judicial review a quo;

II. LEGAL STANDING PARA APPLICANT 6. That the applicant I at the first level was found guilty of performing

a criminal offence of Article 340 of the Criminal Code and for that the applicant I was convicted

with a death criminal conviction as well as the court ruling

Cape of the Karimun Hall Number 178 /Pid.B/2009/PN.TBK, January 28

4

2010. Then the applicant I made an appeal of appeal in

the High Court of Pekanbaru and remains sentenced to death, but the verdict

is no longer based on the criminal acts of Article 340 of the Criminal Code,

instead of doing so Article 365 (4) of the Criminal Code (4) of the Criminal Code

as stated in the ruling No. 71 /PID/2010/PT.R is dated 14

April 2010 (vide proof -P1 and proof P-2); 7. While the applicant II is charged with a criminal offence

together with the applicant I, at the first-degree trial in

The Court of the Court of Cape Karimun via the ruling Number 198 /Pid.B/2009/PN.TBK date 28 January 2010 sentenced to criminal conviction

dead, for committing a criminal offence of Article 365 paragraph (4) KUHP. And in

the appeal stage of the applicant II remains guilty of committing a follow

criminal Article 365 paragraph (4) with the same verdict as the trial

first level as the High Court Decree Pekanbaru Number 71 /Pid/2010/PT.R, dated 19 April 2010 (vide proof P-3 and proof P-4);

8. Although the petitioners in his criminal trial have submitted

, however, due to the previous legal counsel that

was appointed by the Tanjung Karimun Hall District Court for

advocating for the petitioners not to be found. make the memory of the cassation and

The Panimmune Hall of the Court of State Court did not help

make it his cashier's memory, then the High Court ruling

the new Pekanbaru who sentenced the petitioners to the death penalty

direct legal force fixed (inkracht van gewijsde) after passing

deadlines filing memory cases as provisions Section 248

paragraph (1) and paragraph (2) KUHAP; 9. That the death penalty is clearly detrired to the interests and rights of

the constitutionality of the applicant's right to live and retain the life which is guaranteed and protected by the 1945 Constitution. And if later on the petitioners are executed, then

there is a breach of the permissions of the applicant which is expressly guaranteed by Article 28A and Article 28I the paragraph (1) of the 1945 Constitution;

10. That under Article 51 of the letter MK bill, the party that has legal

standing as the applicant in the Constitutional Court is personal

5

the citizens of Indonesia whose rights and/or its constitutional authority

are harmed by the enactment of Undang-Undang; 11. Related to the presence of constitutional rights and/or constitutitional authority,

Putermination Number 006/PUU-III/2005 Constitutional Court ruling that the loss of the rights and/or constitutional authority should meet the five condition, that is: a. the rights and/or constitutional authority of the applicant

provided by UUD 1945;

b. the right and/or constitutional authority by the applicant

is considered harmed by the expiring Act

testing;

c. The constitutional loss must be specific (special) and

actual or at least a potential that is according to the reasoning that

reasonable is certain to occur;

d. (causal verband) connection between the loss

referred and enactment of the Act is moveed;

e. It is possible that with the request of the application,

Constitutional losses such as the postured will not or are no longer

occurring.

That the five terms have been met by the applicant:

the first term has been met with the guarantee of a right of life and

maintaining the life provided by Article 28A and Article 28I of the paragraph

(1) UUD 1945 to the petitioners. By virtue of the threat

the death penalty of Article 365 of the paragraph (4) of the Criminal Code as a verdict imposed

to the Competent Petitioners still although not

executed must be severely harmed the petitioners As

is required by the second term above. The third requirement that

constitutional losses must be specific and actual or potential

according to the reasoning will be the case with a death sentence against

The petitioners make the right of life of the petitioners very potential

to be broken. And related to the necessity of causality

between the losses by the enactment of the Act as a condition

the fourth can be proven by the enactment of the death penalty provisions in

6

in Section 365 of the paragraph (4) of the Penal Code may make the Applicant who has

sentenced to death even if not executed to be severely harmed,

for the nature of life that the constitution has guaranteed to be. The dreary.

