11

and this s a free distrauher, indeed in

in this free verdict never mentioned this pure free or unfree

pure. But what is known in the KUHAP is just a free verdict;

Nevertheless, of the analysis of the ruling conducted, including the

Expert do exuination against the free verdict against the case-

the particular case that Not an expert. Name his name, Expert can find

There is a proof process, there is a legal interpretation process and that

causes that verdict to be another one, after the Expert

by using a palm through the science of criminal law, according to the Expert ruling it

should be able to be declared proven. Therefore the free verdict is not

purely this could be derived from its legal interpretation, could be sourced from an assessment

regarding the evidence submitted at the trial and could be sourced from the assessment

regarding the interpretation the application of the law against the evidence submitted at

the trial;

Now how with the legal effort against the free ruling

it is. The expert argued that a pure free ruling that was alabitised to

there was not enough evidence or still lacking evidence or no evidence that

supported towards those elements after being examined in court, according to

The expert does n' t need any more legal efforts anymore. Expert confirms that against

pure free verdict which is indeed in fact he is not enough or still

less proof, nor is there any evidence supporting the fulfillment of the elements

18

it is, this is an expert call for a pure free verdict, then Expert argues

that there is no need for any more legal efforts and it should be accepted that it is

not as a criminal offense because there is no evidence to support it;

Then is the verdict is not pure free. There is a need for legal efforts

casings test about three things:

1. Legal intelligence;

2. The assessment of the evidence submitted at the trial;

3. Assessment of the application's application intelligence to the evidence submitted

in the trial;

According to the Expert that the free verdict is not purely a dispute,

or the difference, or a difference of intelligence, occurring Assessment difference

proof, application, or dispute, or difference regarding application

the law against the evidence submitted in court is reasonable and feasible if

such difference must be resolved by the Court Great. And by the cause

that, in the presence of a case against this impure free ruling, so

The court can give you an affair, or an attitude towards the interpetation

that is, attitudes towards the assessment of the evidence. such and the attitude towards

the application of the law against the evidence evidence in that court;

In giving an interest of the Expert citing Article 253 of the paragraph (1)

KUHAP. The general examination is held in verse (1),

" The examination of the cassation level was conducted by the Supreme Court of the Supreme Court

the requests for the parties as referred to Section 244 and Section 249

to determine ..., in relation to this Section 244 of course other than

free verdict;

a. Is it true that a rule of law is not applied or applied not

as it is?

b. Is it true that the way to trial is not implemented by the law-

invite?

c. Is it true that the court has surpassed the limit of its authority?

According to the Expert if viewing the substance of Section 253 of the paragraph (1) of the KUHAP

, then the free ruling material is not as pure as described

previously was meeting the Supreme Court's cascative examination

19

as article 253 of the paragraph (1) of the KUHAP as it has

Expert is deposited;

The conclusion in this context is the unpure free verdict

is to meet the qualification as set within or specified in

Section 253 paragraph (1) of the Criminal Code and therefore is reasonable, and feasible, and

should the free verdict be not purely checked in the Supreme Court;

Whose terms are the who will do the laws of the cassation?

Against the free verdict of course the first one is the accused who is distrauted

free. For reasons of legal and justice certainty, although this is rare,

could be sometime later because he wants legal certainty that he wants

to solve the problems faced in this world to be completed in court.

until the Supreme Court justice. A pious defendant in

the rule of law and he believes in his Lord, then he will seek

the legal certainty in the world. In order to be later in the afterlife he should not be

accounted for, then the possibility of a later date is

The free-distrauted defendant will file a cassation;

Next is the Public Prosecutor, what is the reason? According to the Expert

is a Public Prosecutor could submit a cassation in this context with

the reason "for the sake of legal certainty and justice." Further is representing

the aspiration of the victims of the crime in this regard, in the theory of fictionology that

relates to aspiration as a victim of this crime, symbolically the law

represented by the state and the state has designate his organization in

the court context is by the Attorney General;

If it is in a judicial process, it turns out free,

and free it turns out to be free is not pure, then it is already should be the victim

the crime most suffered the loss caused by such a crime,

could gain access to the Court. But KUHAP until now has not

set it up is reasonable if the Attorney General represents the victims ' aspirations

the crimes in this criminal matter could file a legal effort, namely the attempt

the law in the form of a cassation against the ruling free is not pure;

