Legal Literacy - This article explains the latest regulations regarding the waiting period for the execution of death row convicts as stipulated in Law Number 1 of 2023 concerning the Criminal Code.
In recent months, public attention has been focused on the premeditated murder case experienced by the late Brigadier Nofriansyah Josua Hutabarat as the victim. Ferdy Sambo, S.H, S.I.K, M.H, who played a role in ordering other defendants to participate in this case, has not escaped the spotlight from various parties. The Public Prosecutor charged Ferdy Sambo with Article 340 of the Criminal Code and sentenced him to death on February 13, 2023.
Explanation of the Death Penalty Execution
The death penalty is one of the principal penalties listed in Article 10 of the Criminal Code. Further details regarding the implementation procedures are regulated in Presidential Decree Number 2 of 1964 concerning Procedures for Implementing the Death Penalty Imposed by Courts within the General and Military Judiciary. The responsibility for carrying out the death penalty rests with the Attorney General or Prosecutor, while the responsibility for security and order during the execution of the death penalty rests with the Chief of the Regional Police Commissariat.
Based on the above rules, the convict must be notified three times twenty-four hours before the execution, and the Prosecutor/Attorney General must receive information or requests from the convict before being executed. Furthermore, if the convict is pregnant, the execution will be carried out 40 (forty) days after giving birth. The convict's counsel may be present during the execution process, either at their own request or at the convict's request. The execution of the death penalty is carried out in a simple manner unless the President stipulates otherwise.
Death Penalty Executor
The death penalty executor is a firing squad consisting of one Non-Commissioned Officer, 12 (twelve) Enlisted personnel, led by a Commissioned Officer formed by the Chief of the Regional Police Commissariat. The firing squad does not use organic weapons and is under the command of the Attorney General or Prosecutor until the execution is complete. The firing squad commander uses a sword to signal the Firing Squad to aim at the convict's heart. If the execution has been carried out and the convict still shows signs of not having died, the firing squad commander will order the Squad NCO to fire a final shot to the head directly above the convict's ear and may request the assistance of a doctor to confirm it.
After the convicted person is confirmed dead, the convicted person is handed over to the family for burial, but if this is not possible, the burial will be carried out by the State based on the defendant's beliefs. Finally, the High Prosecutor/Prosecutor makes a report on the execution of the death penalty.
However, if examined further, the Presidential Decree does not explicitly state when the execution will take place. death penalty execution after the verdict is handed down. Reporting from Media Indonesia, it was explained that based on a report by the Institute for Criminal Justice Reform (IJRS) as of November 2021, the number of death row inmates awaiting execution increased by 13 percent compared to 2020. Furthermore, based on the Directorate General of Corrections at the Ministry of Law and Human Rights, in 2020, there were 355 death row inmates awaiting execution, and as of November 2021, this number continued to increase by 49, bringing the total to 404 inmates.
In addition, the Ministry of Law and Human Rights also noted that 107 death row inmates have been waiting for execution for 5 to 10 years, 62 people have been waiting for the death penalty for 10 to 19 years, and there are even 2 inmates waiting for more than 20 years.
Various reasons behind the length of time for the execution of the death penalty for convicts include:
Legal Remedies and Clemency
Based on Law No. 22 of 2002 concerning Clemency, in Article 3 which reads
“A request for clemency does not postpone the execution of a criminal sentence for a convicted person, except in the case of a death penalty verdict”. The same is stated in Law Number 1 of 2023 concerning the Criminal Code which states that a request for clemency does not postpone the execution of clemency except in the death penalty verdict.
The Defendant is Pregnant
In Law No. 1 of 2023 concerning the Criminal Code states that the execution of the death penalty for pregnant women, women who are breastfeeding their children, or people who are mentally ill is postponed until the woman gives birth, the woman is no longer breastfeeding, and the mentally ill person recovers.
Fulfilling the convict's request. In certain circumstances, the requests of death row inmates that must be fulfilled by the High Prosecutor/Prosecutor take time to fulfill.
Probation Period for the Death Penalty in Law No. 1 of 2023 concerning the Criminal Code
In the Law, Article 100 states that convicts sentenced to death by a Judge are given a 10-year probationary period to see if there is a possibility for the convict to improve themselves, show remorse, or the defendant's role in the crime in the court's decision. This 10-year period is calculated from the time the court's decision obtains permanent legal force. If during that time the defendant behaves well, the sentence can be changed to life imprisonment by Presidential Decree after obtaining consideration from the Supreme Court. Conversely, if the convict does not show good behavior, the death penalty will still be carried out based on the Attorney General's order. Thus, the new Criminal Code or Law 1/2023 provides provisions regarding the postponement of the execution of the death penalty with a 10-year probationary period.
As previously explained, one of the reasons for the long waiting period for the death penalty execution is the legal efforts made by the convict, namely appeals, cassation, and Case Review (Peninjauan Kembali/PK). and for the PK effort based on the Decision of the Constitutional Court, there is no limit to how many times a PK can be filed.
Then what about the death sentence handed down during this transition period? This has been answered in Article 3 of the latest Criminal Code that the investigated, reported, suspect and defendant are subject to more favorable rules because of changes in legislation. So if the crime and there is a final and binding decision before 2026, the old Criminal Code is used. Meanwhile, if the final and binding decision is handed down in 2026 when the Criminal Code takes effect, the new Criminal Code is applied but still paying attention to Article 3 of the new Criminal Code.
References
Presidential Decree Number 2 of 1964 concerning Procedures for Implementing the Death Penalty Handed Down by Courts in the General and Military Courts
Law Number 1 of 2023 concerning the Criminal Code Criminal Law
Law No. 22 of 2002 concerning Graces
Abdul Karim Munthe, “Ferdy Sambo Sentenced to Death”, What is the Status of the Death Penalty After the New Criminal Code?”, Islami.co, February 16, 2023, https://islami.co/ferdy-sambo-divonis-hukuman-mati-bagaimana-status-hukuman-mati-pasca-kuhp-baru/.
Dwi Andayani, “Eddy Hiariej Explains the New Criminal Code Can Be Used by Ferdy Sambo If It Enters 2026”, detiknews, February 15, 2023, https://news.detik.com/berita/d-6571265/eddy-hiariej-jelaskan-kuhp-baru-bisa-dipakai-ferdy-sambo-bila-masuk-2026.
Nafiatul Munawaroh, “4 Reasons for Postponing the Death Penalty Execution”, hukumonline.com, February 15, 2023, https://www.hukumonline.com/klinik/a/4-alasan-penundaan-eksekusi-pidana-mati-lt53df2c50e4980.
Wulan Puji Anjarsari, “Regulation of the Deadline for Implementation of the Death Penalty In Criminal Law Indonesia”, Jurnal Indonesia Sosial Teknologi, Vol. 2, No. 3, 2021, p. 489
*This article is the personal the personal views of the author and does not represent the views of the Indonesian Legal Literacy editorial team.
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