1

number 2, Article 1 of 14, Article 17 and Section 21 of the paragraph (1) KUHAP;

while Article 77 of the letter is applied in a prejudicial case which

is submitted (P-4 proof of Prejudicial ruling number 38 /Pid.Prap/2012/PN.Jkt-Cell) and Article 156 of the paragraph (2) KUHAP is enacted

above Exceptions submitted by the applicant in the trial of the criminal case

the applicant (proof P-5 of the Ruling Sela Number 38 /Pid.Prap/2012/PN.JKT-SEL).

b. That based on the above is then linked to the terms as such in paragraph [3.5] and paragraph [3.6], according to the Court, the Constitutional right of the applicant is as postulate

The applicant is specific and actual so there is a causal link

result (causal verband) between the loss of the constitutional rights is referred to

the enactment of the testing Act that if

the applicant is granted then the constitutional rights loss such as

being postured by The applicant will not or may no longer occur. Therefore

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92

according to the Court, the applicant is eligible as determined

in Article 51 of the paragraph (1) MK Act and its Explanation, as well as the terms

referred to by the Constitutional Court of Law on the legal position

The applicant;

Draw that based on the above consideration, according to the Court of Applicant has a legal standing (legal standing) for

applying for a quo;

[3.8] It is tied that by the Court authorized to prosecute

and the applicant has a legal position to submit a quo request

then the Court will consider the subject;

Subject to

[3.9] weighing in that the applicant in his request is in the following

at the point as follows:

1. That the phrase "and to find the suspect" in Section 1 of the paragraph (2)

KUHAP violates Article 1 of paragraph (3) and Section 28D paragraph (1) of the 1945 Constitution because

gives rise to the arbitrariness so contrary to the principle

due process of law as well as violating the right to a fair legal certainty;

2. That the phrase "initial proof" as mentioned in Article 1 of the number

14 and the phrase "sufficient initial proof" as specified in

Article 17 of the KUHAP without any obvious parameters elicits

uncertainty laws, specifically with regard to terms that should

be met by investigators before declaring a person a suspect

or before using a forced attempt at arresting someone;

3. That the phrase "committing a felony" in Article 21 of the paragraph (1) of KUHAP

is multi commentaries and elicits the uncertainty of law and injustice

due to the number of feltates being threatened by a five-year prison criminal or

more strongly Many of them and the phrase "in the event of circumstances that

raises concerns that a suspect or a defendant" in Article 21

paragraph (1) KUHAP, size, standard, or parameters are not found

the answer is in terms of the norm Section 21 paragraph (1) KUHAP or in

The explanation of the article. Refinement is fully submitted to

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93

investigators. Therefore, the phrase is clearly contrary to Article 1 of the paragraph (3), Article 28D of paragraph (1), and Article 28I paragraph (5) of the 1945 Constitution;

4. That the pretrial concept under Article 77 of the letter a KUHAP

is limited to providing an assessment of the legal or non-legal

arrest, detention, inquiry termination or termination

prosecution, obviously not fully provide sufficient protection

for the suspect so that it poses a violation of the rights

man, therefore contrary to Article 1 of the paragraph (3), Article 28D paragraph (1), and Article 28I paragraph (5) of the 1945 Constitution;

5. That the phrase "otherwise is not accepted or the judge argues that

can only be broken up after the completion of the examination, then the hearing

is continued" in Article 156 of the paragraph (2) of the KUHAP poses an injustice to

The defendant who commits an appeal against the ruling that rejects the exception

the accused because of Article 156 of the paragraph (2) of the Criminal Code then the judge

examines the matter may continue the examination of

the subject matter. Although the defendant made an appeal to the High Court.

It was not as suss as the due process of law principle guaranteed by

Section 1 paragraph (3), Section 28D paragraph (1), and Article 28I paragraph (5) of the 1945 Constitution;

That in order to prove that the applicant submitted a proof tool

which is given the proof of P-1 proof Up to the P-4 evidence, as well as five experts who

captions can be contained in the Sitting Perkara section;

[3.10] A draw that against the applicant's request, the President gave

a note that is at its point:

1. That Article 1 paragraph (2) of the Criminal Code is included in Chapter I Section 1 of

The General Terms that govern the understanding of the Commission. Based on

The termination of the Constitutional Court Number 56 /PUU-Vl/2008, dated February 17

2009, and the Constitutional Court Decree No. 10-17-23/PUU-Vll/2009,

dated March 25, 2010, the General Terms referred to in a

The laws are intended to limit the definition, defenisi,

abbreviation or acronym that serves to explain the meaning of a word

or the term should be formulated in such a way.

gives rise to a double understanding (vide Appendix C. 1 81 Act Number

10 Years 2004 about the establishment of the Laws of the Law) ". By

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94

as it is, according to the President of the applicability a quo is unwarranted

and is not appropriate because the a quo provision is not related to

the problem of the constitutionality of the norm. In addition, the problem is not in

the definition of the term in section a quo, but is in the level of interpretation by

law enforcement agencies and judges in law enforcement practices. By

therefore, the practice of law enforcement and interpretation of definitions or restrictions

terms, not the authority of the Constitutional Court, but rather be

the competence of judges at all levels of the courts and the Supreme Court.