Then who represents the aspirations of the general interest in which the crime-

certain crimes are in fact no immediate victim, direct victim. By

20

because of that, the Public Prosecutor in this case could represent interest aspirations

in general to apply for a cassation against the free verdict;

Now what is roughly the factor that is behind the occurrence of a

ruling that led to the ruling was not pure. Against the verdict

unpure free there are some possibilities occurring based on the analysis

in practice;

1. It may be sourced from the Attorney General's side, first possible

the prosecutor's instatement in submitting evidence, or making a letter

indictment, or registor;

2. It is possible that the Prosecutor's rejuvenation may not include any specific evidence,

or interpreting the law, or the evidence and application of the law against evidence

in the severing of the law. So there is a possibility of an still lacking;

Next there is the possibility of evidence it is indeed nothing or a no-

not against those elements there is no evidence that could convince the Judge

or the proof that it is legitimate and convincing the judge, the result is that the ruling is to be

free is not pure. Whereas in a free ruling that is not pure, often

occurs formally, the ruling contains the defendant's release from the indictment but

reviewed from its quality to impure due to difference

interpretation the law. So formally she iheck,

then in the Netherlands Netherlands-forming Wetboek van Strafvordering has

provided an explanation for that the free ruling can be felt as

a right the defendant has obtained, then is not to be disturbed.

3. That the reason that has found the formation of the Wetboek van Strafvordering

33

regarding the formation of Article 430 Wetboek Van Strafvordering in

the memory of its explanation, the formation of Article 430 Wetboek van Strafvordering

that is about what is why people cannot submit a request

the cassation examination of the free verdict turns out to be different for the reason

about not being able to be submitted for the examination request for

free verdict, as set in Section 409. Code d' Instrument

Criminelle which only applies to certain types of criminal acts that

his justice was submitted to a jury in itself authorized to

united the free verdict for the culprit, then against a free verdict that

was dropped by a jury of it no one can submit an examination request

cassation to Court de cassation, i.e. courts of cassation or the Court

The Great of France.

4. That is precisely by the provision of Article 244 of the Penal Code, which

its implementation is poured in the Decree of the Minister of Justice Number M. 14-

PW.07.03 Year 1983 on Additional Implementation Guidelines of the KUHAP,

may instead provide The guarantee of protection and legal certainty,

because if there is a wrong ruling can still make an effort

the laws of the cassation. As in the Supreme Court ruling of 15 December

1983 Register Number 275K/Pid/1983, against a free ruling that was dropped

The Central Jakarta District Court, February 10, 1982 Number 33/1981

was the release of no Pure. The free ruling that dropped it

contains an incorrect interpretation of the notion of " against the law '.

The Supreme Court argued it is not appropriate if the appellate against the law

is only connected with Policy The crediting of directors, due to Policy Percreditan

is the discretion of directors who do not violate the rules that there is sanctions

the pidananya. Whereas in accordance with an already developed opinion

the science of law, it should be measured by the principles of unwritten law,

and the principles that are common according to the patterness of society.

According to the In society, especially in criminal corruption,

If a civil servant receives an excessive facility and

another benefit from another person with the intention of the civil servant

use the The power is distorted, it is already

34

"acts against the law", and according to the wrineness of the deed

is a despicable act or deed that can ruffle the sense

the justice of the public is much. In other words there is a difference

opinion between the Central Jakarta District Court with the opinion of the Court

the Great in interpreting the meaning against the law.

IV. Conclusion Based on the above explanation, the Government pleads to His Majesty

The Chairman/Assembly of the Constitutional Court of Constitutional Court examining, severing, and

prosecutable the testing of the KUHAP against the Basic Law

1945, can provide a ruling as follows:

1. Stating that the applicant does not have a legal standing (legal standing);

2. Rejecting the applicant ' s testing for the whole or

at least stated the request for the applicant to not

be accepted (niet onvankelijkvet-Ward);

3. Received overall Government information;

4. Stating that the provisions of Article 244 of the Penal Code do not conflict with

the provisions of Article 1 of paragraph (3), Article 24 of the paragraph (1), Article 27 paragraph (1), Article 28D

paragraph (1), Article 28H of paragraph (2), Article 28I paragraph (1) of the Constitution of 1945.

