Test The Material Constitutional Court Number 78/puu-Xi/2013 2013

Original Language Title: Uji Materi Mahkamah Konstitusi Nomor 78/PUU-XI/2013 Tahun 2013

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Microsoft Word-2013_telahucap-20Feb2014 PUU 78 VERDICT Number 78/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 the law No. 8 of 1981 on the law of criminal procedure against the Constitution of the Republic of Indonesia in 1945, proposed by: [1.2] 1. Name: Anwar Sadat, Sadat, aka St. bin Satim occupation: Private Employees (Executive Director Environment Probe Indonesia-WALHI-South Sumatra) address: Street Rod Day II, number 2759, RT. 42 11, RW, Kelurahan, Kecamatan Elephant Lebong Sematang Borang, Palembang Lebong Village Full/Villa Gajah, district Sematang Borang, Palembang City---------------------------------------------------------------------Applicant I; 2. Name: Community updates for criminal justice, represented by Steven Goodheart, sh., Syahrial Martanto and Wiryawan, sh., address: Jalan Cempaka No. 4, Sunday market, South Jakarta As--------------------------------------------------------------------Applicant II; In this case on the basis of a special power of attorney dated June 20, 2013 authorizes Revelation Wagiman, sh., Andi Muttaqien, sh., Wahyudi Djafar, sh., Erasmus Napitupulu, sh., Lenroy w. Eddyono, sh., Alex Argo Hernowo, sh., Fatilda Hasibuan, SH, Judianto Simanjuntak, sh. Dulagin, Iki, 2 sh., MH., Tandiono Bawor, sh.., and Munhur, sh., the Advocate/Attorney Advocate/public/Assistant Assistant Attorney public, on Public Interest Lawyer Network (PILNet) Indonesia , which is located at Jalan Standby II, Number 31, Pejaten Barat, South Jakarta, Sunday market, acting in singly or together for and on behalf of the giver of power; Hereinafter referred to as –-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-–-the Applicant; [1.3] Read the petition for the Applicant; Hearing a description of the Applicant; Examine the evidence the Applicant; 2. SIT the MATTER [2.1] considering that the applicant had filed a petition dated August 1, 2013 are received at the Constitutional Court Registrar (hereinafter referred to as the clerk of the Court) on July 29, 2013 based on deed of receipt of the Application File Number 376/URPAN.MK/2013 and has been recorded in the book the registration Matters of the Constitution on August 20, 2013 with the number 78/PUU-XI/2013, which had been repaired and was accepted in the Council on 17 September 2013 Anyway, on to the outlines of things as follows: i. Preliminary Pretrial is one sub system in the criminal justice system, its presence in Indonesia's law is the law of criminal procedure advances momentum of Indonesia after the colonial relics recorded in HIR. The influx of pretrial Criminal Procedure Law in Indonesia (CODE of CRIMINAL PROCEDURE) is considered a form of horizontal control judiciary against executive power in this function the investigator to do a forced effort. In the CODE of CRIMINAL PROCEDURE, Pretrial is set on chapter IX of Article 77 to 83 with article. Looking at the articles, the provisions concerning pretrial was minimal, no detailed mechanism about the process of beracara in a pretrial hearing and then implies the legal obscurity acara where used. This lack then becomes one of the causes that have implications on the ineffectiveness of prapreradilan as the institution of complaint 3 for parties who feel aggrieved over the actions of the State apparatus which make the effort force in Indonesia. In the middle of an effort seeking justice the parties who feel aggrieved against the efforts of related problems arise, a practice that stems from pretrial setting on article 82 paragraph (1) letter b, letter c, letter d and the CODE of CRIMINAL PROCEDURE. Related Article 82 paragraph (1) letter b and c CODE of CRIMINAL PROCEDURE, in practice been going multi multi merging the interpretation raises legal pretrial events varicosity in Indonesia. To be precise, varicosity tafsir is related to the phrase "no later than seven days the judge should drop an award". In practice, this has resulted in varicosity not achieve legal certainty and even threatened the constitutional rights of the citizens associated fulfillment will be legal certainty and justice in Indonesia. While that Article 82 paragraph (1) letter d CODE of CRIMINAL PROCEDURE States that the application for pretrial matters (which has not yet been decided) autumn, at the time the criminal subject matter have already started to review by the Court. When the application for pretrial decisions before the existence of fixed magnitude by judge pretrial, resulted in an open constitutional rights of citizens threatened to obtain legal certainty, assurance and protection in the face of the law as set forth in article 1 paragraph (3) jo. Article 28D paragraph (1) juncto Article 28G paragraph (1) of the Constitution. The existence of criminal law in the system of pretrial Indonesia has very strong relations with the guarantee of human rights. In the event that the guaranteeing of human rights itself, Indonesia has achieved progress in line with the amendment to the Constitution of Indonesia. Related to this, where important pretrial setting to see if it has guarantees of HUMAN RIGHTS as a State law or making that guarantee thus become blurred. In the framework of law enforcement which is good in a sense has been able to meet the terms of the justice and legal certainty, then it takes an effort to realize the laws and regulations of the law of criminal procedure are in accordance with the legal order and human rights.


4 therefore, to further ensure a fair legal certainty, then it is important for the applicant to pass on this petition before the Tribunal of judges of the Constitutional Court. II. Constitutional Court of Authority 1. That Article 24 paragraph (2) of the third Change Constitution states "the Authority of justice done by a Supreme Court and the judiciary under it and by a Constitutional Court"; 2. That Furthermore Section 24C subsection (1) changes the third Constitution states, "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final to examine legislation against the Constitution, 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"; 3. That on the basis of the above provisions, then the Court or its Kontitusi have the right to do testing legislation against the Constitution is also based on article 10 paragraph (1) of law No. 8 year 2011 about the changes to the Act No. 24 of 2003 about the Constitutional Court which declared, "the Constitutional Court is authorized to adjudicate on the first and last level that an award is final for : (a) test the law against the Constitution of the Republic of Indonesia in 1945 "; 4. That the Constitutional Court was established as the institution of constitutional guardian (the guardian of constitutison). If there are laws that contain or are formed contrary to the Constitution (inconstitutional), the Constitutional Court can annul the existence of meenganulirnya with the ACT as a whole or perpasalnya; 5. That as guardian of the Constitution, the Constitutional Court is also authorized to give an interpretation of a provision of the articles of the Act in order that accords with the values of the Constitution. The interpretation of the Constitutional Court against the constitutionality of article-article legislation is only the tafsir (the sole interpreters of the constitution) which has the force of law. So it is against articles that have 5 meaning ambiguous, unclear, and/or multi tafsir can also requested its interpretation to the Constitutional Court; 6. That under the laws of the COURT number 8 in 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court, the Constitutional Court is authorized to perform the testing against Article 82 paragraph (1) letter b, letter c, letter d and Act No. 8 of 1981 on the law of Criminal Procedure promulgated on 31 December 1981, on a Sheet of the Republic of Indonesia Number 76 of 1981 Additional Sheets, the Republic of Indonesia Number 3209. 7. That based on the rules above, the Constitutional Court is authorized to investigate and prosecute this appeal; III. Legal position of The Applicant 8. That recognition of the right of every citizen of Indonesia to apply testing legislation against the Constitution of the Republic of Indonesia in 1945 is one indicator of the development of a positive, which attempt to reflect the existence of advancement for the strengthening of the principles of State law; 9. see statement of the Constitutional Court, to function inter alia as "guardian" of the "constitutional rights" every citizen of the Republic of Indonesia. The Constitutional Court of the Republic of Indonesia is the judicial body in charge of keeping human rights as a constitutional right and the legal rights of every citizen. It is this awareness with the claimant decides to apply for testing Article 82 paragraph (1) letter b, letter c, letter d of the CODE of CRIMINAL PROCEDURE and contrary to the spirit and the soul and the articles contained in the Constitution of the Republic of Indonesia in 1945; 10. That on the basis of Article 51 paragraph (1) of the ACT of the Constitutional Court juncto article 3 Constitutional Court Rules number 06/FMD/2005 of Beracara Guidelines In Testing law States that: 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;

