Ius Poenale is a journal published by Faculty of Law, Universitas Lampung, under a Creative Commons Volume 4 Issue 1, March 2023: pp.47-60.
Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia.
http://jurnal.fh.unila.ac.id/index.php/ip P-ISSN: 2723-2638 E-ISSN: 2745-9314
The Judges' Considerations Against Sentence for Narcotics Abuse Category I
Dimas Didi Darmawan
Pengadilan Negeri Gedung Tataan Lampung, Indonesia, [email protected]
Article’s Information Abstract
Keywords:
Narcotics, Judge Considerations, Criminal
DOI :
https://doi.org/10.25041/ip.v4i1.2900
The younger generation is being targeted as the threat of drug seizures rises in Indonesia. Narcotics are substances or drugs that can alter consciousness, cause loss of feeling, lessen or eliminate pain, and cause dependence. They can be derived from plants or non- plant sources and synthetic or semi-synthetic. As a result, drug users who commit crimes need rehabilitation in order to overcome their drug use. For those who commit drug crimes, rehabilitation is a form of punishment with the objective of healing or treatment. However, in practice, judges frequently favor to sentence drug offenders to prison terms and fines, even though offenders can also be sent to rehabilitation. This empirical normative legal study uses primary and secondary data as its data sources and fieldwork and library research as its data collection methods.
According to the study's findings, the judge's factors in establishing that the defendant's actions met the requirements of Article 127, paragraph 1, letter an of Law Number 35 of 2009 Concerning Narcotics were taken into consideration in proving the defendant's actions (Narcotics Law). One example is the decision in the drug crime case at the Special Class II Gedong Tataan District Court, which is based on the accuracy of the evidence and the legal facts presented during the trial and the fulfillment of the elements of each of these crimes.
It was argued that it was appropriate for the defendants to receive prison sentences and fines rather than engage in medical or social rehabilitation because their status as drug addicts or abuse victims had not been established.
Submitted: January 30 2023; Reviewed: March 13 2023; Accepted: March 20, 2023
A. Introduction
Drug abuse essentially falls under the category of norm violations, which are crimes under the law. If this is deemed a crime, the repercussions are treated as a shameful act that needs to be stopped through prevention and prosecution. Knowing the causes of Indonesia's dramatic rise in drug-related crimes begins with understanding the gap between the law's intended outcomes and what occurs in the field. Testing that can yield reliable results for offenders who use drugs is required to ascertain the reason for the rising crime rate related to drug abuse.
Crimes like drug abuse, whether committed by young or old, famous people or government officials who use drugs frequently, are no longer considered to be foreign crimes in this country.
A criminal refers to a person who commits a crime. To meet basic needs, there are frequently crimes and violations committed by certain individuals as well as those who pose a threat to certain members of society, which is known in legal science as a crime from the perspective of the sociology of law, specifically regarding crime. Issue of drug abuse is one of the many different types of crimes that take place in society.1
Law Number 35 of 2009, which regulates narcotics, seeks to eliminate illicit narcotics trafficking, prevent narcotics abuse, and ensure availability for the benefit of health and science.
Narcotics or drug crimes in accordance with Law Number 35 of 2009 are punishable by very harsh criminal penalties, including fines and corporal punishment; however, the number of offenders is rising. This is a result of the lack of a deterrent effect that criminal penalties have on the offenders. Drug abuse is a complicated issue with wide-ranging implications from a medical, psychiatric, mental health, and psychosocial standpoint. Drug abuse is not a straightforward incident that occurs on its own, but rather the outcome of numerous factors that unintentionally combine to create a phenomenon that is very harmful to all parties involved.
These factors include personal factors and environmental factors, which are intricately linked, go hand in hand, and play a part in the process. A person's growth and development occur over time, until that person decides the shape of his life. Therefore, a person's behavior deviation from the norms can be caused by both independent individual factors and environmental factors.2
If narcotics are used inconsistently in accordance with the prescribed dose, they can harm the user's physical and mental health and result in dependence. The distribution of drugs in Indonesia runs directly counter to the country's national development objectives, which include building an Indonesian population that is complete and a society that is just, prosperous, orderly, and peaceful based on Pancasila and the 1945 Constitution.3 The availability of narcotics as a form of medicine, along with expanding science, are all examples of ongoing efforts in the fields of medicine and health services. Increasing control and supervision as an effort to prevent and eradicate the abuse and illicit traffic of narcotics is urgently needed, because narcotics crimes are generally not carried out by individuals independently, but are carried out jointly,
1 Idik Saeful Bahri, Pemenuhan Hak Anak Dalam Proses Rehabilitasi Narkotika (Yogyakarta: Bahasa Rakyat, 2020), hlm 23.
2 Merry Natalia Sinaga, “Ide Dasar Double Track System: Sanksi Pidana Dan Tindakan Sebagai Sistem Pemidanaan Terhadap Pelaku Kejahatan Penyalahgunaan Narkotika,” Jurnal Penelitian Pendidikan Sosial Humaniora 3, no. 1 (2018).
