Legal Literacy - Have you ever wondered what if you feel dissatisfied with a criminal verdict filed against you or someone you know? In Indonesia, the right to disagree with a court decision is guaranteed by law, and this is the time we discuss available criminal legal remedies.

Legal remedies are rights possessed by parties involved in the criminal justice process to disagree with a court decision that has been handed down. These legal remedies are regulated in the Criminal Procedure Code (KUHAP).

Legal criminal remedies can be distinguished into two types, namely:

  • Ordinary legal remedies
  • Extraordinary legal remedies

Ordinary legal remedies are legal remedies that can be filed by the defendant or public prosecutor against a court decision at the first level. Ordinary legal remedies consist of:

  • Appeal
  • Cassation

Appeal

An appeal is a legal remedy that can be filed by the defendant or public prosecutor against a district court decision at the first level. The appeal decision is adjudicated by the high court.

Appeal Requirements

To be able to file an appeal, the defendant or public prosecutor must meet the following requirements:

  1. The district court's decision has not yet become legally binding
  2. The district court's decision being appealed must have been pronounced openly in court
  3. The district court's decision being appealed must have been notified to the defendant or the public prosecutor

Appeal Procedure

The appeal procedure is regulated in Articles 233 to 243 of the Criminal Procedure Code. The general appeal procedure is as follows:

  1. The defendant or the public prosecutor submits an appeal application to the district court that decided the case at the first instance.
  2. The appeal application is submitted in writing and signed by the defendant or the public prosecutor or their attorney.
  3. The appeal application must be submitted within 14 days from the date the district court's decision is pronounced.
  4. The district court that decided the case at the first instance sends the case file along with the appeal application to the high court.
  5. The high court examines and decides the appeal case.
  6. The high court's decision is notified to the defendant or the public prosecutor.

Example of an Appeal Case

For example, defendant A is found guilty by the district court with a 5-year prison sentence. Defendant A is not satisfied with the decision and files an appeal. At the appeal level, the high court overturns the district court's decision and acquits defendant A of all charges.

Cassation

Cassation is a legal remedy that can be filed by the defendant or the public prosecutor against the high court's decision at the appeal level. The cassation decision is adjudicated by the Supreme Court.

Cassation Requirements

To be able to file a cassation legal remedy, the defendant or the public prosecutor must meet the following requirements:

  • The high court's decision has not yet become legally binding
  • The high court's decision being submitted for cassation must have been pronounced in open court
  • The high court's decision being submitted for cassation must have been notified to the defendant or the public prosecutor

Cassation Procedure

The cassation procedure is regulated in Articles 244 to 251 of the Criminal Procedure Code. The general cassation procedure is as follows:

  1. The defendant or the public prosecutor submits a cassation application to the Supreme Court.
  2. The cassation appeal is submitted in writing and signed by the defendant or the public prosecutor or their attorney.
  3. The cassation appeal must be filed within 14 days from the pronouncement of the high court's decision.
  4. The high court that decides the case at the appeal level sends the case file along with the cassation appeal letter to the Supreme Court.
  5. The Supreme Court examines and decides the cassation case.
  6. The Supreme Court's decision is notified to the defendant or the public prosecutor.

Cassation Case Example

For example, defendant B is found guilty by the district court with a 10-year prison sentence. Defendant B is not satisfied with the decision and files a cassation appeal. At the cassation level, the Supreme Court overturns the high court's decision and upholds the district court's decision.

Extraordinary legal remedies are legal remedies that can be filed by the defendant or their heirs against a court decision that has permanent legal force. Extraordinary legal remedies consist of:

  • Pre-trial Motion
  • Cassation Review for the Sake of Law
  • Judicial Review

Pre-trial Motion

Pre-trial motion is a legal remedy that can be filed by a person whose interests are harmed by an action or decision of an investigator, public prosecutor, or judge. Pre-trial motions are adjudicated by a single judge in the district court.

Pre-trial Motion Requirements

To be able to file a pre-trial motion, a person must meet the following requirements:

  • The action or decision of the investigator, public prosecutor, or judge for which the pre-trial motion is filed must have harmed their interests.
  • The action or decision of the investigator, public prosecutor, or judge for which the pre-trial motion is filed must have been arbitrary.

