Beruflich Dokumente
Kultur Dokumente
A. Underlying Background
State authorities are coming from the law and the law itself is based on the
high values of humanity that are individual. The basis of law on humanity shows
the norms that respect people dignity and recognizes human rights.1
Generally, the law is meant as the whole of the rules in the community and
the ethics which can be enforced with any sanction.2 One of the legal objection is to
creating justice. The origin of the justice is on the point of view on the deeds and
human rights fulfillment. Justice fulfillment involved two parties, there is one party
as the treat and the other party as the treated.3
The existence of human rights protection and guarantee in the Criminal
Procedure Code in Indonesia upon suspects and defendant has an important mean
since almost of all the criminal law procedure sets as the human rights restriction
e.g. arrest, detention, searches, seizure, and punishment.
In the frame of law material criminal law enforcement, investigator,
prosecutor and judge should do their authorities in accordance with the provisions
and provide all suspect or defendant rights ruled. Rule enactment which breaks the
law will give them any consequences. One of its consequence is compensation
lawsuit from the suspect of the defendant.
The compensation according to Article 1 (22) the Criminal Procedure Code
is the right of people to obtain the fulfillment for their claims in the form of the
amount of money for the arrest, the detention, or proceed without reasonable
evidence-based on the Law or error in persona or misapplied law.
The compensation lawsuit which is conducted by the suspect or the
defendant is the form of human rights and people dignity protection. If the suspect
or the defendant treat unfairly or without the correct basis, there is a right to
proceed lawsuit.4
Conceptually, right for compensation lawsuit is citizen right to obtain
compensation and rehabilitation as the result of law enforcement to be responsible
1
Bambang Poernomo, 1988, Orientasi Hukum Acara Pidana Indonesia, Amarta Buku, Yogyakarta, p.
61.
2
Sudikno Mertokusumo, 1986, Mengenal Hukum, : Suatu Pengantar, Liberty, Yogyakarta, p. 37.
3
Esmi Warassih, 2005, Pranata Hukum: Sebuah Telaah Sosiologis, Suryandaru Utama, Semarang, p.
24.
4
M. Yahya Harahap, 2010, Pembahasan Permasalahan dan Penerapan KUHAP: Pemeriksaan Sidang
Pengadilan, Banding, Kasasi dan Peninjauan Kembali, Sinar Grafika, Jakarta, p. 38.
2
in the court. Besides that, the right contains one principle which is the state can be
claimed for every deed upon their citizen.5
Compensation lawsuit should be appraised based on the losses which are
truly caused by the arrest or detention unlawfully or proceeded not by the law with
the unreasonableness. The suited compensation should be material losses and the
amount to be reckoned with regarding party interests.6
Formally, the procedure of compensation payment by suspect or defendant
is ruled through:
1. Government Regulation No. 27 of 1983 concerning The Implementation of
Criminal Procedure Code (Government Regulation No. 27 of 1983);
2. Government Regulation No. 58 of 2010 concerning The Amendment of
Government Regulation No. 27 of 1983 concerning The Implementation of
Criminal Procedure Code (Government Regulation No. 58 of 2010);
3. Government Regulation No. 92 of 2015 concerning the second Amendment
of Government Regulation No. 27 of 1983 concerning The Implementation of
Criminal Procedure Code (Government Regulation No. 92 of 2015);
4. The Regulation of Ministry of Finance No: 983/KMK.01/1983 concerning
The Procedure for the Payment of Indemnity.
Whereas the provisions of which are used as the basis of compensation
payment, it is not applicable for some case which has been a verdict by the court.
They should get their right to compensation. On the Article 11, Government
Regulation No. 27 of 19837 stipulates that:
(1). The payment of compensation can be done by the Ministry of Finance based
on the quotes of compensation decision;
(2). The payment procedure of compensation is arranged further by the Ministry of
Finance;
5
Ibid., p. 39
6
Bambang Poernomo, Ibid, pp. 143-144.
7
Government Regulation No. 92 of 2015, the amendment of Article 11 is:
(1). The payment of compensation can be done by the Ministry of Finance based on the quotes of
compensation decision or court decision as mentioned on the Article 10.
(2). The payment of compensation shall be done 14 (fourteen) days starting from the date of the
application lawsuit compensation received by the Minister which held financial affair.
(3). The provision concerning the procedure of compensation payment is ruled on the Regulation of
Ministry which held financial affair.
3
8
Legal Consideration for Sri Mulyati Binti Kardjo Judges Decision is still using Government
Regulation No. 27 of 1983 because its trial helded on 2012.
9
Supreme Court Decision No. 1262 K/Pid/2012
4
B. Research Questions
Based on the aforesaid background, there are 3 (three) issues that will be the
author concern in this research, that is:
1. What is the consideration of the Panel of Judges of Cassation to grant the
lawsuit of compensation filed by Sri Mulyati Binti Kardjo?
2. Why did the state not implement the verdict of appeal for indemnification
No. 1262 K / Pid / 2012 filed by Sri Mulyati Binti Kardjo?
3. How should the forward concept of compensation payments in a criminal
case as the right of the suspect by the state?
