HABEAS CORPUS IN CRIMINAL PROCESS PRETRIAL REVIEW in
HABEAS CORPUS IN CRIMINAL PROCESS PRE-TRIAL REVIEW in Indonesia CP Code
Today’s Goal Definition and Scope Competency Procedure Legal Remedies
FOUNDATION: Equality of Arms “In the ICCPR the right to "equality of arms" is enshrined. This right consists of four fundamental fair trial principles: (i) all parties, including the defendant, must have an equal opportunity to present evidence and arguments before the court; (ii) no party to the proceedings should benefit from a substantial advantage over the other;
Equality of Arms (iii) all persons must have access to fair and effective judicial remedies; (iv) everyone is entitled to a defense counsel of his own choosing (if he can pay), and even if he cannot pay, the defendant has the right to experienced, competent and effective defense counsel. ”
DEFINITION: PRE TRIAL REVIEW ART. 1 PARA 10 JO. 77 PRA PERADILAN = PRE TRIAL? - PRE TRIAL (PLEAD BARGAINING) DIFFERENT TERM WITH PRAPERADILAN IN KUHAP (PRE TRIAL = NON SELF INCRIMINATION) - WHAT IS NON SELF INCRIMINATION? UNLESS: COURT ORDER OR VOLUNTARY SEE: MIRANDA RULES PRAPERADILAN? ADMINISTRATIF JUSTICE LAWFUL AND UNLAWFUL LEGAL AND ILLEGAL
Model Pre Trial: Common Law: A meeting of the prosecutor and the defense attorney held before the court prior to the commencement of actual courtroom proceedings. Habeas Corpus: = Pra peradilan. Protection for citizens from the authority of the states to conduct legal enforcement (coercive Measure = upaya paksa). Rechter Comissaris (Hakim Komisaris): Investigative judges, to do examination whether a coercive measure/legal enforcement is necessity or not tobe conducted by Legal Enforcement Officers.
Model PRELIMINARY HEARING: This hearing is conducted to establish probable cause for the arrest (before the judge), open proceedings, prosecutor and defense attend Rules of evidence applied. Testimony may be given at this time, or the defendant has the opportunity of waiving the hearing. If probable cause is found, the case will be reviewed by the County Prosecutor’s Office for presentation to the Grand Jury.
HABEAS CORPUS? NECESSITY = PERLU TIDAKNYA - HABEAS CORPUS (HAVING THE BODY) AT MAGISTRATE COURT - RECHTER COMMISSARIES (NETHERLAND) - JUGE D’INSTRUCTION & JUGE DETENTION ET LIBERTE (PRC) -
SCOPE: SEE ART. 77 AND ART. 95 1. LAWFUL/UNLAWFUL ARREST/DETENTION 2. LAWFUL/UNLAWFUL TERMINATION OF INVESTIGATION/ PROSECUTION 3. COMPENSATION & REHABILITION (INCLUDE SEARCH & SEIZURE)
BROADER SCOPE: SEE ART. 95 RIGHT TO DEMAND COMPENSATION 1. HARM OF BEING ARRESTED, 2. DETAINED, 3. PROSECUTED 4. AND ADJUDICATED 5. OR SUBJECTED TO OTHER ACTS WITHOUT REASON FOUNDED ON LAW/BY MISTAKE
THE PRE-TRIAL COMPETENCY 1. The lawful/unlawful of arrest/detention: Suspect/His Fam/His Attorney 2. The lawful/unlawful of Termination of investigation/prosecution: 3 rd Interest Party/PP/Investigator 3. Compensation/Rehabilitation: Suspect/Third Interest Party
Third Interest Party? Who? Loebby Lukman: VICTIM Presedent: South Jakarta DC : verbal terminology. NGO (LSM): anonim LSM, claim class action = represented groups. This is not citizen law suit= can not be claimed by anybody. Constitutional Court Decision: Public Trust Doctrine. ICW case submitted Pre Trial Claim. 3 rd Interest Party: NGO/LSM with good reputation in special field. i. e. : Walhi, YLKI, ICW.
