Key Benefits:
the guarantee of obtaining "fair legal certainty". Norm that
is contained in the phrase "except against a free verdict" does not provide a strict injunction for the Public Prosecuting to not be able
cassation, thus placing the applicant in an unacquired position
certainty Fair law. That is, on the basis of such words ' s formulation
there is no certainty for the applicant about whether the General Prosecuting may or should not file a cassation to the Supreme Court.
7. That the terms of the 5-letter terms (c) are the terms of a loss specific or actual or at least a potential that, according to reasonable reasoning, can be certain. That specifically and actual State Court of Lubuk Sikaping dated June 19, 2008, registration case Number
55 /PID/2007/PN.Lbs has dropped a ruling against the applicant
stating that the applicant is not legally proven. And convincing
5
guilty of committing a criminal offense to him, so
the state court of Lubuk Sikaping has acquitted the applicant from
all charges of the General Prosecuting. On the basis of this fact which was originally
The applicant obtained certainty that on the basis of Article 244 of the Criminal Code
The General Prosecuting should not apply, be harmed when
under the same section the General Prosecuting Act has submitted cassation
to the Supreme Court on 9 July 2008. The loss because at first
it must be free to be in a position of NOT SURE TO BE FREE. When on
July 9, 2008 The General Prosecuting filed a cassation, the loss is
the loss of assurance of this certainty will occur because on the basis of reasonable reasoning can be ensured that the Supreme Court will received the casings submitted by the Public Prosecuting.
8. That on the condition of the number 4 terms (d) is the existence of a causal relationship between the loss and the expiring Invite-Invite to be tested. The applicant's loss is the loss of guarantee of legal certainty due to the formula that is not
firmly on Article 244 of the KUHAP. If the formulation of Article 244 of the KUHAP
expressly determines: for any reason and however against a free ruling then the Public Prosecuting is prohibited from submitting a cassation, then the applicant shall not be harmed by the formula "definitely"
like this.
9. That the terms of the terms of the 5-letter (e) are the possibility that by the request of a request then the constitutional loss of the postured will not or may no longer occur. That the applicant is being affirmed as a constitutional right
The applicant is in recognition, assurance, protection, legal certainty
the fair and equal treatment in front of the law. The words "Fair"
here are a certainty, although "certainty" is a certainty
that allows the General Prosecuting to apply for the
all free rulings, but the applicant feels as fair as
is based on a certainty. If from the beginning it can be certain that
on the basis of Article 244 of the General Prosecutions it may be cascative then
The applicant will not be feeling the loss. Thus if the phrase " except
against the free verdict " omitted from Section 244 of KUHAP then Article
6
244 to be certain, if being "definitely" then Constitutional Rights
The postulate applicant will not or no longer occur because the applicant will feel fair cause is indeed understood as a certainty
which It is the right of the General Prosecutions to comply.
10.That under the postules described above, then the applicant
has fulfilled the provisions of Article 51 of the paragraph (1) MK Act and has fulfilled
the terms as stated in the Putermination Number 006 /PUU-
III/2005, so that the applicant has a legal position ( Legal Standing)
to act as the applicant in the request testing request-
Invite this.
Additional Argument
1. That the law is present for the seekers of justice with the paradigm
that if the seeker of justice faces a matter
the law, then not "the seekers of justice are to blame" then the law enforcement is the one. do something against existing laws, including reviewing applicable principles/norms, doctrines, substances as well as procedures.
2. That the law is present in the middle of society as not just
according to black-and-white words from the rules (according to the letter),
but according to the deeper spirit and meaning of (to the very
meaning) of the Act or the law. The law is not only executed
with spiritual intelligence. Running the law should be with
determinations, empathy, dedication, commitment to the plight of the nation
to dare seek another path to truth, justice, and certainty
the laws of the seekers of justice.
3. The Decree of MPR RI Number III of the Year 2000 has established a legal source
and the order of the order of law as an orderly source
the law in Indonesia is:
1) The 1945 Constitution.
2) MPR Determination.
3) Act.
4) Regulation of the Government Replacement Act (PERPU).
5) Government Regulation.
6) The President ' s governing Decree
7
7) Regional Regulations.
