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ARREST
Understanding ( Criminal Code Article 1, point 20 ) :
" An investigator measures a temporary restraining
freedom of the suspect or the accused if there is
enough evidence for the purpose of investigation or
prosecution and or justice in the case and in the
manner set out in this law . "
Terms arrest ( Article 17 of the Criminal Procedure Code
):
a. A letter of request;
b. Statement of the suspect / defendant no
will run away, and repeated damage
crime;
c. Assurance from family / relatives;
d. ID card;
e. Family Card.
Investigators
30 days [of Article 29
30 days [of Article 29
60 days
Public prosecutor
30 days [of Article 29
30 days [of Article 29
60 days
District Court Judge
30 days [of Article 29
30 days [of Article 29
60 days
High Court judge
30 days [of Article 29
30 days [of Article 29
60 days
Supreme Court Judge
30 days [of Article 29
30 days [of Article 29
60 days
Examination of letters
Definition
Definition of inspection letter are not regulated in the Criminal Code.
procedure
1. Special permit request to the Chairman of the District Court;
2. Provide a letter of acceptance;
3. Once checked, if proven then attached to the case file, if not
proven then returned to put the stamp of "has opened
by the investigator "
4. Investigators made the Minutes;
5. Provide a copy of the Minutes
the post office / telecom is concerned.
----- Page 10 ----Pretrial
Understanding (Criminal Code Article 1, point 10)
"the district court authority to examine and decide the manner set
out in this law, concerning:
a. the validity of an arrest and
or detention at the request of the suspect or his family or others on
the authority of the suspect;
b. the validity of termination of investigation
or termination at the request of the prosecution for the sake of law
and justice;
c. demand compensation or rehabilitation by the suspect or his
family or any other party for their proxies his case was not brought
to justice. "
If still in the pretrial proceedings and the case has been dismissed,
the petition pretrial fall. However pretrial may be filed not only on
stage but also at the stage of investigation examination (vide Article
82 paragraph (1) letter e Criminal Procedure Code.
investigation / prosecution.
b. Decision may be requested if the investigation establishes
invalidity of termination / prosecution.
Can not be appealed:
Determination of validity of arrest
Determination of validity of detention
Determination of invalidity of the arrest
Determination of invalidity of detention
Determination of invalidity of termination of investigation
Determination of validity termination of prosecution
Can Requested Final Judgment:
Determination of invalidity of the termination of the investigation
Determination of invalidity of the termination of the prosecution
Pg ---- .11 ---Pre Prosecution
Criminal Code investigation adheres to the principle of action must
be made by the investigator (the presence of different functional
differential with HIR)
* Picture *
investigation - submission - prosecution-delegation of the trial
examination (Article 110 jo. article 138 Criminal Code)
Submission of the case occurred in 2 phases (Article 8 paragraph (3)
Criminal Code):
a. Phase I: submission of case / file is already in the process of
investigation given to prosecutors
General. If not complete, then the Prosecutor notes to the
investigator to be equipped,
when it is complete then out the P-211 and will be entered into the
prosecution process.
b. Phase II: Handing responsibility for suspects and evidence
(already the expiration of investigators to prosecutors
general) so that the delivery of physical Evidence and Suspect.
Handing called, because that is still within the scope of executive
orders implementing the Act (the investigator). Named devolution,
because that is already in the scope of judicial judicial function
(prosecution / public prosecutor).
* Picture *
investigation - the investigation (forceful measures) pembuatansurat prosecution indictment - the trial examination
Authorized
-Criminal Procedure Code
1. Public Prosecutor (Article 13 jo. Article 137 of the Criminal
Procedure Code)
2. Investigators PU upper Authorization (Article 205 paragraph (2)
Criminal Procedure Code).
