Key Benefits:
VERDICT Number 69 /PUU-VIII/2010
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] Which examines, prosecuting, and severing the case the constitution on the first and last level, dropping a ruling in a matter of plea
Testing Act No. 8 of 1981 on Criminal Event Law
against the Basic Law of the Republic of Indonesia of Indonesia Year 1945, which
submitted by:
[1.2] Name: Yoseph Ly; Place/Date Born: Semudun (West Kalimantan), 20 January 1940
(70 years);
Religion: Catholic;
Work: Private Unan;
Citizen: Indonesia;
Address: Orchid Charm Block A11 Number 6, North Bekasi;
Telephone Number: 8884928;
Next is called as ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ the description of the applicant; check the evidence from the applicant;
2. SIT-DOWN CASE
[2.1] A draw that the applicant has applied with a letter of application dated October 5, 2010, which is later listed and
registers in the Constitutional Court of the Constitution (subsequently called
The Court) on Tuesday, November 2, 2010 with a case registration
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No. 69 /PUU-VIII/2010, which was corrected and accepted in Kepaniteraan
The court on December 2, 2010, outlined the following:
LEGAL STANDING (LEGAL STANDING) PEMOHON 1. That in accordance with the provisions of Article 51 of the paragraph (1) of the Law No. 24
in 2003 of the Constitutional Court confirming the applicant is
the party assuming the right and/or the context of the conflict is harmed
by The Act is:
a. Individual citizens of Indonesia;
b. the unity of the indigenous law society as long as it is alive and appropriate
with the development of the community and the principle of the Republic of the Republic of the Republic
Indonesia that is set in undang-Undang;
c. the public or private legal entity; or
d. State agencies.
2. That the applicant is a citizen of Indonesia under the provisions
Article 51 of the paragraph (1) of the Court of Justice is entitled to submit
a request to test Article 109 of the paragraph (2) of the Second INVESTIGATOR
Law of the Criminal Event
1981, Additional Gazette of the Republic of Indonesia Number 3209,
subsequently called KUHAP) against Article 28D clause (1) Act
Basic State of the Republic of Indonesia Year 1945 (UUD 1945).
3. Article 28D clause (1) of the 1945 Constitution, "Every person is entitled to
recognition, protection assurance, and fair legal certainty, and
equal treatment before the law".
4. Section 109 of the paragraph (2) of the Second Part KUHAP INVESTIGATOR Legal Event
Criminal, "In case investigators stop the investigation because there is no
enough evidence or the event is not a felony
or the investigation is terminated for the sake of the law", then the investigator tells the matter
it is to the public prosecutor of the suspect or his family.
5. That Article 109 paragraph (2) of KUHAP confirms "In case of the investigator
stop the investigation because there is not enough evidence or event
it is not a criminal or a paucity of inquiry
for the sake of law", then in the decree the investigator must disclose the basis
such termination under the provisions of Article 109 of the paragraph (2) of the KUHAP with
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assured facts and evidence;
That the applicant submitted a plea to the Constitutional Court
testing the matter of Article 109 (2) KUHAP (Investigator) of his unexplained
termination of termination .inquiry to be tested in accordance with Article 28D paragraph
(1) UUD 1945 "Everyone is entitled to the recognition, protection guarantee,
and fair legal certainty, as well as the same treatment in front of
law".
6. That over the legal uncertainty of Article 109 verse (2) KUHAP, The applicant has
disadvantaged of its constitutional rights under Article 28D paragraph (1) of the 1945 Constitution, then
The applicant is entitled to file a test of the section 109 paragraph (2) against the Constitution
1945 as provision of Article 51 of the paragraph (1) Act Number 24 The year
2003 on the Constitutional Court (later called the MK Act).
7. That these tests are expected not to happen again, especially
small communities and who have no legal knowledge, and for the sake of
the authority of the Police Institution in the execution of its duties.
THE SUBJECT OF THE APPLICATION
1. That based on the things that have been put forward in the legal position
and the Constitutional Court's authority such as unraveling above are
is an integral part of the subject of this application.
2. That submission is aimed at the norms contained in
Article 28D of the 1945 Constitution relates to Article 1 of the paragraph (3) of the 1945 Constitution.
3. That Article 1 paragraph (3) of the Constitution of 1945, "The State of Indonesia is the state of the law".
This enforcement means that the law (Rechtstaat) is not a power state
(Machtstaat) whose understanding is a recognition of the principle
The supremacy of law and the constitution, then the principle of separation and
the limitation of power according to the constitutional system set up in the Constitution
1945 is the guarantee of human rights. In the 1945 Constitution there is
a babas and impartial judicial principle that guarantees equality
any citizen within the law, and guarantees justice for any person
against the abuse of authority by the ruling party. In
understand the state of the law that is so in the nature of the law it stands
that is the determinate of everything with the principle of nomocracy (nomocrasy)
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and doctrine "the rule of law, and not of man" in order 'the rule of law'
it is believed that the law has the highest position
(Supremacy of the law of law of law.
law) is an equation in government dam law
(equality before the law).
