66

may be extended by a state court chairman who

is concerned for at least sixty days.

(3) The provisions as such in paragraph (1) and paragraph (2) do not close the possibility of being released. the defendant from custody prior to the end of the detention, if the examination interest is fulfilled.

(4) After ninety days even if the case

has not been broken, the defendant must have been removed from the A PRISONER BY LAW.

Article 27

(1) The judge of the high court that judges the case

referred to in Article 87, in the interest of the appeal of the authorities to issue a restraining order for the longest thirty days.

(2) The term as such in paragraph (1) if

required in the interest of an unfinished check, may be extended by the high court chairman who

is concerned for the longest sixty days.

(3) The provisions as such in paragraph (1) and paragraph (2) do not close the possibility of the defendant from custody prior to the end of such detention, if the examination interest is fulfilled.

(4) After ninety days even if the case

has not been severed, the defendant must have been removed from custody for the sake of law.

Article 28

(1) Supreme Court Justice of prosecuting matters as

referred to in Article 88, for the benefit of the examination of the case of the authorities issuing a restraining order for at least twenty days.

(2) The term as such in paragraph (1) if

is required in the interest of an uncompleted examination, may be extended by the Chief Justice for the most

a long time sixty days.

68

(5) The provisions as such in paragraph (2) do not close the possibility of the suspect or the defendant from custody before terminating such detention, if the examination interest is fulfilled.

(6) After sixty days, although the case is not yet

completed or unbroken, the suspect or defendant should be removed from custody for the sake of law.

(7) Against the extension of such detention on paragraph (2)

the suspect or defendant may file an objection in

level:

a. Investigation and prosecution to the high court chairman;

b. State court vetting and appeal hearing

to the Chief Justice.

11. CASE STOPPED BY LAW Article 109

(1) In case investigators have begun conducting an investigation

an event that is a criminal, investigator

notifying it to the public prosecutor.

(2) In terms of The investigator stopped the investigation because there was no

enough evidence or the event turned out to be an

criminal or ase for legal interest by the public prosecutor as referred to in Article 14 of the KUHAP:

Article 14

The general charge has the authority:

a. receive and check the investigation files of the investigator

or the helper investigator;

b. Hold the sentence if there is a deficiency in

the inquiry with regard to the provisions of Article 110 (3)

and paragraph (4), by providing a hint in order

the preparation of the investigation of the investigator;

c. provide the extension of the detention, cothe ruling ruling always contains the defendant/penal status because

the authority of the withholds given by The Act or

KUHAP to law enforcement officers and judges, including judges

on the Supreme Court, is over after the court

reciting a ruling containing the idlers. Therefore, KUHAP

governs about the defendant/convict status that must be or mandatory

put into the wrong dictum of the diidation verdict against

the accused. The dictum which contains "the order that the defendant is detained

or remains in custody or is released" as the basis of the law for

the prosecutor as executor to label the contents of the ditum is

order for the defendant to be detained or fixed in custody or

be released. The action of detaining the accused/convict who does not exist

orders that the defendant be detained or remain in custody

dictum of the ruling containing the idlers is doing the deed

against the law is detaining (if previously In no status

arrest) or resume detention (if previously in status

withheld) is charged/convicted of the prosecutor as executor and judge

who no longer has the authority to withhold

is penalized.

3. Regarding the constitutionality of the legal norms contained in Article

197 paragraph (1) and paragraph (2) KUHAP, according to Expert, the legal norm that

is contained in Article 197 paragraph (1) and verse (2) of KUHAP already

73

meets legal constructions that provide protection of protection

the laws against the legal rights of a person who are made

charged/convicted under the Basic Law of 1945, by

because, all forms of intelligence the law against the legal norm that

is contained in Section 197 paragraph (1) and paragraph (2) KUHAP must be performed

based on the "legal illates" of Article 197 of the Criminal Code, specifically the letter k, and

corroborate and affirm the warranty of legal protection against

the legal rights of a person who is made a defendant/convict who

is guaranteed by the Constitution of the Republic of Indonesia in 1945.

5. Prof. Dr. Muhammad Tahir Azhary, S.H. I. ABOUT LEGAL STANDING PEMOHON

judicially constitutionally, the applicant H. Parlin Riduansyah,

the individual of Indonesian citizens, housed in Sutoyo Street

No. 23, Inner gulf, Banjarmasin, which in this case is represented by

Prof. Dr. Yusril Ihza Mahendra, S.H., M. Sc and comrades of Ihza &

Ihza Law Firm as the legal authority of the applicant to the Court

Constitution Concerning Test Applications Materiel Article 197 Act

No. 8 Year 1981 on Criminal Event Law (KUHAP) Against

The Basic Law of the Republic of Indonesia in 1945 (UUD

1945), under the provisions set out in Article 51 of the paragraph (1)

Act Number 24 of 2004 on the Constitutional Court (Act

MK) underline Judicially that the Applicant Testing-

Invite is "a party that considers the right and/or authority

its constitutionality is harmed by the law" which in

the letter a mention "the individual of the State of the State". "Indonesia". Therefore the applicant is entitled to have the authority and competence

the law to apply for the Testing of Section 197 of KUHAP

Against the 1945 Constitution.

II. THE ABSOLUTE COMPETENCE OF THE CONSTITUTIONAL COURT IN CONNECTION WITH THE APPLICATION OF THE APPLICANT THE Constitutional Court in connection with the applicant ' s plea

is in doubt having absolute competence (absolute authority) for

conducting testing The materiel of Article 197 of the KUHAP Against the 1945 Constitution.

74

The absolute authority of the Constitutional Court is definitively set in

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

The Constitution of the Constitution is to prosecute at the first and last level which

The verdict is final to test the Act against

The Basic Law. Article 10 paragraph (1) letter a Law Number

24 Years 2003 on the Constitutional Court as amended

with Act No. 8 of 2011 on Change of the Upper Amendment

Act No. 24 of 2003 on the Court Constitution

mentions the Constitutional Court in order to prosecute in

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

" testing the legislation against the State Basic Law

Republic 1945-1945. Act Number 48 of the Year 2009

on the General Judicial Act that states "Constitutional Court

authorities prosecute at first and last rate of its verdict

is final to" among others " test the Act "The Constitution of the Republic of Indonesia in 1945". Therefore, the Constitutional Court has no reason whatsoever

to declare it unable to accept the request of the applicant a quo.

Thus the Constitutional Court is authorized and entitled to

receive, check, consider carefully and

cut off the applicant's request listed below

Number 69 /PUU-X/2012.

III. REVIEW OF THE CONSTITUTIONAL YURIDIS ON ARTICLE 197 OF THE LAW NUMBER 8 OF 1981 ON THE LAWS OF THE CRIMINAL EVENT 1. Since the law does not provide an autentic interpretation

(official) against Article 197 either paragraph (1) and paragraph (2) KUHAP,

consequently that article a quo is interpreted on the basis of individual perception-

of the Bachelor of Laws.

2. There are two different issues that are interpreted differently: (1)

About against any court ruling (the general judiciary)

the provisions in Article 197 of the paragraph (1) KUHAP apply? Trimoelja D.

Soerjadi, S.H. and Dr. Indrianto Seno Adjie, S.H., M.H. argues

that the provisions in Article 197 paragraph (1) letter a, b, c, d, e, f, h, j, k,

75

and I only apply and bind to the Court ' s severing

the State and the High Court. According to them the Court's ruling

the Great is not bound to the provisions of Article 197 clause (1) of the Criminal Code because

the Supreme Court ruling is the final verdict; (2) About

the position of the ruling void by law as set in

in Article 197 of the paragraph (2) of the former Chief Justice M. Yahya

Harahap, S.H. argues that the definition of the ruling is null and void

the law is the ruling judge a quo never existed or never happened (never ). In addition to Dr. Rudi Satrio, S.H., M.H. argues that the prevailing ruling is the ruling that

earlier that complied the provisions of Article 197 paragraph (1) KUHAP.

In relation to the second interpretation of the jurists namely M. Yahya

Harahap, S.H. and Dr. Rudi Satrio, S.H., M.H., Prof. Dr. Yusril Ihza

Mahendra, S.H., M. Sc. in this case acting on behalf of the applicant

provide a comment a positive that reads as follows "At

save the applicant, the opinion of these two Criminal Code

is codified as a matter of the court ruling that must

present in addition to the material contained in Article 197 of the paragraph (1) letter h and I

KUHAP. The verdict is null and void.

cannot be executed and execues a judgment that

void by law including violation of legal norms in the KUHAP

(including deeds against the law).

