Dismissal of Charges and Monopoly of Prosecution Authority

Legal Literacy - This article discusses the definition and meaning of 'seponering' (discontinuance of prosecution) and its relation to the principle of opportuneness and the role of the Prosecutor in the criminal justice process. This article also explains the authority of the Attorney General's Office of the Republic of Indonesia in exercising state power in the field of prosecution and other authorities based on law.

According to Article 1 number 1 of Law Number 11 of 2021 concerning Amendments to Law Number 16 of 2004 concerning the Attorney General's Office of the Republic of Indonesia, it is explained that the Attorney General's Office of the Republic of Indonesia, hereinafter referred to as the Attorney General's Office, is a government institution whose function is related to judicial power that exercises state power in the field of prosecution and other authorities based on law.

The Attorney General's Office, in carrying out its functions related to judicial power, is carried out independently. The arrangement of the functions of the Attorney General's Office related to judicial power needs to be strengthened as a foundation for institutional position and strengthening the duties and functions of the Attorney General's Office.

In exercising state power in the field of Prosecution, the authority of the Attorney General's Office to determine whether a case can or cannot be submitted to the Court has an important meaning in balancing between the applicable rules (rechtmatigheid) and interpretations that rely on the purpose or principle of expediency (doelmatigheid) in the criminal justice process. And one of the authorities possessed by a Prosecutor that is no less important is the principle of opportunity.

Understanding 'Seponering' (Discontinuance of Prosecution)

Most of us are still often confused in using the terms 'deponering' and 'seponering'. Although in some legal literature, most experts use the term 'seponering' rather than 'deponering'.

From a linguistic point of view, 'seponering' or 'seponeren' means terzijde leggen (to set aside), niet vervolgen (not to prosecute). This terminology is only known in criminal law as regulated in Het Nederlands Strafprocesrecht. The synonym for 'seponeren' is 'sepot'. Termination of prosecution because it is considered unnecessary is called 'beleidsspot' (policy termination), while termination due to insufficient evidence is called 'technischspot'.

In simple terms, 'seponering' is a term used in a legal context to stop or postpone a legal process or case without making a final decision. 'Seponering' usually occurs when the authorities, such as a court, determine that the case or legal process will not be continued or resolved in the near future.

'Seponering' can occur for various reasons, including lack of sufficient evidence, out-of-court settlement, or a decision not to continue the legal process for other considerations. In other words, 'seponering' can be considered a postponement or temporary termination of a case or legal process.

'Seponering' is a form of implementation of the principle of opportuneness inherent in the Prosecutor based on Article 35 letter c of Law Number 11 of 2021 concerning Amendments to Law Number 16 of 2004 concerning the Attorney General's Office of the Republic of Indonesia which reads: “The Attorney General may set aside a case for the public interest”.

It is also emphasized in the explanation of the article that what is meant by 'public interest' is the interest of the nation and state and/or the interest of the community. Setting aside as referred to in this provision is the implementation of the principle of opportuneness which can only be carried out by the Attorney General after considering suggestions and opinions from state power bodies that have a relationship with the matter.

The principle of opportuneness itself or 'opportuniteitsbeginsel' is the authority of the Attorney General to set aside a case for the public interest. In short, the rule of the principle of opportuneness means setting aside a case for the public interest. Based on this principle of opportuneness, the Prosecutor is given the authority to prosecute and not prosecute a case to court, either with or without conditions. The public prosecutor may decide conditionally to make procesution to court or not.

To expand the definition, A.L Melai, as quoted by A.Z Abidin, said that the work of the Public Prosecutor in eliminating prosecution based on the principle of opportuneness is 'rechvinding' (legal discovery) which must be carefully considered because the law demands justice and equality before the law.

Viewed based on the principle of functional differentiation of the criminal justice sub-system, the authority of prosecution becomes the absolute power of the public prosecutor or Prosecutor. Implicitly, the power to prosecute someone becomes the monopoly of the public prosecutor. This means that other people or bodies are not authorized to do so.

Another term states that “dominus litis” is in the hands of the Prosecutor. As stated by R.M Surachman, referring to the tradition and doctrine of prosecution, the principle of 'dominus litis' or controller of the case process is known, in several countries such as Japan, the Netherlands and France, the authority of prosecution is the monopoly of the Prosecutor. This means that in the criminal process, the Prosecutor has the authority to decide whether a case can be prosecuted to court or not.

In connection with that 'single' authority, the Public Prosecutor or Prosecutor has the right not to prosecute someone even though that person has committed a criminal act, considering that if the prosecution is carried out it will harm the public interest.

Prof. Dr. Indriyanto Seno Adji provides a limitation that in its application the principle of opportuneness must be seen in conditions where the Indonesian government has ratified the United Nations Convention Against Corruption in 2003 with Law Number 7 of 2006, which has provided several types/forms of legal protection in relation to criminal acts of corruption consisting of: Protection of witnesses, Expert and Victim (Article 32); Protection of Reporting Person (Article 33); Protection of Cooperating Persons (Article 37).

Considerations for Termination of Prosecution

Matters regarding the termination of prosecution have been regulated limitatively in the Criminal Procedure Code. In Criminal Procedure Law, there are several reasons and considerations for terminating prosecution as mentioned in Article 140 Paragraph (2) letter a of the Criminal Procedure Code, including: because there is not enough evidence, the event is not a criminal act and the case is closed in the interests of the law. Related to the third reason, it is regulated in the Criminal Code regarding the elimination of the authority to prosecute and carry out criminal acts Articles 76, 77 and Article 78 because of Nebis in idem, the accused died and expired. Likewise, several reasons can be used not to prosecute as determined in Article 46 Paragraph (1) letter b of the Criminal Procedure Code.

So it is very clear that based on the applicable legal basis that the authority to carry out 'seponering' is limitatively only in the hands of the Attorney General. As accountability for this right of opportunity, the Attorney General is accountable to the President based on Presidential Regulation Number 38 of 2010 concerning the Organization and Work Procedures of the Attorney General's Office of the Republic of Indonesia. This means that not all Prosecutors can use these tools, except for other provisions in carrying out efforts to terminate prosecution or based on a restorative justice mechanism as regulated in Attorney General Regulation of the Republic of Indonesia Number 15 of 2020 concerning Termination of Prosecution based on Restorative Justice.

If viewed from its impact, the 'seponering' tool is an extraordinary power. Therefore, it should be used objectively, proportionally and responsibly. Although there are still many differences of opinion who assume that using the principle of opportuneness has the potential to be discriminatory and override the principle of equality before the law.