2. That about the evidence associated with Section 184 of the KUHAP

is connected with the phrase "initial proof", "sufficient initial evidence"

and "sufficient proof" as defined in Article 1 of the 14 and

Article 17 of the KUHAP can be explained that its core evidence is sufficient

in quantity and quality, it is based on two

evidence tools (basing the judge in deciding) and from the second

the evidence tool investigators believe that there has been a criminal offence and

a person as a suspect The perpetrators of the crime. The definition of "proof

sufficient" in practice has been limited to the basis of two evidence tools

plus an objective investigator's conviction (can be tested objectively)

basing the two evidence tools has occurred. criminal and

a person as a suspect in the criminal offense. Similarly

in setting a person to be a suspect also basing it to

two evidence tools that have a primary/primary proof-proof quality that

a person as the perpetrator of a criminal offense.

3. That of the provisions of Article 21 paragraph (1) KUHAP has ever been filed

its testers to the Constitutional Court with the Decree of Number 018 /PUU-

IV/2006, dated December 19, 2006, which amar his verdict declared

" plea The applicant was rejected for the whole ", and the Number

41/PUU-Vlll/2010, dated 10 March 2011, which amar his verdict

stated" the applicant's request was not acceptable ". The ruling

is quoted again in the Court's consideration in retesting

provisions of Article 21 paragraph (1) of the KUHAP in Decree Number 16 /PUU-IX/2011,

dated April 11, 2012, which also states " the request of the applicant is not

is acceptable ".

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4. That against the provisions of Article 77 of the letter a KUHAP according to the President

such requests do not become the competence of the Constitutional Court, because

being submitted is advice to the Bill to be

the institution's competence The pre-trial was expanded, including an extension

containment. It cannot be tested by its constitutionality and becomes

the competence of the House. The substance submitted by the applicant is already entered in

the KUHAP bill.

5. That article 156 paragraph (2) of the KUHAP violates Section 1 of paragraph (3)

and Article 28D of paragraph (1) of the 1945 Constitution, according to the President, against the objection

in the legal practice submitted by the applicant, not to be

the competence of The Constitutional Court, but it becomes the competence of the courts and

the Supreme Court. The Constitutional Court is not authorized to examine and

prosecute law enforcement practices.

[3.11] A draw that against the applicant's plea, the DPR gives

a description that conformity with the President's description.

[3.12] In the draw that the applicant and the President submit a conclusion

it is written that at the point remains with its stance;

The Court opinion

[3.13] A draw that against the test of the phrase " and in order to find

the suspect " in Article 1 of the number 2 of the KUHAP in conflict with Article 1 of the paragraph

(3) and Article 28D paragraph (1) of the 1945 Constitution, the Court considers the following

That Section 1 paragraph (2) of the Criminal Code including in Chapter I Section 1 of

The General Terms that govern on the Investigative Sense

states, " The investigation is a series of investigator actions in terms of and

according to the way in this law to seek and

gather evidence that with the evidence makes light of the criminal

happens and to find the suspect ". as for the phrase" and to find

the suspect " must be construed as conditional on the applicant,

according to the Court, in fact fulfilled by this section, that is

the investigator in the course of the investigation of the inquiry conduct a process

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96

collection of evidence with such evidence then investigators found

a suspect in one felony so as not as well as merta investigators

found the suspect before carrying out the evidence collection as

defined in section a quo. Article 1 of the number 2 of the KUHAP governs how

investigators find the suspect so that the section is clear and not

needs to be interpreted.

According to the Court, the norm is appropriate because it provides

the legal certainty of which fair to the citizens of Indonesia when it will be set

being a suspect by an investigator, that is, must go through the process or range

the investigation actions by collecting evidence that with such evidence

investigators found the suspect, not subjectively investigator found

a suspect without Gather evidence. Thus, according to the Court, dalil

The applicant a quo is unwarranted according to the law;

[3.14] weighed that against the testing of the phrase "initial evidence", "proof

is sufficient start", and "sufficient evidence" as defined in

Article 1 of 14, Section 17, and Section 21 of the paragraph (1) of the KUHAP in conflict with

Section 1 of the paragraph (3), Section 28D paragraph (1), and Article 28I paragraph (5) of the 1945 Constitution, the Court

considers the following:

1. That Article 1 paragraph (3) of the 1945 Constitution asserts that Indonesia is

the legal state. The notion of a state of law as a common principle is to be embraced

in the holding of a country that, among other things, is characterized by the principle of due

process of law which is constitutionally guaranteed. In line with that

then one of the principles of the state of law is the presence of recognition, guarantees,

protection, and fair legal certainty as well as the same treatment in

before the law.

2. That asas due process of law as an embodiment of the recognition of fundamental rights

humans in the criminal justice process into an asas that should be held

by all parties, especially for law enforcement agencies.

The embodiment of such rights awards is accomplished by giving

the same position, including in the criminal justice process, in particular for

the suspect, the defendant or the convict in maintaining his rights

balanced.