As well as the necessity of the possibility that it obscured

the application, then the constitutional loss as the postured will not

or no longer occurs as a fifth term, is very clear to have fulfilled,

as it was granted the a quo plea definitely could cause

The constitutional loss of the applicant for life will not happen;

12. As such, the applicant who is an Indonesian who

has been sentenced to death and has a legal force fixed by the Court

although not yet executed has a legal position (legal standing) for act as the party or the applicant in request judicial review a quo, as provided in Section 51 paragraph (1) MK Act as well as the establishment of the Constitutional Court in Putermination Number 006 /PUU-III/2005 as the description above (vide proof P-1 s.d proof P-4);

III. THE REASONS FOR THE APPLICATION OF THE MATERIEL TEST

ARTICLE 365 PARAGRAPH (4) KUHP AGAINST ARTICLE 28A AND 28I PARAGRAPH (1) UUD 1945

13. That based on the verdict of the Court of Appeals that

a force of law remains as we have mentioned above

that the petitioners were sentenced to death, for committing a criminal offence

Article 365 of the paragraph (4) The Penal Code, which is the un: Ibid, the Redaksi of PT. New Ichtiar

Van Hoeve, Set Of Indonesian Republican Legislation

(Compiled According To Engelbrecht System), page 1410-1411: "Threated by a death or criminal for life or for a period of time." time

certain most longer twenty years, if the deed resulted in a wound

weight or death and is performed by two or more persons with

aligned, accompanied by one of the things extend in numbers

1 ° and 3 ° "

As for the sound of the number 1 ° and Number 3 ° referred to in Section 365 of the paragraph

(4) above is:

7

"if the deed is done at night time in a house or

the enclosed driveway that is home, on the public road, or in the carriage

the running fire or tram"

" when the guilty one goes into the scene of committing a crime by taming

or climbing or by wearing a fake key child, a false order or

the fake office clothes "

14. That the death penalty dropped to the applicant

represents the maximum threat from the criminal offence of Article 365 of the paragraph (4) of the Criminal Code

which in this case we tested with the provisions of Article 28A and Article 28I

paragraph (1) of the 1945 Constitution which reads:

Article 28A:

"Everyone has the right to live, as well as for the right to retain

life and life"

Article 28I paragraph (1):

" Right to life, right to not be tortured, freedom of mind and heart

conscience, religious rights, rights to be enslaved, the right to be recognized as

personal before the law, and to not be prosecuted on the basis of laws that

apply receding is human rights that cannot be reduced in

any circumstances ".

15. In spite of the dissent from the Expert on the efficacy

the phrase "cannot be reduced under any circumstances" in respect of the provisions

Article 28A and Article 28I paragraph (1) the 1945 Constitution on top of which is linked

with Article 28J (2) The paragraph (2) of the 1945 Constitution or the difference of opinion

in connection with the interpretation of the right to life (right to life) in

the international instrument of the law is whether absolute as non derogable right

or not as listed in Article 3 DUHAM and

forth, we argue that the right to life it is the right

that is very important and very fundamental to the human being

The application must be required instead of other rights as

which is outlined by Article 28I (1) of the Constitution of 1945; 16. In connection with the case of a quo that the penalty threat provision

the death of Article 365 of the paragraph (4) of the Criminal Code is a provision that

inconstitutionals to the provisions of Article 28I and Article 28A paragraph (1) of the Constitution

1945 granting rights live for a person, if connected

8

with the provisions of Article 28J paragraph (2) of the Constitution of 1945 which provides

the limitation of the Act on a person's right, due to the act

criminal Article 365 paragraph (4) of the Criminal Code as a criminal offence " theft with

violence " not

is the most serious crime to be punished

death as required/constrained by the incasu Act Article 6

paragraph (2) ICCPR (International Convenant On Civil And Political Rights) which

has passed through Act No. 12 of 2005 on

International Convenant On Civil And Political Rights

(International Convenan on the Rights of Pill And Politics):

" In countries which have not been met the death penalty, sentence of death

may be imposed only for the most serious crimes in accordance with the law

in force at the time of the commission of the crime and not contrary to the

provisions of the present Covenant and to the Convention on the Prevention

and Punishment of the Crime of Genocide. This penalty can only be carried

out pursuant to a final judgement by a competent court ".