C. Research Methods
1. Type of Research
The type of research is a combination of juridical normative-empirical
research. Normative juridical research is literature research seeking to
inventory legal material (collecting, clustering and clarifying) in order to
examine the consistency and synchronization of the application of legislation,
while empirical juridical research is research in order to see the law in a real
sense and examine how the workings of the law in community environment by
way of inventorying the facts that exist within a community, legal entity or
government agency.10
In the normative research covers research of law principles, the legal
system, vertical and horizontal synchronization level and legal history
research, whereas in empirical legal research will conduct field research to
obtain primary data in order to support data obtained in library research.
This research seeks to find actual and factual information in order to
describe the implementation of compensation payments in criminal cases as a
form of fulfillment of rights for defendants by the state. Therefore, the data
used are primary data by using qualitative analysis.
2. Research Data and Instrument
a. Literature Data
10
Soerdjono Soekanto dan Sri Mamudji, 1994, Penelitian Hukum Normatif: Suatu Tinjauang Singkat,
Raja Grafindo Persada, Jakarta, p. 13.
5
3. Collecting Data
Methods and data collection used in this study are as follows:
1. Secondary Data
Library research covering primary legal sources, secondary law sources
and tertiary legal materials as secondary data is used with literature study or
document study by recording the various things relevant to this research
2. Primary Data
To obtain the primary data, the research instrument used is interview
using interview guides conducted in two ways, namely:
a. Interviews with structured guidelines, that is, when the guidelines are
done in detail; and
b. Interviews with unstructured guidance, ie when the guidelines only
include an outline of the interview.
This study used a combination of the two kinds of interview guidelines.
Interviews with structured guidelines are made when the subject of this study
requires the question to be submitted in writing and then the interview
answers are given later in writing. This interview uses a structured
questionnaire containing open-ended questions. The combination of
interviews with structured and unstructured guidelines is used when the
subject of this study is willing to provide oral answers at the time of the
interview.
4. Method of Analysis
The method of analysis in this study using qualitative analysis method which
uses a qualitative analysis process based on the semantic relationship between
the variables that were studied. The presentation of this research data is
descriptively analyzed systematically so as to get a comprehensive picture
about the principles of law, legal principles, and legal sense. The deductive
conclusion of this research is to explain the general problems that end with
the conclusion in the form of a special statement. 11
11
Ariesto Hadi Sutopo dan Adrianus Arief, 2010, Terampil Mengolah Data Kualitatif, Prenada Media
Group, Jakarta, p. 23.
7
Based on information from Sri Mulyati, she has completed all the files
required by the Regulation of the Minister of Finance No. 983/KMK.01/1983
and the file has been submitted to the District Court of Semarang to be
forwarded to the Ministry of Finance, but until now Sri Mulyati has not obtained
yet the information to which the process of disbursement of damages position.
The information and data obtained by the Author from the District
Court of Semarang that the file of a request for disbursement of compensation
from Sri Mulyati has been sent to the Ministry of Justice and Human Rights for
authorization to be sent to the Ministry of Finance for budgeting in accordance
with the court decision, but until now The District Court of Semarang has not
obtained information on the extent of the process of disbursement of
compensation claimed.12
The Office of State Treasury in Semarang said that there is no budget
that entered into the List of Budget (DIPA) of the District Court of Semarang
related to the compensation budget petitioned by Sri Mulyati, so the State
Treasury Service Office in Semarang can continue the budget of compensation
to the List of Budget (DIPA) of the District Court of Semarang.
12
Joko Suhatmo, The Clerk of the Distrct Court of Semarang, Interview on June 15th 2017.
11
There are two things that can be used as a reference in terms of nominal
justice for damages to the plaintiff:
1. Nominal compensation for being arrested, detained, prosecuted and
prosecuted or subject to other unprocedural actions should be determined
solely by the plaintiff. The nominal restriction which is legalized through
legislation will not provide fair value for the plaintiff because there is no
certainty that the maximum nominal given by the government is in
accordance with the real losses experienced by the plaintiff. The judge
should be authorized to assess the appropriateness of compensation that the
government should pay to the plaintiff because, in the hearing, the judge can
make a decision by judging from the facts revealed in the hearing.
2. As the High Court and State Institution, the Supreme Court is authorized to
issue regulations for the conduct of the judiciary, which is, of course, its aim
to create justice for the whole society. Fulfilling the community's sense of
justice and conceiving obsolete legislation in order to be in line with the
times, the Supreme Court has adjusted the currency value of the amounts of
fines set forth in the Criminal Code (KUHP) in 2012 through the Rules of
the Court Supreme No. 2 of 2012 on Adjustment of Limit Crime and
Number of Penalties in the Criminal Code (Supreme Court Regulation No.
2/2012). The reason for the Supreme Court issued Supreme Court
Regulation No. 2/2012 since 1960 the value of money contained in the
Criminal Code has never been re-adjusted so that it needs to be adjusted;
a. If waiting for the Criminal Code to be changed first, it will take a long
time while the cases continue to go to court;
b. Since 1960 the value of the rupiah has undergone changes, so it needs
to be adjusted to the current conditions and;
c. Supreme Court Regulation is not intended to change the Criminal Code,
the Supreme Court only needs to make adjustments to the value of
money that is not in accordance with current conditions. It is intended
to facilitate the judge to give justice to the case of his trial;
Based on the authority that the Supreme Court relating to the reason for
the issuance of Supreme Court Regulation No. 2/2012, the authors argue that
the Supreme Court immediately issue a Supreme Court regulation regarding
13
REFERENCES
A. Books
Law No. 8 of 1981 concerning Criminal Procedure Law (State Gazette No. 76 of
1981).
C. Court Decision