3. The legal state that has been adopted in the Constitution of 1945 laid out a principle

that everyone has a human rights (human rights), which is thus

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requires others, including in them countries, in his honor.

Even constitutionally, the constitutional provisions of such human rights

in a historical-philosophical perspective in the formation of the state intended

to protect the entire Indonesian nation and based on humanity

the fair and civilized [vide Opening of the 1945 Constitution]. Therefore, the country

is obligated to provide protection, submission, enforcement, and fulfillment of human rights [vide Article 28I paragraph (4) of the 1945 Constitution]. The principle

as described above, gives birth to another principle, that is

that the judicial process in the criminal case must be up to the truth

the materiel, the truth in which there is no more doubt. From

the principle was also a principle in the criminal justice process, that is,

"better free the guilty than to drop the criminal

to someone who is innocent". In the phrase there is

a deep meaning, that when a court drops a ruling that

declares a person guilty and is therefore sentenced to be

is completely based on a legal fact that believed to be an

truth. If that is not the case, then the state is through

a criminal court has violated human rights, while constitutionally

the state through the judicial process must instead protect the human rights [vide Article 24

paragraph (1) of the 1945 Constitution];

4. The state's obligation to enforce and protect human rights in principle

a democratic legal state requires that human rights exercise be guaranteed,

set up, and poured in the laws [vide Article 28I

paragraph (5) "1945 Constitution". The law of the criminal event is one of the implementations

of human rights enforcement and protection as a constitutional provision

in the 1945 Constitution. That is, as well as one of the country's principles

democratic laws, namely due process of law;

5. KUHAP as a formyl law in the criminal justice process in Indonesia

has formulated a number of suspects/defendants ' rights as protectors

against possible human rights violations. Nevertheless,

there are still some phrases that require an explanation to be fulfilled

asas lex certa as well as the principle lex stricta as a common asas in criminal law

in order to protect someone from the act arbitrary investigators

and investigators, in particular the phrase "preliminary evidence", " preliminary evidence that

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98

sufficient "and" sufficient proof " as specified in Article 1 of the number

14, Article 17, and Section 21 of the paragraph (1) KUHAP. The provisions in KUHAP do not

provide an explanation of the number of limitations of the phrase "initial evidence",

"sufficient initial evidence", and "sufficient evidence". In contrast to

Act No. 30 of 2002 on the Commission of Eradication

The corruption of the Corruption Governing body limits the number of evidence tools,

that is the minimum of two evidence tools, as defined in Article 44 of the paragraph (2) which

states, "A sufficient initial evidence is thought to have existed if it has been

found at least 2 (two) evidence tools, ... etc. The only section

which specifies the minimum limit of evidence is in Section 183 of KUHAP

states, " Judge must not drop criminal to a person unless

if with at least two evidence tools ... dst ";

Therefore, under such consideration above, according to

the court, in order for the meets the principle of fair legal certainty as

specified in Article 28D of the paragraph (1) of the Constitution of 1945 as well as meets the original lex certa

and asas lex stricta in penal law then the phrase "preliminary proof", " proof

start enough ", and" sufficient proof " as specified

in Article 1 of 14, Section 17, and Section 21 of the paragraph (1) of the KUHAP must

be interpreted at least two evidence tools contained in Section 184

KUHAP and are accompanied by an examination of the candidates, except

against the criminal acts of the law. The suspect is possible

without its presence (in absentia). That is, against a criminal that

the designation is possible without its presence

that is not required for a candidate's examination.

It is a draw that the Court's consideration included

examination of potential suspects next to the minimum of two such evidence tools above,

is for the purpose of transparency and protection of a person ' s rights to be

before someone is set as a suspect already can provide

A balanced description with the minimum of two evidence tools found

by Investigator. As such, based on that reason above, an

investigator in determining "initial evidence", "sufficient initial evidence",

and "sufficient evidence" as referred to in Article 1 of the 14,

Article 17, and Article 21 of the paragraph (1) of the KUHAP may be avoided by any action

arbitrates, morn in determining sufficient preliminary evidence

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is always used for entry for an investigator inside

establishing a person as a suspect. With this description

above, according to the Court of the Applicant a quo justified according to the law;

[3.15] A draw that against the test of the phrase "commits a criminal offense"

and the phrase " in the event of circumstances which raised concerns that

the suspect or defendant" in Article 21 of the paragraph (1) of the KUHAP is contrary to Article 1 of the paragraph (3), Section 28D paragraph (1), and Article 28I paragraph (5) of the 1945 Constitution, the phrase

never tested and broken up by the Court in the Decree No. 018 /PUU-

IV/2006, dated December 19, 2006, which it declared refused

the request of the applicant.

