Urgensi Hakim Pemeriksaan Pendahuluan dalam Peradilan Pidana di Indonesia

This article aims to analyze the importance of the preliminary supervisory judges stipulated in the Draft Criminal Procedure Code to replace pretrial institutions regulated in the Criminal Procedure Code in the future. As for the preliminary Supervisory Judge, it was formed with the aim of improving pretrial institutions which are deemed not running properly at this time. The problem focuses on the legal consequences of the use of violence by the investigator against the suspect or witness and the importance of the Preliminary Examination Judge to be applied to criminal justice in Indonesia to address the problem of the use of force by investigators. In order to answer this problem, a theoretical reference is used that applies to the process of proof in criminal procedural law and uses a microeconomic analysis of criminal law to analyze how important the enforcement of the Preliminary Examination Judge in Indonesia is. The research method used in this article is the statue approach and conceptual approach. This study concludes that the enforcement of Preliminary Examination Judges needs to be reviewed again, because there are still many deficiencies contained in the Draft KUHAP which regulates Preliminary Examination Judges. Although on the one hand the Preliminary Examination Judge is very much needed to overcome the problem of violence by investigators in the investigation, on the other hand there are other things that need to be reviewed so that criminal justice in Indonesia can be better in the future.

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USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

Law Journal of Donbass ◽

10.32366/2523-4269-2021-74-1-153-160 ◽

2021 ◽

Vol 74 (1) ◽

pp. 153-160

Author(s):

Andrіy Shulha ◽

◽

Tetyana Khailova ◽

Keyword(s):

Legal Status ◽

Criminal Liability ◽

Criminal Procedure ◽

Criminal Proceedings ◽

Knowledge And Skills ◽

Procedural Law ◽

Procedure Code ◽

Criminal Procedure Law ◽

Special Knowledge ◽

The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

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Right of the detainee to have contact with a lawyer or solicitor and to direct consultation with them as an element of the Right of Defence

Nowa Kodyfikacja Prawa Karnego ◽

10.19195/2084-5065.57.5 ◽

2021 ◽

Vol 57 ◽

pp. 71-83

Author(s):

Justyna Żylińska

Keyword(s):

Criminal Procedure ◽

The Real ◽

Legal Advice ◽

Real Contact ◽

Procedure Code ◽

The Subject ◽

The Right ◽

Legal Consequences

The subject of this study is an analysis of the detainee’s right to have contact with a lawyer or solicitor and to direct consultation with them as an element of the right of defence. The right of defence is also applicable with respect to detainees. An important element in the process of its fulﬁ lment is the real contact of the detainee with a lawyer or solicitor. In particular, it allows the detainee to obtain legal advice, not only with respect to the current procedural situation but also with respect to further legal consequences and ultimately eﬀect the rights of defence to which the detainee is eligible in the manner consistent with his/her actual procedural interests. The author’s intention is to examine the scope and rules of application of the rights of the detainee as set out in Art. 245 of the Criminal Procedure Code and the analysis of its eﬀect on the detainee’s eﬀective exercising of the right of defence.

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Eavesdropping in the Iranian Criminal Justice System

Studies in Asian Social Science ◽

10.5430/sass.v5n2p60 ◽

2018 ◽

Vol 5 (2) ◽

pp. 60

Author(s):

Mansour Rahmdel

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

Criminal Procedure ◽

Penal Code ◽

Exact Nature ◽

Human Beings ◽

Procedure Code ◽

The Individual ◽

Full Protection

That the individual shall have full protection in person is a principle as old as the human beings life, but it has beenfound necessary from time to time to define anew the exact nature and extent of such protection. As civilizationadvanced, an individual’s feelings and intellect, as well as his physical being, came within the scope of the legal“right to be let alone.”Iranian Constitution has guaranteed individual’s rights and freedom and has explicitly referred to forbiddance ofeavesdropping and interception of conversations in its article 25. Article 582 of Penal Code ratified in 1996 hascriminalized eavesdropping by the governmental officials. Article 104 of Criminal Procedure Code, which wasabolished in 2014, referred to eavesdropping under the judge’s order. Article 150 of new criminal procedure coderatified in 2014, and came into force in October 2014, has provided adequate safeguards to protect the individual’srights.

