66 From the Decision No. 12Pra.Pid2005PN-Mdn P-10
137
it can be found that the applicant based its petitio o the t pog aphi al e o o the dete tio o de , fo i sta e the o de ote Na e: Sri
Maryani , ‘eligio : Buddhist , he e it should e Na e: Siti Maryani, Religion: Islam , o “e :
Male , he e it should e “e : Fe ale . While the espo de t ad itted this e o , the asse ted that such error did not anull the arrest and detention. In the examination, the judge approved
espo de t s espo se. I the o side atio , the judge said: Based on the elaboration, the pretrial judge said that the typographical error in the
Detention Order Exhibit P-4, where the sex was written as male, while it should be female, however the person that is detained after the report drom SUSANTO AMAT, is the one that
o itted the i i al a t so that the ‘espo de t s a tio ased o the dete tio o de
exhibit P-4 is legal, and the error was merely typographical error, where it is a common k o ledge that a pe so a ed “ITI MA‘YANI is a fe ale, ot a ale .
Previously, the judge also said that the typographical error does not make the detention as error in persona, and the applicant is Chinese descendant so that it is perceived that applicant is a Buddhist,
will mislead the respondent. Similar maladministration also occurred in the detention extension. In Gayus Tambunan case, the
maladministration can be found from the exhibits that are submitted by the applicant and respondent. The maladministration is the delay from the official to sign and send the detention
order to the suspect. In this case, the judge said:
…after exhibit P3 is compared with T8, it is the same the copy of P3 is not clear enough, and it has been validated by the authorized official, and it is lawful. However, the delay of
petitio s sig atu e hi it T P , hile the e is o ti ef a e i KUHAP, this is a a i g for the respondent to work faster, more professional, and such complaint may be filed to
the hie a h i the espo de t s i stitutio . The dela , ho e e , does ot ake the
dete tio e te sio si e August is illegal… .
C. Pretrial: between civil and criminal mechanism
Up until now, there is no consensus on the proceeding mechanism for the pretrial, whether it will use criminal proceeding mechanism or civil proceeding mechanis, or adopt a different mechanism. In
general, the provisions regarding the pretrial procedural law under KUHAP are not sufficient and unclear, which makes many judges use civil proceeding mechanism to handle pretrial petition.
As a result, there are many contradictions between the two procedural law, which leads to legal uncertainty and creates losses for suspect in using pretrial mechanis. Article 82 1 c of KUHAP
states that the pretrial is conducted under express examination and the judge must render a decision in 7 days. According to the recent practie, it is fair to say that the pretrial procedural law is a
mix between criminal proceeding and civil proceeding.
137
Decision No. 12Pra.Pid2005PN-Mdn comes PN Medan, filed by an applicant named Siti Mariani, on the ase of theft o u ed at the Appli a t s o kpla e. Due to the p essu e, the applicant admitted that she
committed the theft. The Applicant then was reported to the police and arrested. The Applicant stated that detention needed sufficient preliminary evidences, and the detenteion was irrational due to the small room of
time from arrest to detention and many mistakes in the detention warrant. PN Medan rejected the pretrial petition.
67 Based on the observation over 80 decisions, both systems are acommodated in pretrial cases.
However, it is ambiguous when the case that is tried is actually originate from a criminal case. In regards to timeframe, KUHAP asserts that the judge must render a decision in 7 days.
However, in practice, it needs 19 days to render a decision, starting the submission of petition to decision from the judge. The fastest timeframe is 12 days, and the longest is 33 days. From 80
decisions, 35 cases are concluded in average of 15-21 days, and only 4 cases that are concluded in 1 to 4 days. The following figure depicts the complete information.
:
Figure 16: Days needed in pretrial
This situation occurs because the Court applies civil procedural law principles, so that the summon must consider the formal requirement on a summon. One of the factor that makes pretrial is so slow
is the le el of positio of the offi ial. While KUHAP does ot a k o ledge the te espo de t , i pretrial such term is used, so the court must also hear the statement from the respondent. That is
why the court must wait the appearance of the respondent to be heard and give responses. Based on the statistics, both parties are quite committed in attending the trial. Out of 80 pretrial cases, 78
of them were attended by the applicant, and 77 of them were attended by the respondent.
1-7 days 8-14 days
15-21 days 21-28 days
29-36 days 37-45 days
5 10
15 20
25 30
35
Cases
4 16
35
15 7
3
68
Figure 17: Parties attendance during trial
The tendency to use civil procedural law in pretrial is also can be seen from the settlement effort during trial, even though most cases are failed to reach a settlement. Only 5 out of 80 cases that
reached settlement, whilte 75 of them failed. However, some judges in their considerations implied that the proceeding mechanism in pretrial is
criminal proceeding, which can be seen from Decision No. 11Pra.Pid2004PN.Mdn in PN Medan. The applicant in this case write the complete identity of the respondent, and it was directly adressed
to the individual who is responsible to the coercive action, as known under the civil proceeding. Regarding such format, the respondent said that it makes the petition obscure, because the position
of the individual should not be mentioned, instead it should be the State cq. The institution. The judge in his consideration admitted that such format is not proper, by saying:
…the petition that directly named the position of the respondent, without adressing it to the State cq. Department of Finance cq. Directorate General of Customs and Excise Type A
at Belawan, is not correct according to the law. However, considering the approach not to use formalistic legal thinking, the error that made by the applicant should not make the
petition obscure and should not make it unacceptable, because the main issue is to see whether the action from the Respondents to Petitioner is according to the law, fairness,
a d t uth .
Judge s o side atio a e i te p eted i t o folds: Fi st, the judge said that su h fo at as incorrect, because it was not a civil proceeding; and second, the judge admitted that there is a
specific mechanism for pretrial, including the format in writing the correct identity. Ho e e , the e is a othe uestio he a othe judge at PN Meda i luded pea eful
settle e t upaya damai in concluding the pretrial case, where it is a term in civil proceeding. In Decision No. 06Prapid2005PN.Mdn P-9, the judge said that:
Considering that the judge at District Court of Medan has tried to reconcile both parties, and failed, the examination of this case is commenced by reading the petition, and for it
the attorney-in- fa t sti ks to the petitio .
Petitioner Respondent
10 20
30 40
50 60
70 80
Appear Did Not Appear
Petitioner 78
2 Respondent
77 3
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
