By :
DR. EKO WIYONO, SH, MHum
(Senior Advisor at LEGIS PRIORI Jakarta Law Office)
The Indonesian state as a state based on law (rechtstaat) and not as a state based on power (machtstaat), places the supremacy of law in national and state life in accordance with its development as a developing country that aspires to become a developed country. The term rule of law is a translation of the term “rechtstaat” which in other terms is known in legal life in Indonesia as the term “the rule of law” which is more widely known and widely used today.
The two terms, namely “rechtstaat” and “the rule of law” originate from different legal system backgrounds, namely the term “rechtstaat” is a thought that emerged to oppose revolutionary absolutism and is based on the Continental legal system called civil law. system. On the other hand, “the rule of law” was born from ideas and developed evolutionarily based on the common law legal system. Although the differences between the two in their development are now less of a problem because both are in principle aimed at the same target, namely the protection of Human Rights (HAM).
The differences in background, understanding and legal system between rechtstaat” and “the rule of law” cannot be denied, however, the presence of the term “rule of law” in Indonesia has been accepted in the Explanation of the Constitution of the Unitary State of the Republic of Indonesia as ” “State based on law”, which is intended for the purpose that in an Indonesian legal state the principle of legality, the principle of division of power, and the principle of independent judicial power can be implemented so that government control can be created. The rule of law state is not tyrannical with arbitrariness and abuse of power. The state in the life of a legal state.
Quoting the opinion of A.V. Dicey, explained that there are 3 (three) important characteristics in every legal state mentioned in the term “the rule of law”, namely:
- Supremacy of law;
- Equality before the law;
- Due process of law:
Of the three important characteristics of the rule of law, one of them is the existence of equal treatment before the law for all parties, so that when there are disputes or disputes between the State and members of its society which are in the field of criminal law or the field of administrative law or disputes occur between fellow members of society in civil law fields or private law fields whose resolution has been handed over to the Court, then the parties in dispute or conflict are given the same opportunity to determine their attitude whether to accept the results of the resolution of the dispute or dispute that has been carried out by the Court institution through a judicial process based on the Due Process of law, or on the contrary to state that they do not accept and object to the Court’s decision. which he felt did not give him a sense of justice.
Referring to the theory of Justice put forward by John Rawl, an American philosopher in the 20th century with a concept of thought known as “A Theory of Justice, Political Liberalism and The Law People”, the substance of which was to develop ideas about the principles of justice with a concept he created known as The term “original position” means the existence of the same and equal situation between individuals in society, so that there is no difference in status, position or having a higher position between one another, so that between one party and another in a balanced position that relies on reflective equilibrium which leads to equal treatment before the law.
A reflection of equal treatment before the law is the granting of equal rights to parties regarding court decisions as an effort to provide a sense of justice for society in a juridical context. Therefore, objections to the Court’s decision as a result of the judicial process carried out based on the provisions that regulate it are a form of legal action that can be carried out by parties who feel they do not accept or object to the court decision in question.
The definition of legal action in the context of criminal law can be seen in article 1 point 12 of Law Number. 8 of 1981 concerning Criminal Procedure Law (KUHAP), that: “Legal remedy is the right of the Defendant or Public Prosecutor not to accept a court decision in the form of a challenge, or appeal or cassation, or the right of the convict to submit a request for review in the case and in the manner prescribed regulated in this law.”
Article 67 of the Criminal Procedure Code regulates that legal action in criminal cases can be submitted by both the Public Prosecutor and the Defendant, namely: “The Defendant or Public Prosecutor has the right to request an appeal against the decision of the court of first instance except for a decision of acquittal, free from all legal demands, which involves a lack of precise application of law and court decisions in quick proceedings. This means that for court decisions other than acquittal (vrijspraak) and release from all legal demands (onslagh van alle rehctsvervolging) an appeal can be sought to the High Court as an appellate level court.
Article 196 paragraph (3) of the Criminal Procedure Code letter “d” stipulates that: Immediately after the sentence is pronounced, the presiding judge at the trial is obliged to inform the defendant of all his rights, namely: the right to have his case examined at the appeal level within the time limit determined by law. -this law, in the event that he rejects the decision. Furthermore, regarding the time limit for filing the right to submit a request for an appeal hearing, it is determined by Article 233 paragraph (2) of the Criminal Procedure Code that the appeal request as intended above may be received by the clerk of the district court within 7 (seven) days after the decision is rendered or after the decision is notified to defendant who was not present.