17. Article 365 felon (4) of the Criminal Code as a felony "theft

with an allied force resulting in an allied force resulting in grave or death wounds"

not as "the most serious crime" due to such a felony

not criminal acts that "adversarily affect the economic, cultural and

political foundation of society" and carry " a danger of incalculable

gravity" such as Felony Narcotics And Severe Human Rights Violations

The Decree of the Constitutional Court Number 2-3/PUU-V/2007, page 426;

18. Under the Act that a felony count as of

the most serious crimes " the most serious crime" among others is

terrorism, Narcotics, Corruption and Heavy human rights violations

that are visible from its consideration, namely:

1) Terrorism, as the terms of the letter b and The letter c Invite-

Invite Number 15 Year 2003 on Regulatory Penetration

Government Reimbursing Government Number 1 Year 2002 on

The Eradication of Criminal Terrorism, into Undang-Undang; Letter b

" Balanced: that the series of bombing events that occurred at

The territory of the Republic of Indonesia has resulted in loss of life without

9

views the victim, raises the public's fear

and the loss of the property, resulting in a wide impact

against social, economic, political and relationship life

International ".

The letter c

" Draw: that terrorism is a cross-country crime,

organization and has a wide network thus threatening

the national security and security of the International ".

2) Drug fellowmen, explicitly mentioned in

considerations of letter d and letter e Law Number 35 of the Year

2009 about Narcotics, which reads:

Letter d:

" Draw: that importing, exporting, producing,

planting, storing, storing and/or using

narcotics without strict control and surveillance

carefully as well as contrary to the regulations

is a felony drug criminal due to greatly adverse effects.

is a very big danger to human life,

society, nation and country as well as national resilience

Indonesia ".

Letter e:

" Draw: that a narcotics criminal has been

transnational performed using an operandi

high, advanced technology, supported by the organization which

wide and already many victims, especially among

The youth generation of the nation is very endangering the life

society, nation and State so the Law Number

22 Years 1997 on Narcotics is no longer compatible with

The development of the current situation and conditions for

Tackling and eradiating such fellowmen ''.

3) Penal human rights violations, such as the

considerations of the letter b Law No. 26 of 2000 on

Heavy Human Rights Court:

10

" weighed in: that to participate and maintain world peace and

guarantees the exercise of human rights as well as provide protection,

certainty, justice, and safe feeling to the individual or

society, needs to be set up to a human rights court for

resolving the heavy human rights violations accordingly

with the provisions of Article 104 of Act No. 39 of the Year

1999 on Human Rights ".

4) The Criminal Corruption Act, in Letter considerations and letters b:

Letter a:

" Draw: that the corruption of corruption is very detrial to the financial

country or state economy and impede development

national, so it must be Eradicated in order to realize

The fair and prosperous society based on Pancasila and Invite-

Invite Basic 1945 ";

The letter b:

"Draw: that due to the criminal corruption that occurred during this time,

other than harming the country 's finances or the country' s economy, as well

inhibits the growth and survival of national development

which demands high efficiency ".

That the group of crimes-such crimes as

the most serious crimes are recognized as well. International community

through other International conventions or agreements as in

bottom of this:

1) The International Agreement on terrorism criminal acts:

i. The Convention on the Prevention and Punishment of Crimes against

Internationally Protected Persons, Including Diplomatic Agents,

adopted by the General Assembly of United Nations on 14

December 1973;

ii. International Convention against the Taking of Hostages, adopted

by the General Assembly of United National on 17 December

1979;

iii. International Convention for the suppression of Terrorist

Bombings, adopted by the General Assembly of United Nations

on 15 December 1997;

11

iv. International convention for the suppression of the suppression of

the financing of terrorism, adopted by the general assembly of

United Nations on 9 December 1999;

v. Convention on Offences and certain other acts committed on

board aircraft, sigened at Tokyo on 14 September 1963.

