scholarly journals PENGUATAN KEWENANGAN PENUNTUT UMUM MELALUI PENGESAMPINGAN PERKARA PIDANA DENGAN ALASAN TERTENTU

LITIGASI ◽  
2020 ◽  
pp. 291-313
Author(s):  
RUDI PRADISETIA SUDIRDJA
Keyword(s):  
Due Process ◽  
Attorney General ◽  
Criminal Policy ◽  
Health Condition ◽  
Public Prosecutor ◽  
Criminal Cases ◽  
Judicial Process ◽  
The Public ◽  
Due Process Of Law ◽  
Justice Process

The implementation of the principle of opportunity is realized through the authority to overrule criminal cases. In Indonesia, this authority only becomes the authority of the Attorney General, and is limited to reasons of public interest. The public prosecutor is not equipped with the authority to set aside the case for certain reasons, such as the quality of crime is low, the suspect is too old / young, the health condition of the suspect, payment of compensation, and so forth. This article intends to question the practice of law enforcement that occurs due to the limited authority given by the law to public prosecutors and the prospect of regulating the authority of public prosecutors in setting aside criminal cases for certain reasons. Limited authority creates a judicial process that is not in line with the principleof due process of law. Small cases remain tried in court. In addition, the limited authority, raises the paradigm that the current criminal policy tends to prioritize the means of punishment to tackle crime. As a result, the occurrence is overcrowded in correctional institutions. Ius Constituendum has accommodated the authority to set aside cases for certain reasons. The regulation is expected to bring changes to create a criminal justice process in accordance with the principle of due process of law. Public prosecutors are expected to be more tolerant in determining attitudes, to prosecute or not sue someone based on human values and justice. The regulation is intended so that the public prosecutor can really be the controller of handling criminal cases as mandated by the universal principle of dominus litis

scholarly journals The Prosecution in Trial In Absentia Of Money Laundering Case Resulted from Conventional Case

2019 ◽  
Vol 06 (02) ◽  
pp. 297-319
Author(s):  
Rudi Sudirdja
Keyword(s):  
Money Laundering ◽  
Criminal Law ◽  
Due Process ◽  
Analytical Description ◽  
Public Prosecutor ◽  
The Public ◽  
Single Form ◽  
Due Process Of Law ◽  
The One ◽  
Principle Of Legality

In Indonesia, the provision of in absentia in the Money Laundering Crime Law raises problems if the crime act is originally conventional crime act. Conventional crime act should be handled based on the provisions of the Indonesian Criminal Law Procedures Code. On the one hand, the Money Laundering Crime Law regulates the provisions of the court in absentia and, on the other hand, the Indonesian Criminal Law Procedures Code does not recognize trial in absentia. This study covers the issue. To be precise, it reveals the possibility of a conventional crime act that is charged with the Money Laundering Crime Law to be tried in absentia based on the principle of formal legality. In addition, it discusses the strategy of prosecution of money laundering crime act in trial in absentia for cases that are originally conventional crime act based on the principle of due process of law. This study used analytical description research specifications and the normative juridical method. The data was collected through a document study. In accordance with the approaches, the data were analyzed in qualitative-juridical manners. This study concludes several points. The first, based on the principle of legality of formal law, the implementation of trial in absentia against general criminal acts cannot be carried out. The second, based on the principle of due process of law, the prosecution strategy in trial in absentia fur such cases are that (1) the prosecution of money laundering crime and original crime must be done separately; (2) the public prosecutor must delay the transfer of original criminal acts to the court until the accused is found and presented; (3) the indictment must be prepared in a single form; (4) the indictment must draw legal facts about the original crime; and (5) the public prosecutor can prove the legal facts about the original crime in the element of ‘assets resulting from the crime’ in the money laundering offense.

scholarly journals The Problematics of the Implementation of the Dominus Litis

2020 ◽  
Vol 3 (4) ◽  
pp. 2986-2993
Author(s):  
Muhammad Yusni
Keyword(s):  
Criminal Justice ◽  
Low Cost ◽  
Criminal Case ◽  
Public Prosecutor ◽  
Slow Process ◽  
Criminal Cases ◽  
Judicial Process ◽  
The Public ◽  
Case Files ◽  
Eligibility Standards

Public prosecutors have the authority to control criminal cases, examine the results of investigators' examinations, or filter case files regarding the completeness of requirements and eligibility standards to be delegated to court. This principle is called dominus litis. Etymologically dominus (Latin), which means owner, litis means case or lawsuit. In this context, the public prosecutor as dominus litis is the owner of a criminal case submitted to the court for trial. The problem of applying the dominus litis principle from the perspective of the prosecutor's office raises many problems, which can hinder a simple, fast, and low cost judicial process. The back and forth of criminal case files between public prosecutors and investigators is not a strange thing in this context, the slow process of criminal justice is protracted, tiring, and even unclear, and creates injustice for justice seekers, and so on.

