REVIEW BY THE PROSECUTOR (CONTROVERSY and MULTITAFSIR)

Dr. EKO WIYONO, SH, MHum
(Senior Advisor at Legis Priori Jakarta Law Office)

Judicial Review (PK) as a form of extraordinary legal remedy has become an actual issue in criminal justice practice in Indonesia with the issuance of the new Attorney Law Number: 11 of 2021 which replaced the Prosecutor’s Law Number: 16 of 2004. There have been various interpretations of the norm. Article 30 C letter “h” of Law Number 11 of 2021 concerns the granting of authority to the Public Prosecutor to submit legal remedies for judicial review (PK) in criminal cases.

The history of legal proceedings for judicial review (PK) in the history of criminal justice in Indonesia before the entry into force of the Criminal Procedure Code, the enactment of the Regulation of Straf Vordering (Stb.1847-40) during the Dutch colonial period has indeed shown that there is ambiguity regarding the regulation of legal proceedings for judicial review (PK). where it is only determined that the application for judicial review is submitted to the Supreme Court by the Attorney General or by a convict who has been sentenced to a crime that has permanent legal force through his attorney, meaning that the only parties who can submit a judicial review are the Attorney General and the convicted person or their attorney.

In the context of national law before the entry into force of the Criminal Procedure Code, it stems from Law Number: 19 of 1964 concerning Judicial Powers and Law Number: 13 of 1965 concerning the Supreme Court, which principally regulates legal remedies for Judicial Review (PK) as extraordinary legal remedies with arrangements in general, while more detailed arrangements will be regulated in the Criminal Procedure Code. Furthermore, the Supreme Court Regulation of the Republic of Indonesia (Perma) Number: 1 of 1969 was issued which was then followed by the Regulation of the Supreme Court of the Republic of Indonesia (Perma) Number 1 of 1980 which provides regulations regarding criminal decisions that have permanent legal force (BHT/inkracht van gewijsde) and filed for judicial review (PK) and it was determined that the parties who could apply for judicial review (PK) in the criminal case were the convict and the Attorney General with the addition of interested parties who were also given the right to submit a judicial review. As Article 4 paragraph (1) of Perma Number 1 of 1969: “An application for review of a criminal decision that has obtained legal force must still be made by the convict, interested parties and the Attorney General. Likewise in Article 10 paragraph (1) Perma Number. 1 of 1980 also stipulates regarding parties who can apply for extraordinary legal remedies in the form of judicial review (PK), namely: (1). Attorney General, (2). Convict and (3) interested parties. This means that parties who have an interest in a criminal decision handed down by a court that has legal force are still given the opportunity to submit legal remedies for judicial review (PK).

In the context of legislation seen in Law Number 14 of 1970 in article 21 it has also been mentioned regarding the regulation of judicial review (PK) remedies: Against court decisions that have obtained permanent legal force both civil and criminal, a request for judicial review can be submitted (PK). Meanwhile, parties who can submit legal remedies for judicial review (PK) are interested parties. So that it shows that the norms in the legislation also do not clearly and firmly determine which parties are actually given the right to be able to submit legal remedies for judicial review (PK).

In its development, with the enactment of the Criminal Procedure Code (Law No. 8 of 1981 concerning Criminal Procedure Code) as the Indonesian Criminal Procedure Code which adheres to the principle of akusatoir, namely the Criminal Procedure Code which prioritizes the protection of human rights of suspected perpetrators of criminal acts, it turns out that in Article 263 paragraph (1) it is determined: “Against a court decision that has permanent legal force, except for an acquittal or release from all lawsuits, the convict or his heir may submit a judicial review”. The textual meaning of the norms of Article 263 paragraph (1) of the Criminal Procedure Code relates that parties who can submit legal remedies for judicial review (PK) by law are only given rights to the convict or his heirs, while the Public Prosecutor is not given the right to submit legal remedies for review. Return to acquittal or release from all lawsuits according to the norms of Article 263 paragraph (1) of the Criminal Procedure Code.

This condition has given rise to multiple interpretations in criminal justice practice regarding whether the Public Prosecutor can submit extraordinary legal remedies in the form of judicial review (PK) against court decisions that have permanent legal force (?). On the one hand, it is interpreted that based on the norms of article 263 paragraph (1) of the Criminal Procedure Code which stipulates that the party that can submit a judicial review of a criminal decision is only the convict or his heirs, while the Public Prosecutor is not given the right by law to submit a Judicial Review of court decisions, and even that is limited only to decisions that are not free decisions or free from all lawsuits that have permanent legal force.

