by Dharma Na Gara

Criminal LawJanuary 3, 20250 comments 0 Likes

Motion to Reconsider or Judicial Review or Peninjauan Kembali (PK) in Criminal Law Procedure

Motion to Reconsider or Judicial Review or Peninjauan Kembali (PK) in Indonesia’s Criminal Law Procedure/KUHAP

Motion to Reconsider or Judicial Review or Peninjuan Kembali is an extraordinary legal effort against a court decision that has obtained permanent legal force/binding as explained in Article 263 paragraph 1 of the Indonesia Criminal Law Procedure/KUHAP, namely against a court decision that has obtained permanent legal force, except for a decision of acquittal or release from all legal charges, the convict or his heirs may submit a request for judicial review to the Supreme Court.

1. Court Decisions that can be reviewed

Based on the provisions of Article 263 paragraph (1) of the Criminal Procedure Code, it can be explained as follows:

a. Can be submitted against all court decisions that have obtained permanent legal force

For court decisions that have permanent legal force (inkracht van gewijsde), a judicial review can be requested to the Supreme Court. As long as the decision does not have permanent legal force, judicial review efforts cannot be used. Against such decisions, only ordinary legal efforts can be taken in the form of an appeal to high court or appeal to the supreme court. The judicial review effort will only be opened after the ordinary legal efforts (in the form of an appeal to high court and appeal to the supreme court) have closed. The judicial review effort must not step over the appeal to high court and appeal to the supreme court efforts. As long as the ordinary legal efforts are still open, the ordinary legal efforts must be passed first. The judicial review process stage is the process stage that has gone beyond ordinary legal efforts.

b. Can be filed against all Court decisions

As has been emphasized, a judicial review can only be filed against a Court decision that has permanent/binding legal force. A judicial review can be filed against all decisions of the Court, and can be filed against a District Court decision, as long as the decision of that institution has been binding/permanent legal force. Likewise, a request for judicial review can be filed against a High Court decision, if the appeal to the high court request has closed/expired against that decision, therefore the High Court decision already had permanent/binding legal force. Since then, the possibility of filing a judicial review request has opened. Likewise, a request for judicial review can be filed against a Supreme Court decision, after the decision has permanent/binding legal force.

2. Those who can submit a request for judicial review

Regarding those who have the right to submit a judicial review, this is stated in Article 263 paragraph (1) KUHAP, namely:

1) The convict or

2) His/her heirs.

From the affirmation of this provision, the public prosecutor does not have the right to file a request for judicial review. The reason why the law does not give the public prosecutor the right is because this legal effort aims to protect the interests of the convict. For the interests of the convict, the law opens up the possibility of reviewing a decision that has obtained permanent legal force, therefore it should only be given to the convict or his heirs. Moreover, the other side of this extraordinary legal effort, namely in the appeal to the supreme court for the sake of the law (kasasi demi kepentingan hukum), the law has opened up the opportunity for the Attorney General to defend the public interest. If the public prosecutor’s opinion that a Court decision that has permanent legal force is detrimental to the public interest or contradicts to the objectives of the law enforcement, truth and justice, the law has opened up legal efforts for the Attorney General to file a request for the appeal to the supreme court for the sake of the law (kasasi demi kepentingan hukum). Therefore, the right to file a request for judicial review is a reciprocal right given to the convict to align the balance of the right to file an appeal to the supreme court for the sake of the law (kasasi demi kepentingan hukum) granted by the law to the public prosecutor through the Attorney General. Thus, through extraordinary legal efforts, the interests of the convict and the public interest have been fulfilled in a balanced manner. In this regard, the Constitutional Court issued Constitutional Court Verdict No. 20/PUU-XXI/2023 which stated:

• Granting the applicant’s petition in its entirety;
• Declaring Article 30C letter h and the explanation of Article 30C letter h of Law Number 11 Year 2021 concerning Amendments to Law Number 16 Year 2004 concerning the Office of the Counsel for the Prosecution of the Republic of Indonesia (State Gazette of the Republic of Indonesia 2021 Number 298 Supplement to the State Gazette of the Republic of Indonesia Number 6755) contradicts to the 1945 Constitution of the Republic of Indonesia and has no binding legal force;
• Ordering the publication of this decision in the State Gazette of the Republic of Indonesia as appropriate.