4. Drs. M. Sofyan Lubis S. H,
Article 244 Law Number 8 of 1981 on KUHAP does not know
The Free Free Termination. As for the reason the Attorney/Public Prosecutor persists
the case against a purely free ruling has always taken a subterfuge, among others
1) the courts of the State or High Court (judexfactie) have been wrong
applies the proof law as referred to in Article 185
paragraph (3) and paragraph (6) KUHAP; 2) ways of prosecuting judexfactie
not implemented according to the provisions of Undang-Undang; 3) Putermination
Judexfactie is not a pure free ruling (vrijspraak), but rather
the verdict " free Not pure ".
Whereas the law used the Prosecutor/Public Prosecutor
in filing the case against a free ruling is always the same
that is to refer to the Justice Minister's Decision No. 14-PW.07.03
Year 1983 of the 10th December 1983 on Additional Guidelines
KUHAP (TPP KUHAP) implementation of the 19th TPP KUHAP
there is a statement, " Against a free verdict cannot
be appealed; but are aware of the situation and conditions, For the sake of law,
justice and truth, against a free verdict can be expected to be cascaded.
It is base that by the request of the request, then
The constitutional loss postured will not or no longer occur.
5. That on the terms of the terms of the 4 letter (a) above regarding the Constitutional Right of the applicant given by the Constitution of 1945 then the applicant confirms that the Constitutional Right of the applicant is the right of recognition, assurance, protection, legal certainty that
fair and equal treatment in front of the law as set in
Article 28D paragraph (1) of the Constitution of 1945 as a consequence of Indonesia as
State of Law [article 3 paragraph (1) UUD 1945].
6. That on the terms of the terms of the four-letter (b) above then the Constitutional Right of the applicant has been harmed by the Act of the tested. While the existence of Article 244 of the KUHAP contains the norm with word formula-
the word is so firm that it resulted in th the KUHAP is a source of uncertainty
the law, so that if the phrase is omitted from the provisions of Article
244 KUHAP would provide legal certainty, because thus
being a fair certainty, whether for the defendant or the Prosecuer
11
General because both can definitively apply for cassation, not
depending on the outcome of the court ruling. Neither the court ruling
in the form of a ruling that puns the accused, absolve it purely
or impure it all may be cascative.
C. Petitum
That based on the legal reasons outlined above,
then the applicant pleads for the Constitutional Court to grant the
thing as follows:
1. Grant the entire applicant request.
2. Stating that the phrase "free" in Article 244 of Act Number 8
The year 1981 on the KUHAP is pure free or also includes free
not pure;
3. Stating that the phrase "except against a free verdict" in Section 244
Act No. 8 of 1981 on KUHAP is not
means and does not have a binding legal force because
contrary to the 1945 Constitution;
or 4. Stating that the phrase "except against a free verdict" in Section 244
Act No. 8 of 1981 on KUHAP is not
means conditional (conditionally unconstitutional) unless
is interpreted with expressly forbids the Attorney General to apply
the memory of the case to the Supreme Court against a free ruling with
any reason including pure free or unpure free reason;
5. Ordering a loading of this ruling in the Republic of the Republic news
Indonesia as it should be. Or if the assembly of judges of the Court
The Constitution argues for another, please the ruling that is fair (ex aequo
et bono).
[2.2] weighed that in order to prove its control, the applicant has
submitted a written proof tool that was given a proof of P-1 proof up to the proof
P-8 as follows:
1. Proof of P-1 Photocopy of the State Basic Law of the Republic of Indonesia
Year 1945;
12
2. Evidence P-2 Photocopied Act No. 8 of 1981 on Law
Criminal Event;
3. Evidence P-3 Photocopy Verdict Number 55 /PID.B/2007/PN.LBS;
4. Evidence P-4 Photocopied Letter of Director General of Aid and Social Security
to the Regent Agam on the Implementation of the Program
Fatality Cow, dated 8 November 2004;
5. Evidence P-5 Photocopied Cooperation Agreement between the Department of Social Affairs
Republic of Indonesia with Agam County Government
No. 53 /HUK/2004 and Number 9 of 2004 on
The Poor Poor Facir Handling Program Through
Cut Beef By Utilizing Waste
Cow Cut;
6. Evidence P-6 Photocopy of the State Prosecutor's Cassation Case Lubuk Sikaping,
July 9, 2008;
7. Evidence P-7 Photocopy Counter-Memory Of The Cassation Memory
In Criminal Cases Broken Up By The Court Ruling
The Bottom Of The Act Is dated 19 June 2008, With The Register
Number 55 /Pid.B/ 2007 PN-LBS;
8. Evidence P-8 Photocopied Article KUHAP does not know the Free Breakup not
Pure written by Drs. M. Sofyan Lubis SH.
