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 to prosecute 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 in court or not.

In relation to that 'single' authority, the Public Prosecutor or Prosecutor has the right not to prosecute someone even though that person has committed a criminal act, on the grounds 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 expediency must be seen in a condition 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 Discontinuing Prosecution

The matter of discontinuing prosecution has been regulated limitatively in the Criminal Procedure Code. In Criminal Procedure Law there are several reasons and considerations for discontinuing 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, these reasons can be used not to prosecute as stipulated 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 expediency, 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 discontinue prosecution or based on a restorative justice mechanism as regulated in Attorney General Regulation of the Republic of Indonesia Number 15 of 2020 concerning Discontinuing Prosecution based on Restorative Justice.

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

*This article is the personal opinion of the author and does not represent the views of the Literasi Hukum Indonesia editorial team.