69 Meanwhile in PN South Jakarta, the judge asserted the mix system of criminal and civil proceeding in
pretrial case. The consideration in Decision No. Putusan No. 04Pid.Pra2009PN. Jkt. Sel P-55, the judge said:
Considering that pretrial lawsuit is a criminal case with civil proceeding mechanism, the pretrial lawsuit must be submitted to the competence district court where the respondent
is do i iled .
D. The effectiveness of pretrial mechanism
The abovementioned explanation shows that it is difficult for the applicants to win the pretrial case. From 80 petitions, only two cases that won by the applicants. It leads to preliminary conclusion
regarding the basic problems in pretrial, so most of the petitions are not approved by the judge. Pretrial proceedings, in essence, are not so different with other proceedings when there are two
parties. Pretrial also examine the petition that is submitted and decided with ex aequo et bono. If there is an argument that a fair decision is impossible, at least the proceeding is fairly conducted.
F o the p ofili g o the p o eedi g, judge s o side atio o p et ial fo used o the fo al document examination, such as letter of arrest order, detention, notification to the family, and other
supporting documents. It is in line with the judge decision that rarely approved the petition when there are gaps of formal document ownership between the applicant and respondent
—both in quality and quantity.
The profiling shows that only limited applicants that own proper documents to support its petition. In general, the applicants only relied on the statement and reasons of illegality of detention or other
reasons why he should not be detained. In contrast, the respondent was very intense in providing documents and witnesses, to support that his coercive action is lawful.
Another problem with the use of civil procedural law is the burden of proof. Theoritically, Article 21 of KUHAP requires that the element of concerns is the domain of authorized official that may detain
a person. So that the party that should prove the condition and situation where a person must be detained is the related official.
However, by using civil procedural law principle, the applicant must prove that there is no element of concern that is required under Article 21 of KUHAP. This brings serious impact, because the
applicant will have difficulties to prove it. From this point of view, the pretrial should play its role not merely on formal documents
e a i atio , ut also to e a i e the asis of petitio a d espo de t s espo se. The judge ust
e a i e hethe the i estigato s autho it i o du tio a est, dete tio a e i a o da e ith the criminal procedural law, examine whether there are sufficient preliminary evidence, and
su je ti e e ui e e ts f o the i estigato to detai a pe so . This hope is not merely aimed to prevent pretrial from formalistic paradigm, but also to make the
pretrial decisions reflect the essence of pretrial institution, which deterines the effectiveness of pretrial existence. As mentioned previously tha the existence of pretrial in Indonesia is to give
p ote tio fo the itize s ight he thei li e t is take a a .
70
CHAPTER V Reform on Pretrial Against Detention