[2.3] A draw that against the applicant's request, the Government
captions in the February 13, 2013 trial, as
following:
The Legal Occupation of the Petitioners Regarding the legal position of the para Government applicants submit
fully to the Assembly of Judges to assess and decide;
The subject of a request against the request for testing submitted by the applicant, the Act
a quo has already been submitted. testing and being disconnected by the Constitutional Court, at
of which Number of Discourse 17 /PUU-VIII/2010, verdict Number 56 /PUU-IX/2011,
and Putermination Number 85 /PUU-IX/2011. Against some of the disconnect that
states the applicant does not meet the qualification and its verdict is
13
The applicant ' s request is not acceptable. The Constitutional Court's consideration
against all three applications ago it is related to Article 244 of the Penal Code is
not the authority of the Constitutional Court, as it relates to
the application in law enforcement itself.
The government is aware of some of the Constitutional Court ' s ruling yet
examining the subject matter. Accordingly, the Government fully cees
to the Constitutional Court to decide on it;
Under Article 60 of the Constitutional Court and Article 42
Rules of the Constitutional Court are regulated that against the matter, the charge, paragraph,
section, and/or part of the legislation that has been moed to be tested
cannot be moored back testing except for any other reason or reason
that is different. However, after divorcating the applicant's request that
is mohoned for testing is the same section and the section as the test stone
also the same, that is Article 1 of the paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution that is between
other related with justice and certainty of law. Accordingly, according to
The Government even though the Constitutional Court ' s ruling against all three ruling
has previously been declared unacceptable, the Government remains on
its stance is that the plea cannot be submitted to the Court
Constitution, in other words that the current plea was filed
by the applicant is indeed as true as different or as if different but
in essence there are similarities of intent and purpose. Therefore, already
if the Judge Assembly gives the ruling that the applicant is not
meets the qualification as the applicant who has a legal position
as defined in Article 51 of the Law Number 24 Year
2003 on the Constitutional Court as amended with the Invite-
Invite Number 8 of 2011 on Changes to Act Number 24
In 2003 on Constitutional Court.
That against the matter request, the section asked for testing there
in the KUHAP bill it is only located that altered but the norms remain
same. That is, the Government argues that the norm is appropriate and
does not conflict with the Constitution of the Republic of Indonesia
in 1945, as it remains necessary in order to provide balance
or It gives a sense of justice to society itself. Therefore,
for the Government not to be stuck in giving the caption then according to
14
Government saving that is delivered on the trial-
previous trial, and which is delivered by the experts, mutatis
mutandis applies also to answer the request The Act
tested by the applicant;
[2.4] weighed that against the request of the applicant, DPR
delivering the written caption received at the Court of Justice on
on 21 February 2013, describes as follows:
5. That as an Indonesian consequence is the State of the Law [Article 1 of the paragraph
(3) the Constitution of 1945], certainly the law must be enforced and as a citizen
that should uphold that law [Article 27 paragraph (1) of the 1945 Constitution], well
it is the defendant even as a Public Prosecutor.
6. That according to the applicant of the phrase "except against a free ruling"
that Section 244 ofAP which states that " Efforts
18
the law is the defendant 's right or the public prosecutor' s right to not
accept a court ruling that is a resistance or an appeal
or a criminal or penal right to apply
review in terms as well as in the manner set in
This Act ".
(2) That against the applicant's opinion stating that
the a quo provision does not provide an express ban on the Prosecution
General so that it should not apply for cassation. House of Representatives view,
provisions of Article 244 of the Penal Code provide legal protection,
equal treatment before law and legal certainty for
all defendants declared free based on verdict
court (vrijspraak), so this has been in accordance with the provisions
Article 28 D paragraph (1) of the 1945 Constitution that reads " Everyone is entitled
upon the recognition, guarantee, protection and legal certainty that
is fair and the same treatment before the law ".