According to the Court, the legal consideration in the Number of Numbers

018 /PUU-IV/2006, dated 19 December 2006, has considered

intent and the purpose of Article 21 of the KUHAP, among others:

" ... that in law the criminal event is reflected in the use of state power in the process of inquiry, inquiry, in which the use of such authority will result directly on citizens ' rights. country. Detention is a necessary measure in the process of law enforcement although in detention itself there is a restriction on human rights. Therefore, the law is to be governed by the laws in which they are defined as well as the clear terms. It is thus done to be at least as likely to avoid human rights violations. Changes in the Law of Criminal Events from HIR to KUHAP, intended to further enhance the protection of human rights. As is the case with the law of criminal events in other countries, detention is a necessary thing in criminal events. Therefore, it is not possible that there is a restraining order from the legal provisions of the criminal event. The existence of incarceration in the law of the criminal event is a painful but necessary evil (a necessary evil). Efforts to minimize human rights violations in detention are conducted in many ways in between to establish the terms of detention and establish a reason for detention and by providing legal efforts to a person who is Against him under Article 21 (1) and Section 77 of the Criminal Code, it must be interpreted as an attempt to provide legal basis for detention at once

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as an attempt to reduce the use of excessive authority from the investigator or the public prosecutor in conducting detention ...; ... detention by investigators or public prosecutors must be based on sufficient consideration rational and not with a mere detention of a detention which is only the basis of a subjective desire alone from an investigator or a public prosecutor ...; ... the existence of Article 21 of the paragraph (1) of the KUHAP cannot be released in the presence of Article 77 of the Criminal Code. Article 21 paragraph (1) of the Penal Code of the norm is sufficient to bring together two interests, namely the common interest to enforce order, and the interests of the individual that must be protected, such as the presence of links. The pretrial as set in Article 77 of the KUHAP ... "; therefore, the judgment of the ruling mutatis mutandis applies

also for the application of the applicant a quo. Thus, according to the Court

The applicant ' s ruling in the a quo is unwarranted according to the law;

[3.16] In a draw against the Applicant Proposition that Article 77 of the letter a KUHAP

contrary to Article 1 of the paragraph (3), Article 28D paragraph (1), and Article 28I paragraph (5)

Constitution of 1945 if not defined to include valid or non-term designation

suspect, shakedown, seizure, and mail check, Court

argues:

1. Regarding the assignment of the suspect, the Court considered it

following: a. As the Court has been considered in paragraph [3.14]

that Article 1 of the paragraph (3) of the 1945 Constitution asserts that Indonesia is

the legal state. In the state of law, asas due process of law as

one of the manifestations of human rights recognition in the process

Criminal justice becomes an asas that all parties

especially for enforcement agencies the law. The embodiment of the rights award

is accomplished by providing a balanced position

under applicable law rules, including in the judicial process

criminal, in particular for the suspect, defendant or penal In

maintaining its right in balance. Therefore, the country

especially the Government, is obligated to provide protection, submission, enforcement and fulfillment of human rights [vide Article 28I paragraph

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101

(4) UUD 1945]. KUHAP as a formyl law in the judicial process

criminal in Indonesia has formulated a number of suspects/defendants

as a protector against possible human rights violations;

b. Law enforcement must conform to the provisions that apply also

based on Pancasila and the Constitution of the Republic of the Republic

Indonesia Year 1945. The law must be enforced for its creation

the purpose and ideals of the Indonesian Nation as formulated in

The opening of the Constitution of the Republic of Indonesia in 1945

The fourth paragraph, i.e., forms a The government of the State of Indonesia

which protects the entire nation of Indonesia and all the blood spills

Indonesia and to advance the general welfare, lecture

the life of the nation and participate in the order of the world that

based on the independence of perpetual peace and social justice. The people

Indonesia must feel safe from the various threats and dangers that

comes, a sense of security given by the state to the people not only

is intended for those who are right, but for those who

make a mistake or for those who are expected to do

errors are also entitled to secure a sense of security

they are.

c. The system that is embraced in the KUHAP is the acoustics, which is the suspect or

the accused is positioned as a human subject who has a harkat,

dignity, and equal position before the law. In order

protect the rights of a suspect or a defendant, the KUHAP provides a mechanism

control against possible arbitrary actions of investigators or

the public prosecutor via prajudicial links.

d. With regard to a person's freedom from the actions of an investigator,

International Covenant on Civil and Political Rights ratified

with Act Number 12 of 2005 on Unrest

International Covenant On Civil and Political Rights (International Covenant on Civil and Political Rights) stated in Article 9: " 1. Everyone has the right to liberty and security of person. No one shall be

subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such procedures as are established by law.

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102

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to appear to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation ".

e. That based on the above consideration, the question that should be answered

by the Court is whether other than those specified in Article 77

letter a KUHAP such as the designation suspect could be made an object

prejudicial?

f. Article 1 of 10 juncto Section 77 of the Criminal Code determines that the pretrial

has the authority to inspect and disconnect:

1) the legal or arrest of any arrest and or detention, for

the request of a suspect or family. or a request that

interests in the use of law and justice;

2) the legal or discontinuation of the inquiry or termination of the prosecution

upon request that is in interest in the sake of law and

justice and;

3) the request for damages or rehabilitation by a suspect or his family

or any other party or its ruler whose role is not submitted to

the court

g. KUHAP does not have a check and balance system for action assignment

suspects by investigators because the KUHAP does not recognize the mechanism

testing on the validity of the evidence tool acquisition and not applying

the exclusion principle (exclusionary) of the evidence tools obtained in

are not as valid as in the United States. Examples of test mechanisms against

the validity of the acquisition of evidence tools may be seen in the case of Dominique Straus