PETITUM
That based on the items described above the applicant with this
implores the Constitutional Court as a bodyguard and supreme interpreter
the constitution pleads to check, prosecute, and disconnect The applicant's request
whose amuse is as follows:
1. Accept and grant the applicant's request.
2. Stating Article 109 paragraph (2) Act No. 8 of 1981
on the Law of Criminal Events (State Sheet Indonesia Number
76 Years 1981, Additional Gazette of the Republic of Indonesia Number
3209) contradictory to The Constitution of the Republic of the Republic
Indonesia in 1945.
3. Article 109 paragraph (2) Act No. 8 of 1981
on the Law of Criminal Events (State Sheet Indonesia Number
76 Years 1981, Additional Gazette Republic of Indonesia Number
3209) did not have any powers a binding law.
4. Ordering the loading of this verdict in Country News as
should be.
OR
If the Constitutional Court of Justice opts another, please the verdict
that it is fair (ex aequo et bono).
[2.2] A draw that in order to strengthen the controls, the applicant has submitted a letter/writing tool that is assigned a Proof of P-1 to
The evidence of P-2 as follows:
1. Proof P-1: Photocopy of PT.TCP Offer Internusa Number 123 /TCP-
GP/PMS/XII/2005, 27 December 2005;
2. Evidence P-2: Photocopy Of The Temporary Sign from Kas PT. TCP Internusa
for DP payment 20% rent period 1 January 2006 to
with 31 December 2006;
3. Proof P-3: Photocopy Letter Notulen Meeting;
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4. Evidence P-4: Photocopied Police Report Police No. 653 /K/II/2006/SPK Unit I,
dated 21 February 2006;
5. Evidence P-5: Photocopy of the State Secretariat of the Republic of Indonesia Number
B/3401/Setneg/D-5/2009, July 9, 2009;
6. Evidence P-6: Photocopy of Inspector General of Regional Supervision
Metro Jaya Regional Police Number B-5552/VI/2009/Datro,
date 15 June 2009;
7. Evidence P-7: Photocopy of the State Secretariat of the Republic of Indonesia Number
B-4053/Setneg/D-5/08/2009, dated 19 August 2009;
8. Evidence P-8: Photocopy of the Peace Treaty Letter, dated 23 May 2008;
9. Evidence P-9: Photocopy of National Police Commission Number
1668 /IX/2009/Kompolnas, dated 7 September 2009;
10. Proof of p-10: Photocopy of the Termination Letter of the Inquiry STAP/113/V/
2010/Restro Of The Bar, dated 13 April 2010;
11. Proof P-11: Photocopy of the Decree No. STAP/113/V/2010/Restro jak-
Bar, dated 13 April 2010;
12. Evidence P-12: Photocopy of Kabid Call Kabid Propam Polda Metro Jaya Number
SPG/VI/2010, 9 June 2010;
13. Proof P-13: Photocopy Act No. 8 of 1981 on Law
Criminal Event;
14. Evidence P-14: Photocopy of Act No. 8 of 1981
on Criminal Event Law;
[2.3] weighed that to shorten the description in this ruling, everything that happened in the trial was quite appointed in the event news
the trial, which is one unbreakable unity with
this verdict;
3. LEGAL CONSIDERATIONS
[3.1] A draw that the main legal issue of the applicant a quo is to test Article 109 of the paragraph (2) Act Number
8 Year 1981 on the Law of Criminal Events (ROC State Sheet)
Indonesia Number 76 in 1981, Additional Gazette Republik Republik
Indonesia Number 3029, subsequently called KUHAP) against the Act
Basic State of the Republic of Indonesia in 1945 (subsequently called UUD 1945);
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[3.2] A draw that before considering the subject's subject, the Constitutional Court (subsequently called the Court) would first be
consider:
a. The Court's authority to examine, prosecute, and discontinue a quo; and
b. Legal standing (legal standing) applicant;
Constitutional authority
[3.3] weighing that under Article 24C of the paragraph (1) Constitution of 1945 and Article 10 of the paragraph (1) the letter of Law Number 24 of 2003 on the Court
Constitution (State of the Republic of Indonesia 2003 No. 98,
Additional Gazette Republic of Indonesia Number 4316, subsequently called
Law MK) juncto Article 29 paragraph (1) letter a Act No. 48 Year 2009
on the Power of Justice (State Sheet of the Republic of Indonesia of the Year
2009 Number 157, Additional Gazette of the Republic of Indonesia No. 5076),
The court of competent authorities tried on the first and final level which
the verdict was final to test the Act against the Constitution of 1945;
[3.4] weighed that The applicant is to test the constitutionality of the norm Article 109 (2) KUHAP against UUD 1945, by
therefore the Court is authorized to examine, prosecute, and disconnect
a request a quo;
The Occupation Law (Legal Standing) The applicant
[3.5] A draw that by Article 51 of the paragraph (1) of the Act of MK, which may apply for testing of the Act against the Constitution of 1945 is
those who consider the rights and/or its constitutional authority that