(3) That based on the expert description Dr. Mudzakir in the case
No. 17 /PUU-VIII/2010 on May 18, 2010, delivered
that in its implementation, there are two categories of free ruling
that is pure free ruling And the verdict is not pure. The verdict
pure free is an unproven deed not proven
legally and convincingly, meaning there is no evidence to support
against the indictment filed by the Prosecutor. Whereas the verdict
is not pure, it can be seen with 3 (three) indications that (1) is
the difference in interpretation of the legal interpretation, (2) existence
the difference in judgment regarding the evidence submitted at the trial,
and (3) the possibility of a difference in assessment regarding
interpretation of the application of the law against the evidence submitted at
the trial. Against all three differences, it is natural and
deserves to be completed by the Supreme Court.
(4) That two categories of such free ruling, in practice
are made possible by the Decree of the Minister of Justice Number
M. 14-PW.07.03 1983 dated December 10, 1983 on
Additional KUHAP (TPP KUHAP) Guidelines, in items
19th which stated that " Against free verdict cannot be
19
appeals for appeal, but devotes the situation and conditions, for the sake of
law, justice and truth, against a free ruling can
be held for casings ". This is in accordance with the view of the applicant
stating that in its implementation, the legal basis that
is used by the General Prosecuting to apply cassation to
the Supreme Court is the Decree of the Minister of Justice Number M. 14-
PW.07.03 Year 1983 dated December 10, 1983 on Additional
Guidelines of the Implementation of KUHAP (TPP KUHAP).
(5) Based on the description above the House of view, against the implementation
of a norm/provisions Act is not an authority
Constitutional Court to examine and disconnect, given
Court authority The Constitution is to test the legislation
against the Basic Law of 1945.
(6) Thus, according to the House provisions Section 244 of the Criminal Code
does not conflict with Article 28D of paragraph (1) of the 1945 Constitution.
Thus our Representative of the House submitted for the material
consideration for the Supreme Court of Justice of the Constitutional Court to
check, disconnect, and prosecute the case a quo and may provide
the verdict as follows:
1. "Received the House of Representatives";
2. Stating that the provisions of Article 244 of the Penal Code do not conflict with
Article 28D paragraph (1) of the 1945 Constitution.
3. Stating that the provisions of Article 244 of the KUHAP remain in force
binding laws.
[2.5] A draw that the applicant has delivered a written conclusion
which was accepted in the Court of Justice on 14 February 2013 which
on the applicant remains with its stance;
[2.6] A draw that the Government has delivered the caption
written and conclusions received in the Court of Justice on the date
21 March 2013 which were on the The Government stays with its stance;
20
[2.7] weighed that to shorten the description in this ruling,
everything that happened in the trial was quite appointed in the news of the event
the trial, which is one unitary one
this verdict.