3 Putri Herdriani and Palupi Lindiasari Samputra, “Pengaruh Layanan Rehabilitasi Narkotika Terhadap Kualitas Hidup Warga Binaan Pemasyarakatan Di Lembaga Pemasyarakatan,” Jurnal Ilmiah Universitas Batanghari Jambi 21, no. 3 (2021).
namely in the form of networks carried out by syndicates that are neatly organized and highly confidential so that someone easily get narcotics.4
The definition of "dealer" in the Narcotics Law is unrestricted, so it can be broadly interpreted to mean anyone who engages in the activities of selling, purchasing drugs for distribution, transporting, storing, controlling, and performing acts of exporting and importing drugs. At the same time, individuals who use substances can simultaneously be lassified as abusers, victims of abuse, or drug addicts. The application of these articles frequently gives rise to differing opinions regarding the application of the article to perpetrators in court, which leads to sentences being imposed. This is because there are numerous categories of drug crime perpetrators, as previously mentioned, and there are no restrictions or criteria for mentioning the perpetrators of these crimes. It seems unjust.5
Based on the decision (Number 86/Pid.Sus/2022/PN.Gdt) that was made by the Gedong Tataan District Court panel of judges, which was too harsh, the defendant was sentenced to 1 (one) year and 6 (six) months in prison. The maximum sentence outlined in Chapter XV of the Criminal Provisions Articles 111 to Article 127 of Law number 35 of 2009 should be imposed on the perpetrators, especially those who commit violations that are classified as class I violations, in light of the problems that have been mentioned above, where the Indonesian government has declared that Indonesia is in a state of drug emergency. The three (three) subgroups of abusers are users, addicts, and dealers. Users are those who abuse drugs or those who use them. A victim of drug abuse is a person who unintentionally uses drugs after being tricked, coerced, threatened, or forced to do so. Addicts to drugs misuse or use drugs excessively and develop a physical and psychological dependence on drugs. A dealer is someone who uses the buying, selling, storing, and receiving of drugs to spread knowledge about their availability.
There is no mention of decriminalizing drug abuse in Law Number 35 of 2009 Concerning Narcotics. Article 4 letter b of Law Number 35 of 2009 concerning Narcotics, states to prevent, protect, and save the Indonesian people from drug abuse, and Article 4 letter d of the same law, guarantees regulation of medical and social rehabilitation efforts for drug abusers and addicts, contain the nuances of decriminalization of drug abuse. Article 127 letter a, which stipulates that self-abuse of narcotics class I is punishable by a maximum of 4 (four) years in prison, also explains the nuances of decriminalization.6 According to the Criminal Code's definition of participation in a criminal act, the perpetrator of a criminal act in the case of drug abuse includes not only the user but also the one who orders it to be done, participates in it, and any advocate or helper.7 Judges' findings and the relevant laws' application are not the only means by which criminal responsibility for drug abuse is carried out. Whether the substances used contain narcotics class I or not, the judge does not only rely on a letter from the police regarding the results of urine tests and laboratory results; if this is proven, they must be punished by the relevant law.8
Judges must, however, also take into account the sentencing guidelines. According to BNN Regulation No. 11 of 2014 regarding Narcotics Addicts and Victims of Narcotics Abuse:
Procedures for Handling Suspects/Defendants in Rehabilitation Institutions. As stated in the
4 Septa Candra, “Pembaharuan Hukum Pidana; Konsep Pertanggungjawaban Pidana Dalam Hukum Pidana Nasional Yang Akan Datang,” Jurnal Cita Hukum 1, no. 1 (2013).
5 Mahrus Ali, Dasar-Dasar Hukum Pidana (Jakarta: Sinar Grafika, 2022), hlm 7.
6 M Ali Zaidan, Menuju Pembaruan Hukum Pidana (Jakarta: Sinar Grafika, 2022), hlm 51.
7 Titin Apriani, “Konsep Perbuatan Melawan Hukum Dalam Tindak Pidana,” Ganec Swara 13, no. 1 (2019).
8 Rahmanuddin Tomalili, Hukum Pidana (Sleman: Deepublish, 2019), hlm 44.
provisions of the regulations above, there are provisions regarding rehabilitation for convicts in the implementation of rehabilitation coaching in correctional institutions as follows:
1. The resident coaching period is 6 (six) months.
2. During detoxification and entry units, residents cannot be visited by family members.
3. Residents can be visited after entering the primary and re-entry phases.
4. If the resident escapes from the rehabilitation center and returns to the family, the family is obliged to inform the National Narcotics Agency and escort them back to continue the rehabilitation.9
Both objective and subjective criteria are used when a judge imposes a sentence or sentences. Subjectivity refers to the power a judge has when imposing a sentence, whereas objectivity is based on a courtroom examination. Criminal convictions that are subjective must also be objective. The evidence suggests that the panel of judges' decision (Number 86/Pid.Sus/2022/PN.Gdt) to sentence the accused to 1 (one) year and 6 (six) months in prison was a very harsh one, in the author's opinion. For those who commit drug crimes, rehabilitation needs to serve as a form of guidance. According to Article 54 of the Narcotics Law, drug addicts and victims of drug abuse must participate in social and medical rehabilitation.10
The evidence demonstrates that the Public Prosecutor, who was assigned to handle the second alternative in the case (Number 86/Pid.Sus/2022/PN.Gdt), came to the conclusion that the defendant was not a member of a network and recommended inpatient rehabilitation for 6 (six) months at a government-run facility in Kalianda Rehabilitation Workshop. As stated and punishable by criminal law in Article 127 paragraph (1) letter an of the Law of the Republic of Indonesia No. 35 of 2009 concerning narcotics, the defendant's actions constitute a criminal act. This makes the panel of judges' decision to impose the aforementioned criminal sanctions interesting to study, particularly in light of the rationale behind that decision. Therefore, the researcher needs to examine these legal issues further, in the form of research with the title
"Analysis of Judge Considerations on Criminal Imposition of Class I Narcotics Abusers at the Gedong Tataan District Court" (Study of Decision Number 86/Pid.Sus/2022/ PN. Gdt)11
This research will take a normative juridical problem-solving approach, which is supported by empirical juridical research. The normative juridical approach entails examining various theoretical issues pertaining to legal principles, conceptions, views, and doctrines, as well as legal rules and the legal system as it relates to formal and material criminal law as it relates to judges' considerations.12 and the crime of drug abuse. In order to study law in practice or based on facts obtained objectively in the field in the form of opinions, attitudes, and behavior of law enforcement officials based on the identification and efficacy of law, an empirical juridical approach is used. It was easier to interpret the data and comprehend the analysis's findings because the data were described in a quality manner using regular, coherent, logical, non- overlapping, effective sentences during the qualitative data analysis. After being presented in an orderly and systematic fashion, conclusions are made to create a clear picture.13
9 Kitab Undang-Undang Hukum Pidana.
10 Wisnu Jati Dewangga, “Penegakan Hukum Tindak Pidana Penyalahgunaan Narkotika Dengan Pelaku Anggota Kepolisian (Studi Kasus Di Wilayah Hukum Boyolali),” Jurnal Jurisprudence 4, no. 2 (2017).
11 Muhamad Nur Ardhy, Muhyi Mohas, and Reine Rofiana, “Sanksi Rehabilitasi Bagi Prajurit TNI Yang Menjadi Terpidana Penyalahgunaan Narkotika (Studi Kasus Di Pengadilan Militer II–08 Jakarta),” Sultan Jurisprudence:
Jurnal Riset Ilmu Hukum 1, no. 2 (2021).
12 Nindiya Putri and Ediman Manik, “Sistem Informasi Berbasis Web Pada Badan Narkotika Nasional (BNN) Kota Binjai,” Jurnal Informatika Kaputama (JIK) 2, no. 1 (2018).
13 Daffa Ladro Kusworo et al., “Establishment of a National Regulatory Body to Overcome Disharmonization of Natural Resources and Environmental Policies,” International Journal of Multicultural and Multireligious Understanding 9, no. 11 (2022).
The judge's considerations in case number 86/Pid.Sus/2022/PN.Gdt are briefly analyzed in this study. The judge did not find reasons both legal and non-legally. The urgency regarding the implementation of rehabilitation for the defendant who was not using drugs at the time he was apprehended, aside from the fact that no evidence in the form of drugs for (1) one day's use was discovered. Still, eight packs of used clips were found so that these facts could be used, so that the panel of judges did not provide rehabilitation for narcotics abusers.
The novelty of this research is that it aims to protect the community from drug abuse and trafficking in illegal substances. This can be avoided thanks to parents' significant role in society. Parents take on the role of mentors by teaching their kids life skills that will help them become mentally stable adults with clear life goals who don't abuse drugs. The judges were then instructed to exercise greater caution when deciding cases, especially those involving drug addicts. Must order factors according to the law. Because judges are given the power to hear a case in order to establish a sense of justice in society as law enforcers. Rehabilitation is undoubtedly crucial for the physical, psychological, and social well-being of a drug addict and victim of drug abuse. Therefore, it is preferable for the jury of judges to be required to provide rehabilitation measures when hearing cases involving drug addicts. Rehabilitative measures may also be beneficial for a stage of the criminal justice system, particularly for institutions of correction, to ensure that their capacity does not exceed that which has been established.