2. The definition of "order for the defendant to be detained or fixed in

the prisoner or release" contains the contents that in the making of the dictum

the legal state principle, asas

fair legal certainty, and the principle of freedom as in

set in Article 1 of paragraph (3), Article 28D paragraph (1) and Article 28G paragraph

(1) Constitution of the Court of 1945. The Constitution is very authorized to

provide an autentic interpretation (official) against the provisions of Article 197 of the paragraph

(1) the letter k and paragraph (2) of the Penal Code as proposed in

the conclusion below.

79

IV. Conclusion 1. The applicant has a strong legal standing as the applicant in

the Materiil Test case of Article 197 of the KUHAP against the 1945 Constitution.

2. The Constitutional Court has an absolute competence that is not

in doubt to accept, examine, consider,

prosecute and discontinue the applicant with a fair share-

he is.

3. In connection with the petitioner to the Constitutional Court

in case register Number 69 /PUU-X/2012, it is seen

it needs the Constitutional Court to provide an autentic interpretation (official)

against: (a) Article 197 paragraph (1) of the letter k KUHAP proposed

as follows: " Judges in its verdict on the Courts

Negeri, High Court and the mandatory Supreme Court

lists the substance of the provisions in Article 197 of paragraph (1) letter k

Act Number 8 1981 on Criminal Event Law

about the order for the defendant to be detained or remain in custody

or be released "; (b) Against Section 197 of the paragraph (2) KUHAP is proposed

The interpretation of the following:" (1) which is null and void.

The law is the judge's ruling that does not list one

or any provision in Section 197 paragraph (1) in particular the letter k

Act Number 8 of the Year of 1981 on the Law of the Criminal Event;

(2) if there is an idation in the amar ruling it then

the idlers are null and void. suspect entitled and or

mandatory release; (3) Public Prosecutor should not and not

may execute a null and void sentence. With

another saying the Attorney's obligation is down. If the Attorney

"renown" then the Attorney can be processed and prosecuted

by law.

6. Dr. Chairul Huda, S.H., M.H. 1. That Article 197 paragraph (1) of the KUHAP is the provision of the Act which

determines the substance of the letter of the verdict of the idation. That of which

is specified in Section 197 of the paragraph (1) of the letter k KUHAP, the ruling letter

the applicant must contain "the order for the defendant to be detained, or remain

detained or released". The consequences of not being filled with provisions

80

that, including but not limited to the discharges "command

to be withheld, or remain detained or released" in the letter

the ruling ruling, as referred to in Article 197 of the paragraph (1)

letter k KUHAP, determined in Article 197 paragraph (2) KUHAP, which is

resulting in "ruling void by law"; 2. That the letter of the ruling ruling, as referred to in Article

197 paragraph (1) of the Criminal Code (1) of the Penal Code is a letter of ruling which is set if the court

argues that the accused is guilty of committing a criminal offence

at the disappointments that followed criminal fallout, as

referred to in Article 193 of paragraph (1) KUHAP. Given the provisions of Article

85 verses (1) KUHP, timeout of time calculation

(verjaar) the authority of the criminal running is "the next day after

the verdict can be executed", then in the order of the ruling that

contains the criminal fallout. must be followed by the defendant ' s order to "be detained

or remain in custody". In other words, the calculation

"the expiry of the criminal execution" begins one day of the ruling

dropped, and is absolutely not outweighed until the "verdict

of the legal power remains"; 3. That the "command" or "imperative" nature of the provisions of Article 197 paragraph (1)

letter k KUHAP is held in order to avoid a ruling

idation containing the criminal fallout cannot be implemented

due to the gugurnya The authority of the Acting Prosecutor as stated

referred to in Section 270 of the Criminal Code juncto Section 1 juncto Section 30

paragraph (1) letter b of the Law Number 16 Year 2004 on the Prosecutor

Republic of Indonesia, Run the verdict. That is based on

the provisions of Article 84 paragraph (2) KUHP, authority running verdict

spawn into fall after two years for violation, after

five years for crimes committed with printing means,

after eight years for a crime threatened with a criminal

fine, felony confinement, or a prison criminal the most longer than three years, or

after sixteen years for a crime threatened with a criminal

prison more than three years. Under the provisions of Article 84 paragraph (3)

KUHP, the authority of running an idation ruling is to fall

at least equal to the time the criminal has been dropped. Temporary

81

that, the authority of the Acting Prosecutor, as referred to in

Section 270 of the Criminal Code juncto Section 1 juncto Section 30 paragraph (1) letter b

Law Number 16 Year 2004 of the Republican Prosecutor

Indonesia (Prosecutor's Act), can only be done against "the ruling

of a fixed legal force". Without the defendant's order to "be detained or

remain in custody", as referred to in Article 197

paragraph (1) of the letter k KUHAP, then essentially the Acting Prosecutor

unable to carry out the verdict of the idleting, while calculations

through time/expiry of criminal execution have begun to be calculated since

the verdict was dropped (can be run and did not wait until

the power-power ruling remains). That without the defendant's order to

"be detained or remain in custody", may occur at a time

the ruling ruling "has been unimplemented" by the Prosecutor

Executable Acting, when the ruling of the magnitude the legal remains because it has been

passing time/expiry (verjaar) of the criminal running authority; 4. That the "command" or "imperative" nature of the provisions of Article 197 paragraph (1)

letter k KUHAP, which is also indicated by the presence of "juridical sanctions" which

is a result of the "void by law" ruling, as intended in

Article 197 of the paragraph (2) KUHAP, as if opposed to

provisions of Article 193 of the paragraph (2) which determine the appropriate authority

"facultative" or "discretional" to the judge who argued that

the accused is guilty of committing a criminal offence. who are not disappointed to him,

to "may" order that the defendant be held, if fulfilled

terms of Article 21 and there is sufficient reason for it, or remain

in custody or release him if there is a r/p>

as the State of Law and Human Rights, as it is a statutory prosecutor

legally processed to be requested by its responsibilities and

The applicant (Brother H. Parlin Riduansyah) must be released immediately

of the Correctional Institution.

10. After noticing and reading carefully the whole

petitum petitioner submitted to the Constitutional Court

register Number 69 /PUU-X/2012 then duly duly and

the Court of Constitutional Court granted the entire petitum a quo.

11. To avoid violations of/p>

which is being directed to test it. Accordingly, according to the Government,

it is not related to the issue of the constitutionality of the applicability

the norm of the Act is being treated for such testing;

In its implementation, if law enforcement, in the This is the prosecutor, who

in accordance with the provisions of Article 270 of the Criminal Code carrying out the execution of

a court ruling that has a fixed legal force, then if at

in its execution the prosecutor is abusing or -Authorization.-

85

The authority in carrying out its duties, according to the Government, the prosecutor

may be subject to legal sanction, for example reported to Jamwas or

reported to his superiors for being arbitrable and arbitrary.

not in accordance with applicable law regulations;

In practice, there are some Supreme Court rulings that

do not list the provisions of Article 197 paragraph (1) of the letter k inside

the verdict is. Nevertheless, it is very closely related to

implementation issues;

Related Applicants are delivered on the issue of due process of

law, the Government of the establishment or argues that inside a

A criminal act is essentially a trial initiated from the level of inquiry,

the investigation, prosecution, or examination process in court until

in a ruling that has a fixed legal force. Essentially this

is a reflection or a form of the due process of law itself;

The government quoted a statement or opinion from one of the Supreme Judges

who said that in the Supreme Court ruling it was indeed

often does not list the provisions of Article 197 paragraph (1) of the letter k KUHAP,

however it does not mean that the ruling cannot be executed;

The Government is fully conveying to His Majesty the Justice of the Constitution

to assess and consider it and beg to drop

the verdict It is fair and wise.