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the applicant's plea
is to invoke the constitutionality testing of Article 244 of the Law No. 8
of the Year 1981 on the Law of Criminal Events (State Sheet)
(in 1981) Number 76, an additional leaf of the Republic of Indonesia Number
3209, subsequently called KUHAP) against Article 1 of the paragraph (3), Article 27 of the paragraph (1),
and Article 28D of the paragraph (1) of the Constitution of the Republic of the Republic of Indonesia (1) Indonesia Year
1945 (next called UUD 1945);
[3.2] Weighing that before considering the subject matter,
Constitutional Court (hereafter called the Court) first would
consider:
a. The Court's authority to prosecute a quo; and
b. (legal standing) Applicant;
Against those two, the Court argues as follows:
The authority of the Court
[3.3] weighing that according to Article 24C of the paragraph (1) Constitution of 1945, Article 10
paragraph (1) letter a Law Number 24 of 2003 on the Court
The Constitution as amended by Act Number 8 of the Year
2011 on Changes to the Law Number 24 Year 2003 concerning
Court Constitution (State Of The Republic Of Indonesia Year 2011 Number
70, Extra Sheet) State of the Republic of Indonesia Number 5226, next
called the MK Act), and Article 29 paragraph (1) letter of the Law No. 48 Year
2009 on the Power of Justice (State Sheet of the Republic of Indonesia
Year 2009 Number 157, Additional Sheet of State of the Republic of Indonesia Number
5076), one of the constitutional powers of the Court is courting at
21
The first and last level of the verdict is final to test the Invite-
Invite against the Basic Law;
[3.4] Draw that because the applicant is expected to be
testing. The constitutionality of the in casu Act Article 244 of the KUHAP against
Article 1 of paragraph (3), Article 27 paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution, then
The court of law to prosecute a quo;
Legal Occupation (Legal Standing) The applicant
[3.5] A draw that is based on the Article 51 verses (1) MK Act, which can
apply for testing the Act against
Against the application for the material testing of Section 244 of the Criminal Code,
The DPR delivered the following statement:
(1) That it needs the DPR to convey, the provisions of Article 244 of the Penal Code set
regarding the efforts The laws of the laws that can be done by the parties
that have direct legal interests, that are the defendants and
The General Prosecutions. The a quo provision has been consistent
rules by the definition of "legal efforts" as set
in Article 1 of 12 of the KUH ith saksama
request the applicant and the proof of the applicant, listen to the caption
The government and read the Government ' s written caption, as well as read
the written caption of the House of Representatives, the Court argued as
following:
[3.12] That the constitutionality testing of Article 244 of the KUHAP, either overall
that section or simply the phrase, "except against a free verdict", has been four
25
times the testing, and has been disconnected by the Court with the ruling
which stated the request (para) the applicant is not acceptable;
[3.12.1] That in the Court ruling Number 17 /PUU-VIII/2010, date On July 25, 2011, the Court in paragraph [3.12], page 51, among others, considered, " The applicant ' s control in this plea, more
complies with its constitutional loss in the running of the advocate profession
instead of being personally harmed by the prevailing norm Invite-
Invite a quo. Therefore, according to the Court, there is no loss
constitutional Applicant with the enactment of the Act a quo ";
[3.12.2] That in the Court ruling Number 56 /PUU-IX/2011, 15 March 2012, in paragraph [3.3], page 57, among others considering, " ... Article 24C paragraph (1) of the 1945 Constitution determines that one of the authority
The court is courting at the first and last degree of its verdict
is final to test the Act against the Basic Act.
The court argued, the provisions of Article 24C paragraph (1) of the Constitution of 1945 must
It is defined that which may be the object of testing to the Court is the material
the charge of the verse, section, and/or part in the Act of which the Court of Justice is required. conflicting
with UUD 1945. It is further outlined by the provisions of the Invite-
Invite that the applicant is clearly deciphing " the charge material in
the paragraph, section, and/or section of the Act is considered to be contrary to
The Constitution of the Republic of Indonesia in 1945 " [vide Article 51
paragraph (3) of the letter b of the MK Act]. Against paragraph, article, and/or section
The Act that is legally promulred and by the applicant
The postulate in accordance with the 1945 Constitution is not an object of testing
the Act. "
[3.12.3] A draw that in the Court ruling Number 85 /PUU-IX/2011, on March 27, 2012, in paragraph [3.3.1], pages 46-47, among others considered, " ... against the petitioner's request for
The court declared the phrase " ... except for the free verdict " in the Article
244 KUHAP, not contradictory to the 1945 Constitution and has the power
binding laws, the Court as in consideration of the termination Number
56 /PUU-IX/2011 date 15 March 2012 considered among others that,
" The court argued, the provisions of Article 24C paragraph (1) of the 1945 Constitution must
26
It is defined as the object of the test to the Court is the material