B. Discussion
1. Completeness of Judge's Case Files in Imposing Rehabilitation Crimes for Class I Narcotics Abusers
Drug crimes have been accommodated by Law Number 35 of 2009, which also provides legal protection for drug abuse victims and addicts who must go through both medical and social rehabilitation. Article 54 expressly and unequivocally requires this. According to Article 127 of Law Number 35 of 2009 on Narcotics, a person who abuses drugs may receive a criminal sentence for rehabilitation if they meet the criteria outlined in Supreme Court Circular Letter Number 04 of 2010 Concerning the Placement of Abuse, Victims of Abuse, and Narcotics Addicts into Medical Rehabilitation and Social Rehabilitation Institutions, which includes the following clauses:
1. When the accused was arrested by investigators he was caught red-handed;
2. Evidence of 1 (one) day usage was found, for the methamphetamine group it was 1 gram;
3. Positive laboratory test letter using Narcotics at the request of the investigator;
4. A certificate from a government psychiatrist/psychiatrist appointed by the Judge;
5. There is no evidence that the person concerned is involved in the illicit traffic of Narcotics.14 The judge does not always make decisions without providing specific justifications when they are being imposed. The judge must take certain things into account before ruling. These elements, which include witness and expert statements as well as letters, instructions, and statements from the accused, are listed in Article 184 Paragraph 1 of the Criminal Procedure Code. The judge will consider these factors as evidence when making their decision. The Decision Study Number (Number 86/Pid.Sus/2022/PN.Gdt) in the decision demonstrates that there are discrepancies between the rulings made by the judge and the charges brought by the public prosecutor.15 In response, the author believes that a judge is only permitted to decide on
14 Andi Najemi, Kabib Nawawi, and Lilik Purwastuti, “Rehabilitasi Sebagai Alternatif Pemidanaan Terhadap Anak Korban Penyalahgunaan Narkotika Dalam Upaya Perlindungan Terhadap Anak,” Jurnal Sains Sosio Humaniora 4, no. 2 (2020).
15 Herman Herman, Arie Wibowo, and Nurdin Rahman, “Perilaku Penyalahgunaan Narkoba Di Kalangan Siswa Sekolah Menengah Atas Negeri 1 Banawa Kabupaten Donggala,” Media Publikasi Promosi Kesehatan Indonesia (MPPKI) 2, no. 1 (2019).
the charges that have been brought against them. This complies with the non ultra petita principle. Non ultra petita, Latin for "not outside of request," is a legal principle that states that the court may not make any decisions beyond those requested. In particular, the court might not grant the winning party much of what they ask for.16
We will first discuss drug abusers when discussing victims of drug users and addicts. As stated in Article 1 Point 15 of the Narcotics Law, drug users and addicts are both considered to be "are those who use drugs illegally or without rights. Next, we discuss narcotics abusers' victims, who are defined as those who "unintentionally use narcotics because they are" cajoled, tricked, tricked, coerced, and/or threatened to use narcotics, while narcotics addicts are defined as those who use or abuse narcotics and are in a state of dependence on narcotics, according to Article 1 point 13 of the narcotic drugs that are physically and psychologically addictive.17 If we draw the conclusion that a drug addict and a victim of drug abuse both fall under the category of drug abusers because both addicts and victims use drugs without permission or in violation of the law. Special privileges under the Narcotics Law are available to drug abuse victims and addicts. Because of this, drug abuse victims and drug addicts can both take action in the form of rehabilitation. In order for former drug addicts, criminals, etc. to resume performing their social roles in social life, rehabilitation involves returning to its original position as an integrated recovery process.18
In fact, the law has protected this rehabilitation effort as an effort to save an abuser or addict so that they can get their health and social lives back to normal. The Narcotics Law does, however, contain inconsistencies, particularly in Article 127, paragraphs (2) and (3), which deal with rehabilitation and punishment, respectively. Article 54 of the Narcotics Law, states that
"Narcotics addicts and victims of Narcotics abuse must undergo medical rehabilitation and social rehabilitation."
This justification demonstrates the need for social and medical rehabilitation for both addicts and abuse victims. Theoretically, rehabilitation as a form of punishment in the theory of punishment adheres to the theory of treatment because the rehabilitation of drug addicts involves a variety of treatment interventions designed to help them overcome their dependence.
This is in line with the flow of treatment theory's idea of punishment, which is to offer treatment and rehabilitation to criminals in place of punishment. People who commit crimes are ill, so they require medical care and rehabilitation. The drug law does give judges more discretion when making decisions about criminal cases or drug treatment. The power to choose and impose prison terms or rehabilitation measures for drug addicts and abuse victims.