[2.4] Draw that to respond to the request of the applicant,

The House of Representatives has given a statement at the hearing of the day

Wednesday, September 5, 2012, and submit the captions written through

The Court of Justice on Monday, September 10, 2012, which in

describes as follows:

1. Legal Position (Legal Standing) The applicant Qualifying to be fulfilled by the applicant as a party is set in

provisions of Article 51 of the paragraph (1) Act No. 24 of 2003 on

Constitutional Court (next MK Law), which states that

"The applicant is a party that considers the right and/or authority

its constitutionality is harmed by the law, that is:

a. Individual citizens of Indonesia;

86

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

The development of the people and the principles of the Republic of the Republic of Indonesia

which is set in undra;

c. public law enforcement or Private; or

d. state agencies.

The rights and/or constitutional authority referred to the provisions of Article 51 of the paragraph

(1) it is expressly expressed in its explanation, that "in question" rights

constitutional " is the rights that set in the Country Basic Law

The Republic of Indonesia of 1945." The provisions of Article 51 of the paragraph (1) of this

affirm that only the rights explicitly set in the Constitution of the Year

1945 are included "constitutional rights".

Therefore, according to the MK Act, that a person or a party can be accepted

as the applicant who has a legal standing (legal standing) in

the application of the Act to the Constitution of 1945, then the Act of Law of the Constitution of the Constitution of the Constitution of the Constitution of the More

first must explain and prove:

a. Qualify as the applicant in the a quo request as

referred to in Article 51 of the paragraph (1) of the MK Act;

b. The rights and/or its constitutional authority as referred to in

"The explanation of Article 51 of the paragraph (1)" is considered to have been harmed by the enactment of the Act.

Regarding the constitutional loss parameters, the Constitution has

provided the understanding and limitations on constitutional losses arising

due to the enactment of an Act must meet 5 (five) terms (vide

Case verdict number 006 /PUU-III/2005 and Perkara Number 011 /PUU-V/2007)

that is as follows:

a. the rights and/or constitutional authority of the applicant granted

by the Constitution of 1945;

b. that the rights and/or constitutional authority of the applicant are considered

by the applicant has been harmed by an Act that is tested;

c. that the rights and/or constitutional authority of the applicant

is referred to be specific (special) and actual or at least to be

potential that according to reasonable reasoning can be certain of the case;

d. Due (causal verband) between the loss and

the enactment of the test-moveed Act;

87

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

the loss and/or constitutional authority postured will not or

no longer occur.

If the five terms are not met by the applicant in the The case

testing a quo, then the applicant has no qualifications

legal standing (legal standing) as the applicant.

Against that legal position (legal standing), the House is handed

fully to the Assembly of Judges to assess whether the applicant has

legal standing (legal standing) as required by the provisions

Article 51 paragraph (1) MK Act and under MK Perkara Number 006 /PUU-

III/2005 and Perkara Number 011 /PUU-V/2007.

2. Testing of the KUHAP Act Against the application for testing of Article 197 of KUHAP, DPR delivered

captions as follows: 1. That the subject matter is the applicant objecting

with the execution of a criminal case in the name of the applicant

by the prosecutor of the Banjarmasin State Prosecutor, because according to the applicant

the criminal verdict It is not eligible in accordance with Article 197 of the paragraph

(1) the letter k KUHAP, so that the applicant assumes that the criminal verdict

void by law.

2. That is, according to the DPR, the issue is not a problem

the constitutionality of the norm, but rather the problem of applying the norm. Related

with the issue of applying the norms/provisions of the rules of the law-

the invitation, the House argued that the Constitutional Court is not

authorized to examine and decide on it because of the Constitutional Court,

based on the Constitution of 1945, authorized to test the Act

against the Basic Act.

3. That against the judicial s the following:

The Norma is contained in Article 197 of the paragraph (1) the letter k KUHAP, according to

The government, it is clear that against the verdict is being moved by

The applicant is already clear in order to carry out the verdict

a court that has had a fixed legal force;

What happened to the applicant, according to the Government, is the thing

which is related to the issue the application of the norm itself, which means very

closely related to the implementation of norms or conditions an Act <ee

of the fear of doing or not doing something to be

his right and guarantees a true and fair "due process of law",

then the criminal event law. used in the entire process

examination, ranging from investigation, inquiry, prosecution and

execution of court rulings, must be

guarantee the laceration of the constitutional rights of someone who has

given by UUD 1945. The laws of criminal events that apply in the country

this, now known as the Code of Law

The Criminal Event (KUHAP) contained in Law No. 8

In 1981, once it contained a guarantee of legal certainty, It contains

free warranty of a person from fear to do something or

not doing something that is rightfully rightfully entitled

"due process of law" is a fair and correct examination process.

Norma laws must flow from the Basic Law.

Only in that way then This country can be called

"constitutional state" the country that upholds the Invite-

Invite Dasble;

6. That in line with the warranty of the "due process of law" which

is guaranteed by Article 1 of the paragraph (3) of the 1945 Constitution, then conceptionally,

The applicant understands that if one time the applicant

is charged for committing a follow-up criminal and be decided guilty and

already have a fixed legal force (inkracht van gewijsde), but

the court ruling did not meet the provisions as set

in Article 197 of the paragraph (1) the letter k KUHAP, then according to The provisions of the paragraph

(2), the ruling is "void by law". If

the ruling is "null and void", then according to the applicant's understanding,

The ruling must be considered never to exist and thus

cannot be executed by anyone as well. The applicant is a citizen

a law abide by law. The applicant respects the authority

the state to examine, prosecute, and prosecute the Petitioner. Country

92

has been given the opportunity by legislation to prosecute the applicant

from the State Court to the level of examination of the cassation and

PK at the Supreme Court (vide Evidence P-5). However, if the ruling

"void by law" due to the negligence and error of the judge's assembly,

in the applicant's understanding, the state also must be willing and great-soul

to acknowledge that error and not seek reason for it.

imposing his will with a way against undang-Undang;

7. However, what the applicant understands as the applicant

urates in the number 6 above, it turns out to be as different as

in fact. In a discrete event, the applicant has

checked, prosecuted, and diadlily for being charged with a felony.

criminal in the Banjarmasin State Court. After proceeding with the

fair and fair examination, the Banjarmasin State Court

stated that the Attorney General's indictment of

The applicant is not proven to be legally and decisively. Therefore

the accused, in this case the applicant, was acquitted of all charges

(vide Evidence P-6). However, the General Prosecuting under the pretext that

the free verdict (vrijspraak) against the applicant is not a ruling

"pure free"-an otherwise unknown KUHAP-and

by violating Article 244 of the KUHAP prohibits the presence of

appeal and cassation efforts on free ruling, the General Prosecuting

filing a cassation effort to the Supreme Court. The Supreme Court

in its verdict states that the accused, in this case

The applicant, is shown to commit a criminal offence,

and invalidate the ruling Banjarmasin Court of Justice. Then

by prosecuting himself, punishing the accused, in this case

The applicant, with a 3-year prison criminal (vide Evidence P-7);

8. That the applicant then read carefully the rulings of the cassation

Supreme Court above and found that in the dictum

the verdict, the Supreme Court of Judges had negligent not listed

the norm of Article 197 paragraph (1) of the KUHAP that stated that in

the ruling ruling, should be listed "order that the defendant

be detained, remain in custody or be released". Uninitiated

command it, then according to the paragraph (2) of the article, the ruling

93

is "void by law". Realizing that the verdict is

"void by law", then the applicant assumes the applicant has got

the grace and grace of God SWT, because the applicant

believes that the applicant is indeed innocent of doing what

which is not disappointing. With the ruling null and void,

The applicant assumes that in a modality of constitutional rights

The applicant who is guaranteed Article 1 of paragraph (3), Article 28D paragraph (1) and Article

28G paragraph (1) of the 1945 Constitution, then against the applicant, for the sake of the applicant's sake, the following is a matter of the "". certainty

a fair law that guarantees existence " due process of law" no

there will be an execution of a null verdict for that law.

