Bandar Lampung, Lampung, Indonesia.
Volume3 Issue 2, July–Dec 2022: pp: 105-116 http://jurnal.fh.unila.ac.id/index.php/plr P-ISSN: 2723-262X E-ISSN: 2745-9306
Alternatives For Providing Compensation For The Detention Of A Defendant Whose Case Is Acquitted
Aristian Akbar
Pengadilan Negeri Gunung Sugih Kelas 1B, Indonesia aristianakbar08@gmail.com
Article's Information Abstract Keywords:
Compensation, Detention, Release
DOI:
https://doi.org/10.25041/plr.v3i2.2733
Abstract
Pretrial is still a paradox that creates uncertainty in compensating defendants who are acquitted and have permanent legal force. Pretrial is one way to enforce true justice, to enforce law, and truth through horizontal means as regulated in Article 80 of the Criminal Procedure Code to show the essence of pretrial as a form of supervision of coercive measures that have been carried out by investigators and public prosecutors against suspects. Therefore, this study aims to analyze the policy of criminal law regarding the alternative of providing compensation other than through pretrial. This research uses a normative juridical approach and a sociological juridical approach.
The data used in this study are secondary data and primary data and use library research and interview instruments. So to the results of this study, there are 2 (two) alternatives for providing compensation for the detention of the defendant whose case was acquitted and had permanent legal force. First, compensation is included in the court decision in case of a loss due to a criminal act.
Second, compensation can be made through an Alternative Dispute Resolution (ADR) with a court order. The legal implication when a judge provides compensation for the detention rights of a defendant whose case is acquitted and has permanent legal force is that the state must fulfill its obligation to pay compensation to the defendant.
Submitted: Sep 13, 2022; Reviewed: Sep 26, 2022; Accepted: Nov 23, 2022
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However, if the claim for compensation is rejected, it will result in losses from the accused's social, economic, and human rights aspects.
A. Introduction
South Jakarta District Court and two decisions from the Bumi City District Court. The issues raised in this paper are not new but are currently unanswered and do not receive special attention. Regarding compensation for the defendant who has been declared acquitted by the Judge and has permanent legal force (inkracht), currently, it can only be answered through a pretrial institution, which causes compensation to be uncertain. Regarding the request for compensation from the defendant who was acquitted with an inkracht decision, 4 (four) cases will be analyzed to help answer the problems that arise to realize humane justice.
Based on the case of 6 buskers who were charged with allegedly murdering Dicky Maulana,1 whose files were separated by Andro Suprianto and Nurdin Prianto, while 4 (four) others, namely Fikri Pribadi, Fatahillah, Arga or Ucok, and Pau were charged separately because the other 4 (four) were still in the category of minors aged 18 (eighteen) ) year. From the 6 (six) people in the court process, it turned out that it was not proven legally and convincingly as the perpetrators of the murder and had permanent legal force.
Then in 2016, Andro Suprianto and Nurdin Prianto submitted a request for compensation through a pretrial hearing with the decision granted, registered with the case register number 98/Pid.Prap/2016/PN.Jkt.Sel. so that each of them is entitled to compensation of Rp36 million.
This is interesting when the other 4 (four) want to file the same application against the acquittal, which has permanent legal force in 2019 with register number 76/Pid.Pra/2019/PN.Jaksel.
However, his application was rejected because the Judge judged that his application had lapsed, namely three months from the date of receiving the inkracht copy of the court decision, as stipulated in Article 95 of the Criminal Procedure Code.2
Furthermore, the first two decisions of the city of Bumi with register No. 1/Pid.Pra /2019/
PN.Kbu and Number 3/Pid.Pra /2019/ PN.Kbu, the reason for the rejection of the application is a legal issue that must also be answered. Because in his judgment, the Judge considers that as stipulated in Article 95 of the Criminal Procedure Code where the District Court has examined the main case, this after the trial (post-trial) is not the pretrial authority which means before the trial where what is meant by after the trial (post-trial) here is the leading case has reached the judicial process and has been examined and decided by the Judge that there has even been an appeal and has permanent legal force, thus the application for compensation referred to by the applicant in his application may not be submitted through a pretrial. So in his judgment, the Judge considers that the pretrial is not an institution with authority to decide after or after the trial. So, in this case, only when the case has not been examined is the pretrial authority.