6 b. customary law community unity along is 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; d. State institutions; 11. That in the Description of article 51 paragraph (1) of the ACT of the Constitutional Court stated that "the definition of constitutional rights are rights that are regulated in the Constitution"; 12. That based on the verdict of the Constitutional Court the number 006/PUU-111/2005 and the rulings of the Constitutional Court are present, the Constitutional Court has determined 5 terms regarding constitutional losses as referred to in article 51 paragraph (1) of the ACT of the Constitutional Court, i.e. as follows: a. There must be rights and/or constitutional authority the applicant granted by the Constitution; b. rights and/or constitutional authority is considered to have been harmed by the enactment of legislation which petitioned testing; c. loss of rights and/or constitutional authority is specific and actual nature of the potential, at least according to the reasoning reasonably certain will happen; d. There is a causal relationship (causal verband) between the loss of rights and/or constitutional authority with legislation that petitioned testing; and e. it is possible that with the dikabulkannya petition, then the loss of rights and/or constitutional authority postulated will not or no longer occur; 13. That the applicant I is the Individual citizen of Indonesia (proof of P-2) to ever apply for a pretrial referred to provisions that appealed in a petition for a quo; 14. That the applicant is a citizen of Indonesia I, is Executive Director of Environment Probe Indonesia-WAIHI-South Sumatera, which always accompanies the community Ogan Ilir South Sumatra did struggle to restore rights to the land, in this case the PTPN XIV diambilalih VII of love sweet, Ogan Ilir, South Sumatra;


7 15. That one action in the fight for land rights which accompanied the claimant I is the action in front of the headquarters of the South Sumatera regional police conducted on January 28, 2013. This action is part of the struggle of the spacecraft Environment Indonesia (WALHI) South Sumatra and peasant victims of deprivation Iahan PTPN XIV VII to regain their land. However, this action ends with violence, assault, arrest, and detention conducted South Sumatera regional police against farmers and companion, including Applicant i. Applicants I was accused of committing criminal deeds "participate do damage" as set forth in article 170 of the CRIMINAL CODE (proof-P-3) 16. That the result of the arrest and arbitrary detention carried out by the South Sumatera regional police authorities, the Applicant I apply to pretrial Court Palembang. The petition was filed pretrial Applicant I on February 18, 2013. Applicant I presume that the process of arrest and detention conducted South Sumatera regional police does not comply with the procedures and mechanism of arrest and detention as specified in the CODE of CRIMINAL PROCEDURE. (proof of P – 4) 17. That at the time of pretrial proceedings underway in the District Court of Palembang, was a staple of the didakwakan I started disidangkan to the applicant at the Court of Palembang. So, with that based on the provisions of article 82 paragraph (1) letter d CODE of CRIMINAL PROCEDURE, the Tribunal Judges who adjudicate the applicant filed pretrial plea I decided that the application for Pretrial a. n Applicant I "Fall". This ruling based on the reason that the subject matter of case where the applicant as the defendant has started disidangkan. (vide evidence-P – 4) 18. That the result of such pretrial ruling, the claimant I cannot know about legitimate or whether the process of arrest and detention carried out by the South Sumatera regional police. Consequently, the applicant's rights as citizens to be broken. 19. That the arrest and detention against the applicant based on the evidence I supposed the beginning of enough and sufficient evidence. Because of Pretrial Petition filed by Applicant I disconnected fall, 8 and the applicant's status as a suspect and also the process of arrest and Detention against Applicant I cannot be tested in the Pretrial. 20. That the applicant is entitled I guarantee legal certainty over the just as guaranteed in article 28D paragraph (1) of the Constitution, but with the suicide of the petition of the applicant Pretrial I have led the applicants I get no certainty about whether the process of arrest and detention that is made against the claimant I have in accordance with the mechanisms and procedures that have been established by the CODE of CRIMINAL PROCEDURE. 21. That the applicant is entitled to the protection I dignity, a sense of security and protection from the threat of fear as guaranteed in article 28G paragraph (1) of the Constitution. One manifestation was the applicant I oppose an attempt of arrest and detention against him through Pretrial however due to the provisions of article 82 paragraph (1) of the CODE of CRIMINAL PROCEDURE the applicant's petition letter d I was dismissed. So the effort to restore the dignity and honor of the applicant I be not achieved. 22. That is because the Applicant I Iingkungan life as an activist and human rights has great potential returns in conflict with the law and it is very possible that arbitrary arrest and Detention – detention the applicant back then I have the potential losses will terlanggarnya rights to the sense of security and protection from the threat of fear as guaranteed in article 28G paragraph (1) of the Constitution. 23. Therefore the applicant's constitutional rights guaranteed in chapter I the 28D subsection (1) and section 28G subsection (1) of the Constitution has broken with the provisions of article 82 paragraph (1) of the CRIMINAL PROCEDURE CODE letter d 24. That the applicant is a legal entity in the form of a private Assembly and formed under the laws of the Republic of Indonesia (proof of P-5) and has ratified its founding Deed through the DECREE of the Ministry of Justice and human rights the number AHU-239. AH. 01.06. 2011 Community Endorsement of renewal of the criminal justice (evidence of the P-6) is the applicant who has legal standing and exercise his right to apply for this by using the procedure of organization standing (legal standing);

9 25. That the applicant has the legal standing of the II (legal standing) as the applicant testing laws because there are causal inter-connectedness (causal verband) Testing with the introduction of Article 82 paragraph (1) letter b, letter c, letter d of the CODE of CRIMINAL PROCEDURE and thus causing the applicant's constitutional rights II harmed; 26. That the doctrine of the organization standing or legal standing is a beracara procedure which not only in the doctrine but also has been embraced in different legal regulations in Indonesia, such as Act No. 23 of 1997 on managing the environment, Act No. 8 of 1999 on the protection of consumers, and Act No. 41 of 1999 on Forestry; 27. judicial practice that in Indonesia, legal standing has been accepted and recognized into the mechanism in search efforts for Justice, which can be proved as follows: a. in the ruling of the Constitutional Court Number 060/PUU-II/2004 about testing Act No. 7 of 2004 about water resources against the CONSTITUTION of 1945; b. in the ruling of the Constitutional Court the number 003/PUU-III/2005 about testing Act No. 19 of 2004 concerning the determination of the Replacement Government Regulations Act No. 1 of 2004 on changes to the Act No. 41 of 1999 on Forestry into law against the CONSTITUTION of 1945; c. in the ruling of the Constitutional Court the number 001-021-022/PUU-I/2003 about testing Act No. 20 of 2002 on Ketenagalistrikan; d. in the Konstusi Court ruling Number 140/PUU-VII/2009 about testing Act No. 1/PNPS/1965 about the prevention of abuse and/or Desecration of religion; 28. That the organization can act represents the interests of the general public/is an organization that meets the requirements specified in various laws and regulations or the jurisprudence, namely: a. the shape of a legal entity or Foundation;


10 b. in the articles of organization in question mention firmly about the purpose of the establishment of the Organization; c. has been carrying out activities in accordance with the budget essentially; 29. That the applicant Organisation II is the Governmental or non-governmental organization (NGO) that grow and develop in their manual, on the will and desire of her own in a society founded on the basis of concern to provide protection and enforcement of human rights in Indonesia; 30. That the applicant's role and task II in carrying out the activities of promotion, protection and enforcement of human rights, and civil and political liberties have been continuously exploring the Organization as a means to fight for human rights and democracy; 31. That the applicant's role and task II in carrying out enforcement activities, protection and defense of human rights, in this case the harness institution as a means to involve as many members of the public in fighting for awards and honours the values of human rights against anyone without discriminating gender, ethnic origin, race, religion, and others. This is reflected in the articles of Association and/or the applicant's Establishment Deed II (vide evidence P-5); 32. That basic and legal interest of the applicant in applying for Testing II Article 82 paragraph (1) letter b, letter c, letter d of the CODE of CRIMINAL PROCEDURE and may be evidenced by Statutes that mention explicitly regarding the purpose of the establishment of the Organization, and has been carrying out activities in accordance with its articles of association which in article 4 of the articles of Association of the applicant II stated that the Assembly is based on Pancasila and based on the principles – principles of human rights as provided for in the Constitution , The Universal Declaration of human rights, and the International Covenant on Civil and Political Rights as well as other international agreements – agreements in the field of civil and political rights which has been ratified by the Republic of Indonesia. In Article 6 of the articles of the Assembly declared that the gathering aims to (1) encourage the formation of the justice and law reform of the judiciary to intervene and 11 (2) encourages criminal justice renewal policy is oriented on the values of human rights and fundamental freedoms; 33. That in achieving the purpose and objective of the applicant II has performed a wide variety of business/activities performed continuously, where it has become common knowledge. As for the form of the activities that have been undertaken are as follows: a. conduct research and publish reports related human rights; b. conducting assessment and advocacy towards policy-policy (policies) and/or the law (laws and regulations), its application, as well as their impact on economic and social life, culture, community; c. advocate in various forms for the fulfillment of the rights, freedoms, and the needs of the community justice; d. building a network of human rights at the national and international levels; e. conduct lobby and cooperation at the national and international levels to improve the protection of human rights in Indonesia; 34. That attempts of protection, promotion and fulfilment of human rights, in the field of social development carried out by the applicant II has been noted in the national legislation, namely Act No. 39 of 1999 on human rights; 35. That attempts of protection, promotion and fulfilment of human rights carried out by the applicant also noted in II in various principles of international law on human rights; 36. That Furthermore the applicant II has a constitutional right to fight for its rights jointly for the benefit of the nation and the country. According to section 28C subsection (2) of the 1945 Constitution states that: "everyone has the right to promote himself in the fight for the right collectively to build community, the nation and the country"; 37. That issue into a test object is examined by the applicant II is the question every human being/12 because of the nature, which is not only being the interest of Applicant II but also be of interest for every citizen of Indonesia in particular and every human being in this world in General; 38. Further, the filing of the application for testing Article 82 paragraph (1) letter b, letter c, letter d of the CODE of CRIMINAL PROCEDURE, and this is a manifestation of the concern and efforts of the applicant II for the protection, promotion and fulfilment of human rights and the protection of civil and political freedom in Indonesia; 39. That thus, the existence of Article 82 paragraph (1) letter b, letter c, letter d of the CODE of CRIMINAL PROCEDURE and has the potential to violate the constitutional rights of the applicant, by way of Iangsung or Iangsung, not detrimental to the variety of efforts that have been conducted on an ongoing basis in order to perform tasks and role for the protection and promotion of human rights fulfilment; promotion and protection of civil and political freedom in Indonesia that had been done by the applicant II; 40. that based on the above description, it is clear that the applicant has complied with the quality as well as II capacity as Applicant testing laws against the 1945 Constitution as specified in article 51 letter c Act No. 24 of 2003 about juncto Constitutional Court Act No. 8 of 2011 about the changes to the Act No. 24 of 2003 on the Constitutional Court, as well as a number of the ruling of the Constitutional Court which gives an explanation of the terms to be applicant testing laws against the 1945 Constitution. Therefore, the applicant's overall II also clearly has the right and the legal interests represent the interests of the community to apply the test of article 82 paragraph (1) letter b, letter c, letter d and the CODE of CRIMINAL PROCEDURE; IV. Principal Matters a. Scope of application for 41. In this appeal The Appellant pleaded with testing Article 82 paragraph (1) letter b, letter c, letter d and Act No. 8 of 1981 on the law of criminal procedure against article 1 paragraph (3), section 28 D paragraph (1), and section 28 G subsection (1) of the Constitution.


