A CHARGE THAT IS DECLARED “NANCED BY LAW” CAN BE REPOSTED ONE TIME


Decision of the Constitutional Court (“MK”) Number 28/PUU-XX/2022 states that the phrase “null and void” in the provisions of the norms of Article 143 paragraph (3) of Law Number 8 of 1981 concerning Criminal Procedure Code is contrary to the Constitution of the Republic of Indonesia of the Republic of Indonesia of 1945 and does not have conditionally binding legal force as long as it is not construed as "Against the indictment of the public prosecutor which has been declared null and void by the judge, it can be corrected and resubmitted in court 1 (one) time, and if it is still filed objection by the defendant/legal adviser, the judge immediately examines, considers, and decides on it together with the subject matter of the case in the final decision".



According to Constitutional Justice Suhartoyo, the phrase 'null and void' contained in Article 143 paragraph (3) of will be able to create legal certainty if it is interpreted that filing for amended indictments can only be made once after being declared null or void by law. That is, if the second indictment is filed by the public prosecutor, objections are still being filed regarding the fulfillment of the formal requirements and materials of the indictment, the judge must examine the indictment together with the subject matter of the case that was decided jointly in the final decision.



Therefore, by having given a new meaning by the Constitutional Court to the phrase "null and void" as contained in the provisions of the norms of Article 143 paragraph (3) of the Criminal Procedure Code, in cases where the public prosecutor's indictment has been declared null and void or null and void, either once or more by the judge, then it can be submitted for 1 (one) more time and then the judge examines it together with the subject matter of the case. Meanwhile, for cases where an indictment has never been filed by the public prosecutor at trial, the provisions referred to in the a quo decision shall apply.



MK Decision Number 28/PUU-XX/2022



Source:
https://www.mkri.id/public/content/persidangan/decitan/decision_mkri_8739_1667198776.pdf

Best regards,

Fredrik J. Pinakunary