scholarly journals AKIBAT HUKUM TERHADAP PUTUSAN BEBAS (VRIJSPRAAK) BAGI WARGA NEGARA ASING (Studi Putusan Pengadilan Negeri Denpasar Nomor 748/Pid.Sus/2016/PN DPS)

2018 ◽  
Vol 6 (3) ◽  
pp. 323
Author(s):  
Ida Ayu Nyoman Sri Candra Purnami
Keyword(s):  
Positive Impact ◽  
District Court ◽  
Public Prosecutor ◽  
Judicial Process ◽  
Legal Cases ◽  
The Public ◽  
Criminal Procedure Law ◽  
The Republic ◽  
Legal Immigration ◽  
Legal Consequences

The high flow of globalization and the easiness of obtaining visas for foreign citizens can increase the income of a country engaged in tourism. This phenomenon does not always have a positive impact for the country of Indonesia because many foreigners were found residing in the territory of Indonesia without having a valid and legal immigration stay permit. Many of these foreign citizens were convicted legal cases in Indonesia, it is therefore necessary to study the legal consequences of the free judgment for the foreign citizens. This study was conducted to examine the legal basis for the imposition of free judgment against foreign citizens and the implementation of the Denpasar District Court Decision Number 748/Pid.Sus/2016/PN DPS on the free judgment against a foreign citizen. This study is an empirical juridical study that examines the legal consequences caused after the abolition of free judgment on foreigner (Case study of Denpasar District Court No. 748/ Pid.Sus / 2016 / PN DPS). Based on the result of this study, was found that according to Law Number 8 Year 1981 regarding Criminal Procedure Law and law of the republic of Indonesia Number 6 Year 2011 on Immigration, foreigners who live in the territory of the Republic of Indonesia who do not have a valid and legal immigration stay permit can be given immigration administrative action in the form of detention. Whereas foreign citizens who are secured and still hold immigration stay permit until the completion of the judicial process and  given free judgment, the foreigners may remain in the territory of the Republic of Indonesia until the validity period of their stay permit expires. Meanwhile, for foreign citizens who have been subjected to free judgment and still hold immigration permit, the Public Prosecutor may request the Immigration Civil Service Investigator to perform the act of detention to those foreign citizens. Tingginya arus globalisasi dan kemudahan memperoleh visa bagi warga negara asing dapat meningkatkan pendapatan suatu negara yang bergerak dalam bidang kepariwisataan. Fenomena ini tidak selalu berdampak positif bagi negara Indonesia karena banyak ditemukan orang asing yang berada di wilayah Indonesia tidak memiliki izin tinggal keimigrasian yang sah dan masih berlaku. Banyak  diantara warga negara asing tersebut tersandung kasus hukum di Negara Indonesia, sehingga perlu dikaji akibat hukum yang ditimbulkan atas Putusan Bebas bagi warga negara asing tersebut. Penelitian ini dilakukan untuk mengkaji dasar hukum penjatuhan putusan bebas terhadap warga negara asing dan pelaksanaan Putusan Pengadilan Negeri Denpasar Nomor 748/Pid.Sus/2016/PN DPS atas putusan bebas terhadap seorang warganegara asing. Penelitian ini merupakan penelitian yuridis empiris yang mengkaji akibat hukum yang ditimbulkan setelah dijatuhkannya Putusan Bebas terhadap orang asing (Studi kasus terhadap Pengadilan Negeri Denpasar Nomor 748/Pid.Sus/2016/PN DPS). Berdasarkan hasil penelitian ini ditemukan bahwa menurut Undang-Undang Nomor 8 Tahun 1981 Tentang Hukum Acara Pidana dan Undang-Undang Republik Indonesia Nomor 6 Tahun 2011 Tentang Keimigrasian, orang asing yang tinggal di wilayah Negara Republik Indonesia yang tidak memiliki izin tinggal keimigrasian yang sah dan berlaku dapat dilakukan Tindakan Administratif Keimigrasian berupa pendetensian.  Sedangkan warga negara asing yang saat diamankan dan hingga proses peradilan selesai masih memiliki izin tinggal keimigrasian dan dijatuhi putusan bebas, maka orang asing tersebut dapat tetap tinggal di wilayah Negara Republik Indonesia hingga masa berlaku izin tinggalnya habis. Sementara bagi orang warga negara asing yang telah dijatuhi putusan bebas dan masih memiliki izin tinggal keimigrasian namun oleh Penuntut Umum dilakukan upaya hukum kasasi, Penuntut Umum dapat meminta kepada Penyidik Pegawai Negeri Sipil Keimigrasian untuk melakukan tindakan pendetensian atas warga negara asing tersebut.

