Academic journal article Journal of Legal, Ethical and Regulatory Issues

The Competence of Pretrial since the Decision of Constitutional Court No. 21_puu-Xii_2014

Academic journal article Journal of Legal, Ethical and Regulatory Issues

The Competence of Pretrial since the Decision of Constitutional Court No. 21_puu-Xii_2014

Article excerpt

INTRODUCTION

The law is always evolving and changing in accordance with the development of science and society where the law is located, not with the exception of criminal procedure law as stipulated in Law No. 8 of 1981 on the Criminal Procedure Law. One of the focuses of the study in this paper is related to pre-trial authority.

In practice, between competence (competence, bevoegdheid) and authority (authority, gezag) is considered not important to distinguish. Authority is called 'formiel power', the power derived from the Legislative Authority (granted by the Law) or from the Executive/Administrative Powers (Prajudi, 1983). Authority (usually consisting of several competences) is the power of a certain group of people or power over a particular area of government, whereas competence is only about a particular field, for example the competence of the court in examining and disconnecting about the pre-trial.

In principle, between Article 1 point 10 of the Criminal Procedure Code and Article 77 of Criminal Procedure Code there is no difference, only on the construction of normulation only. Nevertheless, in fact that the scope of pre-trial competence is not stagnant.

RESULT AND DISCUSSION

The scope of pre-trial competence since the beginning of the validity of Law no. 8 of 1981 on the Criminal Procedure Code until 1998 which was the beginning of the Reform Order has no progress at all, the scope of pre-trial competence is still in accordance with the provisions of Article 77 of the Criminal Procedure Code, namely whether or not the arrest, the detention, the termination of investigation or termination of prosecution; compensation and/or rehabilitation for a person whose criminal matters are terminated at the level of investigation or prosecution.

The starting point for the development of the scope of pre-trial competence is at the beginning of the petition for judicial review of Article 1 number 14, Article 17 and Article 21 paragraph (1) Law No. 8 of 1981 (Criminal Procedure Code) by the applicant Bachtiar Abdul Fatah on February 17, 2014.

Criminal Procedure Code as a formal law in the criminal justice process in Indonesia has formulated a number of rights of suspects/defendants as a protector against the possibility of human rights violations. Nevertheless, there are still some phrases which require explanation to be fulfilled by lexcerta and lexstricta principles as general principles in criminal law to protect a person from arbitrary of initial police investigator and investigator, especially the phrase "preliminary evidence", "sufficient preliminary evidence" and "sufficient evidence" as stipulated in Article 1 point 14, Article 17 and Article 21 paragraph (1). The provisions of the Criminal Procedure Code do not provide clarification on the limitations of the number of "preliminary evidence" phrases, "sufficient preliminary evidence" and "sufficient evidence". In contrast to Law No. 30 of 2002 on the Corruption Eradication Commission which clearly sets the limit on the number of evidences, namely at least two evidences, as specified in Article 44 paragraph (2) stating, "Sufficient preliminary evidence is considered to exist if it has been found at least 2 (two) evidences,... etc. "The only article that determines the minimum boundary of evidence is in Article 183 of the Criminal Procedure Code stating, "Judges shall not impose a crime on a person except with at least two evidence...etc."; This is underlying Bachtiar Abdul Fatah proposes a material examination to the Constitutional Court.

Then in the decision of the Constitutional Court. 21_PUU-XII_2014 states that besides to those stipulated in Article 77 letter a of the Criminal Procedure Code, the scope of pre-trial competence are examine suspects, searches and seizures. In addition, the decision also provides an interpretation of the phrase "preliminary evidence" (as defined in Article 1 number 14 of the Criminal Procedure Code) "Sufficient preliminary evidence" (as stipulated in Article 17 of the Criminal Procedure Code) and "sufficient evidence" (as stipulated in Article 21 paragraph (1) of the Criminal Procedure Code) is at least two proofs contained in Article 184 of Law No. …

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