However, if the Constitutional Court of Justice of the Constitutional Court argues

another, please a wise and adiediary verdict (ex aequo et bono).

[2.4] A draw that the DPR delivered a written caption is dated

18 May 2010 which was accepted by the Court of Justice on 7 June 2010

that is at its office as follows:

A. The Provisions Of The Article In Law Number 8 Of The Year 1981 On The Laws Of Criminal Events Which Were Honed For Testing Against The Constitution Of 1945. The petitioners in the a quo application apply for testing

over Section 244 of the Act No. 8 of the Year of 1981 on the Law of the Event

Criminal, which reads:

35

" Against the ruling of the criminal case given at the last level by

Another court other than the Supreme Court, the Defendant or the General Prosecuting

may submit a request The case checks for the Supreme Court

except for the Free Termination. "

Terms of Section 244Act a quo, according to the applicant potentially detriments

the rights of its constitutional and considered conflicting with Article 1 of paragraph (3),

Article 27 paragraph (1), Section 28D paragraph (1), Article 28H paragraph (2), Article 28I paragraph (2)

UUD 1945.

B. Rights and/or Constitutional Authority Considered the Applicants Were Harmed By The Enactment Of Law Number 8 Of 1981 On the Book of Criminal Event Law The applicant in the plea a quo, posited that the right

The constitutionality guaranteed in Section 1 paragraph (3), Article 27 paragraph (1), Article

28D paragraph (1), Article 28H paragraph (2), Article 28I paragraph (2) of the Constitution of 1945 has

harmed and violated by the enactment of Article 244 of Law No. 8

In 1981 on Criminal Event Law (for further abbreviated

KUHAP) against the Constitution of 1945, i.e. at the bottom of the following:

1. That according to the Applicants Section 244 of the Criminal Code that

restricts the filing of the cassation is not allowed against the free ruling

has harmed the constitutional right of the applicant as an advocate

representing the seekers of justice either as a suspect/

convict or represent and accompanying it as the party of the por or

witness the victim who in the proceedings is represented by the Prosecutor

General. (vide Plea a quo page 5).

2. That the applicant assumes the norm in Article 244 of KUHAP

is the norm that has no clarity, precision and consistency

in the process of legal certainty. (vide Plea a quo page 9).

3. That the applicant also assumes the norm in Article 244 of the KUHAP

does not provide the treatment to obtain the opportunity and benefit

equal agreement between the public prosecutor or the defendant to submit

cassation. (vide Plea a quo page 12).

36

4. That according to the noram Applicants contained in Section 244

KUHAP provides discriminatory treatment between the public prosecutor

or the defendant to apply for a cassation. (vide Plea a quo

page 12).

5. That in the a quo request The petitioners propose that

based on Justice Minister's Decision Number M. 14-PW.07.03 Year

1983 on Additional Implementation Guidelines of KUHAP, prosecutors may

apply for cassation with reason for the sake of law, truth, and justice

against the free verdict. In practice there is a case of filing

cassation against a free ruling filed by the Public Prosecutor.

(vide Plea a quo page 10);

6. The applicant considers the norm in Article 244 of the KUHAP

along regarding the phrase "except for the free ruling"

unconstitutional and has no binding legal force with

all due to its law. (vide Plea a quo thing. 13);

7. That therefore, according to the Applicant Norm in Section 244

KUHAP contrary to Article 1 of the paragraph (3), Article 27 paragraph (1), Article 28D

paragraph (1), Article 28H paragraph (2), Article 28I paragraph (2) of the 1945 Constitution

guarantees a the protection and certainty of fair law and

equal treatment before the law for all persons without anyone

excluded or indiscriminatory in the frame of the Indonesian state of law.

The contents of the provisions are the following:

Article 1 paragraph (3) UUD 1945: "The State of Indonesia is the State of the Law."

Article 27 paragraph (1) of the Constitution of 1945: "Any citizen at the same time in the law and

the government and shall uphold the law and government with no

there is no exception."

Article 28D paragraph (1) of the Constitution of 1945: "Everyone is entitled to the recognition, assurance, protection, and

fair legal certainty as well as the same treatment before the law."