Observing the norms governing the time limit for filing legal appeals in criminal cases, it is determined that legal appeals against court decisions must be given rights and must be submitted within a time limit of 7 (seven) days with the calculation being 7 (seven) days calculated from the time the decision was handed down by Court at the time of trial with the Defendant present before the trial, or calculated 7 (seven) days after the Court’s decision is notified to the Defendant if he is not present at the trial when the Court’s decision is handed down. What is very important to pay attention to so that there are no errors in understanding the 7 (seven) day grace period is that the time for filing an appeal against the Court’s decision in a criminal case is NOT calculated as 7 (seven) days from the time the decision handed down by the Court is received. based on the Relaas Notification of the Court Decision which was delivered and received by the Defendant, but since the Court Decision was notified.
Meanwhile, the calculation of the 7 (seven) day grace period as referred to above, whether 7 (seven) days after the Court’s decision is handed down or 7 (seven) days after the Court’s decision is notified if the Defendant is not present before the court at the time the Court’s decision is handed down, is calculated from “the day next”, as determined by article 228 of the Criminal Procedure Code, namely: “The period or grace period according to this law begins to be calculated on the following day.” The same applies to the method of calculating the time limit so that there is no misunderstanding that the method of calculating the time period is calculated “from the next day” from the time the decision is handed down by the Court or “from the next day” since the court decision was notified. So the method for calculating the 7 (seven) day grace period intended by law is 7 (seven) days calculated from the next day and NOT calculated from the day the decision is handed down or the decision is notified. Therefore, the day on which the Court’s decision is handed down or notified is not counted as or included in the 7 (seven) day grace period for filing a legal appeal against the court’s decision in a criminal case.
Still in the context of criminal cases, there is also the legal remedy for cassation as intended by article 245 paragraph (1) of the Criminal Procedure Code, namely: “The petition for cassation is submitted by the applicant to the court clerk who has decided the case at the first instance, within 14 (fourteen) days after the decision. the court to which the cassation is requested is notified to the defendant “. This means that the right to submit a cassation legal action to the Supreme Court as the Judiciary Judiciary is given the right within a period of 14 (fourteen) days and the time period referred to is 14 (fourteen) days calculated from the time the Court’s decision for which the cassation is requested is notified to the Defendant.
Similar to the filing of the appeal legal remedy mentioned above, the filing of a cassation legal remedy against the Court’s decision in the context of a criminal case is also calculated to be submitted within a grace period of 14 (fourteen) days from the time the Court’s decision is notified and is NOT counted within the grace period of 14 (four) days. fifteen) days after the decision in question is received with Rellas having received Notification of the Court’s decision for which the Cassation is requested. This also often gives rise to misunderstandings so that cassation requests for court decisions in criminal cases are often submitted too late.
Likewise, the method for calculating the 14 (fourteen) day grace period for requests for cassation against the Court’s decision in this criminal case is also calculated by calculating “from the next day” the Court’s decision is notified, and NOT calculated on the same day of notification. The Court’s decision was notified BUT from the “next day”. Meanwhile, according to the provisions of article 248 paragraph (1) of the Criminal Procedure Code, the applicant for cassation is obliged to submit a cassation memo containing the reasons for his cassation request and within 14 (fourteen) days after submitting the request, he must submit it to the court clerk for which he provides a letter of receipt. , then the submission of the mandatory cassation memo must also be submitted within a period of 14 (fourteen) days from the “next day” the cassation application is submitted.
Still in the context of criminal cases, for extraordinary legal remedies, whether in the form of Judicial Review, whether submitted by the Convict or by his heirs, as determined by article 263 paragraph (1) of the Criminal Procedure Code, then the time limit for submitting such legal action is based on the provisions of article 264 paragraph (3) of the Criminal Procedure Code, the application for legal action in question is not limited by a time period. This means that filing for extraordinary legal action in the form of Judicial Review in criminal cases is not limited by the filing deadline so there is no way to calculate the filing deadline.
Meanwhile, in the context of civil cases, it can be divided into 2 (two) classifications of legal remedies, namely ordinary legal remedies and extraordinary legal remedies, where ordinary legal remedies consist of: resistance (verzet), appeal and cassation. Meanwhile, extraordinary legal remedies consist of judicial review and third party opposition (derden verzet).
Legal action against (verzet) is a legal effort submitted against a Court decision that was handed down without the presence of the Defendant, as stipulated in article 129 HIR and Verzet’s legal action in a civil case can be submitted within a period of 14 (fourteen) days after the decision. The Vertek from the Court is notified or delivered to the Defendant in connection with the Defendant not being present at the trial when the decision was handed down. One thing that is quite important to note is that the calculation of the 14 (fourteen) days referred to includes holidays and the calculation method is that the 14 (fourteen) days are calculated from the time the verstek decision is notified or conveyed to the defendant who is not present. so it is NOT counted from the RECEIPT of notification of the contents of the Court’s decision which was notified to him based on the Relaas Notification from the court because the person concerned was not present at the hearing when the decision was handed down. Regarding the method for calculating the 14 (fourteen) day grace period for filing legal action, which often causes debate between whether it is calculated from the time the decision is notified or from the time the Court decision is received by the defendant who is not present based on the Relaas Notification of the Court decision which is delivered and received.