13b. The reasons for the Application of article 82 paragraph (1) letter b, letter c, letter d and contrary to article 1 paragraph (3), article 28D, paragraph (1) and section 28G subsection (1) of the Constitution I. Article 82 paragraph (1) letter b and c letters contrary to the principle of legal certainty the just 42. That article 1 paragraph (3) of the Constitution states that "the State of Indonesia is a country of laws"; 43. That one of the most important elements of the State of law is located on the tegaknya guarantee for the principle of legal certainty, as expressed by Gustav Radbruch in theory of mind law (Idee des Rechts), which mentions that a State law can be classified into three general principles, namely: purposiveness — benefit (zweckmassigkeit), justice-justice (gerechtigkeit), and legal certainty — legal certainty (rechtssicherheit) (proof of P-7) 44. That Constitution has also confirmed the existence of a guarantee of legal certainty for every citizen in the State space of Indonesia's law, as mentioned by article 28D paragraph (1) of the Constitution, "everyone is entitled to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law"; 45. Jimly Asshiddiqie, that according to the objective of legal certainty which was conceived in the Constitution related to the order and harmony; (proof of P-8) 46. That refers to the opinion of Frans Magnis Suseno, the State law is based on a desire that State power should be run on the basis of the law, whether unaccompanied and fair. The law became the Foundation of all the actions of the State, and the law itself should be good and fair. Good because in accordance with what is expected by society from the law, and the basic intent of the fair because all law is justice. There are four main reasons for demanding that the State was organized and run the task based on the law, one of which is ' legal certainty ', in addition to demands for equal treatment, the legitimacy of the democratic demands of the mind (proof of P-9); 47. That legal certainty is one of the main parts of the morality of the law itself, it is as the opinions expressed by 14 Lon l. Fuller, who stated that a rule of law need to be subject to the internal moraliti, therefore in its formation should look at four of the following terms: a. laws should be made in such a way that can be understood by common people. Fuller also named it as the desire for clarity; b. rules should not contradict each other; c. the law there must be finality. The law should not be personalised way every time, so everyone is no longer orienting its activities; d. There must be consistency between the rules as promulgated by the implementation of senyatanya. (proof of P-10) 48. That in the tradition of the State law of rechtsstaat, legal certainty is the important part which must be observed by the countries that adopt them, described by Friedrich Julius Stahl, the Rechtsstaat "must • determine with precision and certainty with the boundaries and the limits of its activity, as well as the free sphere of its citizens, according to the modalities of law" (proof of P-11); 49. That the importance of legal certainty not only shared in the tradition of rechtsstaat, a tradition of the rule of law also gives the affirmation of the importance of legal certainty. The rule of law itself is meant as "a legal system in which rules are clear, well-understood, and fairly enforced" — a clear legal system (unlikely to be abused), easy to understand, and keep the tegaknya of Justice. Legal certainty became characteristic of the rule of law, which contains the principle of legality, prediktibilitas, and transparency; 50. legal certainty That (certainty), one of which contains the notion that the law must be predictable, or meet the prediktibilitas element, so it is a subject of law can estimate what the rules underlying their behavior, and how the rules are interpreted and implemented. 51. That the establishment of formal laws and regulations in Indonesia, legal certainty is also one of principle which could not be disimpangi in any creation of legislation.

15 it is as mentioned in article 6 paragraph (1) letter i Act No. 12 year 2011 about the formation of Legislation, which is a mandate directly from the provisions of article 22A UUD 1945; 52. That the provisions of article 6 paragraph (1) letter i Act No. 12 year 2011 stated, "the material charge Legislation should reflect the principle of: (i) public order and legal certainty". Later on in the explanation, it says, "is a" principle of public order and legal certainty "is that any material Charge Legislation should be able to realize the order in society through a guarantee of legal certainty"; I. 1 that the phrase "... the judge hearing a good description and a suspect or both applicants and the competent authority ..." in article 82 paragraph (1) letter b CODE of CRIMINAL PROCEDURE gives rise to Legal uncertainty. 53. That in connection with legal proceedings, the criminal justice system as an institution of formyl material to enforce the law must have legal certainty, to keep order and harmony of the citizen, in terms of guaranteeing human rights, get a fair legal process and legal berkepastian; 54. That one of the mechanisms for safeguarding and protecting human rights in the criminal justice system in Indonesia, set up the existence of the preperadilan mechanism, as the complaint mechanism and the protection of the dignity and rights of citizens against the actions of an authorized officer in conducting forced efforts; 55. That one of the settings of the CODE of CRIMINAL PROCEDURE, i.e. in pretrial Article 82 paragraph (1) letter b reads, "in check and disconnected about legitimate or whether an arrest or detention, or whether the termination of the yidikan pen or prosecution; request damages and or rehabilitation due to no legitimate arrests or detention, due to the termination of the investigation or prosecution of legitimately and there are items that are seized are not included tools proof, the judge heard a description from either the suspect or the applicant or the authorized officials and "there is a formula of phrases that then give rise to legal uncertainty;


16 56. That the phrase "... the judge heard a description from either the suspect or the applicant and the competent authority ..." gives rise to legal uncertainty because it can be interpreted differently – different by the court related to whether "the Court is obliged to hear the description of both sides in the trial of pretrial" 57. That when observed carefully the provisions provide deductions then authorizes a judge to do it based on their beliefs and their own interpretation of 58. That's basically the CODE of CRIMINAL PROCEDURE does not itemize the legal events of the pretrial, then the application of Article 82 paragraph (1) letter b CODE of CRIMINAL PROCEDURE relies heavily with the interpretation of the judge's own beliefs and whether to bring both parties resulted in the commencement of the examination of calculation and when selambat-Iambatnya 7 days to drop the verdict; 59. That the result of the uncertainty regarding the phrase "... the judge heard a description from either the suspect or the applicant and the competent authority ..." in respect of about the start of the examination and calculation of selambat-Iambatnya 7 days to drop the verdict can result in a recent examination of application for Pretrial 60. That result with a Pretrial examination ditundanya then the interests of the appellant as party imposed pretrial effort forced threatened cannot be protected under article 28D paragraph (1) of the CODE of CRIMINAL PROCEDURE; 61. That according to principles of judicial examination quickly in hearing pretrial, then when the call has been done in a fitting and Iayak to both parties, the Court may examine the pleas put forward by the applicant Pretrial pretrial; 62. That with starting, checked, and diputusnya application for Pretrial quickly after calling are worthy and deserve, will guarantee the principle of legal certainty and the right to security in accordance with the principles of Justice quickly in time specified by article 82 paragraph (2) Letter c CODE of CRIMINAL PROCEDURE and have a direct impact minimize the chances of suicide of pretrial matters as provided for in article 82 paragraph (1) letter d CODE of CRIMINAL PROCEDURE;

