Indonesia Criminal Justice System

Author : Shinta Paramitasari, SH, M. Hum

Translator : Indrayanto

Penal Policy is a science and an art which in turn has a practical purpose to allow the positive
legal regulations formulated better and to give guidance not only to legislators, but also to the
courts that apply the laws and also to the administrators or executors court decisions. 1

Furthermore, it is stated also:

"Between the study of criminological factors on the one hand, and the legal technique on
the other, 'there is room for a legislative observes Phenomenon Which science and for a
rational art scholars and practitioners within Which, criminologist and lawyers cans
come together, not as antagonists or in fratricidal Strife, but as fellow-workers engaged
in a common task, Which is first and foremost to bring into effect a realistic, Humane,
and healthily progressive penal policy "

Based on the above view, essentially policy issues of criminal law in Indonesia is not merely a
technical job that is legislation that can be done legally normative and systematic-dogmatic, but
also requires factual juridical approach, which can be either approach sociological, historical and
comparative and comprehensive approach than many other social discipline and an integral
approach to social policies and national development in general.

Various forms of social reaction or response can be done to tackle crime, among others, by using
the criminal law. Thus according to Muladi, criminal law enforcement is part of the crime
reduction policies. The ultimate goal is the protection of criminal political society to achieve the
overriding goal of public welfare.

Crime prevention through penal means operationally is typically done through the steps of
formulation of norms that it contains the elements of substantive, structural and cultural society
where the criminal justice system was enforced. Criminal law system which was subsequently
successfully formulated an operational work through a system called the Criminal Justice
System Criminal Justice System (integrated) can be an internal dimension, but can also an
external dimension. Internal dimension when attention directed to subsystem integration of
justice, such as police, judiciary, courts and correctional. While the external dimension is more
because the connection is almost inseparable from the broader social system. 5

Criminal Justice System should be seen as the network of courts and Tribunals Which deals with
criminal law enforcement and his.Understanding of understanding the system in this case must
be viewed in the context both as Phsycal System in the sense of an integrated set of elements that
work to achieve a destination, as well as the Abstract System in the sense of the ideas that are a
regular arrangement of one another are in dependence. 6
Subsequently according Muladi, Criminal Justice System should be viewed as open
systems, because environmental influences often affect the success of the system achieve its
objectives. 7 For example, Muladi argued the success of both the judicial system in The
Netherlands and Japan in order to input c RIME caused because the participation rate community
in the criminal justice system that has been institutionalized.

Of glasses of this system approach will always look crocheted, even the interface between
politics of legislation with the criminal justice administration and its underlying philosophy.

Talking about law enforcement really can not be separated from thoughts about the effectiveness
of the law.

According Soerjono Soekanto, 8 that the problem is closely related to the legal effectiveness of
efforts undertaken so that the law is really living in the community, in terms of prevailing
philosophical, juridical and sociological. Philosophically valid, meaning that the law applies as
desired or aspired to by the existence of such laws. Valid juridically, means in accordance with
what has been formulated, and apply a sociological meaning that law is obeyed by
citizens. Soekanto view that it is a right and good if, philosophically, the substance of the law
reflects the will of the people and the values of justice in the society (volonte generale) and is not
a reflection of the will of the ruler who makes the law / the absolute and corrupt. 9 Enforcement
not simply mean the implementation of legislation, although in reality in Indonesia, the tendency
is so, so the notion of "law enforcement" so popular. 10

Different views about the effectiveness of the law is the view from Selo Soemarjan. According to
him, the legal effectiveness is closely related to the following factors:11

1. The efforts invested in the community law, namely the development of human labor,
tools, organization and methods so that citizens know the people, appreciate, recognize
and obey the law.
2. The reaction system of society based on values that are valid. This means that people may
resist or oppose, or may comply with the law to guarantee their interests.
3. Implant durations of law, namely the long-term short time in which efforts were made
instill law and is expected to provide results.

Selo Soemarjan view that it is more realistic, because it departed from a sociological perspective
unearthed from all sides and aspects of life with comprehensive outlines the pillars of building a
system that knit social system intact. Actual law can not be discharged within that context, either
at the beginning of its formation, enactment to enforcement. 12
13
Meanwhile, according to Diaz, there are five conditions for effective or not a legal system:

1. Easy to whether or not the meaning or content of legal rules was arrested.
2. Least in broad circles of society who know the content of the relevant rules.
3. Least efficient and effective mobilization of the legal rules that achieved with the help of:
o Administrative apparatus that realizes its obligation to involve himself into such a
mobilization efforts;
 o The residents who feel involved, and felt compelled to participate in the
mobilization process of law.
4. The existence of the dispute settlement mechanism that not only should be easily
contactable and accessible by every member of society, but also must be effective enough
to settle the dispute.
5. Assumption and recognition is evenly distributed among the citizens, that the rules and
legal institutions were indeed able to effectively powerless.