3. The Request for Judicial Review by Attorney

As explained, Article 263 paragraph 1 only gives the right to the convict or his/her heir to file a request for a judicial review. Does this provision prohibit legal counsel or someone authorized by the convict or his/her heir from filing a request for a judicial review? Indeed, if strictly adhering to the provisions of Article 263 paragraph 1, the law does not give the right to the attorney to file a request for a judicial review. It must be the convict or his/her heir directly. Provision like this is found in Article 244 of the Indonesia’s Criminal Law Procedure. Which determines that an appeal to the supreme court request can only be made by the defendant concerned, it cannot be authorized to legal counsel or other people. However, the provisions of Article 244 are softened by point 24 of the Attachment to the Decree of the Minister of Justice Number M.14-PW.07.03 of 2983, dated 10^th December 1983. By number 24 of the Attachment above which is an additional guideline for the implementation of the Criminal Law Procedure, it has permitted the attorney to file an appeal application to the supreme court. But in one condition, the granting of the power of attorney must be made by the defendant “specifically”. This means that the appointment of attorney to file an appeal application to the supreme court must be made by the defendant in a power of attorney specifically for the purpose of requesting an appeal application to the supreme court.

What about the request for judicial review? Could it be requested by an attorney? According to M. Yahya Harahap, S.H., in his book entitled “Pembahasan Permasalahan dan Penerapan KUHAP Pemeriksaan Sidang Pengadilan, Banding, Kasasi dan Peninjauan Kembali Edisi Kedua, Publisher Sinar Grafika, Jakarta, 2009, states “Yes”! The legal basis is to apply “consistently” the guidelines contained in number 24 of the Attachment of the Minister of Justice. The reason for applying the guidelines contained in number 24 to the judicial review application process is based on the motivation contained in the guideline itself. The motivation for allowing an attorney to file an appeal to the supreme court request is none other than for the interests and protection of the defendant’s human rights. So with the same motivation, the guideline in number 24 can be applied in a request for judicial review, for the interests and protection of the convict’s human rights. Everyone have the right to appoint a legal advisor or attorney who can be expected to defend their interests and protect human rights, don’t they?!

4. The Reasons for Judicial Review

Article 263 paragraph 2 contains the reasons that can be used as the basis for a request for a judicial review which is stated by the applicant in a letter of request for a judicial review. In the letter of request or application for a judicial review, the applicant clearly states the basis for the request. Considering the provisions of Article 264 paragraph 1 and paragraph 4, the formal requirement for determining the validity of a request for a judicial review is a letter of request for a judicial review. Without a letter of request containing the reasons as a basis, such request is considered no-exist. This opinion is supported by Article 264 paragraph 2 and paragraph 4 which state:

• Article 1, the last sentence, emphasizes that the applicant must clearly state the reason for the request for a judicial review.
• Article 4 emphasizes that if the applicant for a judicial review is a convict who does not understand the law, the clerk, when receiving the request for a judicial review, obligated ask the applicant for the reason and for that the clerk will make a letter requesting a judicial review.

Based on the above statement, the formal requirement for a request for judicial review is a letter of request containing the reason(s) that form the basis for the request for judicial review. It does not matter whether the letter of request containing the reason(s) is made by the convict himself or the clerk of the District Court in accordance with Article 264 paragraph 4. What is important as a valid requirement for the request, must be submitted in a letter of request for judicial review which explaining the reasons underlying the request. And the reasons that form the basis for the request for judicial review have been detailed by law in Article 263 paragraph 2 and paragraph 3 of Indonesia’s Criminal Law Procedure. However, the main reasons that can be used as the basis for a request for judicial review are the matters mentioned one by one in Article 263 paragraph 2.

a. If There is a new condition

The first reason that can be used as a basis for a request for a judicial review is a “new condition” or novum. New circumstance that can be used as a basis for a request is new condition that have the nature and quality of “giving rise to strong allegation/suspicion”:

• If only the new condition was known or discovered and presented during the trial, it could be a factor and reason for issuing a verdict of acquittal or a verdict of release from all legal charges, or
• If only the new condition was discovered and known during the trial, it can be a reason and factor for issuing a verdict stating that the public prosecutor’s charges were unacceptable or
• it can be used as a reason and factor for issuing a verdict by applying lighter criminal provisions.

b. If there are conflict of verdicts in various verdicts

The second reason that can be used as a basis for a request for motion to reconsideration/judicial review is if various decisions/verdicts contain:

1. A statement that something has been proven,
2. Then the statement regarding the proven of the thing or situation was used as the basis and reason for the decision in a case,
3. However, in other case decision(s), the things or conditions that were declared proven are contradictory between one decision and another.

c. If there is a clear error in the decision.

The third reason that is used as the basis for submitting a request for motion to reconsideration/judicial review, if the decision is clear or clearly visible:

1. The Judge’s made a mistake, or
2. The Judge’s error.

Judges, as humans, are not free from mistakes and errors. Mistakes and errors can occur at all levels of the court.

5. Several Principles Determined in Judicial Review/Motion to Reconsider Efforts

a. The Sentence Imposed Must Not Exceed the Original Verdict

This principle is regulated in Article 266 paragraph 3 Indonesia’s Criminal Law Procedure/KUHAP, which emphasizes that the sentence imposed in a judicial review decision “must not exceed the sentence imposed in the original verdict”. The Supreme Court may not impose a verdict that exceeds the original criminal verdict. What is permitted is to apply lighter criminal provisions as stipulated in Article 266 paragraph 2 letter b number 4. The principle regulated in Article 266 paragraph 3 is in line with the objectives contained in the Judicial Review Institution, which is intended to provide an opportunity for the Convict to defend his interests, so that he/she can be free from incorrect law enforcement. Therefore, this effort provides an opportunity to defend his/her interests, it is not appropriate if the means that provide an opportunity to paralyze a verdict that has obtained permanent legal force, backfires and harms the applicant. This is different from the appeal to the high court or the appeal to supreme court level decision, in this process the decision has not yet got permanent legal force, so it is still permitted to impose a decision either in the form of aggravating or mitigating the defendant.

b. Request for Judicial Review/Motion to Reconsider Does Not Suspend the Implementation of the Decision

The second principle in the judicial review/motion to reconsider is “not absolutely” suspending or stopping the implementation of the execution. Judicial Review is not a reason that hinders or even eliminates the implementation of the decision. The process of requesting judicial review continues, but the implementation of the decision also continues. Is this provision “imperative” or not? According to M. Yahya Harahap, S.H., in his book “Pembahasan Permasalahan dan Penerapan KUHAP Pemeriksaan Sidang Pengadilan, Banding, Kasasi dan Peninjauan Kembali Edisi Kedua, Penerbit Sinar Grafika, Jakarta, 2009, he said that it is “not imperative” rigidly! It can be reviewed casuistically, depending on the condition that include the request for judicial review. Still according to M. Yahya Harahap, S.H., if based on the examination of the District Court, the reasons submitted by the convict are such that their nature and quality are truly believed to be able to paralyze the decision for which judicial review is requested, it is wiser to suspend the implementation of the execution. It is true that we admit that the judicial review effort is not smooth and easy, and as said, out of many requests, only one or two are justified. However, in exceptional cases, a suspension or termination of the implementation of the decision can be carried out, so that the provisions of Article 268 paragraph 1 can be slightly relaxed: the request for judicial review “does not absolutely” suspend or stop the implementation of the decision. However, the recommendation to soften the wording of Article 268 paragraph 1 should not be misused. A haphazard attitude creates danger and shock in the implementation of law enforcement. What is desired is a mature and reasoned attitude and policy that is related to the type of crime as well as to the nature and quality of the reasons that are the basis for the request for judicial review.

For more information, please consult your problem with us.

Source:

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

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

https://www.mkri.id/index.php?page=web.Berita&id=19106 (accessed date 18 December 2024 time: 7.09AM).