Next, since the verdict is null and void, the applicant with

free will live the life as it is.

citizens who have constitutional rights, are not afraid

to do any activities that are the right of the applicant

as a citizen;

9. That is, however, what the Applicant Thinks as a grace and a gift

God SWT as described in numbers 7 and the figure 8 above,

apparently it is still a problem that actually puts

The applicant is in a difficult situation. Attorney at the State Prosecutor

Banjarmasin, after receiving a copy of the Court of Cassation verdict

the Great, hard to execute a null and void sentence

it is under the pretext that prosecutors are the executor or executor of the ruling

a court that has had a fixed legal force as

is set up in Article 270 of the KUHAP. The applicant has even received 2

(two) times the call to undergo the execution of such a ruling, and

even threatened to be included in the People's Search List

(DPO) because the applicant is deemed to be unfulfilling

Execution call (vide Evidence P-8). After receiving twice

calls, the applicant is finally pursued by the Prosecutor's apparatus, so that

is forced to move around. As a result, the constitutional right

The applicant to be free from fear to do something, or not

does something guaranteed by the 1945 Constitution into sirna. The applicant

is in uncertainty and is in fear of appearing

in public, out of concern to be arrested by prosecutors with

94

the pretext of executing a court ruling that has had

the power of the law remains. On 6 June 2012, the applicant reported

attorney Firdaus Denilmar, S.H., M.H., to Mabes Polri for his actions

against the applicant, for conducting an attempted violation of Article 333

of the Criminal Code, in which the prosecutor forcdeclared suspect is

criminal, he is in a weak position dealing with

The state law enforcement apparatus that has the authority-

the authority among others to withstand, interrogate, prosecute and

101

Article 27, and Article 28 of the KUHAP. The term "withheld" in Article 26, Article

27, and Article 28 of the KUHAP are all associated with the interest

of the proceedings. Whereas the reason for doing

detention is set in Article 23 of the paragraph (1) and the verse (4) KUHAP,

if there is any concern the defendant will escape, omit

evidence, repeat the felony or threat of his sentence

five years or more. If those concerns are not there, then the judge

does not need to hold the defendant. In this context, the opinion

Trimoelja D. Soerjadi is correct, that is, the action

issuing a restraining order is the authority

the judge discretionary in the context of the case examination;

8. That the term "withheld" or "remain in custody" in Article 197

paragraph (1) of the letter k of the KUHAP is something that should be included in

the ruling ruling, with the consequences if the order is not

listed, then the ruling the court is null and void.

Thus, it is not true that Trimolelja's opinion that the order

for the defendant to be detained or remain in custody in Article 197 of the paragraph

(1) the letter k is of a discretionary. If it is

discretionary, then there will be no norm in Article 197

paragraph (2) of the KUHAP which says that if the provisions of Article 197 paragraph

(1) the letter k is not listed, then the result of the verdict is null

for the sake of law. As such, the requirement of an idation verdict

lists the order for the defendant to be held, remaining in custody

or be released is not a regionalized, but rather a "imperative" or "mandatory", i.e., a "imperative" or "mandatory". mandatory or

obligations to be implemented;

9. That by remembering that to specify the provision

Article 197 paragraph (1) of the letter k in any ruling ruling is

the command is imperative, then the examination process

the case is complete. The command is, however, distinct from

issuing a restraining order for the benefit of the examination

a matter that is limited in time by the KUHAP. Andaikata term

The timing of detentions being the judge's authority on any level

checks all have been exceeded and the defendant must

102

is issued from custody by law, then if the word "order

so that the defendant is detained or remain in custody" must be loaded

in the court ruling, then the order is itself

to Orders are against the law. Because of this, the word "withheld" or

"remain in custody" in Article 197 of the paragraph (1) letter k must

be interpreted as an order to execute a ruling execution that

is the idlever;

10. That in the applicant, the term "withheld" or "remains in

the prisoner" in Article 197 of the paragraph (1) of the letter k of the KUHAP is different

meaning with the term "detention" as defined in

Article 1 of 21 and Section 26, Article 27, and Article 28 of the KUHAP. The term

"withheld" or "remain in custody" is a process for

carrying out the ruling ruling according to the criminal sanction that

dropped. If the defendant is sentenced to temporary imprisonment

the accused is outside, then to the prosecutor is instructed to

"hold" the defendant and then submit it to the Head

Correctional Institution. If the defendant is held on criminal time

is dropped, then the prosecutor is ordered to remain put

the defendant is in custody, and the subsequent verdict is executed with

changing the status of the accused prisoner to an inmate. Similarly

in case the defendant is sentenced to death, while

the defendant is outside, then to him is ordered to be detained

to serve the execution of a death sentence. If the defendant is in

the prisoner, then the detention is continued until the execution of the sentence

dies executed;

11. That the compiler of the KUHAP is like a lack of terms for

calling the follow-up to the ruling that was dropped by

the court, which should have used the term "withheld" or "fixed

in custody" with intent as an order to the prosecutor to

execute one of the known types of idlers in the KUHAP

pursuant to the ditum of the idleting verdict. By understanding the terms

"withheld" or "remain in custody" as an execution order, then

the order becomes logical, because without a judge's order to

execute the ruling ruling, then the prosecutor does not have a

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the basis of any law to execute the ruling. The circumstances

this is the same as uninitiated provisions that must

be contained in the ruling ruling as set out in the Article

197 paragraph (1) KUHAP, for example does not list names, ages,

work, address, citizenship of the convicted person, then

who should be executed? If it does n' t list how

the prison criminal year dropped, then how would the prosecutor will

execute that verdict? The provisions of Article 197 of the KUHAP were logical that the ruling

was declared "null and void";

12. That the KUHAP has clearly governed the authority

apparatus of law enforcement in the Indonesian criminal justice system.

KUHAP has set up clearly the authority of the investigators and

investigators, i.e. until the completion of the entire the investigation process when

the suspect, legal reasons and the evidence tools have been gat/p>

asas legal certainty as set in Section 28D paragraph (1)

UUD 1945. The multi-interpretation code norm is also

eliminates the existence of the "due process of law" which is a process of vetting

that is fair and true in criminal event law, and gives an opportunity

to the law enforcement apparatus, in terms of this is the prosecutor as an executor

court ruling, to act arbitrary to

someone. The multi-interpretation and

Act norm eliminates "due process of law" and opens the door for

the arbitrariness of law enforcement apparatus is at odds

with the legal state principle as set in Article 1 paragraph (3)

UUD 1945. The norm of article 197 verse (1) letter k and verse (2) of the KUHAP

has also led to a loss of safe taste and vice versa

raises fear for someone to do something or

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does not do something that is entitled as warranted by

Article 28G paragraph (1) of the 1945 Constitution;

IV. EXPERT ON IV.1. M. Yahya Harahap, S.H. Muhammad Yahya Harahap, S.H., who gave the description as an expert

under oath in the September 05, 2012 trial, at its point

illuminating as follows:

That against the verdict The survey "does not list/not

contains" the provisions of Article 197 paragraph (1) of the letter k KUHAP in amar/diktum

ruling, according to Article 197 paragraph (2) KUHAP "The ruling is null and void

the law" (van rechtswege nietig, legally null and void);

That which states the verdict of the idoneness that " does not list

provisions of Article 197 paragraph (1) of the letter k KUHAP "void by law" (van

rechtswege nietig, legally null and void) is the "Act itself"

that is Article 197 of the paragraph (2) KUHAP, which reads as follows: "No

provisions provisions in paragraph (1) letter .......... k ....... this section

result in a null and void sentence".

That under the terms of the "Act" as formulated

in Section 197 of the paragraph (2) KUHAP:

a. properties and levels of "kebatalan" (nietigheid/nulliteit, voidness/nullity) the ruling

idation that does not list Article 197 paragraph (1) letter k

kUHAP is "void by law" (van rechtswege nietig, legally null

and void/void ipso jure);

b. non-degree or degree "revocable" (vernietigbaar,

voitions), but "by law" of the ruling "by itself

void"

That any malleable (nulliteit/neitigheid, voidness/nullity) which is affirmed

itself by the Act is:

a. The "ex nunc" (nietigheid ex nunc), so that the quality of its limits

is an absolute "absolut/absolute power", or also called

"substantial kebatalan" (substantiale/essentiele nietigheid);

b. Thus, due to the non-loading judgment

the provisions of Article 197 paragraph (1) of the letter k KUHAP in amar rulings,

according to Article 197 of the paragraph (2) KUHAP are " of the nature of the nature

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absolut/absolute "or" perbatical hakiki ", then according to the law of the ruling

The idlers are" absolut/obverse of hakiki ".