On the other hand, it provides an interpretation that based on the norms of article 263 paragraph (2) of the Criminal Procedure Code which stipulates that: Review is filed on the basis of: (1) the existence of a novum, (2) the existence of conflicting decisions, and (3) the existence of an oversight by the Judge, and norms Article 263 paragraph (3) of the Criminal Procedure Code which further stipulates: “On the basis of the same reasons as referred to in paragraph (2) against a court decision that has obtained permanent legal force, a request for judicial review can be submitted if in that decision a decision being charged has been stated proven but not followed by a conviction”. The norm of Article 263 of the Criminal Procedure Code should be more appropriate when it is interpreted as a whole and comprehensive norm and not partially verse by verse so that the meaning is that if there is a reason as specified in paragraph (2) of Article 263 of the Criminal Procedure Code, then based on the reason in the form of a Judge’s oversight in his decision, namely in the form of a a decision stating that the act charged with has been declared proven but by the Judge in the said decision it was not followed by a sentence. So that this gives the impression that it can be interpreted that the Public Prosecutor has an interest in this matter and can submit a review of such a decision.

Regulatory norms regarding whether the Public Prosecutor can submit a Judicial Review (PK) against a court decision that has permanent legal force which has an ambiguous impression in Article 263 of the Criminal Procedure Code has led to multiple interpretations in practice in which the attitude of the Public Prosecutor who submitted a judicial review (PK) shows that there are several decisions that seem controversial, some interpret the Public Prosecutor’s request for judicial review (PK) to be accepted, as is the case, among other things, with the decision in the Muchtar Pakpahan case in case Number: 55 PK/Pid/1996, in the case of Polly carpusBudhariyanto in case Number: 109 PK/Pid/2007 and the decision on the case of Djoko S Tjandra in case Number: 12 PK/Pid.Sus/2009.

Meanwhile, on the other hand, there is also a decision stating that the Public Prosecutor does not accept the judicial review (PK) against a court decision that has permanent legal force based on the reasons based on the norms of Article 263 paragraph (2) and paragraph (3) of the Criminal Procedure Code, namely on the grounds the alleged act has been proven but not followed by a conviction, as is the case with a decision stating that the defendant’s actions have been proven but are not criminal acts so that the defendant is declared acquitted of all lawsuits. However, the court stated that it did not accept the Judicial Review (PK) submitted by the Public Prosecutor as well as the decision Number: 152 PK/Pid/2010 in the Anggodo Wijoyo case and the decision Number: 173 PK/Pid.Sus/2011 in the Ahmad Kudri Moekri case, with ratio decidendi The Public Prosecutor is unable to show the public interest that must be protected through judicial review.

Differences in interpretation of the norms of article 263 of the Criminal Procedure Code regarding whether the Public Prosecutor can submit a review of court decisions in criminal cases have actually ended with the decision of the Constitutional Court of the Republic of Indonesia Number: 33/PUU-XIV/2016 which has granted the request for a material review of the norm of article 263 paragraph (1) of the Criminal Procedure Code filed by Anna Boentaran as the wife of Djoko S Tjandra, where the Constitutional Court has stated that Article 263 paragraph (1) of the Criminal Procedure Code does not have binding legal force as long as it is interpreted differently from the stated norms. In its consideration, according to the Constitutional Court, there are 4 (four) main foundations that may not be violated and interpreted against other than what is expressly stated in the intended article, namely:

1.  Reconsideration can only be submitted to decisions that have permanent legal force;
2. A judicial review may be submitted against a acquittal or free from all lawsuits;
3.  Requests for judicial review can only be filed by convicts or their heirs;
4. Judicial review can only be submitted to a sentencing decision;

So that since then no party has been able to submit a request for judicial review (PK) against a court decision that has permanent legal force in a criminal case, except for the convict or his heirs.

But alas, the situation then flared up again with the birth of the new Prosecutor’s Law Number: 11 of 2021 where in Article 30 C letter “h” states: “In addition to carrying out the duties and powers as intended by the Attorney General’s Office: (h) submits a Judicial Review”. The norms of Article 30 C letter “h” of the new Prosecutor’s Law Number 11 of 2021 have caused controversy in the practice of enforcing Criminal Procedure Law in Indonesia, where the law has provided space for the Public Prosecutor to submit legal remedies for judicial review of the Court’s decision contradicts (norm conflict) with the decision of the Constitutional Court Number: 33 of 2016 which has determined that the Public Prosecutor is not given the right to file a judicial review (PK) and the right to file a judicial review (PK) is only for the convict and his heirs.

The Doctrine of Judicial Review (PK) as an extraordinary legal remedy is known for the existence of 2 (two) types of Judicial Review (PK) doctrines that face each other, namely the Doctrine of Finality and the Doctrine of Fallibility. According to the fallibility doctrine, it supports the existence of judicial review (PK) against court decisions that have permanent legal force or BHT (inkracht van gewijsde) by prioritizing the consideration of fallibility that the judge as the case breaker with the decision handed down based on the underlying evidence is very likely to occur. errors, so that according to this doctrine extraordinary legal remedies in the form of Judicial Review (PK) against the Judge’s decision that has legal force are still considered very important with the aim of making corrections to decisions that contain serious errors (gross error) in final Court decisions. This doctrine provides rights and space for individuals who feel the injustice of the Court’s decision will have the opportunity to actually get a correct and fair decision.

