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History and Definition

In examining a case, the judge is bound to prioritize the application of the provisions of the law (statue law must prevail). Judges must look for, find, and determine whether there are provisions of the law that governs the issues on a case. So it is said that judges must not seek other legal grounds by using judicial freedom.[1]

The term In Dubio Pro Reo first appeared in the Roman legal system in the work of Egidio Bossi in 1566. The basis for the use of the term is given on the condition of the existence of presumption of innocence, which means if there is more than one interpretation of the law then the one that should be chosen is the one that is favorable to the accused.

After several centuries the legal system developed, in 1784 one of the criminal justice in the territory of England tried a defendant named Richard Corbett who was charged with arson of one’s property. Then in the conclusion following the examination and presented evidences, the judge gave instructions to the jury that if there were reasonable doubts, then in deciding the case the doubt must support the defendant. For modern Americans, that instruction is also something familiar. If there is a presumption of innocence based on applicable regulations, the accused must be acquitted if the prosecutor does not establish the fact of guilt without reasonable doubt.

In United States, the notion In Dubio Pro Reo principle, according to definitions.uslegal.com is:

“when in doubt, for the accused”. A defendant may not be convicted by the court when a doubt about his/her guilt exists. This is roughly equivalent to “innocent until proven guilty”.

In Indonesian literature, the definition of In Dubio Pro Reo principle, as explained in a legal dictionary written by Simorangkir et al. (p. 73), is “if there is a doubt about something, it must be decided in favor of the accused”.

Implementation Under Indonesian Law

The In Dubio Pro Reo principle was mentioned several times in the Supreme Court’s decisions which are:

Supreme Court’s decision Number 2175/K/ Pid/2007 that rejected the cassation of the accused ABDUL MUIN Bin MALLANGKA and HERMAN Bin ABDUL MUIN. In its legal consideration the judge argues that:

“… the evidentiary system in our country uses the” Negatief Wettelijk “system, which is a conviction that is accompanied by using valid legal evidence according to the Law; This can be seen in Article 193 of Law No. 8 of 1981 concerning Criminal Procedural Law (KUHAP), which reads as follows: “Judges must not impose a criminal sentence on a person, except if with at least two valid evidences he obtains the conviction that a criminal act actually occurred and that the accused is guilty of doing it. “

In the same decision the judge also argues:

“A principle called” In dubio pro reo “which also applicables to criminal law … This principle is not written in the Criminal Code, but cannot be eliminated in relation to the principle of No Punishment Without Fault” (“Geen Straf Zonder Schuld”) or “Anwijzigheid van alle Schuld” which has become a constant jurisprudence and can be derived from Article 182 paragraph (6) of the Criminal Procedural Law.”

Furthermore, the In Dubio Pro Reo principle was also mentioned in the Supreme Court’s Decision No. 33 K / MIL / 2009 which in one of its legal considerations states that:

“The principle of IN DUBIO PRO REO which states that if there is doubt whether the Accused is guilty or not, then it should be beneficial for the Defendant to be acquitted from thecharges.”

In Indonesian law, In Dubio Pro Reo principle is explained in Article 182 paragraph (6) of the Criminal Procedural Law which can be quoted as follows:

“In principle, the decisions in the assembly discussion are the result of unanimous agreement unless after serious efforts it cannot be reached, the following provisions apply:

a. the decision is taken with the most votes;

b. if the aforementioned provisions letter a cannot also be reached the verdict chosen is the opinion of the judge who is most favorable for the accused.”

Further, the principle is also adopted in Article 183 of the Criminal Procedural Law which explains that:

“Judges must not convict a person unless, with at least two valid evidences, he gains the conviction that a criminal act has actually been conducted and that the accused is guilty of committing it.”

From the wording of Article 183 of the Criminal Procedural Law above, it can be understood that in order to impose a criminal sentence on an accused, its fault must be proven from at least “two valid evidences”, and with proof of at least two valid evidences, the judge has the conviction that the criminal act really is conducted and it was true that the defendant was guilty of doing it.

Based on the above Supreme Court decision, it can be explained that the application of In Dubio Pro Reo principle is in line with the provisions of Article 183 and Article 182 paragraph (6) of the Criminal Procedural Law. Article 183 of the Criminal Procedural Law, as explained above requires the judge who examined the case to obtain conviction based on at least 2 evidences that a criminal act had actually been conducted and the accused was proven to have committed the crime.

Meanwhile, Article 182 paragraph (6) of the Criminal Procedural Law regulates the situation if the decision-making process in the discussion of the panel of judges does not resulted in unanimous decision , and the decision cannot be made based on the most votes because each judge has their own views, then the panel of judges is must to make a decision that is favorable to the accused.

Hope this is useful.

FREDRIK J PINAKUNARY LAW OFFICES

This article is also available in Indonesian. Please follow this link: Penerapan Asas In Dubio Pro Reo


[1] M. Yahya Harahap, in his book entitled “Hukum Acara Perdata: Tentang Gugatan, Persidangan, Penyitaan, Pembuktian, dan Putusan Pengadilan”, Sinar Grafika, Jakarta, 2010,pg. 858.


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