That by the article 197 paragraph (2) the KUHAP is contained or

adhering to "absolute kebatalan", meaning since the beginning of that ruling

dropped by MA on October 08, 2010 was "ruling" that is "not

valid according to law" (onwettig, unlawful). Because since the beginning of the ruling

it is "contrary to the law" (strijd met de wet, violation

of law). In this case, the Decree No. 1444 K/ Pid.Sus/2010 was from the beginning

"against" the provisions of Article 197 paragraph (1) of the letter k KUHAP

juncto Section 197 verse (2) KUHAP;

That the rejected point of the legal fundamentals described above, can

put forward the following conclusion:

1. Any ruling ruling that does not include the provisions of Article

197 paragraph (1) of the letter k KUHAP in amar ruling, according to Article 197

paragraph (2) KUHAP "resulted in the ruling being null and void" (van

rechtswege nietig, legally null and void);

2. Any "kebatalan" (nulliteit/nietigheid, voidness/nullity) which is affirmed

itself by law, in this case by Article 197 paragraph (2)

KUHAP, is "absolute/absolute bateness", so that

The ruling was "invalid" (onwettig, unlawful), due to the ruling

that was thus contrary to the undrau;

3. It Turns Out That The Ruling Of Kasasi Numbered 1444 K/Pid Sus/2010 dated 08

October 2010 proved to not list the provisions of Article 197 of the paragraph (1)

letter k KUHAP in amar ruling. Thus, according to Article 197 of the paragraph (2)

KUHAP the ruling since it was originally "null and void" and the quality

"its limit" is either "absolute battness" or "hakiki battity"

(essentiele nietigheid) \

IV.2. Prof. Dr. Romli Atmasasmita, S.H., LLM. Expert Romli Atmasasmita provides the caption as an expert

oath in the September 5, 2012 trial of the following

specifies the following:

The legal issue in the Applicant ' s materiel test is about The Act

No. 8 of 1981 against the 1945 Constitution was very important if

compared the major differences in criminal law and criminal law.

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formyl. The material charge of the criminal law consists of a ban and sanctions

criminal, while the criminal law of formyl carries out the manner of carrying out

provisions concerning the prohibition and sanction of punishment. Another distinction is

against the criminal law of materiel still being allowed legal interpretation by

the law enforcement apparatus includes judges; whereas against the provisions

the criminal law of formality, the law enforcement apparatus includes the Judge not

is allowed to do other interpretations in addition to what has been written in

invite (as posited) so against the criminal law formyl applies asas

"non-interpretable". The provisions of how to implement the law

a criminal materiel including criminal execution is highly sensitive and always

in contact with the human side of the person who has been set

as a suspect or a defendant or Criminal. The pertouch in question

which led to opposition to the 1945 Constitution was

being the authority of MK RI instead of MA RI.

The provisions of Article 197 paragraph (1) of the Law No. 8 Year 1981 of

The Criminal Event Law which determines the terms of the charge matter

The Court's termination is imperative and obligatory and executed

corresponds to the contents of the provisions written in it (as posited). Provision

Section 197 of the paragraph (1) is limitative so that in its implementation

may not be extended or reduced for any reason other than just

to be consistently executed for the sake of legal certainty either

for the country and for any person of interest.

The legal representation of the provisions of Article 197 paragraph (1) Act No. 8

1981 on Criminal Event Law indicates that the twelfth

charge material is a the court ' s ruling reflects the asas of certainty

the law, justice and expediency in the event of an event in advance

the court. In addition to this, the twelfth of charge material

court rulings contain aspects of humanity and the protection of rights

each person who has been charged and underwent a hearing in advance

a court hearing that open and open to the public. In this link

the sound of the provisions of Article 197 paragraph (1) of the letter k is connected to the sound

the provisions of Article 197 paragraph (2) are causality and actually have

reflects the original lex certa that no longer needs to be used.

law. But in practice, there has been a difference of way of view.

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against need or not be required to be inserted explicitly material

the provision of the provisions of Article 197 paragraph (1) letter k into the court ruling

and the difference in the way of view of the status " verdict void for the sake of the sentence. law "

as referred to in Article 197 paragraph (2) Act Number 8

In 1981. The differences in the view provide an impact that

harms a person's constitutional right to obtain a guarantee

legal certainty and legal protection as set in

The 1945 Constitution. The public prosecutor's strong desire to run an

"verdict void by law" which refers to Law Number 16

2004 of the Prosecutor's Office, is to contrast with

provisions of Article 197 of the paragraph (2) Law No. 8 Year 1981 on

The Law of the Criminal Event and contrary to the provisions of Article 28D paragraph (1)

juncto Article 28G paragraph (1) of the 1945 Constitution.

The Attorney General of the Public Prosecution of Justice and

the executor of the court ruling included against the "null verdict

the law" against a justice seeker, had ignored the provisions

The Constitution of 1945 was in Above.

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

The Constitution of 1945 reads as follows:

"Everyone is entitled to personal protection, family, honor,

dignity, and property under his rule and entitled to

safe sense and protection from the threat of fear to do or

not doing something that is a birthright.

Article 28D paragraph (1) of the 1945 Constitution reads as follows:

"Everyone is entitled to the recognition, assurance, protection, and certainty

fair laws as well as the same treatment in To the law. "

The key words of the provisions of Article 28D paragraph (1) of the Constitution of 1945 are located in

"fair legal certainty" which must be interpreted to the extent of which

implementation of the criminal event law provisions has met the purpose

legal certainty, and second, whether in fulfillment of the purpose of certainty

That law has given justice to the seeker of justice. In

this context provisions Article 28 D paragraph (1) does not separate the two objectives

the law or even tentatively extend between the legal certainty and

justice. If against "the verdict void for the sake of the law" remains executed

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then the execution is not in line with the 1945 UUD mandate that is the objective

the legal certainty of justice.

The provisions of Article 28G paragraph (1) of the 1945 Constitution above have strengthened

the rights of each person to the recognition, assurance, protection, and certainty

fair laws as well as the same treatment in advance of the law [Article 28D paragraph

(1) UUD 1945].

The two provisions of the Constitution of 1945 are the affirmation of the obligation

state power (executive, legislative and judicative) to leave

the authoritarian system or the leadership of the dictator and hold on to the system

A country that is based on democracy. The system

the holding of the state is referred to in three pillars: it is,

the law above all interests (ruled by law); protection and assurance

the rights of each person (protection and assurance of human) rights), and access

to obtain justice (access to justice).

Based on the three pillars of the democracies then coercion

the will by the state power against any person who is real

contrary to the guarantee of human rights protection, absolute

compiles power (under that Act)

with the UUD.

The moral power of criminal law lies in the compliance of the law apparatus

including judges to the Constitution because the Constitution is an umbrella

law (umbrella act) at the height of the judicial power that has been

giving a mandate to state organizers including executors

the judiciary ' s powers to keep the law within the boundaries

and the corridors allowed by the Constitution. Any legal steps

contrary to the rights of the citizens who have been governed in the Constitution

even if to carry out the order of the Act then the provisions

The Act may be declared contrary to the Constitution,

and mutatis mutandis do not have legal powers that bind either to

citizens and for the legal apparatus including judges.

The power of criminal law becomes weak when the legal apparatus is not

obeying provision in positive law let alone closely related

with the rights of each person to obtain legal protection and

a guarantee of legal certainty for him on the basis of such a statement then

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is very relevant to the issue of interpretation of the provisions of Act No. 8

In 1981 on the Law of Criminal Events is regrettable to the provisions

Constitution of 1945 as described above.

The relevance of the legal interpretation criminal (KUHAP) is linked to the charge material

UUD 1945 in particular the provisions in Chapter XA about Human Rights,

can be analyzed from the corner of the criminal law doctrine (Remmelink) which acknowledges

two fundamental principles of law criminal (fundamentalnormen des Rechtsstaat)

i.e. acas proportionality ( proportionaliy principles) and the principle of subsidiarity

(subsidiarity principle). With respect to the "void by law",

as set forth in Section 197 paragraph (2) Act Number 8

In 1981 on Criminal Event Law, the principle of proportionality,

affirm that the breach of the provisions of the Criminal Code about

"Verdict Null for Law", reflecting the imbalance between

the goal and how to enforce legal and justice certainty in the process

event. Even imposing a declared verdict null

by law indicates a fallaness regarding the meaning of relevance between

the legal and justice certainty that is the general purpose of the law.