Other-Law
Corruption (KPK)
Duties & Powers (Article 14 jo. Article 138 Criminal Code):
1. Receive and examine the case file of the investigation the
investigator or investigators maid;
2. Conducting pre-prosecution when there is a shortage in the
investigation with regard to the provisions of Article 110 paragraph
(3) and paragraph (4), to provide guidance in order to improve the
investigation of the investigator;
3. Provide an extension of detention, detention or continued
detention and or change the status of prisoners
after his case assigned by the investigator;
4. Making the indictment;
5. Delegate the case to court;
6. Give notice to the
defendant on the day and time the provisions of the case being
heard that accompanied the summons, both the defendant and the
witnesses, to come to the hearing as specified;
7. Prosecution;
8. Closing the case in the interest of law;
9. Conducting other acts within the scope of
duties and responsibilities as a public prosecutor under the
provisions of this Act;
10. Melaksanakanpenetapanhakim.
HOW TO INDICTMENT:
-DigabungPasal 141 Criminal Procedure Code
1. There is a combination of crime;
2. There is an existing joint criminal acts bearing;
3. There is a combined offense had nothing to do.
How to Make Indictment
- split (Splitsing) Section 142 Criminal Procedure Code
The existence of a criminal offense combined with participation in
such offenses. Usually done by PU in case things known only to the
perpetrators who are not seen directly witness.
spectators
* Closed * pict
--- Page 19 Interrogation
Ordinary (Article 183 of the Criminal Procedure Code)
1. Proving difficult.
2. Session 1, PU calling the defendant.
3. The judge entered the courtroom, which previously
was attended by PU, PH.
4. The trial opened to the public or closed to
general (the case of children, morality).
5. The defendant asked his identity by Judge.
6. PU reading the indictment.
Brief (summary) (Section 203 Criminal Procedure Code):
1. Proof is easy and simple.
2. Prosecutor does not make an indictment
(Article 203 paragraph (3) a Code of Criminal Procedure).
3. The judge may ask the Public Prosecutor to make
additional examination (Article 203 paragraph (3) letter b
Code of Criminal Procedure).
4. Decision notes of the Transcript of Proceedings (Article
Paragraph of paragraph 203 (3) Criminal Code).
5. Judge makes ruling letter containing
(Article 203 paragraph (3) letter e Code of Criminal Procedure).
Quick (Roll) Article 205 of the Criminal Procedure Code:
a. CRIME LIGHT
1. Investigators on the authority of the public prosecutor directly
confronts the accused along with BB and AB.
2. Single judge at the first and last. (Article 205 paragraph (3)
Criminal Code).
3. The witness did not take an oath or pledge unless the judge
deems it necessary. (Article 208 of the Criminal Procedure Code).
4. Trial investigation report was not made (Article 209 Code of
Criminal Procedure).
b. TRAFFIC VIOLATION OF CRIMINAL
1. Conducted by a single judge.
2. Not required dossier (Article 212
Code of Criminal Procedure).
3. The defendant may be represented (Article 211 Code of Criminal
Procedure).
4. Can be done without the presence of the defendant or
representatives (verstek or judgment in absentia). Article 214
paragraph (1) Criminal Procedure Code. (Direct investigation of the
trial)
In Rapid Interrogation no prosecution process, but after the
investigation will turn to the trial court.
--- Page 20 --proof
" The person who can provide information for the purpose of
investigation , prosecution and trial of a criminal case that he heard
him, he Never seen himself and his own experience . "
* Terms
- Formal ( Article 160 paragraph 3 of the Criminal Procedure
Code ) 1 . sworn
2 . adult
3 . healthy Psychic
- Material ( Criminal Code Article 1, point 26 )
1 . Listen to yourself
2 . See for yourself
3 . own natural
* Prohibition Witnesses
- Absolute ( Article 171 of the Criminal Procedure Code )
minors
psychoneurotic
- Relative (art. 168 Criminal Code)
Because there is a blood relationship / family , related to the
dignity , office , or employment .
* Various Kinds of Witnesses
- A Charge Witness : Defendant memberatakan witness , is usually
brought by the public prosecutor .
A De Charge - Witness : Witness relieve defendant , usually
brought by the Legal Counsel .
testimonium De Auditu - Witness : Witness heard from others who
did not undergo a criminal offense .
Crown - Witness : Witness in its own case , due to the separation of
the indictment , which the witness becomes the defendant in
another trial .
Chain - Witness : A witness who only see / hear some of the events
experienced only partial or piecemeal .
Reporting Witnesses : Witnesses reporting related offenses .
- Victim Witness : Witness who become victims of crime .