More firmly again is the view of Friedman who stated, that in order to understand the effective or
legal validity in a community, must be considered components of the legal system as follows: 14

1. Structural components, namely moving parts within the mechanism. For example the
division of competence on the judiciary, whose structure is to distinguish between
general courts, religious courts, military courts and administrative courts. This structural
component is expected to see how the law is to give service to the cultivation of legal
materials on a regular basis.
2. The substance component, which is included in this component are the provisions and
rules of law, the written and unwritten. Every decision is a product of the substance of the
legal system.
3. Components of culture, which consists of values, attitudes inherent in the culture of the
nation. The values that can be used to explain whether or why people use or not use legal
processes to resolve disputes.

Subsequently according Muladi, other law enforcement can not be interpreted within the
framework of three interrelated concepts, namely: 15

1. the concept of law enforcement is the total (total enforcement Concept), which requires
that all values that are behind these legal norms enforced without exception;
2. concept of law enforcement that is full (full enforcement concept), who realized that the
concept of total needs to be restricted by law of procedure and so forth for the protection
of individual interests, and
3. concept of law enforcement who are the actual (actual enforcement concept), which
emerged after the believed existence of discretion in enforcement because of the
limitations, whether related to infrastructure, quality human resources, regulatory quality
invitation, and poor community participation.

Criminal Justice System is basically formed as part of state efforts to protect citizens from the
form - forms of social behavior is legally defined as a crime. In addition, the system is also
formed as a means to institutionalize social control by the state. 16

Efforts to provide protection to citizens through the Criminal Justice System is a series of
activities instantional police, judiciary, courts and correctional institutions.Which are all starting
from the same reference, namely criminal policy tools (criminal policy) 17. These included
criminal law, criminal procedural law, and laws governing the powers of each subsystem of
criminal justice (Police Act, Act Attorney, Law Justice, Correctional Institutions Act).
Indonesia's Criminal Procedure Act set forth in the Book of Criminal Procedure (Criminal
Procedure Code), Act No. 8 of 1981 which was enacted in the State Gazette No. 76/1981 and
explanations in the Supplement to State Gazette of the Republic of Indonesia No. 3209.

With the promulgation of the Law on National Criminal Procedural Law, the Indonesian nation
has been a step ahead in an attempt to make legal reform, namely the colonial law into national
law. The law is better known as the Criminal Code describes a complete overhaul of the
Criminal Procedural Law Colonial namely HIR(Herzienne Indische Reglement). Criminal
Procedure Code contains a very fundamental change in the rules of the criminal and conceptually
objectivity / openness, professionalism of law enforcement officers in protecting human rights.

Criminal Procedural Law was established as a guide for law enforcement agencies in enforcing
the law. In Konsiderans Criminal Procedure Code, contains about the reasons for the
establishment of the Criminal Procedure Code, inter alia:

1. In order for people to live their rights and obligations;

2. To improve guidance of the enforcer attitude in accordance with the functions and
powers of each;
3. Rule of law, justice and protection of human dignity;
4. Order and legal certainty for the implementation of state laws in accordance with the
mandate of the Constitution in 1945. 18

To realize the goals of law as mentioned above, required a fairly complex organization. Without
these organizations can not legally be executed in public. Organization is the police, judiciary,
courts and correctional institutions and bodies of legislation. Through the organization and the
processes that take place in it, the society obtained a realization of the objectives of the law.
Fairness for example, now no longer given to members of the public in the form of an abstract
concept, but really pensahan something. Certainty of law to be materialized through the decision-
The judge's decision. Orderliness and become something real's security through police actions
organized by the Police. 19

Within this framework, internally and externally oriented justice system should the same
purpose (purposive behavior). The approach must be comprehensive and far from the
fragmentary nature, always interacting with larger systems, the operationalization of the parts
would create a specific value (value transformation), of interdependency among subsystems, and
control mechanism in the framework of integrated control. 20

Means that there are also similarities of opinion or perception of the purpose of criminal
procedural law, so that each institution involved in the criminal justice process not only see their
own interests, but look at the overall interests of the criminal justice process. 21

Criminal Justice Process, which is the working of organizations, especially the police, judiciary,
courts and correctional institutions, using the concept of justice according to administration and
management system known as the system approach, which is handling are systemic to the
administration of justice.
Segregation of duties and authority among their respective organizations is the principle of
functional differential. It is expressly intended to avoid any overlap was due to the division of
tasks and authority are clear. 22 That is, based on the principle of functional differential is defined
division of tasks and responsibilities between the enforcers instantional law, where the Criminal
Procedure Code lays a principle of "purification" and the modification of the functions and
powers of every law enforcement agency.

Purification differentiation of functions and authority primarily directed between the police and
the AGO as defined in Article 1 para 1 and 4 of Article 1 para jo six points a jo Article 13
Criminal Procedure Code. In this provision states that:

a. State Police investigators are officials of the Republic of Indonesia or officials of

certain civil servants who were given special authority by law to conduct
investigations (Criminal Code Article 1 para 1)
b. State Police investigators are officials of the Republic of Indonesia, which is
authorized by law to conduct investigations. (Article 1 para 4 Criminal Procedure
Code);
c. The prosecutor is the officer authorized by law to act as Public Prosecutor and to
implement the court decision which has obtained permanent legal force (Article 1
para 6 points a Criminal Procedure Code)
d. Attorney General Prosecutor is authorized by this Act to prosecute and execute
the decision of the judge (Article 13 Criminal Procedure Code).