The Gedong Tataan District Court's decision to impose a prison sentence was based on Decision Number 86/Pid.Sus/2022/PN.Gdt, which stated that there were facts demonstrating that the Defendant had consumed Narcotics class I type methamphetamine for himself, not for the sake of his health, and without the Minister's approval on the recommendation of the Head of the Drug and Food Control Agency. The elements of Article 127 Paragraph 1 Letter A of Law Number 35 of 2009 Concerning Narcotics have been met by the defendant; consequently,
16 Tofri Dendy Baginda Sitorus, Maidin Gultom, and Jaminuddin Marbun, “Rehabilitasi Terhadap Pengguna Dan Korban Penyalahgunaan Narkotika Dalam Konsep Pemidanaan Di Indonesia (Studi Kasus Putusan Di Pengadilan Negeri Purwokerto),” Jurnal Prointegrita 4, no. 1 (2020).
17 Undang-Undang Nomor 48 Tahun 2009 Tentang Kekuasaan Kehakiman (Lembaran Negara Republik Indonesia Tahun 2009 Nomor 157, Anotasi 5076).
18 Daffa Ladro Kusworo and Rini Fathonah, “Analisis Implementasi Diversi Dalam Penyelesaian Perkara Anak Pelaku Tindak Pidana Pencurian (Studi Kasus Pengadilan Negeri Liwa),” Inovasi Pembangunan: Jurnal Kelitbangan 10, no. 2 (2022).
it is necessary to establish that the defendant has committed the crime charged in the second alternative indictment.19
According to the evidence presented at trial, the defendant was not currently using drugs at the time of his arrest by investigators, and no evidence of drugs for a single day's use was discovered; instead, 8 (eight) packs of used clips were discovered. As a result, the facts do not fall under the classification described in SEMA No. 4 of 2010's point 2 letters a and b regarding the implementation of rehabilitation. Based on all of these factors, the Judge did not find justifications for the Public Prosecutor's demands for the implementation of the Defendant's rehabilitation, either legally or morally. As a result, the Panel of Judges disagreed with the Public Prosecutor's demands for the Defendant's rehabilitation. The Judge believes that the verdict's sentence will be appropriate and fair because it will be in line with the defendant's actions after taking into account all of the relevant facts and circumstances from the quo case.
The author believes that he has adequately explained the strict grounds for the defendant's prison sentence based on the aforementioned considerations.20
These explanations have met the requirements of the Article's elements. It is essential to keep in mind that certain principles determine the standards by which a decision is considered correct or incorrect. That a decision is considered to be correct so long as it is not overturned or altered by the authority of a higher institution. According to the above explanation, the judge must, in essence, satisfy the requirements outlined in the Supreme Court Circular Letter Number 04 of 2010 concerning the placement of abusers, abuse victims, and drug addicts in medical and social rehabilitation institutions before deciding on a rehabilitation sentence.
According to Article 184 Paragraph (1) of the Criminal Procedure Code, the judge must also take into account the decision based on the evidence presented at the trial.21
2. The basis for Judges Not Providing Rehabilitation for Narcotics Abusers Case Number 86/Pid.Sus/2022/PN.Gdt
According to the elements of a crime established during the trial examination, the judge must render the most equitable decision in each case. The judge is permitted to consider facts that have never been made public when making a decision in a case. However, this freedom is also protected by the law, so a judge cannot make a quick decision in a case for unclear reasons.
Judges must not only rely on evidence to establish criminal responsibility for drug abuse; they must also base their decisions on the terms of sentencing. Criminal acts and criminal liability are the two categories into which sentencing is divided.
The definition of a criminal act is an action that is against the law, unjustified, and matches the formulation of the offense. The maker, who must be willing to accept responsibility for mistakes and lack of justification, is the component of criminal responsibility. Both objective and subjective criteria are used when a judge imposes a sentence or sentences. Subjectivity refers to the power a judge has when imposing a sentence, whereas objectivity is based on a courtroom examination. Criminal convictions that are subjective must also be objective.22
19 M Nurdin, “Kajian Yuridis Penetapan Sanksi Di Bawah Sanksi Minimum Dalam Penyalahgunaan Narkotika,”
Jurnal Hukum Samudra Keadilan 13, no. 2 (2018).
20 Anang Iskandar, “Penyalahgunaan Narkotika, Dipenjara Atau Direhab,” Hukum Pidana Dan Pembangunan Hukum 2, no. 1 (2019).
21 Marsaulina Nainggolan, Elvi Zahara, and Saparuddin Saparuddin, “Peranan Hakim Dalam Memberikan Perlindungan Hukum Terhadap Anak Korban Penyalahgunaan Narkotika (Studi Pengadilan Negeri Lubuk Pakam),” Jurnal Mercatoria 3, no. 2 (2010).
22 Andri Winjaya Laksana, “Tinjauan Hukum Pemidanaan Terhadap Pelaku Penyalahguna Narkotika Dengan Sistem Rehabilitasi,” Jurnal Pembaharuan Hukum 2, no. 1 (2016).
