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Aristo Pangaribuan
DEFINITION
M. Yahya Harahap: rebuttal or a defense which is not aimed
towards the subject matter of the case against the indictment
made by the Public Prosecutor, but the demurrer is any objection
or defense directed against any formality or formal defects in the
Public Prosecutors indictment
Andi Hamzah: rebuttal, objection disclaimer, or refutation of the
defendant and / or legal advisors that do not discuss the contents
of the indictment, but solely intended that the judge did not
accept cases that have been filed by the Public Prosecutor
DEFINITION
Luhut M.P. Pangaribuan: a defense to answer the
indictment related to three things:
The court has no authority to hear a case
The charges unacceptable
The indictment had to be canceled
Types of Demurrer
Exception on Competence
Absolute Competence
Relative competence
Indictment is unacceptable
Litis Pedentis
Violations in the examination procedure
Error in Persona
Premature indictment
Cancelled / Null and Void
Absolute Competence
Related to the inadequacy of a judicial body to examine, hear and
decide cases filed by the public prosecutor since the type of case
is not a type of matter that is under the authority of the judicial
authorities to examine, hear and decide based on the the laws.
Relative Competence
The defendant and / or legal counsel argued a district court has
no authority to examine, hear and decide cases filed by the
Public Prosecutor to the District Court in question because the
case does not belong to the jurisdiction or its law authority.
Notes
Even if the defendant and / or legal counsel did not filed an
exception the competence or authority to examine, the judge
has the ex officio authority to declare that the court concerned
is not competent to hear the case filed by the Public
Prosecutor
Decision for Exception on Competence : Interlocutory
Judgment
Legal Remedies that can be done to interlocutory judgment :
Counter Plea
Indictment is unacceptable
If the indictment filed contains "formal defects" or
"procedural error"
Error in Persona
The defendant and / or legal counsel have filed an
exception if the public prosecutor in the indictment should
make others as the indicted because those indicted by the
public prosecutor in the indictment are not the actual
criminal.
Premature Indictment
The case in question should be resolved first in the other
dispute resolution institutions before being presented to
criminal court.
Notes
Decision for Unacceptable Indictment : Final Decision
Legal Remedies that can be done: Appeal to High Court and
Cassation
Formal Requirements
Article 143 paragraph (2) Criminal Procedure Code :
Date and signature of the public prosecutor who indicted
Identity of the defendant (full name, place of birth, age / date of
birth, gender, nationality, place of residence, religion and
occupation)
Material Requirements
Article 143 paragraph (2) Criminal Procedure Code :
Contain the analysis thoroughly, clearly, and completely
of the crime indicted by mentioning the time and place of
such criminal acts done
Components
(ADJUSTED WITH THE TYPE OF CRIME INDICTED)
Notes
Decision for Unacceptable Indictment : Final Decision
Legal Remedies that can be done: Appeal to High Court and
Cassation
Other Demurrer
Demurrer Nebis in Idem: The authority of prosecutors to prosecute
will be removed or void if the crime, which is charged to the
defendant, has been indicted, tried and sentenced before, and the
decision has been legally binding (the decision which the legal
considerations had entered the principal case and acquitted, freed or
sentenced). Stipulated in Article 76 of the Criminal Code
(i) Introduction
(ii) Types of Demurrer
(iii) Conlusion
(iv) Prayer for Relief
Introduction
Explaining about the background of Demurrer for the
case. Typically, the philosophy of why this demurrer as a
formality beforehand must be received before prosecuting
the material
Types of Demurrer
Explaining the types of demurrer based on the indictment
that the public prosecutor prepared for the defendant.
Conclusion
The Conclusion of Demurrer that were explained in (ii)
Counter Plea
The public prosecutors response to the demurrer the
defendant filed against the indictment.