(Deposited with the Secretary-General of the International Civial

Aviation organization);

vi. Convention for the suppression of Unlawful Seizure of Aircraft,

signed at the Hague on 16 December 1970. (Deposited with the

Government of the Russian Federation, the United kingdom and

United States of America);

vii. Convention for the suppression of unlawful acts against the safety

of civil aviation, signed at monteral on 23 september

1971. (deposited with the government of the Russian Federation,

the United kingdom and the United States of America);

viii. Convention on the Physical Protection of Nuclear Material, signed

at Vienna on 3 March 1980. (Deposited with the Director-General

of the International Atomic Energy Agency);

ix. Protocol for the supression of unlawful acts of violence at airports

serving International Civil Aviation supplementary the convention

for the suppression of unlawful acts against the safety of civil

aviation, signed at Montreal on 23 September 1971. (Deposited

with the Government of the Russian Federation, the United

kingdom and the United States of America and with the Secretary-

General of the International Civil Aviation Organization);

x. Convention for the supression of unlawful acts against the safety

of Maritime Navigation, done at Rome on 10 March 1988.

(Deposited with the Secretary-General of the International

Maritime Organization);

xi. Protocol for the supression of unlawful acts against the safety of

fixed platforms located on the continental shelf, done at Rome on

10 March 1988. (Deposited with the Secretary-General of the

International Maritime Organization);

12

xii. Convention on the marking of plastic explosives for the purpose of

identification, signed at monteral 1981 (deposited with the

secretary-general of the International Civial Aviation

Organization).

2) Narcotics related to United Nations Convention Against Illicit Traffic in

Narcotics, Drugs and Psychotrophic Substances 1988

passed through Act No. 7 Tahun1997;

3) Related To Heavy Human Rights Violates: Rome Statute Of The International

Criminal Court 1998 (Statu Roma);

4) A Relationship with Corruption: United Nations Convention Rough ts

Corruption 2003 (UNCAC) passed through the Act

Number 7 Year 2006.;

19. In addition, it is also a violation of Article 365 of the paragraph (4) of the Criminal Code as

has been dropped to the petitioner, whose primary purpose

is not against the death of a person, but the "theft",

so against The onset of death from someone for criminal activity

is an exacting event. In contrast to

criminal acts of murder that have punitive sanctions

dead as under Article 340 of the Criminal Code, where the criminal offence is intended

main of the culprit is to eliminate a person's life and at

In this criminal act it is reasonable to have a death penalty threat,

because the perpetrator had sufficient time to consider good

and bad as well as the impact of his actions so that if the perpetrator remained

embodied The plan is to take out a man's life.

It's an incredible atrocity. Culprit (Andi Hamzah, Delik-

Delik Of Course In the Penal Code, Sinar Grafika, Jakarta 2009, page 53 s.d

page 57). While the death toll from a criminal offence

Article 365 of the paragraph (4) of the Penal Code is due to the perpetrator wanting to pass

his theft, which could be due to the perpetrator of the bribe

by the victim or the victim. put up a fight;

20. Your Honor, the Constitutional Court of Justice, a robbery criminal that

leads to death, everyone agrees to be a felony.

A blue collar crime.

Blue collar crime. (Blue collar crime) It's often the perpetrator in

13

carrying out his actions related to stomach affairs due to

economic inequality and the minimum of employment, which is different from

criminal acts committed by Narcotics, Terrorism,

Offense Heavy Human Rights and Corruption as "the most serious crime" in

where the felon is organized by people

who "intellect" (white collar crime) is completely inrelated to

affairs The stomach for the action. That is therefore

very relevant to the provisions of the death penalty of the Article

365 paragraph (4) of the Criminal Code as we have raised above for

annulled, let alone in the provisions of Article 365 of the paragraph (4) The Criminal Code

there is still a life sentence threat that may be more appropriate

as a maximum threat from the provisions of Article 365 paragraph (4) of the Criminal Code

as a crime that does not constitute a common crime (most

serious crime).