---- page 22 --AB Expert
* definition (Article 1, point 28)
"The information given by a person who has special expertise about
the things needed to make light of a criminal case for the purpose of
examination."
* Terms
-Formal (Article 160 paragraph 4 of the Criminal Procedure
Code)
1. Sworn
AB Description defendant
* Definition (Article 189 paragraph (1))
"What the defendant stated in the hearing of the act he was doing
or who he knows himself or his own nature."
* nature (Article 189 Criminal Code)
1.Keterangan granted defendant outside the courtroom can be
used to help find evidence in the trial, as long as it is supported by a
description of valid evidence about the accused along to him.
2. Description defendant can only be used against itself.
3. Testimony of the defendant alone is not enough to prove that he
is guilty of committing the accused to him, but must disertal with
other evidence.
* Contents
Disclaimer-(partially or completely)
-Recognition (partially or completely)
Rights of Suspects & Defendants
* 1.KUHAP give attention to the rights of suspects and defendants
than HIR
2. Rights of suspects and defendants are specifically set forth in
articles 50-58 KUHAP
3. Legal aid (Article 69-74 Criminal Code)
4. One of the most important is the right of legal aid
5. Liability for PH in terms of pointing APH (article 56 of the Criminal
Procedure Code)
a. Threatened / charged death penalty / imprisonment of 5 years /
over
b. They are not capable of being punished 5 years / more given
free of charge.
* Principle of Non-Self Incriminationketerangan defendant can
protect itself, meaning that the defendant may be a lie, because it
was not sworn in because it is associated with the defense against
itself.
--- Page .24
Legal Aid
contents
-Regulated in Article 69-74 Criminal Code.
Advocates obligation to provide free legal aid (pro deo) of Article 22
of Law 18 of 2003 on lawyers.
APH in every level of the examination shall
notify the right
legal assistance.
APH in violation should be penalized / BAP resulted in cancellation.
suspect / defendant to
Principles
-With in Sight but not with in the hearing (Article 71 paragraph (1),
Article 115 paragraph (2) Criminal Procedure Code)
A Legal Counsel related to his client, which investigators can only be
seen and not heard. This is done in criminal cases involving state
security, example: Terrorism.
- With in Sight and with in a hearing (Article 71 paragraph (2),
Article 115 paragraph (1) Criminal Code)
A suspect who is being examined by investigators right to an
attorney, but attorneys could only see without hearing. This is done
in the case of general crime, eg murder, corruption.
Compensation
* Definition (Article 1, point 22)
"The right to receive a fulfillment of the demands in the form of a
sum of money in exchange for arrested, detained, charged or
prosecuted for no reason by law or in error concerning the person or
law that is applied in the manner set out in this law."
* Basic Laws
1. Article 9 of Law No. 4 of 2004 on Judicial Power
2. Article 95 & 96 Code of Criminal Procedure
* The Asking
The suspect, defendant, defendants, heirs
* Procedures
1. Decided in a pretrial hearing if his case does not proceed to trial.
2. Submitted to the court the authority to hear the case in question.
3. Inspection in accordance with a pretrial events.
4. Decision-shaped fixing.
* Magnitude
1. Compensation for forceful measures against unauthorized Rp.
500, - s / d Rp 1.000.000, 2. Disability / death Rp 3.000.000, ---page.25-- Rehabilitation
* Definition (Article 1, point 23)
"The right to receive a recovery only in ability, position and dignity
and dignity given to the level of investigation, prosecution or judicial
due arrested, detained, charged or prosecuted for no reason by law
or in error concerning the person or law that is applied in a manner
stipulated in this law. "
* Coverage (pasal.97)
-If the defendant was acquitted or cut off from all charges which
shall have binding
- arrest or detention without reason by the law or a mistake of the
person or of applicable laws that his case was not presented to the
district court terminated by the pretrial judge.
connectivity
* Understanding
Court proceedings for any offense committed by civilian and military
members.
* Legal basis
Act No. 14 of 1970 Article 22 of Law No. 8 of 1981 Section 89-94
* The terms
1. Associated with participation.
2.Dilakukan by civilian and military, where one
offenders subject to military criminal law and the other subject to
the general court.
* Examination
1. In principle, carried out in the General Court.
2. When large losses in the military, it will
examined in the Military Court.