Then in the next consideration, the Judge considers the procedures in the investigation and prosecution process, which are considered to have been by the provisions of the law so that the application for compensation is declared without legal grounds and is rejected. It is different with decision number 1/Pid.Pra/2019/PN.Kbu granted the request for compensation for the acquittal, which has permanent legal force with considerations that contradict the consideration of decision number 3/Pid.Pra/2019/PN.Kbu considers that although being arrested, detained, prosecuted, tried, and even shot with valid reasons according to the law as part of the criminal justice system process, there has been an actual loss to the applicant, so it is appropriate that
1 IM Putri, “Compensation for Victims of Wrong Arrest in Criminal Cases: Study of Decision Number 1273/Pid. B/2013/Pn.
Jkt. Cell Juncto Assignment Number 98/Pid. Prap/2016/Pn. Jkt. Sel”, LEX CERTA Vol. 5, no. 1 (2019): 1-20, 8.
2 R. Amin, et al, "Compensation Settlement in Criminal Cases Based on Pretrial Decisions: Studies at the South Jakarta District Court", Sasana Law Journal Vol. 8, no. 1 (2022): 19-32, 21, DOI: https://doi.org/10.31599/sasana.v8i1.974.
the claim for immaterial compensation from the applicant is granted proportionally Rp.200,000,000,- (two hundred million rupiahs) and the material loss of Rp.22,000,000 (twenty-two million rupiahs) shall be compensated by the state.
Based on the description above, problems arise if a person suspected of committing a crime has been determined as a suspect and valid detention is determined, then after examination in Court by a judge, the suspect is not sentenced because he is not proven guilty and the Judge decides to be released. Then to get his rights, is the defendant entitled to compensation and is the pretrial effort the most effective alternative to get compensation for the wrongful detention?
Based on these four cases, of course, it becomes a paradox as a legal issue that needs to be raised and how should the rights of the accused who have been declared free and legally binding still be protected by the state and are not biased in their application.
So in this study, an initial hypothesis emerges through normative juridical methods by combining legal materials and other scientific research. To answer the above problems, it is hoped that the criminal justice system will have its solution, which currently only has a pretrial institution. Of course, this will be revealed based on the theoretical basis of the criminal justice system and the principles of criminal law. So, objectively, get a solution to the problem that will be offered in the future in establishing criminal law or the Criminal Procedure Code or outside of criminal law, for example, in civil law or state administrative law.
Based on the research findings, the novelty of this research is that it is suggested that judges need to determine the amount of loss that must be paid by the state to the defendant so that the defendant who is acquitted by a decision that has legal force still does not need to file a compensation claim. These alternative means are needed so that future criminal law policies can ensure that the state continues to protect the rights of defendants who have been declared free and have permanent legal force and do not become biased in applying for compensation.
In addition, the procedure for applying for compensation for wrongful arrests and detention after a court decision has an accessible and effective system for the defendant to take in this case, and the complexity of disbursing compensation funds also adds to the record of system improvements and compensation management for errors in detention and arrest.
B. Discussion
The Court's legal basis for providing compensation and rehabilitation is contained in Article 9 of the Law on Judicial Power,3 which states that any person who is arrested, detained, prosecuted, or tried without any reason under the law, or because of an error regarding the person or direction he is taking apply, are entitled to compensation.4 Compensation has also been regulated in the Criminal Procedure Code. 5Referring to the provisions of Article 95 and Article 96 of the Criminal Procedure Code, a decision on compensation can be made through a pretrial. However, the defendants in compensation cases have been hesitant to claim their rights because the defendants whose cases have been acquitted and have been inkracht are often "lay"
people who do not understand court procedures. Therefore, to make it easier for these victims to get compensation, an alternative is needed as a breakthrough.
Government Regulation Number 92 of 2015 concerning the Criminal Procedure Code (PP for the Implementation of the Criminal Procedure Code) is a derivative regulation of Article 95 and Article 96 of the Criminal Procedure Code. More information on changes to the compensation policy can be found in the table below:
3 N. Mumek, “Rehabilitation and Compensation for Victims of Miscarriage According to the Criminal Procedure Code”, LEX CRIMEN 10, no. 7 (2021): 47-57, 49.