Based on the dalises we have raised above, then with this we

please to the Constitutional Court as The Guardian Of The Constitution AND

The Sole Interpreter Of The Constitution check out this case and disconnect

as follows:

1. Accept and grant the applicant request to test

provisions of Article 365 paragraph (4) of the Criminal Code with respect to the threat

the death penalty against Section 28A and Article 28I of paragraph (1) of the 1945 Constitution;

2. Stating the provisions of the death threat from Article 365 paragraph (4) of the Book of Invite-

Invite the Criminal Law (KUHP) is not in accordance with the provisions

Article 28A and Article 28I paragraph (1) of the 1945 Constitution (inconstitutional) as not

included as the most serious crimes (most serious crime) and

cert the provisions of Article 365 paragraph (4) of the Code of Law

The criminal along regarding the threat of its death penalty is not

in effect again or not binding;

Or

If the Assembly of Justice of the Constitutional Court argues another, then We beg you

to be decided in the fair(ex aequo et bono).

14

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

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

the P-5 proof, as follows:

1. Proof of P-1: Photocopy of the Cape State Court Court of Karimun

No. 178 /Pid.B/2009/PN.TBK, dated January 28, 2010;

2. Evidence P-2: Photocopy of the High Court Pekanbaru Number

71 /Pid/2010/PT. R, April 14, 2010;

3. Evidence P-3: Photocopy of the Cape State Court Tribunal

Number 198 /Pid.B/2009/PN.TBK, 28 January 2010;

4. Evidence P-4: Photocopy of the High Court Pekanbaru Number

86 /Pid/2010/PTR, dated 19 April 2010;

5. Proof P-5: Book of the Criminal Law Act.

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

everything that happened at the trial was quite appointed in the news of the event

the trial, which was one unity that is inseparable with

this verdict;

3. LEGAL CONSIDERATIONS

[3.1] weighed that the subject of the applicant is testing

the constitutionality of Article 365 paragraph (4) of the Code of Criminal Law

(subsequently called the Penal Code) against Article 28A and Article 28I verse (1) Invite-

Invite the Basic State of the Republic of Indonesia in 1945 (later called UUD

1945);

[3.2] Balanced that prior to considering the subject of,

Constitutional Court, (subsequently called Court), first will

consider things as following:

1. Court Authority to prosecute a quo plea;

2. Legal standing (legal standing) The applicant to act as the applicant

in the plea a quo;

Against those two, the Court argued for the following:

15

Authority Of The Court

[3.3] Weighing that under the provisions of Article 24C paragraph (1) of the Constitution

1945 and Article 10 paragraph (1) letter a Act No. 24 of 2003

on the Constitutional Court as has been amended by the Act

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

2003 on the Constitutional Court (State Sheet of the Republic of Indonesia Year

2011 Number 70, Extra Sheet State of Republic of Indonesia Number 5226,

further called Act MK) juncto Article 29 paragraph (1) letter of an Act

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

Republic of Indonesia 2009 number 157, Additional Gazette

Republic of Indonesia Number 5076), the court of competent authorities tried on level

first and last the verdict is final to test the Invite-

Invite against UUD 1945;

[3.4] A draw that the applicant is expected is

testing Act in casu of the Criminal Code derived from Wetboek van

Strafrecht voor Nederlandsch-Indie (Staatsblad 1915 Number 732), which

then applies based on Oendang-Ohawl 1946 Number 1 on

Peratoeran Hoekoem Criminal juncto Act No. 73 Year 1958

on Declaring The Enactment Of The Number of Laws 1 Year 1946 on

Criminal Law Regulation for All Republic of Indonesia and

amended the Book of Criminal Law (Republican Gazette

Indonesia Year 1958 Number 127, Extra Republic Gazette

Indonesia Number 1660), so the Court is authorized to prosecute

plea a quo;

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. The Act

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

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

Act, namely:

16

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 name of the supplicant is: "

. no constitutional rights and/or constitutional authority granted

by the 1945 Constitution resulting from the enactment of the Act

is mohoned testing;

[3.6] A draw that the Court since the Court ruling Constitution

Number 006 /PUU-III/2005, dated 31 May 2005 and the ruling of the Court

Constitution Number 11 /PUU-V/2007, dated 20 September 2007, as well as the ruling-

subsequent ruling, establishment that loss of rights and/or authority

constitutionally referred to Article 51 paragraph (1) MK Act must be meets

five terms, that is:

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

Constitution of 1945;

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

aggrieved by the enactment of the testing Act;

c. the constitutional loss must be specific (special) and actual or

At least a potential that according to reasonable reasoning can be confirmed

will occur;

d. (causal verband) link between the intended loss

and the expiring Act (s) of the testing;

e. It is possible that with the application of the request then

constitutional losses such as the postured will not or no longer occur;

[3.7] draws that the petitioners as individual citizens

Indonesia Postulate of Article 365 paragraph (4) of the Criminal Code that states, "Endangered

17

with a dead or a lifetime prison criminal or during any given time

at most twenty years, if the deed resulted in a heavy or dead death

and was performed by two or more persons with an alliance, also accompanied by

one of the things that is explained in numbers 1 and 3" harms the right

the constitutionality of the Applicants determined in Article 28A and Article 28I paragraph

(1) The 1945 Constitution, which states:

a. Article 28A UUD 1945: "Everyone has the right to live as well as the right

maintains life and life".

b. Article 28I paragraph (1) of the Constitution of 1945: " The right to life, the right to not be tortured, right

independence of mind and conscience, religious rights, rights to not

enslaved, the right to be recognized as a person before the law, and the right to

for not being prosecuted on the basis of the receding law is a fundamental right

the human cannot be reduced under any circumstances ".

With the reasons at its point as follows:

1. That the provisions of the death penalty in Article 365 of the paragraph (4) of the Criminal Code (4) of the Criminal Code

constitute the unconstitutional provision of the provisions of Article 28A and

28I the paragraph (1) of the 1945 Constitution that provides a right to a person, because

a criminal offence. Article 365 paragraph (4) of the Criminal Code as a criminal offense "theft

with force directly resulting in heavy or dead wounds"

is not the most serious crime that can be imposed

the death penalty is like the one required by the in casu Act Article 6

paragraph (2) ICCPR (International Covenant on Civil and Political Rights

which

has been passed through Act No. 12 of 2005 on

International Covenant On Civil And Political Rights (Kovenan

International On Rights Civil and Political);

2. A criminal offence of Article 365 (4) of the Criminal Code as a felony "theft

with an allied force resulting in an allied cause resulting in grave or grave injuries"

not as "the most serious crime" because of the criminal offence

adversarily affect the economic, cultural and political

foundation of society"and carries"a danger of incalculable gravity" as

of criminal narcotics and human rights violations Weight [vide

Putermination of Constitutional Court Number 2-3/PUU-V/2007].

18

[3.8] weighed that by basing on Article 51 of the paragraph (1) MK Act

and the Court's ruling on legal standing (legal standing)

as well as being associated with the losses experienced by the petitioners,

Court:

The applicant has the constitutional right granted by the Constitution of 1945,

in particular Article 28A and Article 28I of the paragraph (1) of the 1945 Constitution, as well as the applicant

consider the constitutional right to be harmed by the Invitation-

Invite to be tested;

Constitutional loss The applicant is specific (specifically) and actual;

There is a causal relationship (causal verband) between the intended loss

and the enactment of the testing Act, as well as there

the possibility that with the The application has been granted. The loss

constitutional as the postured will not be or no longer occurs;

Based on such consideration, the Court of opinion, the applicant

has a legal position (legal standing) to apply for a quo;

[3.9] Draw that Because the Court of Justice is prosecuting

the plea a quo, and the applicant has a legal standing (legal

standing), next the Court will consider the subject;

Subject