17 63. That institution as a pretrial formed solely to guarantee and uphold the dignity of the claimant who feel their rights have been taken by the competent authority as the respondent with the effort force, should be the institution that ensures the fulfillment of article 28D paragraph (1) of the CONSTITUTION of 1945; 64. That by not dirincinya law event pretrial, then for the sake of legal certainty and the protection of and respect for human rights, the sole judge pretrial can initiate, review and termination of litigation pretrial plea if the parties have been summoned are noteworthy and deserves to appear to the Court; I. 2 of article 82 paragraph (2) Letter c is not set explicitly the early start of calculation 7 days for pretrial examination of 65. That formulation in article 82 paragraph (2) Letter c CODE of CRIMINAL PROCEDURE which reads "the examination conducted a quick and selambat-Iambatnya seven days the judge should drop the award" has led to a variety of interpretations and legal uncertainty regarding potential "when the start time is 7 days" as referred to in article a quo; 66. That Article 82 paragraph (2) Letter c CODE of CRIMINAL PROCEDURE does not have the clarity of formulation as well as contrary to Article 28D paragraph (1) of the Constitution as the embodiment of the protection and guarantee of human rights in the face of the law; 67. That due to the vagueness of the formulation in article 82 paragraph (2) Letter c CODE of CRIMINAL PROCEDURE court practices resulted in developing four different interpretation of rnengenai since when the 7 days begins; namely, first, the calculation begins after things got registered and the registration number in the PN, second, the calculation begins after chief judge appointment do PN pretrial, the third single, the calculation begins after the sole judge pretrial hearing opening Prime, and a fourth, the calculation begins after the parties complete (proof of P-12 and P-13); 68. the interpretation that some have a close relation with the norms set forth in Article 82 paragraph (1) letter a CODE of CRIMINAL PROCEDURE which reads "within three days after receipt of the request, the designated judge sets trial days" so that when it is associated with the interpretation of the first and second then the calculation has been reduced at least 7 days from 18 three days time to appoint judges and justices who are appointed to determine the day of the hearing; 69. the interpretation that some also relating to terminology 7 days in article 82 paragraph (2) Letter c CODE of CRIMINAL PROCEDURE also relate to whether the calculation Saturdays-Sundays in one week. Is it then also meant 7 days including Saturdays and Sundays; 70. the interpretation that some also with regard to the deadline that deserves and legitimately to do the calling session is 3 days, then when the calculation is included in the calling time, then there are also taken into account the time lag has been used to perform proper calling; 71. That based on research results from Alwi and w. Eddyono, SH, et al, from the 80-something that is observed most frequently takes time beracara which can be completed within the period 1 – 7 days just 4 cases, while the period of pretrial examination is generally completed within exceeding 7 days, with a note that can be completed within 8-14 days there are 16 things, then 15-21 days there are 35 things 21-28 days, there were 15 cases, 29-36 day there are 7 cases, and 37-45 days there are 3 days with the diagram as follows; (proof of P-14) (the image contained in the file of the petition of the Applicant) 72. That with the data based on the results, the start time is 7 days from the time the application for registration or appointment ever since the judge in pretrial practice hard to be implemented; 73. That interpretation of the time when the start 7 days based on when the two sides present has been presenting legal uncertainty and it is not the achievement of Justice against the applicant who is the subject of pretrial imposed forced efforts; 74. That interpretation of the time when used the start of 7 days from the time the parties complete opens the possibility for the competent authority to suspend attendance at the time of the first trial call, even though the call was done in a fitting and worthy; 75. That delays in the presence of an authorized officer often became one of the causes of the pretrial examination and the length of time be


19 pretrial examination of suicide factors due to the subject matter of case has been registered to the Court; 76. That the spirit and passion of the pretrial justice is done quickly so that the applicant get the certainty of whether Pretrial process arrest and detention against him is valid according to the law; 77. That by giving the interpretation that the start time is 7 days at the time the parties fully in the vast possibilities opened pretrial hearings occurrence of breach of the principle of examination of the praperadilans rapidly as it opens the possibility of related officials put attendance at hearing pretrial. At its core the principle offences can also result in serious violations of the rights of the applicant pretrial; 78. That interpretation of the start time 7 days since the parties expressed complete has been in general practice in the examination of the petition be pretrial in the District Court. The Court did not dare to start the trial and memutusnya within 7 days since the first trial opened despite the summons has been delivered in fitting and proper. This became the cause of the trial examination of application for Pretrial time on average exceeds the time 7 days; (vide evidence P-14) 79. That's one consideration of the interpretation of the time of commencement of the 7 days since the parties declared complete in practice due to the obscurity of whether the judge can drop a Pretrial ruling within 7 days since the first trial was opened without the presence of the competent authority even though the competent authority have been called worthy and decent; 80. That due to the absence of an explanation of whether the judge can drop a Pretrial ruling within 7 days since the trial opened and without the presence of an authorized officer in the judge's Pretrial practice often choose delay the trial until the presence of the competent authority. Delays due to Pretrial hearings was not the competent authority when the first trial opened and was calling in worthy and viable then the aggrieved Applicant is 20 Pretrial which is a subject that has been subject to a forced effort; 81. That result from the lack of a verdict that could be issued if the judge the parties sued/petitioned not present after are worth have been summoned to the trial then fast examination based on the principle, since corresponds with the function as a mechanism of control pretrial against potential arbitrariness Investigator or public prosecutor, then the trial examination of application for pretrial starts at the time the judge opened the trial of Prime so that checks can be carried out for 7 days with or without the presence of the competent authority all courts have beckoning the competent authority in worth and worth; II. Article 82 paragraph (1) letter d law No. 8 of 1981 on the law of criminal procedure are not in harmony with the principles of the protection of human rights 82. That such is the case mentioned above, Indonesia declared themselves the State law of reciprocity such as set forth in article 1 paragraph (3) of the CONSTITUTION of 1945; 83. That article 1 paragraph (3) of the Constitution, Jimly Asshiddiqie according to contain the notion of the existence of the recognition of the supremacy of law and the Constitution, the principle of separation and adhered the limitation of power according to the constitutional system, the guarantee of human rights, the principle of free justice and impartiality that ensures equation of every citizen in the law, as well as ensure justice for everyone including against abuse of authority by the authorities (evidence of the P-15); 84. That to meet the elements in order to be referred to as State law, particularly in terms of the rechtstaat, Julius Stahl requires some principles, which include: a. the protection of human rights (grondrechten); b. Division of powers (scheiding van machten); c. Government based on law (wetmatigheid van bestuur); and d. the existence of judicial administration — administrative State (administratieve rechspraak) (vide evidence P-15);

21 85. That based on the opinions of Jimly Asshiddiqie, there were at least 13 (thirteen) principle of the State's principal law that applies in this day and age. The entire piece is the main supporting pillars stand tegaknya a democratic constitutional State, so it can be referred to as a State of law in the real sense. One of the pillars of the country's staple principle of law thirteenth is the protection of human rights (human rights protection) (vide evidence P-15); 86. That protection of and respect for human rights, as the most important pillar of the State's law was intended to promote the respect and protection of HUMAN RIGHTS as an important feature of a democratic law State. Each human being from birth bears rights and obligations which are free and human. The formation of the State and so are the organizing authority of a country should not diminish the sense or meaning of freedom and the rights of humanity to it. Even A.V. Dicey emphasizes the principle that the content of the Constitution a State State law-the rule of law, should follow the formulation of fundamental rights (constitution based on human rights). In addition to the principle of the supremacy of law, and equality before the law (vide evidence P-15); 87. That according to Kusumadi Pudjosewojo because Indonesia is a country of law, then all the authority and action tools supplies State should also based on and governed by law. The ruler is not legal, but forming of common law rules, the applicable law is, therefore, not because it is defined by the ruler, but because the law itself. This brings consequences, that any ruler may be subject to liability if in the exercise of its powers beyond the limits set by law, or in tort. The authority of the ruler of the State organs and severely restricted the authority of the individual in the State, in the form of human rights. The opinion asserted that human rights is an important element in a country's law (proof of P-16); 88. That one form of guarantee the protection of human rights set forth in article 28G paragraph (1) of the 1945 CONSTITUTION which reads "Every


