by Dharma Na Gara

Criminal LawOctober 3, 20231 comment 0 Likes

Eksepsi/Objection in Indonesia’s Criminal Law Procedure

Eksepsi/Exception

The definition of an exception is:

• A plea or defense that does not address or is not addressed to the “main material” of the indictment.
• But the objection or defense is directed at the “formal” defects inherent in the indictment.

In Article 156 paragraph (1) of the Indonesia’s Criminal Law Procedure (KUHAP), the definition of exception is not clearly formulated. The term used is “objection”. The defendant or his legal advisor is given the right to raise objections. The meaning of objection mentioned in this article is closer in meaning to objection in the Common Law system, which means that the case filed against the defendant contains improper (inappropriate) or illegal (invalid) procedural rules.

Timing of Raising an Exception

If you pay attention to Article 156 paragraph (1), filing objections involving defense for “formal” reasons by the defendant or legal advisor is a “right” with the following provisions:

1. In principle, it must be submitted at the “first hearing”;
2. It is “immediately” or “after” the public prosecutor reads the indictment;
3. If the application is made outside the stated grace period, the exception does not need to be responded to by the public prosecutor and the District Court, except regarding the exception to the authority to adjudicate as mentioned in Article 156 paragraph 7.

This principle is concluded from the provisions of article 156 paragraph 2 which states: if the judge accepts the objection of the defendant or legal advisor, the case will not be examined further. This means that the process of filing an objection is between the stages of reading the indictment. The examination of the main subject matter of the case is stopped if the objection is received. On the other hand, the examination of the main subject matter of the case continues directly if the objection is rejected.

Exception Classifications

There are several classifications of exceptions found in judicial practice, but in this article only some of them are discussed.

1. Exception of Judicial Authority

It is called “exception without authority” to judge or exception of incompetency (exception van onbevoegheid), in the sense that the Court to which the case is delegated has no authority to judge, which is classified as follows:

• Not having absolute authority.

The issue of absolute authority to adjudicate (absolute competence) arises, as a result of Article 10 of Law Number 14 year 1970 which has determined and divided “substantive jurisdiction” for each judicial environment on one side and on the other side due to the formation of a special type of court whose absolute authority is given to that special court (for instance juvenile court).

• Relatively incompetent.

It is said that the relative authority to try cases (relative competence) is based on the “legal area” or “jurisdictional area” factor of a court.

Each District Court or High Court has a limited area or jurisdiction. The benchmarks for determining regional boundaries or legal territories are basically adjusted to the Level I (provincial) and Level II (Regency or Municipality) government systems.

The basic basis for determining the authority to try any District Court or any criminal offense that occurs, refers to the provisions:

1. Article 84 paragraph 1 of the Criminal Law Procedure/KUHAP: Locus delicti/crime scene;
2. Article 84 paragraph 2 of the Criminal Law Procedure: The district court in whose jurisdiction the defendant resides, last resided, at the place where he was found or detained, is only authorized to try the defendant’s case, if the place of residence of most of the witnesses summoned is closer to the location of the district court than the location of the district court in whose area the crime was committed;
3. Article 85 Criminal Law Procedure: authority over the “appointment” of the Minister of Justice;
4. Article 86 of the Criminal Law Procedure: The authority of the Central Jakarta District Court is based on law for criminal acts committed abroad.

It should be remembered that exception to relative competency is in principle submitted at the first level of the court or the District Court. However, this does not reduce the right of the defendant or legal advisor to submit an appeal to the High Court by entering it into the memorandum of appeal.

In fact, because the authority to try is a provision which is in the nature of a “public order”, the High Court ex officio has the authority to examine and assess whether the District Court violated the principle of relative competence in try the case, even though this was not raised as an exception in the first level trial. Such an application is not solely based on public reasons but is also based on the wishes contained in Article 156 paragraph (7) of the Criminal Law Procedure/KUHAP, which provides an ex officio function for judges to examine and decide on competency even though it was not submitted as an objection (exception).

2. Exception of Authority to prosecute, aborted

Another exception which is not mentioned in Article 156 paragraph 1 of the Criminal Law Procedure, but it is found in other statutory provisions, including in the Criminal Code, is the exception which states the “authority” of the public prosecutor to prosecute “aborted” or “abolished”. The abolition or aborted of prosecutorial authority is due to certain factors mentioned in the provisions of the relevant articles.

