The Current Legal Provision on the Indonesia Public Prosecutor’s Authority to File a Judicial Review for any Criminal Cases

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Based on Law Number 8 Year 1981 concerning Criminal Procedure (Kitab Undang-Undang Hukum Acara Pidana or “KUHAP”), it is stipulated under Article 263 paragraph (1) that those who can only submit a Judicial Review (Peninjauan Kembali or “PK”) to the Supreme Court are only the convicted persons or their lawful heirs.

However, there is another legal basis, as stipulated in Law Number 11 Year 2021 concerning Amendments to Law Number 16 Year 2004 concerning the Public Prosecutor’s Office of the Republic of Indonesia, which under Article 30C letter (h) and Explanation of Article 30 C letter (h), it is stated that there is a grant of authority to the Public Prosecutor’s Office to submit a PK which reads as follows:

Article 30 C letter (h):

In addition to carrying out the duties and authorities as referred to in Article 30, Article 30A, and Article 30B of the Public Prosecutor’s Office;

h. apply for judicial review/PK; and

Explanation of Article 30 C letter (h):

Review by the Prosecutor’s Office is a form of duty and responsibility of the Public Prosecutor’s Office to represent the state in protecting the interests of justice for victims, including for the state, by placing the authority of the Prosecutor proportionally on the same and balanced position (equality of arms principle) with the right of the convict or his heirs to submit a review. The judicial review submitted by the judiciary is coordinated with the Public Prosecutor’s Office.

The public prosecutor can carry out a review only if, in the decision, the act charged has been proven but has not been followed by a conviction.”

Based on the above-mentioned provisions, such Public Prosecutor’s authority to be able to submit PK is no longer relevant due to the issuance of the Republic of Indonesia Constitutional Court Decision Number 20/PUU-XXI/2023 (“ICC Decision 20/2023”), which clearly states that Article 30C letter (h) and the Explanation of Article 30 C letter (h) which have given the Public Prosecutor the authority to apply for a PK has caused legal uncertainty, moreover the provision is contradicted by Article 28D paragraph (1) and Article 28I paragraph (1) of the 1945 Constitution of the Republic of Indonesia. Subsequently, according to the consideration of the Republic of Indonesia Constitutional Court, the addition of such authority will not only lead to legal uncertainty but will also potentially lead to abuse of authority by the Public Prosecutor, especially in the case of filing a PK on any cases that have in fact been declared free or released from all legal charges.

The Republic of Indonesia Constitutional Court also considers that in substance Article 30C letter (h) is a provision that is not in line with the norms of Article 263 paragraph (1) of the Criminal Procedure Code, which has been confirmed in Constitutional Court Decision Number 33/PUU/XIV/2016 which states that the Public Prosecutor is not authorized to submit a PK. Such legal rights are only applicable to the convicted person and his/her heirs. We need to recall the four bases contained in Article 263 paragraph (1) if interpreted grammatically, namely: 1) Judicial Review/PK can only be filed against decisions that have obtained permanent legal force (in kracht van geeijsde zaak); 2) Judicial Review/PK is not filed against acquittal or release from all legal charges; 3) Review petition can only be filed by convicts or their heirs; 4) Judicial Review/PK can only be filed against a decision of conviction.

Based on the entire facts and legal deliberations as given and included under ICC Decision 20/2023, it is known that the the Republic of Indonesia Constitutional Court has come to a conclusion, one of which states that Article 30C letter h and the Explanation of Article 30 C letter h of Law Number 11 Year 2021 concerning Amendments to Law Number 16 Year 2004 concerning the Prosecutor’s Office of the Republic of Indonesia [State Gazette of the Republic of Indonesia Year 2021 Number 298, Supplement to Official Gazette of the Republic of Indonesia Number 6755] are contrary to the 1945 Constitution of the Republic of Indonesia and have no binding legal force.

As outlined above, it is now clear that the Public Prosecutor’s Office has more limitations on its authority to conduct legal remedy as an opportunity to be able to punish someone who has been proven innocent at the previous trial stage. It remains to be underlined that every person has rights before the law as stipulated in Article 28D paragraph (1) and Article 28I paragraph (1) of the 1945 Constitution of the Republic of Indonesia, which can be concluded that every person has the right to protection and certainty of just law and equal treatment before the law and has the right not to be prosecuted based on retroactive law which considered as a basic human right that cannot be reduced under any circumstances. If we take a careful look at these legal provisions, it is now clear that the right of every person to be protected from legal remedy specifically in the form of Judicial Review/PK made by the Public Prosecutor’s Office. Furthermore, apart from that, it is also necessary to understand that, in essence, with the existence of ICC Decision 20/2023, the Public Prosecutor’s Office is not legally authorized to submit a Judicial Review/PK.

Author: Muhammad Algifari ([email protected]) & Ichsan Perwira Kurniagung ([email protected]).