Ordinary legal remedies in the form of appeals in civil cases are a form of legal remedy provided for parties who are dissatisfied with the decision of the District Court as the court of first instance. The legal basis for filing an appeal is regulated in Law no. 4 of 2004 concerning Judicial Power and Law Number 20 of 1947 concerning Repeat Trials. According to the provisions of article 7 and article 9 of Law no. 20 of 1947 and article 21 of Law no. 4 of 2004, an appeal against a first instance court decision can be submitted within a period of 14 (fourteen) days from the time the court decision was handed down when the parties were present at the court hearing, or from when the court decision in question was notified to the party who was not present (not because verstek where the party was not present from the start, but was not present only when the decision was read out) by means of a Court Notification Release. Once again, the calculation method is also calculated 14 (fourteen) days after the decision is notified and NOT from the time it is received by the party who is not present based on the Relaas Notification of the Court’s decision that he received. Meanwhile, the calculation is also calculated 14 (fourteen) days from the “next day”, as determined by article 129 HIR / article 153 Rbg.
For cassation legal action in civil cases according to articles 29 and 30 of Law Number 14 of 1985 in conjunction with Law Number 5 of 2004 concerning the Supreme Court, this is an effort to annul the decision or determination of the Court from all judicial environments in the final judicial level and the proposed decision. Cassation is a decision at the appeal level or a court decision that is specifically regulated and determined in certain cases regulated by law, for example a court decision or decision in a dispute according to the Limited Liability Company law or an ex parte court decision. The reasons that can be used as a basis for cassation legal action in civil cases are specified in article 30 of Law Number 14 of 1985 in conjunction with Law Number 5 of 2004 concerning the Supreme Court, namely: 1. The court has exceeded the limits of its authority (not authorized either absolute or relative authority) in examining cases, 2. The court has made a mistake in applying the law applicable to the case, 3. The court has failed to fulfill the requirements required by statutory regulations which threatens negligence with the cancellation of the decision in question.
Regarding the time limit for submitting cassation legal remedies in civil cases according to the provisions of article 46 paragraph (1) of Law Number 14 of 1985 in conjunction with Law Number 5 of 2004 concerning the Supreme Court: Applications for cassation in civil cases are submitted in writing or orally through the Registrar The Court of First Instance which has decided the case within a period of 14 (fourteen) days AFTER the intended decision or Court determination has been NOTIFIED to the Petitioner. Observing the provisions regarding the time limit for cassation in civil cases, the calculation of the time to submit a cassation legal action against the Court’s decision in a civil case is 14 (fourteen) days calculated from when the decision or decision of the Court is NOTIFIED and NOT from when the Notification is received. or RECEIVED Notification of the contents of the Court’s decision or determination based on the Relaas Notification of the Court’s decision that he received. Meanwhile, the calculation is also calculated 14 (fourteen) days from the “next day”.
Furthermore, based on the provisions of article 47 paragraph (1) of Law Number 14 of 1985 in conjunction with Law Number 5 of 2004 concerning the Supreme Court, it is also stipulated that in filing a cassation legal action in a civil case, the Petitioner is obliged to also submit a Memorandum of Cassation as The reason that is the basis for filing a legal remedy against the decision or determination of the court, namely within a period of 14 (fourteen) days calculated from the time the request for cassation legal action is submitted. Meanwhile, the calculation is also calculated 14 (fourteen) days from the “next day”.
Still in the context of civil cases, extraordinary legal remedies can be divided into 2 (two), namely Judicial Review and Derden verzet (third party opposition), where extraordinary legal remedies are in the form of Judicial Review according to article 67 of Law Number 14 of 1985 in conjunction with Law -Law Number 5 of 2004 concerning the Supreme Court stipulates that legal action for judicial review can be submitted to the Supreme Court based on the following reasons: a. if the decision is based on a lie or deception by the opposing party which is discovered after the case has been decided which is based on evidence which the criminal judge later declares to be false; b. if after the case has been decided, documents of decisive evidence are found that could not be found at the time the case was examined; c. if something has been granted that was not demanded or more than what was demanded; d. if a part of the claim has not been decided without consideration of the reasons; e. if between the same parties regarding the same issue, on the same basis, a decision at the same level has been given that is contradictory to one another; f. if in a decision there is a judge’s error or a real mistake.