charges of verse, section, and/or part in the conflicting Act
with the 1945 Constitution. It is further outlined by the provisions of the Invite-
Invite that the applicant is deciphing clearly, " the charge material in
paragraph, section, and/or section of the Act is considered to be contrary to
The Constitution of the Republic of Indonesia Year 1945 " [vide Article 51
paragraph (3) of the letter b Act MK]. Against paragraph, article, and/or section
The Act that is legally promulred and by the applicant
The postulate in accordance with the 1945 Constitution is not an object of testing
the Act. All laws that have been validly promulred
by the authorities must be considered in accordance with the 1945 Constitution until repealed
by the Act-forming or otherwise unconstitutional by the ruling
The court is based on a proposed plea with the provisions
it is contrary to the 1945 Constitution ". All considerations and amar
The court verdict concerns the constitutionality testing of Article 244 of the KUHAP
in Putermination Number 56 /PUU-IX/2011 dated 15 March 2012 mutatis mutandis
be a consideration in the the verdict of a quo, so the Court is not
authorities prosecute a plea quo; "
[3.12.4] That in the Court ruling Number 71 /PUU-X/2012, dated October 23, 2012, is being asked by the same applicant in the plea a
quo, in paragraph [3.6], among others consider, " ...according to the Court, the applicant's plea, whether or not to be postulated in posita or between posita
and its officers are in opposition to one another. On one applicant
postulate that Section 244 of the KUHAP is meaningless, on the other party the applicant
postulate Article 244 of the meaningful KUHAP, each with the consequences
as described above. In addition, if the dalil is in that posita
is associated with the petitum, then between that control and the petitum as well
contradictory. Furthermore, the applicant pleads for the termination of PN Lubuk
Sikaping over the case of the applicant to have a fixed legal force. Above
the base of the disputes between the postulate in the applicant's request
and between the control in posita with the petitum, then according to the Court,
the plea of a quo blurred (libel obscuur). Therefore, the Court is not necessary
consider further about the Court's authority, position
legal (legal standing) the applicant, and the subject of the plea; "
27
[3.13] A draw that is due to the testing of Article 244 of the KUHAP
either the entirety and the specific phrase in the section has not been
considering the subject of its appeal, then the subject of the request testing
the constitutionality in the a quo plea will be considered as follows:
[3.13.1] That Article 24 of the paragraph (2) of the 1945 Constitution determines, " The judiciary is performed by a Supreme Court and a body The judiciary is in
underneath it in the general judicial environment, the religious justice environment,
the military judicial environment, the judicial environment of the state enterprise, and by
a Constitutional Court ". Of such provision it is clear that the Court
The Supreme is the court the highest state of all four judicial environments that
is under it. As the highest state court of all four environments
the judiciary, it becomes absolute that the Supreme Cot if the phrase " except for the free verdict " in Section 244
KUHAP is omitted, then it will provide a fair legal certainty, whether
for the defendant and the public prosecutor as both definitively can
apply for cassation, not depending on the outcome of the court ruling, either
The court ruling is a verdict that convicted the accused,
freeing it purely or not purely, it is all allowed
to file a case of legal action;
The opinion Court
[3.11] weighed that after the Court examined w Hamdan Zoelva, Anwar Usman, M.
Akil Mochtar, Harjono, Ahmad Fadlil Sumadi, and Maria Farida Indrati, respectively-
each as Member, with the present by Saiful Anwar as Panitera
The replacement, attended by the House of Representatives or who represents,
The government or that represents, without the presence of the applicant/its ruler. Against
31
This Court ruling, Constitutional Court of Harjono has a different opinion
(dissenting opinion);
CHAIRMAN
ttd.
Moh. Mahfud MD
MEMBERS,
ttd.
Achmad Sodiki
ttd.
Muhammad Alim
ttd.
Hamdan Zoelva
ttd.
Anwar Usman
ttd.
M. Akil Mochtar
ttd.
Harjono
ttd.
Ahmad Fadlil Sumadi
ttd.
Maria Farida Indrati
6. DIFFERENT OPINIONS (DISSENTING OPINION)
Against this Court ruling, Constitutional Court Judge Harjono has an opinion
different (dissenting opinion), as follows:
The applicant on the matter is concerned Article 244 KUHAP
states:
" Against the verdict of criminal cases given at the last level
by another court other than the Supreme Court of the Supreme Court or the prosecution
general may submit an examination request kasasi to
Supreme Court except against rulings free. "
32
Of the section a quo that is the legal issue is the phrase "unless
against the free verdict".
The existence of section a quo cannot be separated by any other sections
in the KUHAP even of The KUHAP system is comprehensive. Bill Number 8
In 1981 replaced Het Herziene Inlandsch Reglement (Staatblad Tahun
1941 Number 44) known as HIR, connected with the Act
No. 1 Drt. 1951 (LN. 1951, TLN Number 81) which by the KUHAP Act
consideran weighed the letter (d) stated "it needs to be revoked because it is not
in accordance with the national legal query".