Abuse of narcotics is a crime that is graphically on the rise. Drug abusers can be considered both perpetrators and victims of crime. In other words, if you examine the theory of victimology of drug abuse, it is not only limited to the understanding of the victim as the object of a crime, but also must be understood as a subject that needs to be protected on a social and legal level.
According to this study, a person who accidentally uses drugs as a result of being persuaded, duped, tricked, coerced, and threatened into doing so, is a victim of drug abuse. Drug abuse occurs not only among students but also among children, famous people, businesses, and a number of government officials. Narcotic abuse occurs in almost every region, with the Gedong Tataan region being one of them. The Gedong Tataan District Court deals with numerous cases of drug abuse. The judgment lists one of the many cases decided (Number 86/Pid.Sus/2022/PN.Gdt). Judges have decided to charge offenders with crimes as drug abuse has increased.
The judge considered the judgment (Number 86/Pid.Sus/2022/PN.Gdt), which imposed criminal penalties for drug abusers. One of the most crucial factors in determining the value of a judge's decision that contains justice (ex a quo et bono), legal certainty, as well as benefits for the parties involved, is the judge's consideration. For this reason, the judge's consideration must be carefully, both, and carefully addressed. According to the judge's interpretation of Article 127 Paragraph (1) of Law Number 35 of 2009 Concerning Narcotics, a defendant can be considered to have committed a narcotics crime if it is proven that they met the requirements in each formulation of the offense.23 Elements It must be established that the offense was derived from the act that gave rise to the charge, the punishment imposed, the supporting evidence, and the factors that contributed to the judge's conviction. The fulfillment of at least two pieces of evidence as well as the judge's conviction are requirements for the formulation of the offense. The evidence that is attached is reliable, tenable, and pertinent.24
The author believes that criminal rehabilitation is a suitable punishment for drug abuse.
An alternative to overcoming drug abuse is rehabilitation. Articles 54, 55, and 103 of Law Number 35 of 2009 Concerning Narcotics regulate the provisions that judges may use to impose rehabilitation decisions on drug abusers. On the guidelines of Law Number 35 of 2009 Concerning Narcotics divides rehabilitation into 2 (two) parts. This clause mandates that drug abuse rehabilitation programs be implemented in stages and gives the medical system priority as a means of healing through a health science approach.25
According to these clauses, rehabilitation is actually the best course of action for dealing with drug abuse cases. It should be understood, though, that not every instance of drug abuse qualifies for a rehabilitation sentence. According to the Supreme Court Circular Number 04 of 2010 concerning Placement of Abuse, Victims of Abuse, and Narcotics Addicts into Medical and Social Rehabilitation Institutions, there are several requirements for a case of drug abuse that can be subject to a rehabilitation sentence, namely:
1. At the time of his arrest by investigators, the accused was caught red-handed;
2. Found evidence of 1 (one) day use, for the methamphetamine group is 1 gram;
3. Positive laboratory test letter using Narcotics at the request of the investigator;
4. A certificate from a government psychiatrist/psychiatrist appointed by the Judge;
5. There is no evidence that the person concerned is involved in the illicit traffic of Narcotics;
23 Imran Imran, Nu Fadhilah Mappaselleng, and Dachran Busthami, “Penegakan Hukum Terhadap Tindak Pidana Penyalahgunaan Narkotika Yang Dilakukan Oleh Anak,” Indonesian Journal of Criminal Law 2, no. 2 (2020).
24 Daffa Ladro Kusworo and Maghfira Nur Khaliza Fauzi, “Hybrid Restorative Justice: Optimizing Cessation Of Prosecution The Case Theft Through Restorative Judicial House,” Ius Poenale 3, no. 2 (2022).
25 Hamidah Abdurrachman, Eddhie Praptono, and Kus Rizkianto, “Disparitas Putusan Hakim Dalam Kasus Narkoba,” Pandecta Research Law Journal 7, no. 2 (2012).
Based on these provisions, if one of the points is not fulfilled, then the perpetrators of narcotics abuse cannot be rehabilitated. Therefore, in addition to criminal rehabilitation, the imposition of prison sentences is one of the decisions for narcotics abuse.
Although the panel of judges in this case considered that the defendant was also a victim of drug abuse, this consideration was in considering that because the defendant was able to accept responsibility, he must be found guilty, but considering that the defendant was only a victim of drug abuse based on the evidence presented at trial, the decision that will be made regarding the defendant's punishment is in accordance with the intended punishment. It is possible for the defendant to fall under the category of a victim of drug abuse if we underline the phrase "the defendant is only a victim in abusing narcotics" in the sentence. We can draw the conclusion that the defendant was a victim of drug abuse. Investigation information revealed that the defendant initially used drugs at someone else's invitation and not of his own free will.
The Big Indonesian Dictionary defines the word persuade as an attempt to persuade someone that what is being said is true using flattering language, etc. In the writer's opinion, the words invited and persuaded have nearly identical meanings.