Regarding the deadline for submitting extraordinary legal action in the form of a judicial review in the context of civil cases according to the provisions of article 69 of Law Number 14 of 1985 in conjunction with Law Number 5 of 2004 concerning the Supreme Court, that the deadline for submitting legal action for judicial review is based on the reasons as intended in article 67 is 180 (one hundred and eighty) days, by calculating time:
a. referred to in letter “a” (meaning: if the decision is based on a lie or deception of the opposing party which is discovered after the case has been decided based on evidence which the criminal judge later declares to be false), calculated from the time the lie or deception was KNOWN or from the criminal judge’s decision has permanent legal force (inkracht) AND has been notified to the parties involved in the case;
b. referred to in letter “b” (meaning: if after the case has been decided, documents of evidence of a decisive nature are found which at the time the case was examined could not be found), calculated from the day and date of discovery of the documents of evidence which must be stated under oath and ratified by authorized official;
c. referred to in letters “c, d, f” (meaning: if something has been granted that is not demanded or more than what was demanded; if a part of the claim has not been decided without considering the reasons; if a decision contains a judge’s error or a real mistake), calculated from the time the decision obtains permanent legal force (inkracht) AND has been notified to the parties in the case;
d. referred to in letter “e” (meaning: if between the same parties regarding the same issue, on the same basis, a decision at the same level has been given a decision that is contradictory to one another), calculated from the LAST and conflicting RULING it has permanent legal force (inkracht) AND has been notified to the parties involved in the lawsuit;
Guided by the provisions in the norms of article 69 of Law Number 14 of 1985 in conjunction with Law Number 5 of 2004 concerning the Supreme Court, one thing that really needs to be underlined is the method of calculating the time for legal action for judicial review in civil cases, especially those filed based on reasons. in letters c, d, e and f, are calculated from the time the LATEST decision or VERDICT which is conflicting has permanent legal force (inkracht) AND has been notified to the parties in the case, AND NOT calculated from the time the Court decision is ACCEPTED by the parties in the case based on the Relaas Notification of the decision by the Court, namely the district court as the referring court which forwards the judicial review efforts to the Supreme Court as the judicial judge.
Meanwhile, extraordinary legal remedies in the context of civil cases are in the form of third party opposition (derden verzet), namely legal remedies that occur if a court decision has harmed a third party, then third parties who feel their rights have been harmed can file a legal remedy against the court’s decision. , as specified in article 195 paragraph (6) HIR. Derden verzet is qualified as a form of extraordinary legal action because in principle the court decision only applies to bind the parties involved in the case and does not bind other parties as third parties, so because the court decision in question turns out to be detrimental to other parties as third parties, therefore it is said as an extraordinary legal remedy.
The time period for submitting extraordinary legal action in the form of third party opposition (derden verzet) in the context of civil cases, is not calculated based on the time of day but the time depends on the status of the Court’s decision to which the other party as the third party is submitting the opposition. Derden verzet can be submitted by a third party on the basis of property rights as specified in Book II of the 2007 Edition of the Guidelines for the Implementation of Duties and Administration of the Courts regarding decisions that DO NOT have permanent legal force / BHT (inkracht) even though examination has been completed at all court levels AND has NOT been executed. which means that the time limit for legal action for derden verzet is as long as the court decision in question has NOT been inkracht and the decision which has BHT (inkracht) has NOT been executed. However, if the court decision in question turns out to HAVE been inkracht and the execution HAS BEEN carried out, then the legal action for derden verzet can no longer be submitted, and the legal action that can still be submitted is by filing an ORDINARY CIVIL SUIT.
From the brief description as explained above, in essence it can be concluded that the most urgent thing to pay attention to, both in the context of criminal cases and civil cases, is that legal remedies that can be submitted against a court decision are calculated based on the benchmark SINCE the decision in question was NOTIFIED, so that it is NOT calculated from the time the Court’s decision is ACCEPTED by the Petitioner, where this often becomes a problem and gives rise to problems and sometimes even becomes a matter of debate between parties with interests, including the Petitioner, The Respondent and the Court because there are parties who feel disadvantaged due to differences in understanding in how to calculate the time for legal action against the Court’s decision. Likewise, the method of calculating the time given or determined by law is calculated from the next day and the day on which the court decision is notified is not counted because the calculation method starts from the following day.
Just as a reminder, at the National Working Meeting of the Supreme Court of the Republic of Indonesia in 2012, the method for calculating legal remedies for Court decisions with the classification of criminal fields in the form of cassation legal remedies to the Supreme Court as judicial jurisprudence was determined: “Regarding the 14 (fourteen) day grace period for filing Requests for cassation and submission of cassation memories are based on calendar days and if the deadline falls on a holiday, then it is calculated on the following working day.” So the meaning is that if the time for filing a cassation legal action and submitting the Cassation Memorandum is 14 (fourteen) days and falls on a Saturday or Sunday or a certain holiday, then the 14 (fourteen) day deadline is Monday as the next working day.
That’s just a reminder, hopefully it’s useful. Thank You.
