Legal Literacy - The author in writing this article is motivated by an article that was recently published on the Hukum Online platform entitled “Criminal Procedure Code, Due Process or Crime Control?” written by Hamalatul Qurani and also the current discussion of the Pegi Setiawan case who is accused of being the perpetrator of the Vina Cirebon murder, but in the end the pre-trial decision number 10/Pid.Pra/2024/ Bandung District Court stated that the process of determining Pegi Setiawan as a suspect by the West Java Regional Police was illegal so that Pegi Setiawan's suspect status was declared null and void. However, this article will explain more simply what Due Process Model and Crime Control Model are in criminal procedure law.
Definition Due Process Model and Crime Control Model
Concept due process model and crime control model are two concepts coined by Herbert L. Packer, an American criminologist and law professor best known for his book entitled The Limits of The Crminal Sanction. In simple terms crime control model emphasizes efficiency, speed, and is closely related to the principle of presumption of guilt or the presumption of guilt in the criminal justice process, so that all criminal acts must be dealt with as quickly as possible. Prof, Eddy Hiariej in his book entitled Theory and Law of Evidence likening it to a ball that is rolling and without obstacles.[1]
Meanwhile, due process model has characteristics that are contrary to crime control model because on due process model refuses to prioritize efficiency and prioritizes the quality of the process and is closely related to the principle of presumption of innocent or the presumption of innocence, so the role of legal counsel is very vital to be able to avoid and supervise the imposition of laws or legal processes that are not in accordance with the rules against someone accused of committing a criminal act. The model is likened to someone who is doing hurdles.[2]
In the context of evidentiary law, due process model is closely related to the problem of bewijsvoering, namely how to obtain, collect, and present evidence to the court. Thus, Prof. Eddy's analogy which analogizes due process model like someone who is doing hurdles, the goal here is a series of conditions/procedures that must be met and followed in obtaining/collecting evidence that will be used in court later.
Due Process of Law and the History of the Birth of Miranda Rules
In countries that uphold due process of law, prioritizes the protection of every individual from arbitrary actions by officials, for example in the United States a suspect who, when arrested, is not mentioned his rights by the investigator can result in the loss of suspect status which is known as Miranda Rules or The Four Miranda Warnings which reads:
“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to speak to an attorney and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provide for you at government expense”
Birth of Miranda Rule which is currently used as an effort to guarantee the rights of a person suspected of committing a crime so as not to be treated arbitrarily by law enforcement officers, originating from an event that occurred in 1963 in Arizona, United States.
At that time, a young man named Ernesto Miranda was arrested by the police on charges of kidnapping and raping an 18-year-old woman. Upon his arrest, Ernesto Miranda was taken to the police station for interrogation, which lasted for two hours.
After that, Ernesto signed a confession stating that he had kidnapped and raped the woman in question, but before signing the letter, Ernesto was not given the right to remain silent and the right to have a lawyer accompany him during the investigation by investigators. Then, the confession letter was presented at trial and used as evidence, on that basis Ernesto was sentenced to 20 years in prison.
However, Ernesto Miranda filed an objection to the verdict to the Supreme Court America by considering three other similar cases and the objection was granted by Supreme Court on the basis that the written confession made by Miranda was invalid because Ernesto Miranda had not previously been given his rights as a suspect.
However, that did not immediately release Miranda, only suspend his sentence. Based on the decision Supreme Court United States in 1966 which stated that Miranda's confession was invalid, from that moment on the rights of suspects began to be taken seriously and that event was the beginning of the term Miranda Rules.
Indonesia Adheres to Due Process or Crime Control?
Back to the discussion at the beginning regarding due process model and crime control model, the question arises, which model is applied in Indonesia? Is it due process or crime control? If we use the hurdle race analogy used by Prof. Eddy, then essentially the criminal procedure law in Indonesia is due process model because in the KUHAP we know together that all actions taken by law enforcement officials must be in accordance with the conditions and procedures that have been set. For example, regarding arrests, as stated in article 1 number 20 of the KUHAP, what is meant by arrest is:
“an investigative action in the form of temporarily restraining the freedom of a suspect or defendant if there is sufficient evidence for the purposes of investigation or prosecution and or adjudication in cases and according to the manner regulated in this law.”
Meanwhile, the conditions for arrest can be seen in article 17 of the KUHAP which states:
“An arrest warrant is carried out against someone who is strongly suspected of committing a criminal act based on sufficient preliminary evidence.”
From the above provisions, it can be concluded that to make an arrest, the element must be fulfilled someone who is strongly suspected of committing a criminal act and based on sufficient preliminary evidence. Regarding the second element, the Constitutional Court in Constitutional Court decision Number 21/PUU-XII/2014 explains that the meaning of the phrase “sufficient preliminary evidence” must be interpreted as at least two pieces of evidence as contained in article 184 KUHAP.
Then in article 18 paragraph (1) of the KUHAP it is explained that the arrest is carried out with the following procedure, namely:
- Carried out by officers of the State Police of the Republic of Indonesia
- Showing an assignment letter
- Provide the suspect with an arrest warrant
- Explain a brief description of the alleged crime and the place where he is being examined
All of the above conditions and procedures are cumulative, meaning that the above conditions must be met in order to make an arrest. This shows that our criminal justice system actually adheres to due process model because what is prioritized is not only efficiency in enforcement, but also the quality of the actions taken. Moreover, in our criminal procedure law, the pre-trial mechanism regulated in Article 77 of the Criminal Procedure Code is also recognized, where the essence of the pre-trial is to test whether the arrest, detention, termination of investigation, and/or termination of prosecution carried out by law enforcement officials is in accordance with the applicable requirements and procedures or not.
However, with the pre-trial decision number 10/Pid.Pra/2024/PN Bandung which states that the process of determining Pegi Setiawan as a suspect by the West Java Regional Police seems to make us rethink whether our criminal procedure law really adheres to due process model or rather crime control model. Perhaps this question can be answered to some extent through the opinion of Maqdir Ismail, a senior advocate in a public seminar who stated that “our procedural law, even though in the Criminal Procedure Code due process, but in practice it is more crime control”.[1]
[1] Hamalatul Qurani, KUHAP, Due Process atau Crime Control?, Hukum Online, Juli 8, 2024, https://www.hukumonline.com/stories/article/lt668a102b33474/kuhap--due-process-atau-crime-control/
[1] Eddy Hiariej, Teori dan Hukum Pembuktian, ( Jakarta: Penerbit Erlangga, 2012), hlm. 30
[2] Ibid. hlm. 31
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