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Policy Formulations of the Fisheries Criminal Act: An Investigation of the Authority of the Criminal Justice System in Indonesia

International Journal of Social Science Research ◽

10.5296/ijssr.v2i1.5329 ◽

2014 ◽

Vol 2 (1) ◽

pp. 165

Author(s):

Deassy J. A. Hehanussa ◽

Koesno Adi ◽

Masruchin Ruba’i ◽

Pridja Djatmika

Keyword(s):

Criminal Justice ◽

Law Enforcement ◽

Criminal Justice System ◽

Justice System ◽

Criminal Procedure ◽

Civil Servant ◽

Maritime Security ◽

Public Prosecutor ◽

Procedure Code ◽

National Police

Law enforcement implementation of fisheries criminal act especially for investigation based on Article 73 (1) of Law No. 45 of 2009 is executed by Fishery Civil Servant Investigator (PPNS), Investigator of Indonesian Navy officer and/or Investigator of Indonesian National Police. This investigation authority is called as attribution authority meaning that the authority is granted by the order of law. This regulation grants the same authority to these three institutions to investigate and submit their investigation report to public prosecutor without any cohesive system in its implementation. If it is linked to Law No. 8 of 1981 as an illustration of criminal justice system of Indonesia which is referred as the basis of common and specific criminal law enforcement, it emerges juridical weakness as a consequence of regulation inconsistency including conflict of norm between Criminal Procedure Code (KUHAP) and Fisheries Act. This inconsistency emerges conflict of authority among those investigators and emerges law indeterminacy. Hence, reformulate investigation authority of fisheries criminal act needs to be conducted along with paying attention on waters territory of Indonesia upon Law No. 6 of 1996 about Waters Territory of Indonesia despite law enforcement mechanism which had to be enforced corporately. This study result concludes that inconsistency of investigation authority formulation in fisheries criminal act in criminal justice system not only emerges fuzziness of norm but also conflict of norm between Law No. 8 of 1981 about Criminal Procedure Code and Law No. 45 of 2009. This emerges because there is an overlapping of investigation authority among 3 institutions, i.e., Fishery Civil Servant, Indonesian Navy and the Police. Formation team of Indonesian Maritime Security Coordinating Board (Bakorkamla) only has an authority as coordinating function. Hence, to maximize the law enforcement in the ocean, function of Indonesian Maritime Security Coordinating Board should be improved as a coordinator of law enforcement in ocean territory of Indonesia.

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REKONSEPTUALISASI TAFSIR ASAS PRADUGA TAK BERSALAH

Iqtisad Reconstruction of justice and welfare for Indonesia ◽

10.31942/iq.v4i1.1998 ◽

2018 ◽

Vol 4 (1) ◽

Author(s):

A. Saiful Aziz

Keyword(s):

Criminal Justice ◽

Law Enforcement ◽

Criminal Procedure ◽

Presumption Of Innocence ◽

Legal Basis ◽

Preventive Effort ◽

Procedure Code ◽

Justice Process ◽

Criminal Justice Process ◽

Basic Philosophy

ABSTRAK Asas praduga tak bersalah dianggap hanya untuk dan berlaku bagi kegiatan yang berkaitan dengan proses peradilan pidana. Sehingga terjadi ketidakpedulian masyarakat terhadap asas tersebut. Asas praduga tak bersalah di Indonesia dulu terdapat di dalam Pasal 8 Undang-Undang No. 14 Tahun 1970 tentang Ketentuan-Ketentuan Pokok Kekuasaan Kehakiman. Meskipun tidak secara eksplisit menyatakan hal yang sama, asas tersebut diutarakan di dalam Pasal 66 Undang-Undang No.8 Tahun 1981 tentang Kitab Undang-Undang Hukum Acara Pidana (KUHAP).Penegakkan hukum merupakan salah satu upaya untuk menciptakan tata tertib, keamanan dan ketentraman dalam masyarakat, baik itu merupakan usaha pencegahan maupun merupakan pemberantasan atau penindakan setelah terjadinya pelanggaran hukum. Untuk mencapai sasaran tersebut maka peraturan perundang-undangan menjadi dasar hukum bagi langkah dan tindakan dari penegak hukum harus sesuai dengan dasar falsafah negara dan pandangan hidup Bangsa Indonesia yaitu Pancasila dan Undang-Undang Dasar 1945 (UUD 1945). Dengan demikian, Perlunya rekonseptualisasi atas tafsir asas praduga tidak bersalah (presumption of innocence) yang selama ini dianut KUHAP. Kata kunci: Tafsir, Asas, Praduga tidak Bersalah. AbstractThe principle of innocence presumption is presumed only for and applicable to activities relating to the criminal justice process. So there is a lack of concern for the community towards the principle. The principle of innocence presumption in Indonesia was previously contained in Article 8 of Law no. 14 of 1970 on the Basic Provisions of Judicial Power. Although it does not explicitly state the same, the principle was articulated in Article 66 of Law No.8 Year 1981 on the Criminal Procedure Code (KUHAP).Law enforcement is one of the efforts to create order, security and peace in society, whether it is a preventive effort or is the eradication or repression after the violation of law. To achieve these targets, the legislation should be the legal basis for the actions and actions of law enforcers to be in accordance with the basic philosophy of the state and the Indonesian life view of Pancasila and the 1945 Constitution (1945 Constitution). Thus, the need for a reconceptualization of the interpretation of the presumption of innocence principle adopted by the Criminal Procedure Code.Keywords: Tafsir, Principle, Presumption Presumption of Innocence