4 Lukman H, Tegar Mukmin Alamsyah Putra Paidjo, and Tegar Mukmin Alamsyah Putra, "Legal Protection for Victims of Miscarriage by the Indonesian Police", Journal of Law Magnum Opus Vol. 3, no. 1 (2020): 35-45, 41, DOI:
https://doi.org/10.30996/jhmo.v3i1.2786.
5The results of an interview with Eddy Rifai, as a Lecturer at the Faculty of Law, University of Lampung.
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Table 1. Development of compensation policy No Government Regulation No. 27 of
1983
Government Regulation Number 92 of 2015
1. Compensation claims can only be submitted within three (three) months as of the inkracht Court's decision.
Compensation claims must be submitted within three (three) months of obtaining a copy of the inkracht court decision.
2. Based on a court order, the Minister of Finance shall pay compensation.
Based on the excerpt of the verdict or court decision, the Minister shall pay compensation. Payments have been completed within a maximum of 14 working days from receiving the claim for compensation by the Minister in charge of government activities in the financial sector.
Source: Comparison of PP No. 27 of 1983 and PP No. 92 Year 2015
According to the table, compensation can only be made with a claim, meaning that payment must begin with a claim first, even though Article 95 of the Criminal Procedure Code does not regulate it. Regarding the amount of compensation, it has been regulated in Article 9 of the PP on the Implementation of the Criminal Procedure Code, which essentially states the following:
1. The minimum amount of compensation is Rp. 500,000.00 (five hundred thousand rupiahs) and a maximum of Rp. 100,000,000.00 (one hundred million rupiahs).
2. The nominal compensation for actions resulting in serious injury or disability so they cannot do work is at least Rp. 25,000,000.00 (twenty-five million rupiahs) and a maximum of Rp.300,000,000.00 (three hundred million rupiahs).
3. Nominal compensation for actions resulting in death, at least Rp. 50,000,000.00 (fifty million rupiahs) and a maximum of Rp. 600,000,000.00 (six hundred million rupiahs).
Referring to Article 95 of the Criminal Procedure Code, a compensation claim can only be submitted no later than three months from receipt of an inkracht court decision. 6Implementing imprisonment for released perpetrators cannot be separated from the obstacles experienced by parties who feel aggrieved, especially the accused, in achieving their rights. However, in line with Heni Siswanto's opinion, whatever the name, be it compensation, restitution, or compensation, it is part of the state's gift to people who have been abused mentally and physically, not only released but also given love.7
Sometimes the difficulty is calculating the amount of compensation. However, let the state regulate the amount of compensation so that we are still talking about pure law, not mixed with other matters. 8According to Fitri Ramadhan, these obstacles include the unavailability of options for providing compensation other than through a pretrial institution. 9This option is necessary because the provision of compensation for the detention of defendants who were acquitted based on the inkracht decision through pretrial still leaves various problems and differences of opinion, especially among judges. Therefore, by the initial hypothesis, regarding compensation for the detention of defendants who were acquitted based on the inkracht decision, in the future, the criminal justice system must have its model as a way out other than pretrial institutions.
6See Article 7 Paragraph (1) Government Regulation Number 92 of 2015, See also in Tata Wijayanta and Hery Firmansyah, Differences of opinion in court decisions , (Jakarta: MediaPressindo, 2018), 48.
7 The results of an interview with Heni Siswanto, as a Lecturer at the Faculty of Law, University of Lampung.
8 Ibid.
9Results of an interview with Fitri Ramadhan, as a Judge at the Tanjungkarang District Court Class IA.