PRE – TRIAL PROCEDURE Article 78 (2) CP Code: Single Judge Article 82 CP Code: The Day b. Hear All Testimony All testimony Within 7 c. Examination: 7 days Days a. 3 days after the receipt d. Main Case begun, Pre Trial Fail. Main Case – Fail of Pre Trial
Procedure crime quasi = quasi pidana Subject = criminal, procedure: civil 1. Chaired by a Single Judge Art. 78 ayat (2) KUHAP 2. Art. 82: Within 3 days after receipt of the request, the assigned judge shall set the day of trial. Hear the testimony of both the suspect or the petitioner and of the competent official
Pre Trial (HC) Procedure 2. Art. Ps. 82 : Within 7 days at the latest, the judge must have passed his judgment; In the event that a case has already begun to be examined at the district court, whereas the examination of the request of pretrial review has not yet been completed, then said request shall fail; A judgment in pretrial review at the stage of investigation shall not preclude the possibility of another examination of the request for the pretrial review being held at the stage of examination by the public prosecutor, if the new request is submitted therefore.
Pre-Trial Procedure (HB) Registration Judge set the day of trial in 3 days 1 st Trial: Claim Verdict (at the latest in 7 days) Written Summary Response/ Replik/ Duplik Evidence Hearing
Legal Remedies for Pretrial Constitutional Court Decision: No Legal Remedis for Pretrial decision/verdict. First priority in Criminal Procedure Law: Legal Certainty. Type of Legal Remedies in KUHAP/CP Code: 1. Ordinary Legal Remedies: a. Banding (Appeal) and b. Kasasi (Cassation = appeal to the supreme Court). 2. Extraordinary LR: a. Cassation in the interest of law b. Reconsideration of judgment
Legal Remedies 1. Appelate Level lawful/unlawful of Arrest /Detention: NOT ALLOWED lawful/unlawful Termination of Detention/Prosecution: final judgment of the High Court (Final & Binding) 2. Cassation/Appeal to Supreme Court CP Code: Not Stated Practice: Not Consistent
Cassation for Pre Trial In Practice SEMA 1983: Not allowed (Before Hendra Rahardja Case) Hendra Rahardja Case: Polri Cassation to Supreme Court and SC accepted. Baasyir Case: Baasyir’s Attorney Cassation to SC, SC did not accept it Newmont Case: Polri Cassation to SC - Accepted - UU 5/2004 Pasal. 45 A: Limited Reason for Cassation - UU 3 /2009: Supreme Court Act: cassation for Pre Trial decision is not allowed. Head of DC will release a decree about the rejection (final binding).
Extraordinary Legal Remedies 1. Cassation in the Interest of Law -CP Code: Not Stated -Practice: Accepted 2. Reconsideration of Judgment: - CP Code: not stated - Practice: Accepted.
Cassation in the Interest of Law Attorney General to the SC With respect to all judgments which have become final & binding from courts other than the SC May not damage the interest party by Flora for KKI FHUI 12/3/2020
Reconsideration of Judgment Request to the Supreme Court with regard to a final and binding judgment thru the Clerk DC. Exception: judgment of acquittal or dismissal of charges Competent Person: The Convicted Person by Flora for KKI FHUI 12/3/2020
Basis Reason: See Art. 263 (2): a. New Circumtances b. Basis and reason for the judgment declared to have been proven, evidently mutually contradictory. c. If a judgment clearly displays a mistake of judge or obvious error. by Flora for KKI FHUI 12/3/2020
Reconsideration… Procedure: See Art. 265 -267 Art. 268: A Request for Reconsideration shall not postpone or discontinue the execution of the said judgment Shall Not be Limited to a certain Period of time A Request for reconsideration may only be made once. by Flora for KKI FHUI 12/3/2020
Analize! Pretrial Verdict of Budi Gunawan! 1. 2. 3. 4. Explain the scope of examination! Who request for the pretrial review? Explain the judge’s legal consideration! What is the right legal remedy for the verdict of BG?
Pretrial Verdict of BG 1. 2. 3. 4. Scope: KPK is not authorized to examined BG, unlawful decree: BG as a Suspect. Who request for pretrial? Lawyer of BG as a suspect. Verdict: illegality of KPK Decree: BG as suspect, BG = eseleon 2 = not Legal Enforcement Officer = not hte object of KPK. Legal Remedy: Extraordinary Legal remedies.
Sidang Pra peradilan BG Pengadilan Negeri Jaksel
Pre TRIAL
THANK YOU PREPARED FOR MID TERM TEST! NEXT SUBJECT: TYPE OF TRIAL EXAMINATION
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