22 people are entitled to the 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 "; 89. That refers to an opinion of Bryan z. Tamanaha, protection against the dignity of a person and property under his reign, is one of an inseparable part of State law. One form of State law according to Tamanaha is the protection of the dignity of (right of dignity), which provide a guarantee against the dignity of a person, including a guarantee over the right to justice; (proof of P-5); 90. That form of protection against the dignity of a person one of them realized by any warranty rights a person cannot be arrested and detained arbitrarily, it is as defined by article 9 of the Universal Declaration of Human Rights (UDHR) of 1948, "no one shall be arrested, detained or thrown away with arbitrary detention"; 91. That the provisions of article 9 of the UDHR is then outlined in detail and detailed in the provisions of article 9 of the International Covenant on Civil and Political Rights (ICCPR), as it has been ratified by Indonesia through Act No. 12 of 2005, stating as follows: (1) everyone has the right to freedom and personal security. No one may be arrested or detained arbitrarily. No one can be deprived of his freedom except on the basis of legitimate reasons, in accordance with the procedure established by law. (2) every person who is arrested at the time of his arrest told the obligatory and should be notified as soon as possible about the charges levied against him. (3) every person who is arrested or detained based on the criminal charges, mandatory soon faced forward court or other officer authorized by law to exercise judicial power, and the right to be tried within a reasonable period, or 23 were released. Is not a general rule, that people are waiting for trial should be detained, but exemption may be granted on the basis of the guarantee to be present at the time of the hearing, at any stage of the Court and on the implementation of the verdict, when it was decided the case. (4) anyone who is deprived of his freedom by way of arrest or detention, has the right to disidangkan in front of the Court, which aims to let the Court without delay can determine the legality of his arrest and ordered his release if the detention is not lawful. (5) any person who has been the victim of arrest or detention of unauthorized, reserves the right to replace losses that got should be implemented; 92. That the intent of the provisions of article 9 of ICCPR can be found the explanation in detail and operational in general comment No. 8 ICCPR HUMAN RIGHTS Committee explained that the right to control by a court over the legality of (legitimate or not) a detention, applies to all deprived through arrests or detention. In addition the Committee affirmed, any person who is arrested or detained must be immediately brought before a judge or other officer who is given the authority by law to exercise judicial power. According to the Committee, delays must not be more than a few days; 93. That personal freedom (liberty of the person), within the clause of article 9 above are related to a very specific aspect, namely curbing the freedom of the body to move (the freedom of bodily movement). Article 9 therefore associate with the connectedness of things about personal freedom aspect of forced detention only against someone in a particular location, such as a prison or other detention facilities, psychiatric hospitals, and other places with a special purpose and legally valid; 94. That the provisions of article 28G paragraph (1) the Constitution indeed contains the intention that the civil rights of citizens cannot be deprived arbitrarily, without going through a procedure regulated by law and first confronted by a 24 Court hearing (due process of law). The intention is then unloaded one of them in the provision of article 34 Law Number 39 of 1999 on human rights, which States: "every person may not be arrested, detained, tortured, banished, exiled, or disposed of arbitrarily"; 95. That within the context of national criminal law, to uphold the principles of State law specifically related to the protection of human rights, then dirumuskanlah the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE), which aims to implement a new law, as well as to achieve material law and the achievement of tegaknya against a seadil-fair justice without confronts the split between interest and merely procedural enforcement; 96. That therefore then the enactment of the Criminal Procedure Law system based on the CODE of CRIMINAL PROCEDURE must be completely adjusted to the standard of human rights which has been ratified by the Republic of Indonesia. Thus the enforcement and application of the law must be a system of rules (norms) which are a reflection of the principle of State of law for the sake of Justice and; 97. That one of the forms of action that have great potential for arbitrary detention – carried out in execution of the law committed by investigators and/or the public prosecutor is the authority to conduct a forced effort are an attempt of arrest and detention; 98. That under section 21 subsection (1) of the CODE of CRIMINAL PROCEDURE which reads "further detention Orders 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 and/or repeat the criminal act" is the basis of the authority of the State apparatus for making arrests and detention; 99. That in Act No. 8 of 1981 expressly understood that the arrest and detention by the State apparatus does not require the permission of the Court. This situation in General


25 on the latest condition is considered to be Lack of Control or lack of control are closely related on the potential abuse of power by the State apparatus; 100. That in practice the phrase "... in ha! the existence of the circumstances that give rise to concern that ... "by the District Court is considered diskresi and is the subjective reasons of State apparatus that can only be judged by the State apparatus itself without can be tested by the Court; 101. That based on the report of the situation of torture in Indonesia June 2012-July 2013 issued KontraS (Commission for missing persons and victims of Violence), the number of acts of torture allegedly committed by investigators (police) is 55, with 149 cases of injuries and fatalities; (proof of P-18) 102. Based on the report that the situation of torture in Indonesia June 2012-July 2013 issued in contrast, there is also an accepted complaint data contrast in that year by as much as 17 cases of torture-related complaint 16 complaint occurred during detention and the process of investigation, while 1 case Iainnya by members of the INDONESIAN ARMED FORCES; (vide evidence P-18) 103. That the potential arbitrariness is Iangsung threatening the right to security and protection from the threat of fear to do or not do something, as well as threaten the dignity of someone who is in this case against the actions of the State apparatus in the arrest and detention of pre-trial proceedings are directly related to the guarantee of human rights embodied in article 28G paragraph (1) of the CONSTITUTION of 1945; 104. That refer to the Constitutional Court Verdict Number 65/PUU-IX/2011 about testing Section 83 subsection (2) and paragraph (3) of law No. 8 of 1981 on the law of criminal procedure against the Constitution, whereby in consideration of the verdict a quo explained "that basically any act of forced efforts, such as arrest, search, seizure, detention, and prosecution is done with breaking legislation is an act of deprivation of human rights , so with the pretrial criminal proceedings expected 26 may run in accordance with the legal regulations in force "; 105. That in consideration thereof is also explained, "that setting the same position before the law provided for in the CODE of CRIMINAL PROCEDURE is the system of pretrial as one of the mechanisms of control over the possibility of arbitrary actions of the investigator or public prosecutor in making arrests, searches, confiscation, investigation, prosecution, termination of the investigation and termination of the prosecution, whether accompanied by a demand for damages and/or rehabilitation or not". 106. That based on consideration of the award, it is understood that pretrial is a mechanism of control against the possibility of arbitrary actions of the investigator or the Prosecutor in conducting forced effort, so that it shall be capable of being pretrial bridge between the powers of the investigator or Prosecutor with the protection of the rights of citizens; 107. That the phrase "... a system of pretrial as one mechanism of kontroi to the possibility of arbitrary actions of the investigator or the Prosecutor ..." within the consideration thereof, indicating a conscious and careful consideration of the Constitutional Court pointed to the existence of a potential human rights abuses of forced efforts, and for that it needs a process that is fair and legal berkepastian in process control mechanism as pretrial; 108. That content is examined in a pretrial hearing of the manifestation of the power of judicial control, which are intended to assess, test, and consider legally, whether in the Act of forced efforts against the suspect/accused by investigators or the appellant has been in accordance with the CODE of CRIMINAL PROCEDURE which was subsequently influential in the subject matter of case and the process of law enforcement up to the level of examination in court; 109. That disharmony provisions a quo with the principles of the protection of human rights, in particular the guarantee of protection of the dignity of the person and the right not to be deprived of his liberty arbitrarily can be seen in the following elaboration: 27.1. Examination of the Principal Matters should wait for Pretrial finished checking and break the Validity of arrest and detention of 110. Although the vision of the establishment of the CODE of CRIMINAL PROCEDURE application is an advancement for the law in Indonesia and respect for human rights and constitutional rights of citizens but nonetheless there is a potential article factually and threaten the constitutional rights of citizens such as those contained in article 82 paragraph (1) letter d which reads "in case of a matter have already started to review by the courts of the country while the examination regarding the request to the unfinished pretrial , then the request fall "111. That with the suicide of a pretrial request, then all the principles and concepts relating to legal certainty and fairness as well as pretrial as institutions complaints and controls horizontally against the actions of the investigator and Prosecutor, which, by the jurisprudence of the Constitutional Court considered potentially used arbitrarily, would not be achieved due to the suicide of the petition which resulted directly in the absence of a ruling of a judge linked the petition as the highest embodiment of a legal process; 112. That submission must be meant by Pretrial Plea has been the existence of a strong belief of the applicant Pretrial that there had been deviations from the provisions of the CODE of CRIMINAL PROCEDURE in the implementation efforts of the force and violation of the rights of the asasinya, so for the sake of certainty or no deviation from the provisions of the CODE of CRIMINAL PROCEDURE and/or the rights abuses, should also bury a first examination of the applicant's Pretrial plea; 113. That refer to the Constitutional Court Verdict Number 018/PUU-IV/2006 about testing Section 21 subsection (1) of law No. 8 of 1981 on the book of the law of criminal procedure against the Constitution, which in the reasoning mentioned the "existence of pranata pretrial (rechtsinstituut) which is set out in Article 77 a CODE of CRIMINAL PROCEDURE the aim to check the validity of incarceration, it should not only purely formal or administrative aspects of the rate of incarceration ,