provided by the Constitution of 1945 are harmed by the expires an Act, that is:
a. Individual citizens of Indonesia (including groups of people who have shared interests);
b. the unity of the indigenous law society as long as it is alive and in accordance with the development of the society and the principle of the State of the Republic of Indonesia which is set in undang-Undang;
c. the public or private legal entity; or d. state institutions;
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Thus, the applicant in testing the Act against the UUD
1945 must explain and prove first:
a. The name of the supplicant is: "
. no constitutional rights and/or constitutional authority granted
by the Constitution of 1945 resulting from the enactment of the legislation
dimohoned testing;
[3.6] The Court has also been that of the Court since the Putermination of the Court. The Constitutional Court No. 006 /PUU-III/2005, dated 31 May 2005 and the Constitutional Court
Constitution Number 11 /PUU-V/2007, dated 20 September 2007, and the ruling-
subsequent ruling establishing the loss of rights and/or authority of the Court.
constitutionally referred to Article 51 of Article 51 paragraph (1) MK Act must meet
five terms, that is:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. The rights and/or constitutional authority by the applicant are considered
aggrieved by the enactment of the legislation, which the testing is required;
c the constitutional loss must be specific (special) and actual or
At least a potential that according to reasonable reasoning can be confirmed
will occur;
d. (causal verband) link between the intended loss
and the applicable law-move-move;
e. It is possible that with the request of a request then
the constitutional loss as the postured will not or no longer occurs;
[3.7] Draw, the applicant postulate that the applicant ' s constitutional right is guaranteed by Article 28D paragraph (1) of the Constitution of 1945 has been breached with
the enactment of Article 109 of the paragraph (2) KUHAP, for the reasons
That against the case according to which the applicant is a criminal, by
Police Investigators are considered to be the work of the data so
based on Article 109 of the paragraph (2) of KUHAP states, "In
The investigator stopped the investigation because there was not enough evidence or
The event was not a criminal or a inquiry
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terminated by law, then the investigator notified
General prosecutor, suspect or exita ", Police Investigator later
terminated the investigation of the case a quo, based on the Mail Termination
Broadcast Number STAP/113/V/2010/Restro Jak-Bar, dated April 13, 2010;
That the existence of Article 109 of the paragraph (2) a quo by the applicant is deemed to be detrient
its constitutional rights guaranteed in the provisions of Article 28D of the paragraph (1) UUD
1945. Accordingly, the applicant implores the Court of Justice with an amar:
(i) Accepts and grants the applicant; (ii) Declared
Article 109 of the paragraph (2) of the Law No. 8 of 1981 on Law
The Criminal Event (State Sheet) Republic of Indonesia No. 76 in 1981,
Additional Gazette of the Republic of Indonesia Number 3209) contradictory
with the Constitution of the Republic of Indonesia in 1945;
(iii) Declared Article 109 of the paragraph (2) of the Act of Indonesia. No. 8 Year 1981
on the Law of Criminal Events (State Sheet of the Republic of Indonesia Number
76 in 1981, Additional Gazette Republic of Indonesia Number
3209) did not have a binding legal force; (iv) ordered a loading
this verdict in the News of the State as it should be; or If the Assembly
The judge of the Constitutional Court argues another pleas of the equitable ruling-
his fair (ex aequo et bono);
That in support of his dalises the applicant submitted the evidence given
the proof of the P-1 Proof to the Evidence P-13;
[3.8] A draw that from the legal provisions concerning the terms of the legal position ( legal standing) as in section 51 paragraph (1) Act MK junctis
The Court of Justice Number 006 /PUU-III/2005, dated 31 May 2005 and
Putermination Number 11 /PUU-V/2007, dated 20 September 2007 as well as
linked with the legal facts of the applicant, the Court
gives consideration as follows:
[3.8.1] That right The applicant has a constitutional right guaranteed in Article 28D of the paragraph (1) of the 1945 Constitution which states " Everyone is entitled to
recognition, guarantee, protection, and fair legal certainty as well as
equal treatment before the law ". The constitutional rights are harmed
by the enactment of the provisions of Article 109 paragraph (2) KUHAP that states, "In
The investigator stopped the investigation because there was not enough evidence or