The relevance of both objectives in the implementation of the Act

No. 8 of 1981 in particular the material charge of a court ruling

lies in the fulfilment of the fulfilment of the term "withheld or not withheld" which

impacts the interestsn Chapter XVI with the title "EXAMINATION AT THE HEARING

THE COURT", based on the principle titulus est lex and rubrica est lex,

KUHAP does not differentiate the court ruling format according to

level. Strictly speaking, such format applies from

the court rulings of the court until the Supreme Court case ruling.

It means, undifferentiated the court of the court of state and high court

as judex factie at the same time. judex juris with Supreme Court rulings

Supreme only copulating as judex juris. Thus

the interpretation that states the inclusion of the provisions as

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referred to in Section 197 paragraph (1) KUHAP applies only to

The courts of the State and High Court, in addition to not having

the juridical foundation, can also eliminate legal certainty;

5. That the term "withheld" or "remain in custody" in Article 197 of the paragraph

(1) of the Criminal Code is "imperative" and "mandatory" in effect

in all decisions on all levels of the court with

consequences if not satisfied then the verdict is null and void

as in section 197 paragraph (2) KUHAP;

6. That in connection with the ruling that is null and void, there are two issues

related: First, is it in the case of the court ruling it is "void for the sake of

the law", the Attorney is obliged to carry out the ruling? Second, is it

the implication of a ruling that is null and void? Against the question

first, it is possible to guarantee legal certainty and protection

against human rights, a ruling that is null and void, cannot

be exercised by the Prosecutor. Against the second question, if a ruling

void by law then the ruling does not have consequences

anything. Further question, which applies to whether the verdict

the court before the court ruling is null and void for the sake of law or

how? KUHAP does not provide a definitive answer;

7. That is, logically if a ruling is null and void, then that

applies and has an ecctorial legal power is the ruling

that existed before. If the ruling is null and void for the law it occurs

at the rate of the Cassation ruling, then the applicable verdict is the

high court or state court level, if against the case

it is directly to the case of the case without through the appeal stage.

That based on the overall description above, Article 197 of the paragraph (1) letter k

and Article 197 of the paragraph (2) of the KUHAP contradict and violate the principle of the country

laws and principles of recognition, guarantees, protection and legal certainty

the fair as well as the equation in front of the law as referred to by

Article 1 paragraph (3), Article 28D paragraph (1) and Article 28G paragraph (1) of the 1945 Constitution.

The provisions of section a quo do not contradict that

"the letter of the ruling ruling contains" among other "orders for the defendant

to be held or remain in custody or be released" as to be referred to

in Article 197 of the paragraph (1) the letter k of the KUHAP is imperative and

117

mandatory at all levels of idation at all levels

courts (State Courts, High Court and Supreme Court)

and the phrase "void by law" in Article 197 of paragraph (2) in relation

with Article 197 of the paragraph (1) the letter k of the KUHAP is defined as a ruling

since it was originally thought to be never existed, no legal value, no

has the power of law and cannot be executed by the prosecutor.

IV.4. Dr. Mudzakkir, S.H., M.H. Mudzakkir gave the caption as an expert under oath in

the September 5, 2012 trial in which he described

as follows: 1. The position of Article 197 paragraph (1) is as a requirement that

is filled in creating a ruling letter that contains an idation that

applies to all rulings that contain an idation, either ruling

The Court of State, the Court High and Supreme Court. In the event

enforcing Article 197 paragraph (1) of the Criminal Code (1) of the Supreme Court ruling

Agung, Expert agrees with the argument submitted by the applicant

the core or the point:

a. It contains obscurity and multitapation.

b. The attorney's authority as an executor becomes a gamang in

executing a court ruling that has had the power

a law that remains, as it is clear that the judgment is null

for the sake of the law [Article 197 paragraph (2) of the KUHAP].

c. The provisions of Article 197 paragraph (1) of the KUHAP are imperative and

mandatori applies to all rulings at all levels

the court.

d. The authority withhold suspects/defendants by investigators, the prosecution

the general and the judge with a ditum regarding the defendant/

status are different.

That in the case of the KUHAP there is no specific section

set up The terms of the Supreme Court ruling in

examine the application of cassation and review in the case

criminal.

2. The position of each material requirement that must be contained in

the creation of the letter of the conviction in Article 197 of the paragraph (1) letter a

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up to the letter l, except for the letter g, is equal or equal,

whereas the terms of the letter h, i, and the letter k contain the subctance that

is different, as it contains the material on the basis of the ruling being the basis

to conduct execution by a public prosecutor as executor,

because of the properties of the material contained in h, the letter i and the letter k

requires execution/execution.

The provisions of Section 197 paragraph (1) of the letter of the second k with the condition

the creation of a ruling that contains the other, therefore,

in accordance with the provisions of Article 197 of the paragraph (2) KUHAP, not to comply with

terms of ruling that contain an idation as contained

in Section 197 of the paragraph (1) the letter k of the KUHAP results in the ruling

that void by law. 3. The provisions of Article 197 paragraph (1) of the letter a up to the letter l

its substance as a ditum of the court ruling that need

follow up in execution are provisions in Section 197

paragraph (1) letter h, letter i, and The letter k, quoted as more:

h. statement The defendant ' s errors, statements have been fulfilled all elements in the formula of felon accompanied by its qualifiers and the idlers or the actions dropped;

i. provision for whom the case cost is charged with the exact number and the provisions of the evidence;

k. order for the defendant to be detained or remain in custody or released;

The requirement of making a ditum in a ruling that contains the criminalizing

refers to the provisions of Article 197 of the paragrapr to run the verdict

the court is detached It is either lawful or null and void;

4. That the provisions of Article 197 paragraph (1) of the KUHAP begin with the words

"The ruling letter of the idation contains: ....". The same words also

applies to the non-idlees, i.e., "The letter of the verdict is not

the idletover contains: ..." as set out in Section 199 paragraph (1)

KUHAP. If carefully reviewed in the entirety of the section

KUHAP that contains the norm about the court ruling that is contained

iof 1981

on the Law of Criminal Events of former Supreme Court Justice M. Yahya Harahap,

S. H argues that the definition of the verdict null and void is

the verdict of the judge a quo has never existed or never happened (never

existed). In addition to Dr. Rudi Satrio, S. H, M. H argued that the ruling

in effect is the previously fulfilled ruling

provisions of Article 197 paragraph (1) Act No. 8 of 1981

on the Law of Criminal Events. In connection with the second interpretation of experts

the law is M. Yahya Harahap, S. H and Dr. Rudi Satrio, S. H, M. H,

Prof. Dr. Yusril Ihza Mahendra, SH, M, Sc in this act act upon

the name of the applicant provides a positive comment which reads as

following "On the applicant, the second opinion of this criminal is more

guarantees the legal certainty and guarantees the presence of"due process of law"

as set in Section 1 of paragraph (3) and Section 28D paragraph (1) of the Constitution

1945 ". Opinion Prof. Dr. Yusril Ihza Mahendra, SH, M, Sc it is appropriate

supported;

That earnings /interpretation of Trimoelja D Soerjadi, S. H and Dr. Indrianto Seno

Adjie, S. H, M. H it as it has been listed on item 2 above

speculative and irrelevant, as it interprets a quo already duly

ruled out;

That the interpretation of Former Supreme Court Justice M. Yahya Harahap, S. H as

has been mentioned above is a very precise, logical interpretation. And that's right.

Because it's supposed to be the Constitutional Court to consider and

accept the interpretation of a quo. The definition of the definition void for the sake of that law

is a court ruling that is due to not fulfill it

lists either one or all of the requirements that

specified/set forth in Section 197 of the paragraph (1) letter The Act

Number 8 of the Year 1981 on Criminal Events Law is qualified as

never existed (never existed). In other words the court ruling

does not list any of the substances in particular Article 197 of the paragraph

(1) the letter k Act No. 8 of 1981 on the Law of the Event

The criminal becomes void by law. Thus the Supreme Court of Justice

Agung Number 1444 K/Pid.Sus/ 2010 on the Level of Cassation and Termination

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Great Mahkmah Number 157 PK/Pid.Sus/ 2011 at the Review level

Back in the case of the applicant for not listing the requirements

specified in paragraph (1) the letter k Section 197 Act Number 8

The year 1981 on Criminal Events Law null and void

never existed (never existed);

Prosecutors as the executor of the ruling a quo argued it would remain

carrying out the ruling so that the constitutional rights The applicant

is at risk of being harmed or at least in an uncertain position.