28 but also a deeper aspect i.e. rationality need not do the detention "; 114. That consideration in the ruling of a quo must be understood as a reference that pretrial is a process to ensure the tegaknya of the law in order to achieve the objective material justice and not merely procedural or formal aspects of the issue solely; 115. That consideration against the verdict a quo brings further in fundamental questions to the parties, and where the burden of proof is placed (burden of proof). During this the burden of proof is placed on the applicant's shoulders while doing the assessment upon rationality against detention he did not need to be within the powers of the competent authority restraining; 116. That the issue of the burden of proof should be placed on the official authorities hold is Iogis which is a consequence of the assessment of "... the existence of a form which gives rise to concerns ..." as stated explicitly in article 9 paragraph (1) of the CODE of CRIMINAL PROCEDURE of the Constitutional Court ruling juncto Number 018/PUU-IV/2006; 117. That according to Mochtar, the purpose of N Deputy criminal justice system integrated is to enforce justice in the life of society as well as the order protecting the individual, by handling the crime not solely to uncover the crime and find the perpetrators as well as condemning, but there are bigger goals, including preventing the occurrence of other criminal acts, victims rights, rehabilitating and socializing perpetrators; (proof of P-19) 118. That, in view of the N Deputy Mochtar, in the integrated criminal justice system, there is a subsystem-related subsystems, from start of investigation functions, the judiciary and prisons to realize justice as the aim of the criminal justice system; (vide evidence P-19) 119. That the application of Article 82 paragraph (1) of the CRIMINAL PROCEDURE CODE letter d very factually and potentially threaten the constitutional rights of citizens, because as a separate pretrial process must be viewed as a process of unity of law enforcement in the criminal justice system are interconnected and 29 overlapped, so that the process can not be neutered and must be completed up to the stages of the verdict; II. 2. Suicide of the commencement of Pretrial examination of the subject matter of case, eliminating the right of Suspects to test the legality of the arrest and detention of 120. That article 1 paragraph (3) of the Constitution states that "the State of Indonesia is a country of laws", where one of the established law of the State according to the restriction is existence Asshiddigie Jimly power so there happen to arbitrariness. That in this case the authority possessed by pretrial is the separation and Division of power based on the principle of State of law; (vide evidence P – 20) 121. That philosophically pretrial was formed to safeguard human dignity in fulfillment of HUMAN RIGHTS by States which are appealed by citizens, not related in subject matter of case, where this is different to the examination in the court hearing the country which aims at conducting related evidentiary proved or not terbuktinya an indictment by the State against the accused; 122. That pretrial is part and parcel of the criminal justice system, then the specific authorized pretrial has been granted by law, as stated in Article 77 juncto Article 78 paragraph (1) of the 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) legitimate or whether arrests, detention, discontinuation or termination of the prosecution investigation; (b) damages and or rehabilitation for a matter pidananya stopped at the level of investigation or prosecution "; 123. That the authority of the District Court that implemented by pretrial IE to check and disconnect the the forced effort validity and damages or the rehabilitation of an act of State apparatus. The authority possessed by the different authorities with pretrial ordinary courts because it has been going on power-sharing provided by the CODE of CRIMINAL PROCEDURE; 124. That the process of application for pretrial, in an effort to safeguard human dignity in fulfillment of HUMAN RIGHTS by the State petitioned the citizens outside the 30 countries on principal matters, then restricted by the existence of the formulation of article 82 paragraph (1) letter d CODE of CRIMINAL PROCEDURE which reads "in case of a matter have already started to review by the courts of the country while the examination regarding the request to the unfinished pretrial, then the request fall". 125. That after the fall due to the commencement of the principal matters by the courts of the country, the things that become the authority in question can not return pretrial examination subject matter litigated in State Court, because of the fundamental differences of principle examination in pretrial and in State Court; 126. That with different authority to check and disconnect from the pretrial and court settings in article 82 paragraph (1) letter d CODE of CRIMINAL PROCEDURE which resulted in the suicide of a pretrial examination in the staple in the matter has begun to review in the courts of the country, have resulted in the loss of the right of the suspect to test the validity of arrest and detention, so that article a quo is contrary to article 1 paragraph (3) Article 28D, paragraph (1), and article 28G paragraph (1) of the CONSTITUTION of 1945; V. Petitum based on descriptions – descriptions above, the Applicant appealed to the Constitutional Court so that pleasing break Application Testing Article 82 paragraph (1) letter b, letter c, letter d and Act No. 8 of 1981 on the law of criminal procedure against the Constitution by stating: 1. Granting the petition of the applicant to entirely; 2. Declares Article 82 paragraph (1) letter b of law No. 8 of 1981 contradicts Constitution for not meant "the judge hearing the description of the suspect and the applicant or either or and the competent authority can be performed without attended by the competent authority and can drop the verdict without the presence of the competent authority"; 3. Declares Article 82 paragraph (1) letter b of law No. 8 of 1981 on the law of criminal procedure do not have binding legal force for not meant "the judge hearing the description of the suspect and the applicant or either or and the competent authority can be performed without attended


31 by the competent authority and can drop the verdict without the presence of the competent authority "; 4. Declares Article 82 paragraph (2) Letter c of law No. 8 of 1981 on the law of criminal procedure contrary to the Constitution is meant for not "inspection not later than 7 days begin at the time the sole judge pretrial opens first trial with or without the presence of the competent authority" 5. Declared Article 82 paragraph (2) Letter c of law No. 8 of 1981 on the law of criminal procedure does not have the force of law that are binding for not meant "inspection not later than 7 days begin at the time the sole judge pretrial opens first trial with or without the presence of the competent authority" 6. Declared Article 82 paragraph (1) letter d law No. 8 of 1981 on the law of criminal procedure incompatible with article 1 paragraph (3) juncto Article 28D paragraph (1) juncto Article 28G paragraph (1) of the CONSTITUTION of 1945; 7. Declares Article 82 paragraph (1) letter d law No. 8 of 1981 on the law of criminal procedure did not have binding legal force, with all its legal consequences; 8. Instruct loading of this ruling in the State Gazette within 30 days if the Application is granted. Or if the Tribunal justices of the Constitutional Court have a different opinion the Applicant please justice seadil fair-[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-20 with evidence as follows: 1. Proof of P-1: photocopy of Act No. 8 of 1981 on the law of criminal procedure; 2. Proof of P-2: a photocopy of the certificate of residence on behalf of Anwar Sadat; 3. Proof of P-3: Photocopying the passage the Court ruling the land of Palembang, 250/Pid Numbers. B/2013/PN. PLG with defendant Anwar Sadat, Sadat alias Bin Satim ST and Dedek Randysim Bin Edi; 4. Proof of P-4: Photocopying the verdict state court lawsuit against Palembang Pre Trial Number 32 03/Pra_Per/2013/PN. PLG on behalf of Petitioner Anwar Sadat; 5. Proof of P-5: photocopying, notary deed Irma Devita violet Gibbs, S.H., m. Kn., regarding the establishment of Community Description of Criminal Justice Renewal (ICJR) number 414.-, dated August 12, 2011; 6. Proof of P-6: Photocopying the decision of Minister of law and human rights Republic of Indonesia Number AHU – 239. AH. 01.06. 2011 year of the passage of the Assembly; 7. Proof of P-7: writing with a photocopy of the title Meta-Ethics and Legal Theory: The Case of Gustav Radbruch by Torben Spaak, Uppsala University's Department of Law; 8. Proof of P-8: Photocopying the book Introduction to legal science State administration, By Prof. Dr. Jimly Asshiddiqie, S.H., p. 149-150; 9. Proof of P-9: Photocopying the book Ethics Politics Basic Moral principles of a Modern State, by Franz Magnis-Suseno, the thing. 295-302; 10. Proof of P-10: Photocopying The book The Morality of Law, Revised Edition, by Lon l. Fuller, p. 191-192; 11. Proof of P-11: Photocopying The book The Rule of Law, History, Theory and Criticism, Edited by Pietro Costa and Zolo Dabnilo, University of Florence, Italy, it. 241; 12. Proof of P-12: Photocopying a book discussion of problems and implementation of the CODE of CRIMINAL PROCEDURE: an examination of the court hearing, appeal, Cassation and review. Author m. Yahya Harahap, S.H., thing. 13-17; 13. Proof of P-1: Photocopying Treatise discussion focused, "Pretrial Matters: Management challenges and the fix to the future" by the Institute for Criminal Justice Reform (ICJR) dated May 29, 2013; 2. Evidence of the P-14: Photocopying Studies Pretrial in theory and practice, by w. Eddyono, Lenroy Wahyudi Djafar, and Sufriadi Pinim, of the Institute for Criminal Justice Reform (ICJR) by 2013; 15. Evidence of the P-15: Photocopying the book trees State Administration Law reform, author of Postcolonial Indonesia Prof. Dr. Jimly Asshiddiqie, S.H., thing. 296-311; 16. Proof of P-16: Photocopying the manual Legal Grammar Lessons Indonesia, author Prof. Kusumadi Pudjosewojo, S.H., thing. 150, 195-204;