Furthermore, there is an option (way out) other than pretrial institutions in providing compensation for detention to defendants whose cases are acquitted, becoming increasingly urgent because, so far, there have been obstacles at the practical level. The process provided for in the current law has proven to be challenging for most of the defendants acquitted. Existing regulations force defendants to obtain compensation through a pretrial process. In addition to making it difficult for the accused with complicated and protracted procedures, this process also does not guarantee legal certainty. 10In addition, most of the defendants who were acquitted were legal non-specialists. So they are not aware of their right to compensation. Although some of them know this, when they see the process that must be passed, they refuse to sue, even though they are entitled to compensation. Most of the defendants also complained about this because the right to compensation was not stated in the Court's ruling. The acquitted accused thought that there was no point in seeking compensation if it did not protect the accused but instead complicated matters. 11There are two methods of giving compensation that is currently being developed, as stated by Syafruddin below:12
1. ( Procedural rights model )
This paradigm requires the victim's involvement in the legal process, either directly or indirectly, to consider the sentence imposed on the perpetrator of a crime. 13In this case, the victim of a crime has the right to file a criminal complaint, assist the public prosecutor, or be presented at any level of court hearing whose interests are related to him. This view views victims as subjects who must be given comprehensive legal rights to sue and pursue their interests.14
2. ( Service model )
Because it contains sanctions for compensation, this model is more contemporary in criminal law. This model focuses on criminals and victims. This approach highlights the need to develop acceptable norms for the development of crime victims, such as rules that police and prosecutors can use in handling cases and offering compensation and restitution. Victims of crime, according to this approach, are considered to have a distinct purpose of serving in the context of law enforcement. 15Various opinions of informants regarding criminal law policies regulate the rights of defendants to detention whose cases are acquitted and have permanent legal force, as listed in the table below:
Table 2. Opinions of informants regarding the rights of defendants who were acquitted
Informant agency Opinion
Safruddin
Judge at the Tanjungkarang
District Court Class IA
1. The period of detention can be up to 700 days, therefore considering the length of the detention, problems arise when the defendant is declared acquitted of all charges of the public prosecutor and has permanent legal force, the extent to which the state is responsible for the rights of the accused in this regard and how the defendant can sue his right to compensation against him.
2. Furthermore, the family is quite happy with the defendant's release. Apart from this independence, there is no other hope.
10Results of an interview with Jeni Nugraha Djulis, as a Judge at the Metro Class IB District Court.
11Results of an interview with Dwi Aviandari, as a Judge at the Metro Class IB District Court.
12A. Sudaryanto, 2015, Introduction to Law, Understanding and Its Development in Indonesia, (Malang: Setara Press), p. 18.
13 MN Rizky, et al, "Legal Protection of Children Victims of Commercial Sexual Exploitation Through Social Media", Media Iuris 2, no. 2 (2019): 197-216, 208, DOI: 10.20473/mi.v2i2.13193.
14 Nofika Chilmiati, “Advocacy Policy Against Women and Children Based on Protection of Victims of Violence”, Law Reform, Vol. 9 No. 2 2014, p. 118.
15 Ibid., p. 118-119.
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Heni Siswanto
Lecturer at the Faculty of
Law, University of
Lampung
1. It is appropriate and appropriate for the state to give compassion to the defendant, whether it is based on being acquitted or otherwise.
2. Let the state regulate the compensation amount, so we are still discussing pure law, not mixed with other matters.
3. Not necessarily the decision to be free to get compensation.
Eddy Rifai
Lecturer at the Faculty of
Law, University of
Lampung
1. Compensation is regulated in the Criminal Procedure Code, specifically in Article 1 Number 22, Article 95, and Article 96.
2. Investigators, prosecutors, and judges who determine detention cannot be blamed as long as they are by the procedure. Therefore, the state bears the responsibility for free decisions.
Ramadan
Judge at the Tanjungkarang
District Court Class IA.
1. Constraints in providing compensation include the unavailability of options other than through a pretrial institution.
2. The acquittal of the accused has provided sufficient independence for the accused and his family.
Jeni Nugraha
Djulis
Judge at the Metro Class IB District
Court.
1. Existing regulations force acquitted defendants to seek compensation through pretrial. This does not protect the accused from prosecution. Apart from complicating the defendant's life with complicated and protracted procedures, it also does not guarantee legal certainty.
2. There is no longer a need for a lawsuit to seek compensation because the loss was already evident during the case examination. The defendant's losses were evident during the trial, apart from revealing key aspects of the case.
Dwi Aviandari
Judge at Metro District Court
Class IB
1. The acquitted defendant thought that regulating the defendant's ability to seek compensation was useless if it did not protect the accused but made it more difficult for him.
2. The method of compensation is given to assess the punishment imposed on the perpetrator of a crime by involving the victim in the legal process.