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FEATURES OF PROVIDING INAPPROPRIATE EXECUTION OF PROFESSIONAL RESPONSIBILITIES BY A MEDICAL WORKER

Criminalistics and Forensics ◽

10.33994/kndise.2020.65.23 ◽

2020 ◽

pp. 239-251

Author(s):

O. Baulin

Keyword(s):

Criminal Procedure ◽

Professional Activity ◽

Criminal Prosecution ◽

Medical Worker ◽

Procedure Code ◽

Medical Documents ◽

The Law ◽

The One ◽

Procedural Decisions ◽

Medical Examinations

The article discusses the proof of improper performance of professional duties by a medical worker. It is noted that rare cases of criminal prosecution of medical workers for failure to perform or improper performance of their professional duties, which are reflected in judicial statistics against the background of numerous complaints of victims in health facilities, are caused by the lack of evidence for the prosecution. According to the verdicts, evidence of the commission of these crimes are testimonies, documents and conclusions of examinations. The originals of medical documents are especially important, which, in order to be admissible in proof, should appear on the side of the prosecution in accordance with the law, including the one that regulates medical activities, storage and access to documentation, which may contain information that constitutes medical confidentiality. It is recommended to involve specialists in the field of medicine to participate in procedural actions, as they expertly help the investigator to collect traces of the use of medicines and find out other issues. Commission forensic medical examination in cases of professional activity violations by medical workers is mandatory, as it solves the issue of the presence of defects in their actions. It is noted that the Rules for the Commission of Forensic Medical Examinations, approved by the Ministry of Health of Ukraine in 1995, provide for the possibility of inclusion in the commissions, along with experts, specialists of other specialties, which was allowed by the Criminal Procedure Code of Ukraine in 1960. Since the Criminal Procedure Code of Ukraine of 2012 does not provide such an opportunity, the conclusions obtained by such commissions should not be used in making procedural decisions. To solve this problem, it is proposed to fix in the Code of Criminal Procedure of Ukraine the procedure for attracting to conduct comprehensive and commission forensic examinations necessary to ensure their objectivity and completeness of specialists from among those who are not forensic experts. The proposed changes to the law, as well as the recommended approach of the investigator and the prosecutor to determine the means of evidence will contribute to a better and faster investigation of the non-fulfillment or improper performance of medical duties by medical workers and will strengthen the prosecution’s position in court when considering cases of this category.

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The Right of the Accused to Compensation in the Iranian Criminal Justice System

Economics Law and Policy ◽

10.22158/elp.v1n1p76 ◽

2018 ◽

Vol 1 (1) ◽

pp. 76

Author(s):

Mansour Rahmdel

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

Criminal Procedure ◽

Penal Code ◽

Procedure Code ◽

The Government ◽

The Right ◽

International Conventions ◽

Rule Out

<em>Normally, the right to compensation refers to the victim’s compensation. The legislator also typically refers to the right to it, as the Iranian Criminal Procedure Code has done so in articles 14 and 15. But the present paper, refers not to the victim’s, but the accused right. The Criminal Procedure Code of 1912 and 1999 referred to the possibility of compensating the accused by the iniquitous private complainant. However, none of them referred to the government’s obligation to compensate to the innocent accused. In contrast, the Penal Code of 2014 stipulates the government’s obligation to compensate the defendant for damages, but does not rule out the possibility of compensation by iniquitous complainant. Certainly, it does not exempt the complainant to compensation. Reaffirming the responsibility of the government to offset the losses of innocent accused, in line with international conventions, is one of the highlights of the new code. But the lack of compensation for unjustified detention is one of the gaps in the new code. This paper proposes that the Iranian new code of criminal procedure, serves as a development in respecting the accused right in creating comprehensive compensation schemes.</em>

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Execution of a Sentence – an Independent Stage of Criminal Proceedings

Penitentiary science ◽

10.46741/2686-9764-2020-14-4-560-565 ◽

2020 ◽

Vol 14 (4) ◽

pp. 560-565

Author(s):

Vyacheslav B. Shabanov ◽

Lyudmila Yu. Budanova ◽

Vladimir. P. Kramarenko

Keyword(s):