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103

Kahn accused of rape of Nafissatou Diallo at

The Manhattan New York Hotel in 2011. The case was eventually

cancelled in August 2011 at New York Magistrates Court, after

a doubt on the credibility of the victim's witness, including his testimony

that was inconsistent about what happened. Things that are behind you

the evidence must be tested for the validity of the device. According to Paul Roberts and

Adrian Zuckerman, there are three principles underlying the need for a mechanism

testing for the validity of the evidence tool, that is: First, rights

protection by the state. The rights were born because sometimes attempts from

investigators or investigators in finding the evidence tool were carried out with

violating the rights of potential suspects or suspects. In order

restore or maintain a broken right then

is required a testing mechanism for the acquisition of evidence for

knowing and ensuring that the evidence tool is actually

taken legitimately. Second, deterrence (disciplining the police).

The alienation or exclusion of evidence tools taken or obtained

unlawfully, will prevent/obstructing investigators nor

the public prosecutor reprising their errors in the future

. If a judge routinely exclues/exclusion

such unauthorized evidence, then it becomes

a very clear message to the law enforcement apparatus that there is no

benefit to be taken from breaking the law, then the motivation of

the apparatus for breaking the law would decline drastically. Third, the legitimacy

of the verdict. In the event the criminal event is required a system that

can be trusted so that the public is convinced of the legal system or

the system of justice. If the judge is accustomed to intolerable the apparatus

the investigator and the public prosecutor in presenting the evidence obtained

unlawfully, then the legal system will doubt its legitimacy

and the public will soon reduce it. His respect. [Paul Roberts

and Adrian Zuckerman, Criminal Evidence. (New York: Oxford University

Press Inc, reprinted 2008), thing. 149-159]. Thus, it is apparent that

The Indonesian Criminal Event Law has not implemented the principle due process of

law in whole, by the actions of a law enforcement apparatus in

seeking and locating the evidence cannot be carried out testing

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104

the validity of the device.

h. That the nature of the existence of prejudicial links is as a form of

oversight and the mechanism of objecting to the enforcement process

closely related to the guarantee of human rights protection, so

in his day rules about pretrial are considered to be part of

masterpiece of KUHAP. Nevertheless, on his way it was

the prajudiciary agency could not function at maximum because it was not

able to answer the problems that existed in the pre-addicated process.

The prejudicial role-played surveillance function is only

post facto so it is not up to the inquiry and its pronunciation only

is formal that provides an objective element, while the element

The subjectives cannot be monitored by the court. That led to

pretrial stuck only on things that were formal and above

the administrative problems so far from the nature of the existence of pranata

prejudicial.

i. That by the time KUHAP was enacted in 1981, the designation

suspect has not been a crucial and problematic issue in life

the Indonesian society. The conventional forced attempts at the time were conventionally

for the arrest, detention, investigation, and

prosecution, but in the present form of forced attempts had been

experienced various developments or modifications. one

form is a "suspect designation by an investigator" conducted by

the state in the form of a tag or suspect status on

a person without a clear deadline, so that someone

was forced by the state to accept the status of a suspect without

in its the opportunity for her to make a legal effort to

test the legality and purity of the purpose of the suspect's designation.

When the law must adopt the purpose of justice and expediency

together so that if social life is increasingly complex then the law

needs to be more scientifically conditioned with the use of the language that

is better and perfect (Shidarta, 2013: 207-214). In other words,

The principle of caution must be held firm by law enforcement in

setting a person to be a suspect.

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105

j. That to fulfill the intent and purpose of being enforced and

protected in the pretrial process is the legal force and

the protection of human rights as a suspect/defendant in

the examination of the inquiry and prosecutions (vide legal considerations

Court in Putermination Number 65 /PUU-IX/2011, dated May 1, 2012,

juncto of the Court ruling Number 78 /PUU-XI/2013, dated February 20

2014), as well as with regard to the the human rights values that

contained in Law Number 39 of 1999 about the Human Rights

Human and human rights protections in the Chapter

XA UUD 1945, then any act of investigator who does not hold firm

principles of caution and alleged to have violated human rights may

is asked for protection to prejudicial links, though the

is limited by the provisions of Article 1 of 10 juncto

Article 77 of the letter of the KUHAP. However, the assignment of the suspect is part of

the investigation process in which there is a possibility of action

arbitrary from the investigator included in a person's " right

suffrage.