However, the five provisions mentioned above are not always taken into account by the judge when deciding whether to impose a rehabilitation sentence or incarceration in a case involving drug abuse. There are additional factors that must be taken into account when making a decision regarding drug abuse. Judges face a number of challenges when deciding cases of drug abuse, including:
1. There were facts at trial where the perpetrators of narcotics abuse were not charged with Article 127 jo. Article 1 number 15 of Law Number 35 of 2009 concerning Narcotics 2. Perpetrators of drug abuse do not have the results of an assessment issued by a psychiatrist
or psychiatrist. Considering that the results of the assessment have an urgency for the judge in making a decision for the perpetrator to be sentenced to rehabilitation or imprisonment.
3. There are differences in the application of the alleged articles in some instances. There is an indictment of article 127 but in other cases there is no article 127 considering that the perpetrator had a similar series of actions.
4. The results of the assessment issued are not evenly distributed in every case.
5. There is no concrete benchmark to determine whether perpetrators of narcotics abuse should be sentenced to rehabilitation.
6. Budget mechanism and availability of facilities and infrastructure for treatment or rehabilitation treatment.26
When deciding cases of drug abuse, judges face the aforementioned challenges in particular. To deal with this case, it is necessary to attach specific evidence from both medical and non-medical sources. Prison sentences imposed for drug abuse have not significantly changed anything. Given that drug abuse crimes have not decreased; rather, they have grown every year. This was demonstrated at the Gedong Tataan District Court, which handled almost 80% of the cases involving drugs. Consequently, the Penitentiary was overcrowded as a result of this.
According to these clauses, the number of drug cases has not significantly decreased as a result of prison or rehabilitation sentences being imposed. Because it has specific justifications and foundations, the drug case in Decision Number 86/Pid.Sus/2022/PN.Gdt is appropriate for the offender. There was no justification for the Panel of Judges to find both legal and non-legal justifications for the implementation of rehabilitation for the Defendant, as well as the urgency
26 Undang-Undang Nomor 35 Tahun 2009 Tentang Narkotika (Lembaran Negara Nomor 135, Tambahan Lembaran Negara Nomor 5062).
with regard to doing so, in the Judge's consideration of Decision Number 86/Pid.Sus/2022/PN.Gdt. The judges in drug cases agree to give convicts different sentences in the same case or in cases where the crime rate is nearly the same.
It is carried out jointly or not at all without a basis for benarable judgment. There are several factors that contribute to the decision panel of judges in question, including the factor Hukumnya himself, the factor person, and the factor judge which is in a heightened state of alertness. Before coming to a conclusion regarding the narcotics case, panel of judges among other things, focused on developing other teachings that were related to determining the validity of the dispute between the parties regarding indictment passages and the nature of the relevant legal doctrines.
Criminal and action sanctions (dual track systems) are two categories of sanctions that apply to those who commit crimes. These sanctions include both types of sanctions, i.e., criminal sanctions and action sanctions. One of the two types of sanctions that, criminal sanctions and punitive action measures (double track system), do not fully utilize. The two types of sanctions are in the same position under this pathway system. Since both the element of reproach/suffering (through criminal sanctions) and the element of coaching (through action sanctions) are equally significant, the double track system places emphasis on the equality of criminal sanctions and action sanctions.27
The Public Prosecutor typically also uses Article 112 to find defendants guilty of drug abuse. However, in practice, drug users cannot be prosecuted under this Article. The Panel of Judges' decision to impose prison sentences in this case is meant to have a deterrent effect on the defendant, preventing him from committing the same crimes again.Even though it was determined during the trial that the defendant did use crystal methamphetamine for himself, it was also revealed from the laboratory results that the defendant was an active drug addict. The victim was also a victim of drug abuse. But it all came back to the judges' conviction that the defendant could not demonstrate his true drug addiction through a medical examination conducted prior to his arrest.28
An evaluation must be performed to ascertain the suspect's role as a user or dealer of drugs and the degree of drug dependence. Based on the assessment's findings, efforts were made to decriminalize drug abuse, which was previously only sanctioned for drug addicts and victims of drug abuse, according to Article 54 of Law Number 35 of 2009 Concerning Narcotics, which states that drug addicts and victims of drug abuse are required to undergo medical rehabilitation and social rehabilitation, and Article 103 paragraph (1) of the law. Law Number 35 of 2009 Concerning Narcotics, the depenalization effort takes the form of a requirement to participate in medical rehabilitation and social rehabilitation. According to Article 1 point 15 of Law Number 35 of 2009, the judge hearing a case involving a drug addict may decide to order the person to receive treatment and rehabilitation if the drug addict is found guilty of a drug crime but not proven to have committed a drug crime. Abusers of narcotics are those who use them illegally or without permission. Every person who abuses narcotics class I for themselves is threatened with imprisonment for a maximum of 4 (four) years, according to Article 1 number 15 of Law Number 35 of 2009 Concerning Narcotics.29
27 Evi Setia Permana, “Penjatuhan Putusan Hakim Atas Tindak Pidana Narkotika Berdasarkan Teori Conviction Rationee,” Al-Mashlahah Jurnal Hukum Islam Dan Pranata Sosial 9, no. 02 (2021).