In this case the Prosecutor a priori forces to execute

a a quo of any and any way even if the Supreme Court's ruling

the Great a quo has been very clear under the provisions of Article 197 of the paragraph (2)

Law No. 8 of the year 1981 on Criminal Events Law was

null and void (never existed). But this is not

ignored/not noticed by the Prosecutor/executor. Borrowing

the term theatre the show must go on that important performances should

take place any of its features. May be inferred by way of view and

thinking which the Prosecutor uses as an executor against the verdict

Supreme Court on the criminal case of the Applicant at a Cassation level

No. 1444 K/Pid.Sus/ 2010 juncto of the Court ruling Supreme on the level

Rejuvenation Number 157 PK/Pid.Sus/ 2011 is very bureaucratic, narrow,

not legowo and establishment to be or not to be;

After reading and researching the applicant's request

to The Constitutional Court through its letter dated July 2, 2012 and

then in Correct August 8, 2012, the core of the request

The applicant is how the legal position of Article 197 paragraph (1) of the letter k

reads "commands that the defendant be detained or remain in custody

or be released" and What is the legal status of one ruling that is not

meeting the provisions of Article 197 paragraph (1) letter k Act Number 8

In 1981 on the Code of Criminal Events Law,

as experienced by the applicant;

The applicant wants to obtain the firmness, confirmation and certainty of

The Constitutional Court in connection with the provisions of the Article

197 paragraph (1) of the letter k and paragraph (2) Act Number 8 of the Year 1981

on the Law of Criminal Events. It's so important to be every one.

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Indonesian citizens can be assured of their constitutional rights so that

is not harmed, as the applicant has experienced. In

the practice turns out the judges ' ruling since the Court of State, the Court

High and the Cassation ruling on the Supreme Court has not met

provisions of Article 197 paragraph (1) of the letter k Act No. 8 of 1981

on Criminal Event Law thus resulting in the ruling being exposed

provisions in Article 197 paragraph (2) Act No. 8 of 1981

on Penal Event Law is to be null and void

ever (never It is. Even juridically normative of the ruling

should be understood as null and void for law, but

since no official interpretation is issued by the law-forming-

invite in explanation of Act No. 8 1981 on

Criminal Event Law then the ruling's position to debatable (could

be debated) thus giving birth to many interpretations (multitafsir), consequently

there is no legal certainty;

The provisions are contained. in Article 197 paragraph (1) of the letter k

No. 8 Year 1981 of the Law The Penal event that reads "commands

so that the defendant is detained or remain in custody or released" is

is a command (imperative) and is a legal norm

forces (dwingend recht) which required to be exercised by a judge on

The General Justice in the ruling of the criminal case since the Court of State,

The High Court until the Cassation and Review of Return on the Court

The Great. Because of the provisions of Article 197 paragraph (1) of the letter k Act

Number 8 of 1981 on the Law of Criminal Events a quo is the

obligation (obligation) for the judges of the General Judicial Act then

if the obligation is not implemented/ignored the judge ' s ruling

that does not meet the obligations and commands as formulated

in Section 197 paragraph (1) letter k Act No. 8 of 1981

on Criminal Event Law a quo imposed legal sanction as

is set up in Article 197 paragraph (2) Law No. 8 Year 1981

on the Criminal Event Law that reads " Not in compliance with provisions

in paragraph (1) letter a, letter b, letter c, letter d, letter e, letter f, letter h, letter

j, letter k, and the letter l this section resulted ind letter l only apply and binding for

the decision-ruling of the Court of State and the High Court. According to

those Supreme Court rulings are not tied to the provisions of Article

197 paragraph (1) Act No. 8 of 1981 on the Law of the Event

Criminal because the Supreme Court ruling is the final verdict.

122

2. About the decision of the ruling that is null and void in order

in Article 197 of the paragraph (2) Act No. 8 , if noticed

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closely, Section 21 of the KUHAP concerns the authority of the judge

taking the detention was carried out with the designation of a judge containing

a restraining order or advanced detention, which can only be performed

against Certain criminal acts may be withheld

(arrestable crime), as referred to in Article 21 of the paragraph (4) KUHAP,

and there are enough reasons, as referred to in Article 21 paragraph (1)

KUHAP. The provisions of the detention above (either to the investigator,

a public prosecutor and judge), have indeed a source of authority

that is "facultative" or "discretional", as also hinted

in Article 193 of the paragraph (2) KUHAP, in contrast to the provisions of Article

197 paragraph (1) of the letter k KUHAP that is derived from the authority that is

"command" or "imperatives". Thus, the provisions of Article 193 of the paragraph (2)

KUHAP applied against the accused who performed arrestable crime,

whereas Article 197 of the paragraph (1) the letter k KUHAP is applied to all

the form of the verdict of the idlects, without there are excluded; That the nature of the "command" or "imperative" of the provisions of Article 197 paragraph (1) letter

k KUHAP, is also marked by the presence of "juridical sanctions" that are a result of

the ruling is null and void ", as in question Section 197 paragraph

(2) KUHAP. The verdict is "null and void", cannot be run (non

executable) by the Prosecutor, as referred to in Article 197 of the paragraph (3)

juncto 270 KUHAP juncto Section 1 of 1 juncto Section 30 paragraph (1) letter b

Act No. 16 of the Year 2004 on Republican Prosecutor

Indonesia. That under Section 8 paragraph (4) Act Number 16 of 2004

on the Prosecutor of the Republic of Indonesia, " in performing the duties and

of its authority, the prosecutor is always acting on the basis of the law with

heeded The norms of religion, politeness, decency, and obligatory

exhume and uphold the values of humanity living in

society, as well as keeping the honor and dignity of his profession ".

According to the law, in particular Article 270 of the KUHAP, the Attorney is only authorized

to run "a ruling that is a force of constant law". Similarly

with Article 1 of 1 juncto Section 30 paragraph (1) letter b

Number 16 of 2004 on the Prosecutor of the Republic of Indonesia, according to

the law of the Prosecutor (prosecutor) in the criminal field has a duty and Authorization

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"carrying out the judge's designation and the court ruling that has been

obtained the power of the law fixed". In other words, according to the Attorney's law

The termination is not authorized to run the verdict "which

has not yet been a force of legal strength", same and as a Builder, Acting Attorney

The verdict is not authorized to run a null verdict for the sake of law;

That the verdict of the verdict void by law should be considered not

ever since the original (initio legally null en void). The verdict

void by law results in all criminal proceedings

against the accused, either an arrest or

arrest, nor the idlehold that has been dropped, is seen as not

has been and is therefore invalid (if already executed) and

cannot be executed (if unimplemented) by the Acting Attorney

The Disconnect. In short, any form of human rights reduction

is seen as never present; That in terms of one and other things, the defendant is undergoing

a period of detention, but the "final verdict" that contains the idledour. for her

who turned out to be null and void, bringing the logical consequences that

concerned must be removed from custody by law. In addition,

the defendant is not in custody, but the "final verdict" that contains

the idlers for him turned out to be null and void, bringing the consequences

logically to the concerned could not be implemented

(non executable). Also added, under the Section 30 of the Criminal Code

the detention performed by the investigator, the public prosecutor or the judge

turned out to be invalid, including but not limited due to the fact that the detention

was carried out on the basis of the ruling which As it turns out to be null and void, the defendant

is entitled to request damages in accordance with the intended provisions

in Section 95 and Section 96 of the Criminal Code, and is therefore also entitled to

obtain a rehabilitation as contemplaed in Section 97 paragraph (3)

KUHAP; That the ruling letter is not a non-loading idleper order to be

the defendant is immediately released if he is detained, as intended in

Section 199 paragraph (1) of the letter c of the KUHAP also results in "void by law",

under Section 199 of the paragraph (2) KUHAP. The verdict is not an idleone

that is null and void must be considered never in the beginning (initio

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legally null en void). The verdict is not null and void.

The law results in all criminal proceedings against the accused (formerly

suspect), either arrest or detention, is seen

never existed and hence is invalid (if It's already done.