That Article 77 of the letter a KUHAP is one of which governs

about valid or not the termination of the inquiry. In the meantime,

the investigation itself according to Article 1 of the number 2 of the KUHAP is a series

an investigator's actions to seek and gather evidence that with

the evidence makes light of the criminal acts that occur and in use.

found the suspect.

k. It is true that if Article 1 of the number 2 of the KUHAP is done in an idealized way and

is correct then there is no pretrial link. However

The problem is how when not done ideally and

right, where someone who is already set to be a suspect

is champing his right by the law of the law that something is wrong

in Set a man a suspect. Whereas by the 1945 Constitution

everyone is guaranteed his right to obtain recognition, guarantee,

protection, and fair legal certainty as well as the same treatment in

before the law. Since the assignment of the suspect is a part of the

investigation process that is a violation of human rights

humans then should be designated a suspect by an investigator is

an object that can be held protection through a legal statement

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109

Based on the Basic Law of the Republic of Indonesia Year

1945, Act No. 24 of 2003 on Constitutional Court

as amended by Act 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

PROSECUTING,

STATED:

1. Grant the applicant request for part;

1.1 The Frasa "proof of the beginning", "sufficient initial evidence", and "proof that

is sufficient" as defined in Article 1 of 14, Section 17, and

Article 21 paragraph (1) Act Number 8 Years 1981 on Law

Criminal Event (State Gazette of Indonesia Year 1981, Number

76, Additional Gazette of the Republic of Indonesia Number 3209)

contrary to the Constitution of the Republic of Indonesia

The year 1945 as long as it is not understood that "proof of the beginning", " proof

the beginning enough ", and" sufficient evidence "is a minimum of two tools

evidence contained in Article 184 of Act No. 8 of the Year

1981 on Criminal Event Law;

1.2 Frasa" proof of the beginning "," proof of sufficient starters ", and" proof which

is sufficient " as defined in Article 1 of 14, Section 17, and

Article 21 paragraph (1) Law No. 8 of 1981 on Law

Criminal Event (Republic of the Republic of Indonesia Year 1981, Number

76, Additional State sheet of Republic of Indonesia No. 3209) No.

has a binding legal force As long as it is not understood that

"proof of the beginning", "sufficient initial evidence", and "sufficient evidence"

is the minimum of two evidence tools contained in Article 184 of the Invite-

Invite Number 8 Year 1981 on the Criminal Event Law;

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110

1.3 Article 77 of the letter a Act No. 8 of 1981 on Law

Criminal Event (State Gazette of Indonesia Year 1981, Number

76, Additional Gazette of the Republic of Indonesia Number 3209)

contrary to the Constitution of the Republic of Indonesia

in 1945 as long as it is not defined as the designation of a suspect,

shakedown, and seizure;

1.4 Article 77 of the letter No. 8 of the Year 1981 of Law

Criminal Event (State Of The Republic Of Indonesia In 1981, Number

76, Extra State sheet of the Republic of Indonesia No. 3209) is not

has a binding legal force as long as it is not defined

including the suspect's designation, shakedown, and seizure;

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

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

as it should be.

So it was decided in a Meeting of Judges by nine

The Constitutional Judge is Hamdan Zoelva as the Chief Merge. Members, Arief

Hidayat, Anwar Usman, Muhammad Alim, Wahiduddin Adams, Ahmad Fadlil

Sumadi, Maria Farida Indrati, Patrialis Akbar, and Aswanto, respectively as Members, at on Tuesday, twenty-eight, in October, year two thousand fourteen and the nine Judges of the Constitution is Arief Hidayat As Chairman, Anwar Usman, Muhammad Alim, Wahiduddin

Adams, Maria Farida Indrati, Patrialis Akbar, Aswanto, I God Gede Palguna, and Suhartoyo, respectively as Members, at on Monday, the sixteenth day, in March, year two thousand fifteen, as well as spoken in the Plenary Session of the Constitutional Court open to the public at Tuesday, date twenty-eight, April, year two thousand fifteen, finished pronounced at 10.57 am, by The seven judges of the Constitution are Arief Hidayat as the Chairman of the Member, Anwar Usman, Wahiduddin Adams, Suhartoyo, Maria Farida

Indrati, Patrialis Akbar, and I Dewa Gede Palguna, respectively as

Members, with accompanied by Cholidin Nasir as Panitera Replacement,

attended by the applicant/his power, The president or who represents, and the Board

The People ' s Representative or the one representing. Against the Constitutional Court's ruling

"suspect designation", there is one constitutional judge who has a reason

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111

is different (concurring opinion) and three constitutional judges who have

different opinions (dissenting opinion).

CHAIRMAN,

ttd.

Arief Hidayat

MEMBERS,

ttd.

Anwar Usman

ttd.

Wahiduddin Adams

ttd.

Suhartoyo

ttd.

Maria Farida Indrati

ttd.

Patrialis Akbar

ttd.

I Dewa Gede Palguna

6. DIFFERENT REASONS (CONCURRING OPINION)

Against the ruling of the Court, there is one constitutional judge

who has a different reason (concurring opinion), the Patrialist Constitution Judge

Akbar, as following:

Draw that the Court's legal considerations in the case a quo

are appropriate, let alone already formulated by the Judge Consultative Meeting.

The severing of the Court a quo priores the sense of justice and humanity. Wrong

one request for the applicant is to include the assignment of a suspect in

a pretrial object and granted by the Court, it is reinforcing

the Court ' s determination to acknowledge, respect, guarantee and protect

against Human Rights related in particular about the mechanism and

the process against a person is set to be a suspect.