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The event was apparently not a criminal or investigation
terminated by law, then the investigator notified the prosecution
general, suspect or exita ";
[3.8.2] That based on the explanation of the applicant and the submitted evidence obtained the facts (i) reporting on Johannes Suriadjaja which according to
The applicant is the act of fraud (Section 378 of the Criminal Code), once it is done
The investigation by the police officer turns out not to be a criminal offense, so under the provisions of Article 109 of the paragraph (2) KUHAP must be terminated
its inquiry; (ii) against the termination of the inquiry a quo, the applicant then undertook the efforts by letter to the Secretariat of State,
Commission National Police; (iii) the question of the applicant is related to
the action of the data in accordance with the P-1 Proof of Offer Letter of PT TCP Internusa Number 123 /TCP-GP/PMS/XII/2005, December 27, 2005; P-2 proof
The receipt of the License It is from Kas PT. TCP Internusa for DP payment 20%
lease period 1 January 2006 to December 31, 2006; Proof P-3 Letter Notulen Meeting; and Proof P-8 of the Peace Treaty Letter, dated 23 May 2008;
[3.8.3] That with Control of the evidence and the facts revealed in the trial, the loss suffered by the applicant is not the loss of the constitutionality incurred by the norm Article 109 of the paragraph (2) KUHAP,
but rather a perdata loss that can be solved by another judicial power agency, i.e. General Justice;
[3.8.4] That the norm Article 109 verse (2) of the Criminal Code is appropriate and constitutional, because if it is abolished it will be removed. Harms the constitutional rights of citizens. The reason, against a case that does not have enough evidence or the event is not a criminal offense, to be cannot be stopped and must wait until the court's ruling.
When, against such cases there is not enough evidence or the event is not a criminal offense. The section applies to all
citizens of Indonesia that if case there is not enough evidence or the event is not a criminal offense then investigators must pause his investigation and inform it to the prosecution
the general, the suspect, or his family;
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[3.9] A draw that based on all legal considerations in the above, the Court argued:
[3.9.1] The constitutional loss of the applicant is not specific (special) and actual or even potential that the reasonable reasoning can be assured
will occur;
[3.9.2] There is no causal link (causal verband) between the intended losses and the enactment of the legislation that the testing is moveable;
Thus, if the court is authorized to examine, prosecute, and
disconnect the a quo, but because the applicant does not apply
legal standing (legal standing) under Section 51 of the paragraph (1) MK Act, then
The applicant's request is declared unacceptable, and the subject is not acceptable. application
does not need to be considered;
4. KONKLUSI
Draw that based on the legal judgment and the facts above,
The court concluded:
[4.1] The court is checking, prosecuting, and severing the plea a quo;
[4.2] The applicant has no legal position (legal standing); [4.3] The application is not considered.
By the basis of the Constitution of the Republic of Indonesia
In 1945 and given Article 56 of the paragraph (1) Act Number 24 Year
2003 on Constitutional Court
2003 Number 98, Additional Gazette Republic of Indonesia Number 4316);
5. AMAR RULING
Prosecuting,
Declaring the applicant is not acceptable.
So it was decided in a Meeting of Judges that
attended by the nine Constitutional Judges that were us, Moh. Mahfud MD. as Chairman
arrested Member, Achmad Sodiki, M. Akil Mochtar, M. Arsyad Sanusi, Hamdan
Zoelva, Muhammad Alim, Maria Farida Indrati, Harjono, and Ahmad Fadlil Sumadi,
respectively as Member on Tuesday Eleven January.
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year two thousand eleven, which is spoken in the Plenary Session of the Constitutional Court
open to the public on Thursday the twenty-month of January of the two
thousand eleven, by the seven Judges of the Constitution i.e. us, Achmad Sodiki as Chairman
arrested Member, M. Akil Mochtar, M. Arsyad Sanusi, Hamdan Zoelva,
Muhammad Alim, Maria Farida Indrati, and Ahmad Fadlil Sumadi, respectively
as Members, with assisted by Cholidin Nasir as a Changing Panitera,
as well as attended by the applicant/His Language, the Government or the represents, as well as
the House of Representatives or the representing.
CHAIRMAN,
ttd.
Achmad Sodiki MEMBERS,
ttd. M. Akil Mochtar
ttd. M. Arsyad Sanusi
ttd. Zoelva Hamdan
ttd. Maria Farida Indrati
ttd. Muhammad Alim
ttd. Ahmad Fadlil Sumadi
PANITERA REPLACEMENT
ttd.
Cholidin Nasir