* Pre-Trial
Do by criminal status (No. SEMA. No.15 of 1983)
* Examination of Justice
Losses on the civil side: conducted by a panel of judges who
diketuuai by the Civil Judge, consisting of civilian and military judges
Losses in the military: made by the panel of judges, chaired by the
Military Judge, which consists of civilian and military judges.
--page.26--* difference
general court -
- Releasing
Appeal by : PU ( in conjunction with Article 233 . Article 67 of the
Criminal Procedure Code )
Cassation by : PU (Art. 233 jo . Article 67 jo . Article 244 Criminal
Code)
- Frees
` Criminal Procedure Code : could not appeal PU , PU can not
Cassation
` Doctrine : Free Pure ( Zuivere Vrijspraak ) PU can not appeal . ;
Free Not Pure ( Niet Zuivere Vrijspraak ) PU can appeal .
verdict
* Final Decision
* Determination
` Administrative : The Day Trial Injunctions
` Judicial : interlocutory
Resistance ( verzet )
* form of resistance
- Injunctions ( 156 Criminal Code ) submitted to the High Court
through the Clerk of the District Court .
- Verstek > verdict in absentia ( Article 214 Criminal Code )
submitted to the concerned District Court within 7 days .
* how
-Langsung/seketika Tribunal to High
- Awaiting Final Decision
---page.28
Appeal
* Period
-For those who are present: no later than 7 days after the verdict
was read.
- For those who are not present: no later than 7 days after the
decision is notified officially.
* Reason Appeal
There should be no reason for an appeal, it means the memory is
not required to make an appeal. Memory appeal = rights = rights
appeal the counter.
* Checking
Judex factie: Checking the facts
Judex Jurist: Examine the application of the law
reason Cassation
- KUHAP
1. Laws are not applied properly.
2. How to judge not according to the law
3. Judge exceeded his authority.
- Doctrine: Onvoldode Gemotiveerd (legal considerations are not
enough.
* Terms:
There must be legitimate reasons, so shall make cassation and the
opponent shall or shall not make counter against the cassation.
Imperative, limitedly, Facultative
----page.29--------I. DURATION
a. Duration of appeal states: informed (1/10), states (12/10)
b. Submit a cassation Duration: menaytakan (12/10), submit (25/10)
II. REASON Cassation (Article 253 paragraph (1) Criminal Code)
III. ARGUMENTS: acquittal is not pure (free from the demands of
hidden law), meaning that the verdict should dilnyatakan off but the
judge erred in interpreting the absence of a proven or criminal act
IV. COST CASE
a. The judge misinterpreted the law and can not see all the
elements tersbukti.
b. ..........
-----
* If parts I & II can not be met, then an appeal can not be accepted
* If part III can not be met, then the appeal is rejected
* Remember the time period calculated by calendar days, but if the
period falls on a holiday it was postponed one day.
-----For the sake of Cassation Interest Law
* Objectives
Fixing the legal interpretation of the above decision was improper, in
which the decision should not be detrimental tepidana.
* Contents Verdict
There should not be detrimental to the party
Should not be filed on the Supreme Court decision that has
permanent legal force, which is not at all does not affect the
decision of the former and in the interest of law.
* Performed by
- The Parties
The accused and the Public Prosecutor
- For the sake of Interest Law
Attorney general
Review (PK)
* Civil (Civil Request)
Except: acquittal and convict loose or Heirs
* Criminal (Herziening)
-Article 263 paragraph (1) Criminal Code
`Except: acquittal & off
`Convict or Heirs
- reason of Article 263 paragraph (2)
1. Novum (new state)
2. Relate to one
Other
3. Oversight / mistake judge
(Disparity of justice)
Terms
1. Imperative 2. Limitedly 3. Optional
-------page.30 ----* Reason discharge institute judicial review:
In 1989 there was a man named Sengkon and Karta accused of
killing a person, the decision of the judges is final and binding
already punished the perpetrators are. When the running time of
sentencing, Sengkon and Karta met someone in jail who was also an
inmate who told me that the real culprits are the inmates. So, it can
be concluded that the Sengkon and Karta is not the prosecution of
the perpetrators but the inmates were in the prison. This is called
---pg31-32----