28 Vience Ratna Multi Wijaya, “Sanksi Rehabilitasi Pada Penyalahguna Narkotika (Putusan Nomor:
79/Pid/2012/Pt. Tk),” Hukum Pidana Dan Pembangunan Hukum 2, no. 1 (2019).
29 Muhammad Akbar and Syahrul bakti Harahap, “Pertimbangan Hakim Dalam Memutuskan Perkara Tindak Pidana Penyalahgunaan Narkotika Golongan 1 Bagi Diri Sendiri,” Jurnal Smart Hukum (JSH) 1, no. 1 (2022).
Every drug user who abuses must try to satisfy their drug craving. Committing a sinister plot is one way to satisfy this need. The actions of two (two) or more people who agree to commit, carry out, assist, participate in carrying out, order, suggest, facilitate, or give a consultation as defined in Article 1 Number 18 of Law Number 35 of 2009 concerning Narcotics. Being a part of a drug crime organization or planning a drug crime. The perpetrator of an attempt or conspiracy to commit a narcotic crime as defined in Articles 111, 112, and 114 is sentenced to the same imprisonment as outlined in these articles, according to Article 132 paragraph (1) of Law Number 35 of 2009 concerning Narcotics. It is against the law to cultivate, maintain, own, store, control, or provide narcotics in the form of plants and to possess, store, control, or provide narcotics in the form of non-plants, as described in Articles 111 and 112 of Law Number 35 of 2009 concerning Narcotics. Offenders will be sentenced to a minimum of 4 (four) years in prison and a maximum of 12 (twelve) years in prison, as well as a fine (eight billion rupiahs).30
To only be classified as a class I drug abuser. As a result, the judges' panel took into account all of these factors as well as the findings of the trial examination. Beginning with the analysis of the defendant's statement, witness statements, expert testimony, and documentary evidence.
Next, consider the aggravated and mitigating factors. In addition to being one of the victims of drug abuse, the defendant is being prosecuted not only because he is a class I narcotics abuser who received a prison sentence by Article 127 paragraph (1).31
C. Conclusion
In deciding case number: 86/Pid.Sus/2022/PN.Gdt, the judge took into account the fact that the defendant was not using drugs at the time he was apprehended, and that there was no need for rehabilitation to be implemented immediately. In addition, there was no evidence of the defendant possessing drugs for use (1) on that day, but there were 8 packs of used clips, which meant that the defendant's circumstances did not fall under classification in point 2 of the court's decision. The Gedong Tataan District Court Panel of Judges believes that when compiling the case files, it is crucial to take into account imposing a rehabilitation sentence for a class I narcotics abusers, with the caveat that the judge must fulfill certain requirements.
According to Article 184 Paragraph (1) of the Criminal Procedure Code, the judge must also take into account the decision based on the evidence presented at the trial. The Supreme Court Circular Letter Number 04 of 2010 regarding the placement of abused persons, abuse victims, and drug addicts in medical rehabilitation and social rehabilitation facilities outlines these requirements.
The authors offer guidance to the public based on the findings of the research and discussion they have previously discussed, helping them become a group protected from drug abuse and illegal trafficking. This can be avoided thanks to parents' significant role in society.
Parents take on the role of mentors by teaching their kids life skills that will help them become mentally stable adults with clear life goals who don't abuse drugs. The judges were then instructed to exercise greater caution when deciding cases, especially those involving drug addicts. Must order factors according to the law. Because judges are given the power to hear a case as law enforcers in order to establish a sense of justice in society.
30 Tommy Busnarma, “Penerapan Sanksi Pidana Denda Terhadap Pelaku Tindak Pidana Penyalahgunaan Dan Peredaran Gelap Narkotika Di Pengadilan Negeri Padang,” Soumatera Law Review 2, no. 1 (2019).
31 Mohammad Hendra, “Tinjauan Yuridis Tentang Pelaku Tindak Pidana Penyalahgunaan Narkotika Berdasarkan Undang-Undang Nomor 35 Tahun 2009 Tentang Narkotika (Studi Yuridis Normatif),” Gema Genggong: Jurnal Hukum, Keadilan & Budaya 1, no. 1 (2016).
Acknowledgements
The authors would like to thank all those who have helped in the process of completing this article. Hopefully it can provide benefits for readers in terms of the Analysis of Judges' Considerations Against Sentence for Narcotics Abuse Category I (Study of Decision Number 86/Pid.Sus/2022/PN.Gdt)
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