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112

The suspect's inaction that is not based on the mechanism and the process

that is legally correct, among others, will result in some

problems, among others:

First is the case Possible misuse of law enforcement authority. Therefore, it needs to be a concern for the entire enforage

the law is more cautious and careful, so it is not easy to set

a person as a suspect without the right procedure and process, let alone not

followed with initial proofs with enough initial evidence that

convinces. All the assignments of a person as a suspect without following due

process of law is an abuse of authority, but if

investigators find sufficient initial evidence against an alleged

A criminal offense, then the investigator must not hesitate to do

his duty and authority to assign someone as a suspect.

Second, the issue is related to the assignment of someone as The suspect is when someone is assigned as a suspect. Then begin.

It was also, part of Human Rights as a fundamental right that she had definite

subtract, let alone followed by prevention for overseas, loss

rights to become public officials, delayed the right to rise to the rank of public office. for

PNS and TNI/POLRI, and from then on limited the steps are limited,

to meet the neighbors and families alone is no longer comfortable, let alone

to public places or social environments and such things going to happen in

a long enough time, even a child, his wife and his extended family too

bearing the brunt of the psychologically. This is very human, because

humans are equipped not only with logic but also feelings/ethics,

although between logic and aesthetics should be addressed to be ethics.

Third, as The suspect in practice is not a bit of a case that is adrift until the annual time but the file does not visit

devolve to the judicial process. Looking at the facts, then it appears

The question of the suspects is going to tell me where to look for justice?

In addition to the problem for suspects as already described

before, it is reasonable if the suspect's assignment is entered

in a pretrial object, among others:

First, it is feared The judge would be hasty because it was in the domain of proof with sufficient evidence. Preliminary evidence

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121

(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to appear to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

(5) Anyone who has been the victim of unlawful arrest or detention Shall have an enforceable right to compensation.

If carefully noted, the substance contained in the Article

9 ICCPR above is actually identical to the substance contained in

Article 77 of the KUHAP. This reality shows that Indonesia has set

the substance of protection against human rights as intended

by Article 9 of the ICCPR long before declaring its consent to be bound

(consent to be bound) to the ICCPR. While the substance similarity of Article 9

ICCPR and Article 77 of the KUHAP is recognized then, in such context, the plea

a quo indirectly actually also questions the validity and

acseptability of Article 9 of the ICCPR have been universally accepted.

Article 9 of the ICCPR is absolutely not offensive, implicitly though,

on the assignment of the suspect. The paragraph (1) of Article 9 of the ICCPR emphasised the prohibition

of arbitrarily arrest and detention but

must be on the basis of the statute. Verse (2) stresses the requirement

notifying the reason of the arrest at the time is also accompanied by an accusation

which is dismay. Verse (3) emphasizes the must to immediately bring

a person who is arrested or held in charge of committing a felony.

criminal to trial and trial in a reasonable time or released.

Verse (4) confirming that a person who was arrested or withheld is entitled to

is checked before the court so that the court is referred to immediately

decides without delay the validity of the detention and release the

concerned When the arrest is not legal. As for the paragraph (5) is set

on a person ' s right of compensation or damages due to arrest

or unlawful imprisonment.

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122

Based on the entire argument above, not the entry of designation

the suspect into the pretrial scope has turned out to be not contradictory

with Article 1 of the paragraph (3), Section 28D paragraph (1), and Article 28I verse (5) UUD 1945.

Therefore, throughout the course of the underlying applicant ' s control

the assignment of the suspect is part of the prejudicial scope,

The court should have rejected the a quoplea.

[7.2] Constitutional Judge Muhammad Alim

" The Inquiry is a series of investigative actions in terms of and according to the manner set up in this Act to seek as well as collect evidence that with evidence it makes light of the crimes committed and to find the suspect, "so the provisions of Article 1 of the Law No. 8 Act of 1981 on the Law of Criminal Events.

According to the Constitutional Court," The Norma is right for giving a fair legal certainty to the citizens of Indonesia when it will be set to be Suspect by investigators, which is to have to go through the process or sequence of investigation actions by gathering evidence that has evidence that the investigator found the suspect, not subjectively found the suspect without collecting. Evidence. " With these considerations, in fact, if the procedure is correct, then without the inclusion of the prejudicial authority to examine the designation of being a suspect, it is true that it is a human rights enforcement. Thus the designation of a suspect is not the prejudicial authority of the procedure set by the law of the criminal event to be exercised properly. In case of a concrete case, an investigator may be abusing his authority, which is, for example, it is subjective to assign a person to be a suspect without collecting evidence, then it is not the authority of the Constitutional Court, because it is the case of the law. It's kind of a legal application. The assessment of the application of the law is the authority of other institutions, not the authority of the Constitutional Court.

[7.3] Aswanto Constitutional Court

The pretrial object is any act of law enforcement apparatus that

entered in. the category of forced attempts that include arrest, detention,

foreclosure and shakedown. Any such forced attempt contains a value

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123

Human rights. If a person is subject to a forced attempt then the rights that

concerned will be compromised. On the other hand, there is a possibility of a forced attempt that

imposed against him is not done properly according to the law.

therefore, it takes a certain mechanism to test the validity

The forced attempt is in order to protect human rights.

Based on the KUHAP, the mechanism is provided through the institution

pretrial. The intent and purpose of the institutionalization of the prajudiciary is to

the legal pressure and the protection of the suspect's rights in the level

examination of inquiry and prosecution.