33 17. Proof of P-5: photocopy of a book On The Rule of Law: History, Politics, Theory. By Brian z. Tamanaha, Cambridge University Press, p. 91; 18. Evidence of the P-18: Photocopying posts with the title of the Victims Still Suffered, reports the situation of torture in Indonesia June 2012-July 2013; 19. Proof of P-19: Photocopying the Integrated Criminal Justice System, by Dr. m. N Deputy Mochtar, S.H., M.H.; 20. Proof of P-20: Photocopying of legal Country Indonesia, Writings by Prof. Dr. Jimly Asshiddiqie, S.H. [2.3] considering that to shorten the blurb in this ruling, everything that happens in the trial simply appointed in the News Events of the trial, which is a single entity which was not separated by this ruling; 3. LEGAL CONSIDERATION [3.1] considering that the goal and purpose of the petition of the Applicant is invoking testing the constitutionality of article 82 paragraph (1) letter b, letter c, letter d, and Act No. 8 of 1981 on the law of criminal procedure (State Gazette of the Republic of Indonesia Number 76 of 1981, additional sheets of the Republic of Indonesia Number 3258, hereinafter the CODE of CRIMINAL PROCEDURE) against article 1 paragraph (3) of article 28D, paragraph (1) , and section 28G subsection (1) of the Constitution of the Republic of Indonesia in 1945, hereinafter referred to as the CONSTITUTION of 1945; [3.2] considering that before considering the subject matter of the petition, the Constitutional Court (hereinafter the Court) in advance will take into account: a. the authority of the Court to adjudicate a petition for quo; b. the position of the law (legal standing) of the applicant to apply for a quo; Against both those things, the Court considers the following:


34 the Court's Authority [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 the number 70, additional sheets of the Republic of Indonesia Number 5226 , hereinafter referred to as the ACT of the CONSTITUTIONAL COURT), as well as to 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, hereinafter the ACT 48/2009), one of the powers of the Constitutional Court is to adjudicate on the first and last level that an award is final to examine legislation against the Constitution; [3.4] considering that the applicant's plea is testing the constitutionality of norms of law, in casu Article 82 paragraph (1) letter b, letter c, letter d, and Act No. 8 of 1981 against the CODE of CRIMINAL PROCEDURE article 1 paragraph (3), article 28D, paragraph (1) and section 28G subsection (1) of the Constitution, so that the Court's jurisdiction to adjudicate a petition for quo; The position of the law (Legal Standing) the Applicant [3.5] considering that under article 51 paragraph (1) of the ACT the COURT along with his explanation, which can apply for testing legislation against the Constitution are those who consider the rights and/or konstitusionalnya the authority granted by the CONSTITUTION of 1945 harmed by enactment of a statute, namely: a. the individual citizen of Indonesia (including groups of people having the same 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; d. State institutions;

35 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 Court since the ruling of the Constitutional Court the number 006/PUU-III/2005 dated May 31, 2005 and the ruling of the Constitutional Court number 11/PUU-V/2007 dated 20 September 2007, as well as subsequent rulings 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. the constitutional harm must be specific (Special) and the actual potential or at least according to the reasoning reasonably certain will happen; d. the existence of a causal relationship (causal verband) between the losses in question and the enactment of legislation which petitioned testing; e. of the possibility that by dikabulkannya the petition then postulated that such a constitutional harm will not or no longer occur; [3.7] considering that the applicant was a citizen of Indonesia who served as Executive Director of Environment Probe Indonesia (WALHI) South Sumatra that always accompanies the community Ogan Ilir, South Sumatera, in conducting the struggle to restore rights to their land taken over by PTPN XIV VII Love sweet, Ogan Ilir, South Sumatera. As for Appellant II is a non-governmental organization or non-governmental organization (NGO) which was founded on the basis of the concern to provide protection and enforcement of human rights in Indonesia are on duty and was instrumental in carrying out the activities of promotion, protection and enforcement, 36 human rights, as well as civil and political liberties, by way of utilizing its organization as a means to memperjuangakan human rights and democracy continues to menersus. [3.8] considering that the Claimant substantially postulates have been harmed by the enactment of Article 82 paragraph (1) letter b, letter c, letter d and the CODE of CRIMINAL PROCEDURE which States: Article 82 (1) pretrial proceedings for the case referred to in Article 79, section 80 and section 81 is determined as follows: b. in check and disconnected about legitimate or whether an arrest or detention, or whether the termination of investigation or prosecution , request damages and or rehabilitation due to no legitimate arrests or detention, due to the termination of the investigation or prosecution of legitimately and there are items that are seized are not included tools proof, the judge heard a description from either the suspect or the applicant or of an authorized officer; c. the examination is carried out quickly and not later than seven days the judge should drop an award; d. in the event of a matter have already started to review by the courts of the country, while the examination regarding the request to the unfinished pretrial, then the request fall; According to the Applicant is contrary to article 1 paragraph (3), article 28D, paragraph (1) and section 28G subsection (1) of the Constitution which States:-article 1 paragraph (3): Indonesia is the country is the country of law-article 28D paragraph (1): everyone is entitled to recognition, guarantees, protection and legal certainty of fair and equal treatment before the law. -Article 28G paragraph (1): 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. for reasons that are substantially as follows: a. the applicant I was arrested by the South Sumatera regional police authorities and accused of having Criminal deeds do participate do damage as provided for in article 170 of the CRIMINAL CODE because it has been doing the action in front of the headquarters of the South Sumatera regional police in fighting for


37 land rights along with victims of land grabs by the farmer PTPN XIV VII. Due to the arrest and detention of the Applicant, I apply for a pretrial to Palembang District Court because the applicant I consider the process of arrest and detention carried out by the South Sumatera regional police does not comply with the procedures and mechanism as prescribed in the book of the law of criminal procedure (CODE of CRIMINAL PROCEDURE). That at the time of pretrial proceedings in the District Court of Palembang, was a staple of the didakwakan to the applicant I began disidangkan in the District Court of Palembang, so based on the provisions of article 82 paragraph (1) letter d CODE of CRIMINAL PROCEDURE, the Tribunal judges who adjudicate the applicant filed pretrial plea I decided the applicant's Pretrial Plea I "Fall". The verdict is based on the Principal applicant's Lawsuit because the reason I as the defendant had begun to disidangkan; b. the applicant I the right to security of a fair legal certainty as guaranteed in the Constitution, but with the suicide of the petition of the applicant Pretrial I have led the applicants I get no certainty about whether the process of arrest and detention that is made against the claimant I have in accordance with the mechanisms and procedures that have been established by the CODE of CRIMINAL PROCEDURE; c. Iingkungan life and as an activist for human rights, the applicants I have great potential returns in conflict with the law and it is very possible the arrest and arbitrary detention of the applicants back then I have the potential losses will terlanggarnya rights to the sense of security and protection from the threat of fear as guaranteed in article 28G paragraph (1) of the CONSTITUTION of 1945; d. That the existence of Article 82 paragraph (1) letter b, letter c, letter d of the CODE of CRIMINAL PROCEDURE and has the potential to violate the constitutional rights of applicant II in a straightforward manner or indirectly harming a wide range of efforts that have been carried out continuously in order to perform tasks and role for the protection and promotion of human rights fulfilment, as well as the promotion and protection of civil and political freedom in Indonesia that had been done by the applicant II;

38 [2.4] considering that on the basis of the above considerations and propositions connected with the petition of the Applicant in the above, the Court held there is a constitutional harm inflicted on the Applicant due to Article 82 paragraph (1) letter b, letter c, letter d and the CODE of CRIMINAL PROCEDURE and there are causal relations between constitutional losses due to the Applicant by the existence of article a quo, so according to the Court, the Applicant has the legal position (legal standing) to apply for a quo; [3.10] considering that because of the Court is authorized to adjudicate a petition for quo and the applicant has the legal position (legal standing) to apply for a quo, the Court will consider the subject matter of the petition; The Court's opinion the subject matter of the petition [3.11] considering that the Applicant submits a test materially Article 82 paragraph (1) letter b, letter c, letter d and the CODE of CRIMINAL PROCEDURE which, according to the Applicant is contrary to article 1 paragraph (3), article 28D, paragraph (1) and section 28G subsection (1) of the Constitution, on the grounds that substantially as follows: a. Article 82 paragraph (1) letter b, letter c the letter d and the CODE of CRIMINAL PROCEDURE, contrary to the principle of legal certainty which are fair and engender uncertainty of law; b. Article 82 paragraph (2) Letter c is not set explicitly the early start of counting 7 days for pretrial examination; c. Article 82 paragraph (1) the letter d is not in harmony with the principles of the protection of human rights, and should be a staple of case examination awaiting pretrial finished checking and break the validity of arrest and detention, as well as the suicide of the commencement of the examination principal pretrial matter eliminating suspects to test the legality of arrest and detention; d. that the delay of the presence of an authorized officer often became one of the causes of the pretrial examination and the length of time becomes a factor because of the pretrial examination when the subject matter of case has been registered to the Court;