Against unlawful imprisonment (due to a ruling not

the idlers do not contain the release of the defendant if he is detained),

The implementation is not on the Putermination Acting Attorney, but is ejected

of prisoners by law by the Head of the House of Prisoners, under Article

19 paragraph (7) of the Government Regulation Number 27 of 1983 on

Implementation of the Law of the Criminal Event Act; That the formulation of the provisions of the defendant's detention, both the

is facultative, as referred to in Article 21 and Section 193 verse

(2) KUHAP, or imperative, as intended in

Article 197 paragraph (1) of the letter k KUHAP, as well as its null law

by law so that it cannot be run (non executable) by the Prosecutor

Executor The ruling, opening the possibility of legal uncertainty that

contradictory Article 28D paragraph (1) of the Basic Negera Act

Republic of Indonesia.

V. Conclusion Before going to this request, please allow the applicant to

present the conclusion of the entire description and argumentation that

The applicant is in the request as follows: 1. The applicant pleads to the Constitutional Court to test the norm

Article 197 paragraph (1) of the letter k and paragraph (2) Act Number 8 of the Year

1981 on the Law of Criminal Events against Article 1 of paragraph (3), Section 28D

paragraph (1) and Section 28G paragraph (1) The Basic Law of the Republic of the Republic

Indonesia Year 1945;

2. The applicant has constitutional rights as guaranteed in

release him if there is a reason enough for that; That the only issue is whether the defendant's order is held or

remains in custody in Section 193 of the paragraph (2) of the Criminal Code (2) of the Criminal Code (2).

The form of the restraining order in the same framework as Article 197

paragraph (1) letter k KUHAP or may be viewed as a restraining order

Another, given the required section 21 of the KUHAP and there is a reason

that is sufficient to conduct detention. In this casenation Number 11 /PUU-V/2007 dated

September 20, 2007 and subsequent rulings have established that

loss of rights and/or constitutional authority in question

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

a. the rights and/or constitutional authority of the applicant granted

by UUD 1945;

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

aggrieved by the enactment of the testing Act;

c. the rights and/or constitutional authority should be

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

which is reasonable is certain to occur;

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

by the enactment of the testing Act;

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

the loss of rights and/or constitutional authority such as the postured is not

will or no longer occurs;

[3.7] Draws That The Applicant Is The Defendant As in

The Supreme Court Decree No. 1444 K/Pid.Sus/2010, dated October 8

2010 in amar Verdict the applicant at its point was stated

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proved to be a criminal offence, but in amar

the ruling does not list the provisions of Article 197 paragraph (1) of the letter k Act

8/1981 which states, "The ruling letter of the idation contains: ... k. order

so that the defendant may be detained or remain in custody or be released" (vide proof

inscribed P-7 mark). Under Article 197 of the paragraph (2) of the Act of 8/1981, not

The provisions of the provisions of Article 197 paragraph (1) of the letter make the ruling

void by law. According to the applicant, it should be the Supreme Court's termination

it is considered never to exist and could not be executed by anyone

as it is null and void. Nevertheless, in practice the verdict

against the applicant remains executed by the prosecutor, in this case the Prosecutor

Banjarmasin state, under the pretext that the prosecutor is the executor or executor

the court ruling has has a fixed legal force (vide Article 270

Act 8/1981). Against the Supreme Court Case No. 1444

K/Pid.Sus/ 2010 above, the applicant has submitted a legal attempt

The Review of Return which has been severed by Decree Number 157

PK/PID.SUS/2011, dated 16 September 2011, in consideration

its law on the point states that although Article 197 of the letter k Act

8/1981 must have a warrant for the defendant to be detained, but the verdict

Supreme Court Number 1444 K/Pid.Sus/ 2010 of that is the final verdict

of the highest Judicial Board containing the idleting of the Immediate

executed. Based on the fact of the law, according to the applicant, it has occurred

the multitapCode to the provisions of Article 197 paragraph (1) of the letter k juncto Article 197 paragraph (2)

Act 8/1981;

The facts of the law as described above, according to the applicant, have

violated the constitutional right of the applicant which has indirectly been guaranteed

and is protected by Article 1 of the paragraph (3) of the 1945 Constitution that states "Country

Indonesia is the legal country" which is to be interpreted that in a country

the law has a recognition of human rights and

recognition of the true and fair due process of law

an event law, in this case the criminal event law, which is in the whole process

its description, good inquiry, investigation, prosecution, up to execution

court rulings, must guarantee protection against rights

a person ' s constitutional, in this case including the applicant, entitled to

recognition, assurance, protection, and certainty fair law as well as

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equal treatment before the law [vide Article 28D paragraph (1) UUD 1945] and

entitled to personal protection, family, honor, dignity, and treasure

the object under his control, as well as the right to taste safe and

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

which is a fundamental right [vide Article 28G paragraph (1) of the 1945 Constitution];

That under the provisions of Article 51 of the paragraph (1) MK law and the terms-

terms the rights and/or constitutional authority losses as described

above, according to the The Court, the applicant has a constitutional right to be granted

by the Constitution of 1945 which the applicant is deemed to be harmed by the enactment of the bill

8/1981 of testing, which the loss of the constitutional rights

is specific. and the actual in the causal relationship (causal verband)

between the losses referred to the Act 8/1981 which is being moved

testing, so that there is a possibility that the application is granted

then the loss Constitutional rights as postured will not or are no longer

occurring . Accordingly, according to the Court, the applicant has a position

the law (legal standing) to apply for a quo;

[3.8] Draws That By The Court Of Justice

the plea a quo, as well as the applicable law. The applicant has a legal position (legal standing)

to apply for a quo, then the next Court will

consider the subject;

The subject of the plea

[3.9] Is weighing that in a quo, the applicant at its point

postulate that Section 197 paragraph (1) letter k juncto Section 197 paragraph (2) along

the phrase "void by law" Act 8/1981 contradicts Article 1 of the paragraph (3), Article

28D paragraph (1), and 28G paragraph (1) of the 1945 Constitution for containing the formula

gives rise to Legal uncertainty. The applicant who has been disconnected in the ruling

Rejuvenation corroborates the punishing Cassation

The applicant, though, according to the applicant, the ruling "void for the law"

for not listing the provisions set in Article 197 paragraph (1) of the letter

k Act 8/1981, but the prosecutor still carries out the ruling with

entering the applicant to the Correctional Institution. Therefore,

in the petitum, the petitioner asks the Court for:

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1. Stating that the phrase "letter of idation of idation contains" among others

"order that the defendant be detained or remain in custody or be released"

in Article 197 of the paragraph (1) the letter k Act 8/1981 is constitutional

conditional (Constitutional conditionally) against the 1945 Constitution, throughout that phrase

is defined as listing the provisions of Article 197 paragraph (1) of the letter k

Act No. 8 of the Year 1981 on Criminal Event Law

in any idation verdict is imperative and

mandatory for all idation rulings at all levels

courts (State Courts, High Court, and Supremelegal entity; or

d. state agencies;

Thus, the applicant in testing the Act against the UUD

1945 must explain and prove first:

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

(1) of the MK Act;

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

1945 resulting from the enactment of the required Act

testing;

[3.6] It is also that the Court has since Determination Number 006 /PUU-

III/2005 dated May 31, 2005 and Putermiock errone;

Order to keep the accused in custody, or remain in custody, or

is released as one that must be contained in the ruling ruling

as set forth in Article 197 of the paragraph (1) of the letter c Act 8/1981, which

according to Article 197 of the paragraph (2) without listing the order causes

verdict null and legal, is the reneging provision of the possibility

judge as an imperfect servant of God who can make

a mistake, either deliberate or unintentional, by not listing

the order for the defendant to be detained, or remain in custody, or be released;

After The material is contained in the verdict of the defendant's identity,

indictment, consideration of the facts and circumstances and of the proofs that

obtained from the examination in the trial which is the basis of determining

the defendant ' s misconduct, criminal charges, section of laws that

be the basis of the law from the ruling with incriminating circumstances and

relieve the defendant, the defendant ' s fault statement, the statement has

disobeyed all elements in the formula of criminal acts accompanied by

its qualifiers and idlers or the dropped action, the caption that

the entire letter turns out to be false or the caption in which it is false if

there is an authentic letter deemed false, the day and date of the verdict, the prosecution's name

general, the name of the judge disconnect, and the panitera name but the judge is not

listing the order in order to the defendant is detained, or remains in custody, or

acquitted, then that causes the verdict null by law, according to