Article 77 of the letter a KUHAP regulates the pretrial object that Includes valid

or any arrest, detention, termination of inquiry or

termination of prosecution. Regarding that provision, the applicant in the case

a quo implores the Court to interpret that the suspects ' designation

includes a pretrial object. Thus the question should be

answered is whether the suspect designation is a prejudicial object

according to KUHAP or whether the Article 77 of the letter a KUHAP can be interpreted

as containing the meaning that the designation a suspect is an object

pretrial.

The suspect's penetration in a criminal case cannot be

separated from the action of the investigation carried out previously. The suspect

in a criminal case was found as a result of the action

the investigation.

Section 77 of the KUHAP is expressly and the limit has set the action

any law that can be tested on the pretrial of the legal or legal pretrial

arrest, detention, termination of the inquiry or termination

prosecution In exchange for a loss or a rehabilitation for a crime.

The pidation was stopped at the level of investigation or prosecution. Within

such provisions are not set about the designation of a suspect.

The limitless setting is thus intended to guarantee

a law enforcement process in line with the event law. KUHAP is

the law of the event intended to enforce a material criminal law.

The formation of the KUHAP is intended for the criminal justice system to be able

to walk in accordance with the laws of the event based on the stages that have been

determined to be created for justice and legal certainty under the process

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A fast, simple judiciary and light cost which is the philosophy

the holding of a trial which also includes one of the show's law principles

criminal. As it has been outlined in the KUHAP Implementation Guidelines

that:

" The purpose of the criminal event law is to seek and obtain an or at least close to the material truth, is the complete truth of a A criminal case with an honest and precise judgment of criminal events, in order to seek out who the perpetrator may be committed to a violation of the law, and then request an examination and judgment of the court of law. find whether it is proven that a criminal offence has been lamented and whether The person who is indicted can be blamed. "

As a provision of the event law to enforce criminal law

materiyl, KUHAP is indeed designed as a strict rule. Formula

the provisions already listed in KUHAP should not change

with ease.

A person ' s penetration as a suspect does not eliminate the right

someone to defend himself and fight for his own rights

he thinks it has been broken. The presumption of innocence (pesumptiion of

innocence) applies to them. This is confirmed in the provisions of Article 8

Undan-Invite Number 48 of the Year of 2009 on the Power of Justice that

states, " Any person who is dislocated, arrested, detained, prosecuted, or

is confronted in front of the court required to be considered not guilty before any

court ruling that expressed its legitimacy and has gained

the power of the law remains ".

At any stage of the pcmerment in the criminal justice process, the suspect

given the legal right to self-defense. The granting of this legal right

constitutes a guarantee of the suspect ' s constitutional rights as a form

a state-given respect and protection against a citizen

which is disnumerable to commit a criminal offence. On the other hand, the state also has

a law enforcement obligation through law enforcement apparatus to guarantee

a law intended as well to protect the interests and rights

of public citizens in general who can aggrieved with the presence of

a criminal either directly or indirectly. As such, there should be

there is a balance between the protection of individual rights that are citizens ' rights

states and law enforcement interests that are state obligations

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both of which are animating the legal provisions of the criminal event.

In the law of the criminal event, in addition to the rights of the suspect who must

be protected and respect, law enforcement is also the legal joy that

must continue Due to the enforcement efforts of the rights law

all citizens are protected with the creation of a legal order that

in accordance with the legal purpose itself. The opening of a broad interpretation room

against the legal provisions of the criminal event instead contradictory to the philosophy

the law of the criminal event intended to maintain a legal order in

the enforcement process of the criminal law and the criminal laws of law. The uncertainty of the law is contrary to the provisions of Article 28D

Constitution of 1945. The limitative KUHAP provision is indeed intended for,

strictly escorting the enforcement process of the criminal law so that space

interpretation may be limited.

The court is indeed authorized to provide an interpretation of the an

norm based on UUD 1945. However, inserting a suspect's designation

as a prejudicial object is not an interpretation issue. There are no words or

phrases in the provisions of Section 77 of the letter a KUHAP that can be interpreted as

the designation of a suspect or including the assignment of a suspect. The a quo provision

already clearly regulates anything that can be tested at a pretrial forum.

Set a suspect designation as one of the prejudicial objects that

previously did not exist in KUHAP is creating a new norm that

is not the authority of the Constitutional Court but rather the authority of the establishment

legislation.

Not to set the suspect designation as a prejudicial object in

Article 77 of the letter a KUHAP does not make such provision unconstitutional.

That if the designation of the suspect is viewed may be more respectful and

keeping the suspect's rights under control, then the idea may be included

into the provisions of legislation by forming the appropriate law

with the authority attached to it.

PANITERA SUCCESSOR,

ttd.

Cholidin Nasir

To obtain an official copy, contact Kepaniteraan and the General Secretariat of the Constitutional Court of the Republic of Indonesia Jl. Independence West No. 6, Jakarta 10110, Telp. (021) 23529000, Fax (021) 3520177, Email: sekretariat@mahkamahkonstitusi.go.id