Settling Criminal Cases Without a Trial

1997 ◽  
Vol 31 (1-3) ◽  
pp. 223-244
Author(s):  
Bert Swart
Keyword(s):  
European Convention ◽  
Public Prosecutor ◽  
Political Rights ◽  
Criminal Cases ◽  
The Public ◽  
Criminal Sanctions ◽  
Criminal Charge ◽  
A Charge ◽  
Almost All

According to Article 13 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights everyone is entitled to a fair and public hearing by an independent and impartial tribunal in the determination of any criminal charge against him. The essence of both provisions could be rephrased by saying that criminal sanctions may only be imposed on a person by an independent and impartial tribunal and only if that person has been able to defend himself against a charge during a hearing that satisfies all requirements of a fair trial.Realities, of course, are rather different. In almost all national systems of justice there is an increasing tendency to develop procedures that allow for imposing sanctions without the necessity of a criminal trial. Their main purpose is usually to relieve the system of a burden of cases with which it cannot really cope. Basically, there are two strategies to reduce the workload of courts and public prosecutors. The first is to invite the suspect to waive his right to trial in exchange for certain favours. This usually occurs in the form of an agreement between the public prosecutor and the suspect, while quite often the cooperation of the court that would have tried the case is also required. The second solution is to grant sanctioning powers to administrative bodies and to allow individual persons an appeal against their decisions to an independent and impartial tribunal.

scholarly journals Plea bargaining institute in Russia: searching for the due process of law in criminal cases

2021 ◽  
Vol 7 (Extra-A) ◽  
pp. 538-545
Author(s):  
Evgeniy Korchago
Keyword(s):  
World War Ii ◽  
Due Process ◽  
Plea Bargaining ◽  
Economic Feasibility ◽  
Anglo Saxon ◽  
World War ◽  
Criminal Cases ◽  
Current State ◽  
Due Process Of Law ◽  
Modern Era

The article considers the concept of due legal processes, its development and the current state – the institute of plea bargaining. Historical and comparative methods of legal research allowed the author to analyze elements of the above-mentioned concept and its initial consolidation in the Magna Carta of 1215. The author of the article has traced the evolution of the socio-legal institute, its new essence in the Anglo-Saxon and continental law, and the international recognition after World War II in the fundamental UN documents. They have also analyzed the meaning of this concept in the modern era when, for the sake of economic feasibility and efficiency, it is often necessary to refuse due processes and replace them with abridged procedures. As a result, the author has proved that the institute of plea bargaining is an integral part of the current due process.

scholarly journals Presumption of the Effectiveness of Public Property Management as a Factor of Improving the Criminal Policy Regarding the Abuse and Excess of Authority

2019 ◽  
Vol 13 (6) ◽  
pp. 951-961
Author(s):  
Mikhail Borodach
Keyword(s):  
Social Role ◽  
Criminal Policy ◽  
Expert Assessment ◽  
Criminal Prosecution ◽  
Property Management ◽  
Criminal Cases ◽  
The Public ◽  
Managerial Decisions ◽  
Public Property ◽  
The Supreme Court

The article examines ways of improving the practice of criminal law enforcement in the cases of the abuse and excess of authority in public property management. The author proves the insufficiency of the current indicators of criminal punishability when the excess or abuse of authority in the management of public property takes place. It is necessary to include into law (at least within the framework of the guidelines of the Plenary Session of the Supreme Court of the Russian Federation) the presumption of the maximum effectiveness of the selected method of managing the public property. The author attempts to formulate and describe the normative content of the suggested presumption using the thesis of equal effectiveness’ potential for different forms of property. The author also comes to an interim conclusion that this presumption is a specific case of a more general presumption of the effectiveness of a public owner. It is proven that the use of the analyzed presumptions agrees with the solidifying social role of public property, unlike the empirically unsubstantiated thesis of its apparent ineffectiveness. This circumstance excludes the linear approach to the assessment of managerial decisions regarding public property and, thus, shows that the established indicators of criminal punishability of the excess or abuse of authority by officials are insufficient for making well-grounded decisions on the initiation of criminal prosecution in connection with public property management. It is suggested that criminal punishability must be based on the expert assessment of managerial decisions made by officials, of their actions (inaction) in comparison with other possible scenarios within the examined managerial situation, which must be carried out at the stage of initial inquiry. The results of this expert assessment must form the grounds for making decisions regarding the initiation of criminal cases on the excess or abuse of authority against specific officials. Besides, the author also states that there are certain limits to applying this approach and that it is not universal.