Criminal Justice ◽

Key Words ◽

Criminal Procedure ◽

Legal Issues ◽

Criminal Investigation ◽

Criminal Proceedings ◽

Essential Nature ◽

Procedural Law ◽

Characteristic Features

The article investigates how the notion “execution of a sentence” was formed and analyzes the content of the stage of execution of a sentence as an independent part of criminal procedure, examines legal issues of criminal proceedings within the stage of execution of a sentence, and puts forward some ways to improve it. The fact that court activities aimed at considering and resolving issues related to the execution of a sentence are defined as part of criminal procedure rather than as an independent stage is a subject for debate, because this activity may or may not take place. But we agree with those scholars who believe that the stage such as the presentation of a sentence for execution always emerges during sentencing, and the analogy with the stage of launching criminal investigation allows us to conclude that, that further criminal proceedings may occur several times or may not occur at all and thus form an independent stage of criminal procedure. We studied the opinions and statements of practitioners and scholars in the field of criminal procedure concerning the role and importance of criminal proceedings aimed at the execution of a sentence as an independent stage of criminal procedure, institution of criminal procedural law, a separate phase of criminal procedure and the theoretical arguments as to the essential nature and meaning of the execution of a sentence in criminal procedure. We conclude that criminal proceedings aimed at presenting the sentence for execution, consideration and resolution by the court of the issues related to its execution form the content of an independent stage of criminal procedure, which has all the necessary and characteristic features. Key words: execution of a sentence; stage of criminal procedure; subjects of execution of a sentence; criminal justice; criminal proceedings.

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A Critical Study on Implementation of Section 357A of the Criminal Procedure Code with reference to the Rights of the Victims

International Journal of Interdisciplinary and Multidisciplinary Research ◽

10.54121/2021/09/1499 ◽

2021 ◽

Vol 6 (9) ◽

pp. 45-56

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

Criminal Procedure ◽

The State ◽

Judicial System ◽

Critical Study ◽

Legal Service ◽

Procedure Code

It is a weakness of our jurisprudence that the victims of the crimes, and the distress of the dependants of the prisoner, do not attract the attention of the law .The District Legal Service Authority (DLSA) or the State Legal Service Authority (SLSA) needs to decide the quantum of compensation to be given under the scheme. Section 357A was a necessary enactment, and is useful, because the victim need not prove his case to get compensation under this section, which should hasten the process, but unfortunately the scheme is not being implemented completely. This paper analyses the plight of the victims of crimes under the Indian Criminal Justice System, and the importance of section 357A for protection of their rights. It further argues that that the scheme is not being implemented properly, and there is a lack of uniformity in the statute of each state. The verification procedure of these states is justified only if it does not hinder the compensation of a genuine victim. It explains the importance of immediate compensation, and the role of judiciary in the journey from the enactment to implementation of any scheme and statute. This paper concludes by suggesting changes that could be brought into the Indian Criminal judicial system for the betterment of the victim’s right and society atlarge.

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Penal Mediation as the Concept of Restorative Justice in the Draft Criminal Procedure Code

Lex Scientia Law Review ◽

10.15294/lesrev.v5i1.46704 ◽

2021 ◽

Vol 5 (1) ◽

Author(s):

Emmanuel Ariananto Waluyo Adi

Keyword(s):

Law Enforcement ◽

Restorative Justice ◽

Criminal Procedure ◽

Criminal Cases ◽

Law Enforcement Agencies ◽

The Public ◽

Procedural Law ◽

Private Realm ◽

Procedure Code ◽

The Law

The law recognizes both litigation and non-litigation settlement mechanisms, but it is almost not explicitly regulated for non-litigation settlement in criminal cases. Non-litigation in criminal recognizes the concept of restorative justice for the public interest, which is different from the private realm in civil. The concept of restorative justice exists to rehabilitate the state of criminals so that they are accepted back into the community. The concept of restorative justice is manifested in the mediation mechanism in criminal law in the form of penal mediation, but penal mediation does not yet have a legal umbrella. The non-progressive normative application of the law results in the overcapacity of prisons/remand centres. Currently, the Draft Criminal Procedure Code (hereinafter as RKUHAP) is being drafted, which does not yet regulate the application of non-litigation solutions. Later, it can be applied by law enforcement agencies so that problems such as overcapacity prisons are resolved and the creation of peaceful order in the community. This study aims to provide a view of the concept of penal mediation in criminal procedural law to serve as an aspiration for the consideration of the parties involved in the preparation of the substance of the RKUHAP. This paper uses a normative approach with technical analysis using hermeneutic analysis and interpretation methods.

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