The Constitutional Court Imposes New Requirements on Investigators in relation to SPDPs

AP-LH/002/I/2017

Introduction

The Constitutional Court granted a petition for judicial review of article 109 paragraph (1) Law No. 8 of 1981 of the Criminal Procedure Code. This Court decided that in addition to the public prosecutor, Surat Perintah dimulainya Penyidikan (SPDP) should also be submitted by an investigator to the reported party and complainant, no later than seven days after the SPDP has been published.

Previously, article 109 of the Criminal Procedure Code was read to require that the commencement of investigation r be made only to the public prosecutor.

Through this decision number 130/PUU-XII/2015, the Constitutional Court opined the delay of communicating an SPDP by an investigator did not just cause legal uncertainty, but also infringed the Constitutional rights of the reported party as well as the complainant. The Constitutional Court found that the SPDP must be communicated not only to the public prosecutor but also must be conveyed to the reported party and complainant.

Summary

Article 109 paragraph (1) of Law No. 8 of 1981 or Criminal Procedure Code had several problems in practice. In the pre-prosecution process, investigators are often late in handing over files which in turn results in harm to the reported party or complainant.

The implementation mechanisms often lead to confusion about the rights of the reported party. There was a lack of legal certainty during the process of investigation. The complainant is also disadvantaged by the inconsistency of practice, which was meant to be fast, simple and cost-efficient.

In essence, the Constitutional Court decided that the delay of delivering an SPDP from investigator to public prosecutor harmful. The Court also considered the lack of any provision concerning the commencement of the investigation process uncertain.The Court surmised that the delivery of SPDP itself is an obligation of the investigator.

The Court relied on Article 28D UUD 1945 which provides for equality before the Law. The decision reaffirmed the equal right of everyone over recognition, guarantee, protection, and legal certainty before the law.

The Constitutional Court said that Accused persons should have the right, to immediately prepare their Defence after receiving the SPDP. Similarly, the complainant must also have the legal certainty to prepare information or evidence to be submitted in a timely manner.

Based on these considerations, the Court concluded that SPDP should be communicated to both the reported party and complainant as soon as possible.

Conclusion

Therefore, in order to protect the rights and legal certainty for both Accused and Complainant in a criminal case, the Constitutional Court declared that the SPDP must not only be given to the public prosecutor but must also be communicated to the Complainant and Accused.

The Court added that seven days is a sufficient amount of time for the investigator to prepare and send the SPDP. This decision will help to alleviate some of the problems in the pre-prosecution process.