That the article is moded with the applicant with respect to the other with respect to the law. "
Article 191 of the KUHAP states paragraph (1): "if the court argued that
of the trial examination, the defendant's error of the conduct
was dismayed to him not to be legally proven and assured, then the defendant
is broken free ". While in verse (2) it is stated that: " if the court
argues that the doting of the deeds is proven,, but
it is not a criminal act, then the defendant is broken up
free of any lawsuit".
It is thus clear that KUHAP is distinguking between the two things
that. Article 191 paragraph (1) relates to the proof in the trial
which cannot prove that the defendant has done the deed which
is not disappointed, whereas the paragraph (2) in the trial has proven the defendant
perform But the deed is not a crime. The point of
the difference concerns the first two things a matter of fact (a question
of fact), while the second is a legal matter (a question of law).
The difference in such a way is appropriate and reasonable. The problem of the fact the source is
the trial of the evidence checks therefore the judge's conviction becomes important,
while the legal issue concerns the judge's opinion of the events that
happens. Accountability in the new criminal law is relevant if
is evident from the trial of a trial fact of a relationship between
a person who does so in the act of disappointments. If in
the trial cannot be proven by such a legal fact then
it should have been and that the defendant was acquitted. Who should be able to
determine there is a legal fact of the relationship between someone with a deed
a certain criminal, none other than the judge who examined the proof in
33
the trial is not another party. To them (the accused) who had undergone
a trial examination which was forced to be granted his rights was reduced due to his status
The defendant to whom his detention could be carried out, it turned out to be not obtained
the legal facts in the The legal trial that they (the accused) is that
commits an unimpediable deed, then must be rewarded and
protected for the sake of legal certainty. If the rights were not protected then would
be questioned what it means to be a trial, whereas
the trial is legally valid, so that the verdict should be respected.
The defendant in the trial came face to face. with the institution of both the public prosecutor
and the judge not dealing with his people. Protection that
is in compliance with guarantees of human rights.
With the demicfish the exclusion of the filing against the free ruling
as governed by Article 244 of the Criminal Code is a protection of the rights
humans against those whose rights were once violated due to their status
the defendant, after a valid court ruling.
KUHAP set out a comprehensive how to protect a person
that has been broken free. Article 67 of the KUHAP states that against the ruling
free cannot be appealed, so do the ruling out of all
the lawsuits. Protection against a person who has been broken free does not
alone by banning the filing of an appeal in a free ruling, even
the accused is entitled to demand damages as stated by Article 68
juncto Article 95 if the defendant is on trial turns out to be mistaken about him. One
the accused is tried erroneously about his person as well as it should be
free-broken and even legal mrmberi rights to claim damages.
So is KUHAP protecting someone's rights. Cassation is not the way
The Supreme Court is to keep an eye on a judge on the ground under it.
Cassation is an ordinary legal effort. As a legal attempt the kasation is intended
to provide protection to the required parties. To the defendant
who has been distrauted free by a court whose justice process is valid or not
the legal defect must obtain protection, only the way it is different is
not by means of giving the right to submit The case is, but instead of
the way the device cannot be held, in the way that there is a meaning or meaning
the judicial process that has been led. A free verdict is not compassion
the judge against the accused, but the right of the accused if it turns out to be
34
The public prosecutor is unable to prove a legal fact of the relationship between
the defendant with a criminal event which is charged to him. The prosecution
in general by KUHAP has been granted the right to reduce the defendant's an Zoelva, Anwar Usman, M.
Akil Mochtar, Harjono, Ahmad Fadlil Sumadi, and Maria Farida Indrati, respectively-
each as Member, at the day Tuesday, date twenty-six, March, year two thousand thirteen, and spoken in the plenary session of the Constitutional Court is open to the public on the day Thursday, twenty-eighth date, March, year two thousand thirteen, finished said at 11.40 pm, by the nine Justices of the Constitution, that is Moh. Mahfud MD, as Chairperson of the group
Member, Achmad Sodiki, Muhammad Alim,