Pre-trial Motion Procedure

The pre-trial motion procedure is regulated in Articles 77 to 88 of the Criminal Procedure Code. The pre-trial motion procedure is broadly as follows:

  1. The pre-trial motion applicant submits a pre-trial motion to the district court whose jurisdiction covers the applicant's place of residence.
  2. A pretrial motion is submitted in writing and signed by the pretrial applicant or their attorney.
  3. A pretrial motion must be filed within 7 days of the action or decision of the investigator, public prosecutor, or judge whose pretrial motion is being sought being known to the pretrial applicant.
  4. District court which receives the pretrial application is obliged to examine and decide on the pretrial case within a maximum of 14 days.
  5. The district court's decision in a pretrial case is final and cannot be appealed or cassation.

Example of Pretrial Case

For example, someone is arrested by a police investigator without an arrest warrant. The person is not satisfied with the arrest and files a pretrial legal remedy. At the pretrial level, the judge declared the arrest illegal and ordered the investigator to release the person.

Cassation Review for the Sake of Law

A cassation review in the interests of the law is a legal remedy that can be filed by the Supreme Court on its own initiative or at the request of an interested party in the interests of the law.

Conditions for Cassation Review in the Interests of the Law

In order to be able to file a legal remedy for cassation review in the interests of the law, the Supreme Court must meet the following conditions:

  • The high court's decision to be examined by the Supreme Court must have permanent legal force.
  • The high court's decision to be examined by the Supreme Court must contain a real and urgent legal interest.

Procedure for Cassation Review in the Interests of the Law

The procedure for cassation review in the interests of the law is regulated in Articles 252 to 255 of the Criminal Procedure Code. The procedure for cassation review in the interests of the law is broadly as follows:

  • The Supreme Court may examine and decide cassation cases in the interests of the law on its own initiative or at the request of an interested party.
  • An interested party who submits a request for cassation review in the interests of the law must attach the reasons for the request.
  • The Supreme Court examines and decides cassation cases in the interests of the law within a maximum of 30 days.

Example of a Cassation Review Case in the Interests of the Law

For example, a high court decision that acquits the defendant of all charges contains a real and urgent legal error. The Supreme Court may examine and decide cassation cases in the interests of the law to correct the legal error.

Judicial Review

A judicial review is a legal effort that can be filed by a convict or their heirs against a court decision that has permanent legal force, except for acquittals or releases from all legal charges. The judicial review decision is adjudicated by the Supreme Court.

Conditions for Judicial Review

To be able to file a judicial review legal effort, the convict or their heirs must meet the following conditions:

  • The court decision to be submitted for judicial review must have permanent legal force, except for acquittals or releases from all legal charges.
  • The convict or their heirs must have reasons based on new evidence that has never been presented in court.
  • The reasons based on the new evidence must be able to prove that the convict or their heirs are not guilty or are subject to a heavier sentence than they should have been.

Judicial Review Procedure

The judicial review procedure is regulated in Articles 263 to 269 of the KUHAP. The judicial review procedure is broadly as follows:

  1. The convict or their heirs submit a request for judicial review to the Supreme Court.
  2. The request for judicial review is submitted in writing and signed by the convict or their heirs or their attorney.
  3. The request for judicial review must be submitted within 180 days from the date the convict or their heirs become aware of the court decision to be submitted for judicial review.
  4. The Supreme Court examines and decides on the judicial review case within a maximum of 6 months.
  5. The Supreme Court's decision in the judicial review case is final and binding.

Example of a Judicial Review Case

For example, convict A is found guilty by the district court and sentenced to 10 years in prison. Convict A files a judicial review legal effort on the grounds that there is new evidence in the form of a video recording showing that convict A is not guilty. At the judicial review level, the Supreme Court grants the judicial review request and acquits convict A of all legal charges.

Readers can find out more about the problems of Judicial Review and some proposed solutions by reading the book entitled "Judicial Review in Cases Criminal in Indonesia" by Adam Ilyas. This book can be purchased via the following link: Buy Book

Conclusion

Legal remedies are rights possessed by parties involved in the criminal justice process to not accept a court decision that has been handed down. These legal remedies are regulated in the Criminal Procedure Code (KUHAP).

Criminal legal remedies can be divided into two types, namely:

  • Ordinary legal remedies, which are legal remedies that can be filed by the defendant or the public prosecutor against the court's decision at the first level.
  • Extraordinary legal remedies, which are legal remedies that can be filed by the defendant or their heirs against a court decision that has permanent legal force.

Ordinary legal remedies consist of appeals and cassation. Extraordinary legal remedies consist of pre-trial proceedings, cassation reviews in the interest of the law, and judicial review.