37

Article 28H paragraph (2) UUD 1945:

" Everyone deserves a special ease and treatment for

acquires the same opportunity and benefits to achieve

equation and justice. "

Article 28I paragraph (2) of the 1945 Constitution: " Everyone is entitled to be free from the discriminatory treatment of

any basis and entitled to obtain protection against the treatment of

that is discriminatory to it. "

C. Speaker of the House Against the Applicant ' s control as described in the plea

a quo on this occasion the DPR in the delivery of his views

first elaborates on the legal position (legal standing) can

be described as follows:

1. Legal standing (Legal Standing) The applicant Qualifying to be fulfilled by the Applicant as a Party has

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

The Constitutional Court (next The Constitutional Court Act),

which states that " The petitioners are the ones who presume

the rights and/or its constitutional authority are harmed by the prevailing

legislation, that is:

a. Individual citizen of Indonesia;

b. the unity of indigenous law society as long as it is alive and appropriate

with the development of the community and the principle of the State of Unity

The Republic of Indonesia is set in undra;

c. public legal entity 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 set forth in its explanation, that "the right

constitutional" is rights set in the Basic Law of 1945. " Conditions The explanation of Article 51 of the paragraph (1) is affirm, that only rights

38

that is explicitly set in a 1945 Constitution alone which includes "rights

constitutional".

Therefore, according to the Constitutional Court Act, so that a person or one

party can accepted as the applicant who has a legal position

(legal standing) in the Act of testing against the Constitution

In 1945, then first must explain and prove it:

a. Qualify as the applicant in the a quo 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 deemed to have been harmed by the enactment

Undang-Undang;

Regarding the parameters of constitutional losses, the Constitutional Court has been

gives you the definition and limitations on constitutional loss that

arising out of the enactment of an Act must meet 5 (five)

terms (vide Verdict Case Number 006 /PUU-III/2005 and Perkara Number

011 /PUU-V/2007) is the following:

a. the constitutional right of the applicant given by the UUD of the Year

1945;

b. that the constitutional right of the applicant is considered by Para

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

c. that the constitutional loss of the intended applicant is

specific (special) and actual or at least a potential that

according to reasonable reasoning can be certain to occur;

d. Due to (causal verband) between the loss and

the enactment of the test-moveed Act;

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

the constitutional loss postured will not or no longer occur.

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

testing The a quo Act, then the petitioners have no qualifications

legal standing (legal standing) as the applicant party.

Responded to the applicant a quo, DPR views as

following:

39

1. That in the application of a quo the applicant as a person of citizens

the Advocate-professed Indonesian state does not have legal interests

directly to the norm contained in Article 244

KUHAP, because the real parties are in legal interest

directly according to Section 244 of the Criminal Code is the defendant or the public prosecutor

who can submit the case, so the DPR views that the

The applicant is not based on the parties in the application of the Invite-

Invite against the UUD of 1945;

2. That the UUD section of 1945 made the stone a test of a

quo and considered to be the constitutional right of the applicant as

dalil in the plea a quo is not appropriate and there is absolutely no one.

related to the constitutional right of the Applicant as Advocate, by

because as it has been suggested at the number 1, that the

The profession of the profession has no legal interest

directly related to Article 244 norms of the a quoAct.

Therefore, it is clear that there is absolutely no loss

in actual constitutionality and concrete experienced directly by case file;

43

[2.6] weighed that in order to shorten this description of something

that occurred at the trial was reasonably appointed in the News Event News and

is one unitary one Apart with this disconnect;

3. LEGAL CONSIDERATIONS

[3.1] Draw that the intent and purpose of the applicant ' s plea

is to test the constitutionality of the phrase "except against the free verdict" of

Article 244 of the Law No. 8 Year 1981 on Law Criminal Event

(sheet of state of the Republic of Indonesia 1981 No. 76, additional

sheet of state of the Republic of Indonesia No. 3209, subsequently called UU

8/1981), in which he further stated, " There is a verdict of a criminal case which is not a matter of the same.

given at the last level by another court other than the Court

Great, Defendant or General Prosecuting may submit a request

Cassation checks to the Supreme Court except against the verdict

free".

The Frasa, according to the The applicant, contrary to the provisions-

the constitutional provisions in the provisions of the State Basic Act

The Republic of Indonesia of 1945 (subsequently called UUD 1945), as follows:

Article 1 of the paragraph (3): " "Indonesia is a state of the law".

Article 27 paragraph (1):

"All citizens simultaneously in the law and

governments and shall uphold the law and government with no

there is no exception".