Regarding this type of exception, the most important of them are:

1. Exception judicate or nebis in idem (Article 76 of the Indonesia’s Criminal Code). Factors that eliminate prosecutorial authority in this exception: the criminal act for which the defendant is accused, has already been charged, examined and tried and the verdict: Has binding legal force and The decision is positive, namely being convicted or acquitted or released from all legal charges.
2. Exception in tempores (Article 78 KUHP/Indonesia’s Criminal Code). The criminal prosecution filed against the defendant exceeds the time limit specified by law (that the time prescribed by law for bringing such action or offense has expired). As is known, Chapter VIII of the Criminal Code, starting from Articles 78-82, regulates the system for implementing the expiration for criminal prosecution.
3. The defendant died. In accordance with the provisions of Article 77 of the Indonesian’s Criminal Code/KUHP, the authority to prosecute criminal charges is “abolished” on the grounds that the defendant “died”.

3. The Exception of the Public Prosecutor’s Claims/Charges is Unacceptable

The standard for filing an exception or passing a decision which state that: the public prosecutor’s claim cannot be accepted if the examination procedures which was carried out do not meet the requirements specified or required by law. Among other things, this group can include:

• The investigation examination exception does not meet the requirements of Article 56 paragraph 1 of the Indonesia’s Criminal Law Procedure/KUHAP. Article 56 paragraph 1 outlines the Miranda Rule which emphasizes that, in every prosecution or trial, the suspect or the defendant accompanied by a legal advisor, this provision is a “requirement condition” by law if the criminal act that is alleged or charged is punishable by the death penalty or 15 year or more or for those who are incapacitated to pay for a lawyer and are threatened with a sentence of 5 years or more who do not have their own legal advisor/lawyer, the relevant officer at all levels of examination in the judicial process is obliged to appoint a legal advisor/lawyer for them. Article 56 paragraph 2 of the Indonesia’s Criminal Law Procedure: every legal advisor appointed to act as intended in paragraph 1, provides his assistance free of charge. If the provisions of Article 56 paragraph 1 is not fulfilled, it is deemed that the examination does not meet the requirement condition by the law, which results in “the public prosecutor’s charges are unacceptable” (MA/Supreme Court Decision No. 1565 K/Pid/1991, 16 September 1993).
• The exception for examination that does not meet the Klacht delict. The criminal offense charged is “complaint offense” (klacht delict), but it turns out that the prosecution was brought against the defendant “without a complaint” from the “victim” or from the person mentioned in the relevant offense article or the complaint period outlined in Chapter VII (Articles 72-75 of the Criminal Code/KUHP, is not fulfilled, therefore the conditions requested or determined by the law are not fulfilled by the investigator and public prosecutor (no complaint). This means that the public prosecutor’s charges against the defendant do not meet the requirements of the law, so the demand of criminal responsibility for the defendant is “unacceptable”.

4. Exception Release from all legal charges

This exception is constructed from the provisions of Article 67 of the Indonesia’s Criminal Law Procedure/KUHAP, which introduces a form of District Court decision “release from all legal charges” or onslag van rechtvervolging.

Furthermore, what is mentioned in Article 67 regarding this exception, is emphasized again in Article 191 paragraph 2 of the Criminal Law Procedure, which provides a benchmark regarding the meaning of a decision “release from all legal charges”, namely “if the act charged against the defendant is proven, but does not constitute a criminal act.

In general practice, what is often used as the basis for passing a decision release from all legal charges is if the criminal act charged contains a “civil” dispute, so that what is charged is basically a “civil dispute” which must be resolved through the civil court process.

For more information, please consult with us.

Source:

Kitab Undang-undang Hukum Pidana/KUHP (Indonesia’s Criminal Code).

Kitab Undang-undang Hukum Acara Pidana/KUHAP (Indonesia’s Criminal Law Procedure).

Yahya Harahap, S.H., 2009, Pembahasan Permasalahan dan Penerapan KUHAP Pemeriksaan sidang Pengadilan, Banding, Kasasi dan Peninjauan Kembali, Sinar Grafika, Jakarta.