OPTIMALISASI ASAS OPORTUNITAS PADA KEWENANGAN JAKSA GUNA MEMINIMALISIR DAMPAK PRIMUM REMEDIUM DALAM PEMIDANAAN

2020 ◽  
Vol 6 (1) ◽  
pp. 213-236
Author(s):  
Yodi Nugraha
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Public Interest ◽  
Justice System ◽  
Attorney General ◽  
Criminal Code ◽  
Comparative Approach ◽  
Public Prosecutor ◽  
Criminal Prosecution ◽  
The Public

In the Indonesian criminal justice system, every public prosecutor possesses the authority to cease criminal prosecution in the name of public interest. In contrast, in the Netherland, only the Attorney General (Procureur Generaal) at the Supreme Court has this authority.  This article discusses this authority to cease of terminate criminal prosecution in the name of public interest.  To do this a comparative approach is used in which the ruling of this authority to terminate criminal prosecution as found in the Draft of the Indonesian Criminal Code will be compared against the same regulation and policy used in the Netherlands.  A doctrinal and comparative law approach will be used. One recommendation resulting from this research is the need to re-evaluate the existing procedure and requirement of terminating criminal prosecution in the public interest in the Indonesian context and the introduction of Rechter-Commissaris into the criminal justice system.

scholarly journals Penyadapan oleh KPK dalam Perspektif Due Process of Law

2019 ◽  
Vol 12 (2) ◽  
pp. 122
Author(s):  
Tamara Laurencia
Keyword(s):  
Rule Of Law ◽  
Due Process ◽  
Presumption Of Innocence ◽  
The Rule Of Law ◽  
The Right To Privacy ◽  
Due Process Of Law ◽  
Justice Process ◽  
Criminal Justice Process ◽  
The Law ◽  
The Right

<em>Corruption is very detrimental. KPK was established to eradicate corruption and is given extensive duties and authority. KPK is given the authority to conduct investigation and prosecution, and in the implementation, KPK has the authority to conduct wiretapping. However, the authority given to KPK in conducting wiretapping seems to be too broad and was given without any clear boundaries in terms of the time limit for example. It should also require permission to conduct wiretapping in order to uphold the law. Wiretapping has been a violation of privacy towards citizen rights. The right can only be limited by the Law, but it cannot be removed from existence. One of the principles of criminal procedure in Indonesia is due process of law that consist of three important aspects, namely presumption of innocence, equality before the law, and the rule of law. This principle basically requires the protection of the rights of the suspects or defendants in terms of the substance of the law that regulates or the implementation, which in this case is not to be considered guilty during criminal justice process, equality before the law regarding the right to privacy that can only be limited, not removed from existence.</em>

scholarly journals THE ROLE OF PROSECUTOR OFFICE IN THE ERADICATION OF CORRUPTION CRIMINAL ACTS IN INDONESIA

2017 ◽  
Vol 4 (2) ◽  
pp. 244
Author(s):  
Sri Endah Wahyuningsih ◽  
Agus Sunaryo
Keyword(s):  
Data Collection ◽  
Research Method ◽  
Attorney General ◽  
Public Prosecutor ◽  
Police Agency ◽  
Public Prosecution ◽  
The Public ◽  
Public Prosecution Service ◽  
The Republic

In fact, there are still many cases of corruption that have not been revealed; this resulted in the public to be pessimistic with the seriousness of the Prosecutor Office in uncovering variouscases of corruption that are happening today. The purpose of this study is to know the role ofthe Prosecutor Office in the eradication of criminal acts, to obtain an overview of the mechanismof corruption handling by prosecutors in Indonesia and to analyze the obstacles and solutionsin eradicating crime in the Attorney General. The research method was sociological juridical,and data collection were gained by using observation and interview. The existence and role ofthe Public Prosecution Service in eradicating corruption crime begins when the case has notbeen transferred to the Court until the execution of the decision of the Court. However, in thecriminal act of corruption the Prosecutor’s Office has the authority as a public prosecutor aswell as an investigator. The authority of the prosecutor as a special criminal investigator shall beregulated by Law Number 16 Year 2004 regarding the Attorney of the Republic of Indonesia inArticle 30 paragraph (1) letter d. In addition, in its role against the eradication of corruption, theProsecutor’s Office has always conducted a coordination relationship with the Police Agency andthe Corruption Eradication Commission. The mechanism for handling corruption in the AttorneyGeneral Office, through several procedures already set out in the law includes Investigation,Investigation and Prosecution.

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