In accordance with Article 14 paragraph (1) letter g Law. 2 Year 2002 on Indonesian National
Police, National Police task is to conduct an investigation and investigation of all criminal acts in
accordance with criminal procedure law and other legislation. In detail, the tasks in the field of
police repression by Gerson W. Bawengan is to collect evidence in connection by investigating a
case, make an arrest for later handed over to the Attorney General as Public Prosecutor to be
forwarded to the Tribunal. 23 While according to Article 30 paragraph (1) letter a of Law No. 16
Year 2004 About the Attorney General of the Republic of Indonesia, the Attorney General has
the authority and duty to prosecute. More details in the explanation of the article has stated that
in conducting the prosecution, the prosecutor can do prapenuntutan, a series of measures to
monitor developments Attorney investigation after receiving notification of commencement of
investigation of the investigators, studying or researching the completeness of the results of the
investigation file received from investigators and provides guidance to be completed by the
investigators to determine whether the dossier can be delegated or not to the prosecution stage. 24

Thus as Prosecutor Attorney General has the authority to receive and review of the Investigation
Case File or Investigator Assistant Investigator, entered prapenuntutan if there is a shortage on
the investigation with due regard to the provisions of Article 110 paragraph (3) and (4) Criminal
Procedure Code, as well as a series of other measures, namely:

1. giving instructions in order to improve the investigation of the investigators;

2. gives an extension of detention, arrest or continued detention and / or change the
status of prisoners after the matter was delegated by the Investigator.
3. make an indictment;
 4. delegated the case to the Court,
5. give notice to the defendant about the provisions of the day and time the case goes
to trial, accompanied by either a summons to the defendant, as well as to
witnesses to come at the trial that has been determined;
6. conduct prosecutions;
7. closed the case in the interest of law;
8. conduct other actions within the scope of duties and responsibilities as the
Prosecutor General by the provisions of this Act,
9. The judge conducting the determination. 25

At the stage of pre prosecution, the prosecutor's position as the Attorney General is highly
dependent on the role played by police in the investigation and the investigation stage. Although
the prosecutor in the Criminal Code is no longer the authority for the role it played when HIR is
still valid, which states the authority of any inquiry and investigation into competence. 26

Under the Criminal Code rules mentioned above, can be seen clearly that strict restrictions
between functions and authority of the Police as an "Investigator" and the Attorney General as
"the Prosecutor General" and "Implementing the Decision of the Judge".

Purification division of functions and powers as stipulated in the Criminal Procedure Code to
bring progress in the lives of law enforcement, particularly in the investigation process. As often
as a result of the investigation task aduknya intervene in some instances, the tragedy brought the
experience and legal uncertainty. A suspect who has been checked for months and even years,
and verbal processed by the Police, with a long examination and sometimes rambling, often
made suspects overwhelmed and depressed inward. But not better physical and psychological
burden that happened, he must face again the Attorney General to menyidiknya with roughly the
same questions, like who ever asked by investigators from the police. 27 This case raises the
question, whether the investigation process is a process for seek and find truth, or merely to
torture and playing. Often when the defendant examined by police, at the same time the Attorney
General conduct an investigation.Thus arises the impression there is competition, as a result
often found conflicting BAP with one another, which makes a suspect and the trial court
confused. 28
29
Therefore, the principle of functional differential has the main objective, namely:

1. To eliminate overlapping investigations process between the police and the AGO;
2. Ensure legal certainty in the process of investigation;
3. Simplify and accelerate the settlement process;
4. Facilitate supervision of the structurally superior.

In the management of the justice system is systemically organized the criminal justice process in
an integrated manner. Starting from the existence of both crimes reported by the community and
is known by the police themselves. Action taken by the police as the investigating officer is to
arrest, detention, search, seizure and investigation of a series of other measures. 30 If the process
is complete, there are two actions can be done by the police. 31 First Investigation Report (BAP)
will be submitted to the Attorney General if the evidence was deemed
sufficient. Secondly, mendeponir case on the grounds because the case is a minor matter and
does not endanger the public, or by reason of insufficient evidence evidence needed.

Attorney parties after receiving the BAP from the police, take measures as follows: The first 32 of
Public Prosecutions consider the case when it ought to be submitted to the Court, it would be
made Indictment. The process of devolution to the District Court case of Attorney is called the
Prosecution, the Prosecutor General may terminate the prosecution of view there is no reason it
was not enough evidence or crime or to close the case by operation of law.

Deferensial functional relationship between the prosecutor with the police can be seen that the
prosecutor as a special prosecutor was the prosecution of their duties - except for certain
offenses-offenses-Prosecutors have the authority to investigate. Meanwhile, police in particular
served as an investigator.

In addition to coordinating relations as mentioned above, there is a relationship of functional

coordination between law enforcement agencies, particularly the Police as an investigator, the
Attorney General as Public Prosecutor and the executor of Justice decision, and the relationship
with the Court Investigator / Judge in the process prapenuntutan.