Whereas on the other hand, according to the finality doctrine, which in principle opposes Judicial Review with the argument that the judicial process must have an end and should not be protracted, so that there must be an end according to the principle of lites finitri operated, namely the case settlement process must have legal certainty. According to the doctrine of finality review (PK) is a process of legal action with expensive procedures, takes a long time and tends to be a duplication of the stages of examination that occurred before. A decision that has no end in the end is not respected and obeyed because it is still in the stage of the settlement process which is not final because at any time there is still the possibility of being re-examined through the Judicial Review mechanism (PK), thus making the authority of the court as a case-solving institution or the dispute is interrupted. Besides that, the individual interests of the perpetrators in the process of enforcing the criminal law become no legal certainty because there has been a judicial process before and there has even been a court decision regarding this matter.

In line with the doctrine of fallibility which supports the existence of judicial review (PK) against court decisions that have permanent legal force or BHT (inkracht van gewijsde) by prioritizing the consideration of fallibility that the judge as the case breaker with the decision handed down is based on the underlying evidence. it is possible for errors to occur, so according to this doctrine extraordinary legal remedies are considered very important with the aim of making corrections to decisions containing serious errors (gross errors) in final Court decisions, the norm of article 30 C letter “h” Law Number : 11 of 2021 concerning the new Prosecutor’s Office in the Elucidation of the article states that: Review by the Prosecutor’s Office is a form of the Attorney’s duty and responsibility to represent the state in protecting the interests of justice for victims, including for the state, by placing the Prosecutor’s authority proportionally in the same position a and balanced (equality of arms principle) with the right of the convict or his heirs to submit a review. The review submitted by the auditor is coordinated with the Attorney General’s Office. The prosecutor can conduct a review if in that decision an act that was charged has been proven but not followed by a conviction.

Observing the Elucidation of Article 30 C letter “h” of the new Law on the Prosecutor’s Office textually indicates that the Public Prosecutor may submit a Judicial Review (PK) if in that decision an act that was charged has been proven but not followed by a conviction, meaning that legally Textually it can be interpreted that the Public Prosecutor is given the right to submit a Judicial Review (PK) against the decision stating that the alleged act has been proven but not followed by criminal prosecution so that the decision stating the alleged act has been proven but the Defendant is declared acquitted of all lawsuits (onslaght van alle rechtvervolging) then the Public Prosecutor by law is given the right to submit a Judicial Review (PK).

However, the norm in the Elucidation of Article 30 C letter “h” can also be interpreted that what is given by law to the Public Prosecutor to be able to submit a Judicial Review (PK) is a decision which states that the actions charged against the defendant have been proven to be but the act is not a criminal act, because if the act charged to the defendant has been proven and the act in question is a criminal act, the decision will state that the defendant must be sentenced to a criminal sentence. A different meaning is interpreted if the decision states that the defendant’s actions have been proven but not followed by a sentence, which means that there was an error by the judge in passing the decision as referred to in the norm of Article 263 paragraph (2) of the Criminal Procedure Code. Once again, this norm has also given rise to multiple interpretations in relation to whether the Public Prosecutor can submit a review of the decision, the petitum of which states: Release the defendant from all charges. Whereas explicitly the decision of the Constitutional Court of the Republic of Indonesia Number: 33/PUU-XIV/2016 which is ergaomnes in nature and has binding legal force for all parties has stated that Article 263 paragraph (1) of the Criminal Procedure Code does not have binding legal force as long as it is interpreted differently from the stated norms, meaning that norms What is written in Article 263 of the Criminal Procedure Code must be interpreted as it is according to the textual content of the article and once again cannot be interpreted. So that in the end it creates a controversial conflict as a normative conflict between what is regulated in the Criminal Procedure Code as the Criminal Procedure Code and what is determined in the Prosecutor’s Law which has an equal position.

Therefore, it is very appropriate for someone to think: then what do you want to aim for through article 30 C letter “h” amendment to the Law on the Prosecutor’s Office (?). By looking at the various problems in the practice of judicial review in the practice of criminal justice in Indonesia, it is clear that more fundamental policy changes deserve to be the main objective. Merely regulating the authority of the Public Prosecutor in submitting a Judicial Review (PK) as an extraordinary legal remedy will not mean much for law enforcement practice and vice versa, it has the potential to cause a clash of norms. Therefore the Review System (PK) in Indonesia really needs to be reviewed as a whole and more visionary, based on empirical conditions, developments in procedural law and relevant principles and doctrines.

Agree with Binziad Kadafi’s ideas (Member of the Judicial Commission of the Republic of Indonesia, Lecturer at the Jentera Indonesia Law College): It is necessary to roll out an amendment to the Criminal Procedure Code in the near future and space for the involvement of stakeholders, especially legal experts, must be provided more widely. This is because in the Criminal Procedure Code as Criminal Procedure Law, various pillars of extraordinary judicial review (PK) have been regulated, both regarding formal requirements, material reasons, to procedures and parties who are given the right to legal remedies for judicial review (PK). It is very relevant to think that if the judicial review system (PK) in the Criminal Procedure Code as procedural law is properly designed, a criminal justice system that is based on the principles of lex certa, lex scripta and lex stricta will undoubtedly be created so that legal certainty will be felt more.

Hope it is usefull. Thank you.