39 [3.12] considering that after studying the Court petition and examine the evidence of the Claimant the Court held as follows: [3.12.1] That before considering any further application of the applicant, the Court needs to cite the Article 54 of the ACT the COURT stating, "the Constitutional Court may request information and/or a treatise of the meeting concerning the petition is being reviewed to the people's Consultative Assembly, the HOUSE of REPRESENTATIVES, the regional representative Council, and/or the President" in conducting the testing of an act. In other words, the Court can ask or not ask for information and/or a treatise of the meeting concerning the petition is being reviewed to the people's Consultative Assembly, the House of representatives, the regional representative Council, and/or the President, depending on the urgency and relevance. Due to legal issues and petition a quo quite clear, the Court will break things a quo without hearing a description and/or treatise of the meeting of the people's Consultative Assembly, the House of representatives, the regional representative Council, and/or the President; [3.12.2] That the Court in the verdict the number 65/PUU-IX/2011, dated 1 may 2012, at paragraph [3.12] and paragraph [3.13], among others, have been considering: "[3.12] ... • That pretrial is one of the criminal justice system in Indonesia. Pretrial not known in the law of criminal procedure long arranged in Herziene Inlandsche Reglement (H.I. R). HIR has inquisitoir, that puts the suspect or defendant in the examination as an object that allows the occurrence of arbitrary treatment investigator against a suspect, so that from the moment the first examination in the presence of investigators, the suspect was already a priori be considered guilty. CODE of CRIMINAL PROCEDURE has changed the system embraced by HIR, put the suspect or the accused is no longer as objects of the inspection but the suspect or accused is placed as a subject, that is, as a man who had dignity, dignity, and the same position before the law. One of the settings the same position before


40 law that provided for in the CODE of CRIMINAL PROCEDURE is the system of pretrial as one of the mechanisms of control over the possibility of arbitrary actions of the investigator or public prosecutor in making arrests, searches, confiscation, investigation, prosecution, termination of the investigation and termination of the prosecution, whether accompanied by a demand for damages and/or rehabilitation or not. As for intents and purposes shall upheld and protected in a pretrial process was tegaknya the law and the protection of human rights as a suspect/accused in the review investigation and prosecution. Thus he made a pretrial system provided for in Article 77 to 83 with article CODE of CRIMINAL PROCEDURE was for the benefit of supervision horizontally against the rights of suspects/defendants in the preliminary examination (vide Explanation to article 80 of the CODE of CRIMINAL PROCEDURE). The presence of the CODE of CRIMINAL PROCEDURE intended to correct judicial past practical experience, under the rule of HIR, which is not in line with the protection and enforcement of human rights. In addition, the CODE of CRIMINAL PROCEDURE provide protection against human rights for suspects or accused persons to defend their interests in the legal process; • That basically any act of forced efforts, such as arrest, search, seizure, detention, and prosecution is done with breaking legislation is an act of deprivation of human rights, so that the existence of pretrial criminal proceedings are expected to be run in accordance with the legal regulations that apply. Oversight by the District Court as a judicial body of first instance intended to control, assess, test, and consider legally, whether in the Act of forced efforts against the suspect/accused by investigators/investigators or the public prosecutor were in accordance with the CODE of CRIMINAL PROCEDURE; • That the pretrial plea filed in State Court by the suspect/accused, family or his power, the investigator, the public prosecutor, and the third parties concerned. Pretrial examination by the State Court is done before the preliminary examination the examination principal criminal cases filed by prosecutors 41 public prosecutor. Pretrial examination was done quickly and not later than seven days the judge should already be memutusnya. Application for pretrial fall when the Court has begun to examine the subject matter of such criminal cases, while a plea has not been terminated by the Court pretrial [vide Article 82 paragraph (2) Letter c and d letter of the CODE of CRIMINAL PROCEDURE]; "" [3.13] ... The Court held CODE of CRIMINAL PROCEDURE have set the examination of application for pretrial done quickly, i.e. at the latest three days after the petition is filed, the sole judge who set a pretrial judge concerned should already be set days trial [vide Article 82 paragraph (1) letter a CRIMINAL PROCEDURE CODE], and within seven days, the judge already had to drop the verdict [vide Article 82 paragraph (2) Letter c CODE of CRIMINAL PROCEDURE]. Must speed up pretrial events overtaken again with the provisions of article 82 paragraph (1) of the CODE of CRIMINAL PROCEDURE determines the letter d that if a matter has already begun to review by the courts of the country, while a request regarding the unfinished pretrial, then such pretrial fall ... " [3.12.3] That testing the constitutionality of article 82 paragraph (1) letter b, letter c, letter d and the CODE of CRIMINAL PROCEDURE that requested by the Applicant, according to the Court it is the norm that set more on the filing of the petition by the justice seekers pretrial, in casu the Applicant, which was thus provide legal certainty to the public or the seekers of Justice, in particular to the applicant that I feel that the arrest of himself by the apparatus of South Sumatera regional police have been accused of committing criminal deeds participated do damage not appropriate with the procedures and mechanism as prescribed in the CODE of CRIMINAL PROCEDURE. Thus with the provisions of article 82 paragraph (1) letter b and c CODE of CRIMINAL PROCEDURE, the applicant or the public justice seekers I have a legal basis to apply for a pretrial; [3.12.4] That on the deadline for pretrial examination was done quickly and not later than seven days the judge should drop the verdict as provided for in article 82 paragraph (2) Letter c CODE of CRIMINAL PROCEDURE, and 42 regarding the suicide of pretrial plea the applicant I staple because of things that didakwakan to the applicant I started disidangkan in Palembang District Court, according to the Court, it is setting a pretrial application checks done quickly as the Court consider the award Number 65/PUU-IX/2011 , 1 may 2012, because in certain things, the public prosecutor must also immediately filed a lawsuit to the Court if the subject matter is related to the period of detention of a suspect would already be over. Furthermore, for the suspect still has the right to defend themselves and convey the objections against it in question in the pretrial examination at the time of principal subjects; [3.13] considering that on the basis of the whole of the above considerations, according to the Court, the application for the Applicant is not the question of the constitutionality of norms, but it is a question of the implementation of the norms in the judicial practice. However, apart from the above considerations, the Court needs to provide that such provision should not be used as a loophole by the investigator or public prosecutor to disqualify pretrial way immediately bestow a docket to State Court. Moreover, pelimpahan incomplete dossiers to the State Court will be that the dossiers submitted to the District Court is the original docket so. In terms of the pretrial application has been filed, seyogianya all parties concerned in the pretrial proceedings respecting mandatory pretrial. It is the action that is not commendable, if any investigator or public prosecutor deliberately did not attend the hearing pretrial, as public prosecutor are deliberately did not attend the hearing pretrial and immediately asked a State Court to explain his subject matter with intent to so petition praperadilannya fall. Therefore the tops of these parties (police and/or prosecutors) can sanction the authorities not respecting the proceedings; [3.14] Considering that it is based on the entire description of the considerations above, according to the Court of the evidence the Applicant is unwarranted under the law.


43 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 Application the applicant is unwarranted under the law. 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), as well as Act No. 48 in 2009 about the Power of Justice (State Gazette of the Republic of Indonesia year 2009 Number 157 Additional Sheets, State number 5076). 5. AMAR'S RULING Judge, stating the applicant's application to reject it entirely. The case was decided in the meeting of the Consultative Constitutional Judge by eight Judges, namely, Hamdan Zoelva as Chairman and Member, Arief Hidayat, Muhammad Alim, Patrialis Akbar, Ahmad Fadlil Sumadi, Usman Anwar, Maria Farida Indrati, and Harjono, each as a member, on Monday, the twenty-seven, the month of January, year two thousand fourteen, and is spoken in the plenary session of the Constitutional Court is open to the public on Thursdays , twentieth, in February, the year two thousand fourteen, finished 29 a.m. EDT, pronounced by the seven Judges of the Constitution, namely, Hamdan Zoelva as Chairman and Member, Arief Hidayat 44, Muhammad Alim, Patrialis Akbar, Ahmad Fadlil, Maria Farida Indrati Sumadi, and Harjono, each as a member, accompanied by Saiful Anwar as its Clerks Substitute, and was attended by the Applicant/power, Government or representing the , and the HOUSE of REPRESENTATIVES or representing. Chairman, ttd. Hamdan Zoelva members, ttd. Arief Hidayat ttd. Muhammad Alim ttd. Patrialis Akbar ttd. Ahmad Fadlil Sumadi ttd. Maria Farida Indrati ttd. REPLACEMENT CLERK Harjono, ttd. Saiful Anwar

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