Anugrah R'Lalana Sebayang
Judge at Gunung Sugih
District Court Class II
1. Suppose the Court makes a swift decision on the amount of compensation to be paid by the government.
In such circumstances, the procedure will be expedited so that the defendant, who a legally binding decision has released, can immediately obtain his rights.
2. Many victims are unaware of the criminal justice system and therefore are unaware of their right to compensation.
Yoses Kharismanta
Tarigan
Gunung Sugih District Court
Class II
1. If the defendant suffers losses due to the acquittal, the Criminal Court's decision must include compensation for the loss.
2. The settlement of criminal problems cannot be left to a mutual agreement between the victim and the
perpetrator. Because the denial of criminal procedural law is within the jurisdiction of public law.
Source: Interview results
Referring to the opinion of some of the informants in the table above, then based on the idea of the need for alternative compensation other than through pretrial, in the future a solution is offered to provide compensation for the detention of defendants whose cases are acquitted and have permanent legal force. This alternative is needed so that future criminal law policies can ensure that the state continues to protect the rights of defendants who have been declared free and have permanent legal force and do not become biased in applying for compensation.
Two alternative arrangements are more effective and efficient in providing compensation for detention to defendants whose cases are acquitted and have permanent legal force, namely:
1. Compensation is included in the Court's decision
Suppose the Court directs the decision to determine the amount of compensation to be paid by the government. In that case, the procedure will be accelerated so that the accused, acquitted by a legally binding decision, can immediately defend his rights.16 Jeni Nugraha Djulis gave her opinion stating that the losses had already been seen in the case examination, and the actual losses from the defendant were also revealed so that no lawsuit was needed to get compensation.17 Furthermore, the main points of the case and the assessment of compensation for the defendant are included in the verdict. In addition to these factors, determining the Judge's decision without prosecution can encourage the prudence of law enforcement in processing cases.
This means that if the defendant suffers a loss due to an acquittal, the decision of the Criminal Court must include compensation in its decision.18 If a court decision has been inkracht, the state, through the Public Prosecutor (JPU), immediately implements it. Anugrah R'Lalana Sebayang asserted that legally a suspect, defendant, or convict is entitled to direct compensation by the state through the public prosecutor as the executor of the Judge's decision.19
Furthermore, the technical distribution of compensation payments must be regulated so that the injured person gets legal certainty. There is a choice of compensation budgets to be included in the Court, police, or prosecutor's budget. 20However, another source stated that the budget for compensation payments was set by the Ministry of Finance. As the Ministry of Finance in the case of the victims of mis-arresting Andro Supriyanto and Nurdin Priyanto based on the Minister of Finance Regulation No: 108/PMK.02/2018 regarding compensation in the pretrial compiled by the Palangka Raya State Court team.21 Compensation must be paid by the principles of justice, timely, simple, and efficient while still providing legal certainty to the parties. 22Weak public understanding of the law will lead to violations of the law. In Court, the public will commit acts against the law to win the case or influence the Court's decision.23
16Results of an interview with Anugrah R'Lalana Sebayang, as a Judge at the Gunung Sugih District Court Class II.
17Results of an interview with Jeni Nugraha Djulis, as a Judge at the Metro Class IB District Court.
18Results of an interview with Yoses Kharismanta Tarigan, as the Gunung Sugih District Court Class II.
19Results of an interview with Anugrah R'Lalana Sebayang, as a Judge at the Gunung Sugih District Court Class II.
20 M. Yusuf, “Execution of Additional Criminals in the Form of Substitution for Corruption Crimes by the Padang District Attorney (Study of Decision Number: 19/pid. sus-tpk/2015/pn Pdg)”, UNES Law Review 1, no. 1 (2018): 61-69, 67, DOI:
https://doi.org/10.31933/law.v1i1.8.
21 Hushendra, “Tuntutan Ganti Kerugian Dalam Perkara Praperadilan”, accessed on 09 November 2022 https://badilum.mahkamahagung.go.id/artikel-hukum/2990-tuntutan-ganti-kerugian-dalam-perkara-praperadilan.html
22 Rai Mantili, “Joint Responsibility for Immaterial Compensation for Actions Against Relating to the Principle of Legal Certainty”, Jurnal Bina Mulia Hukum Vol. 4, no. 1 (2019): 88-111, 91.
23Dahlan Sinaga, 2015, Independence and Freedom of Judges in Deciding Criminal Cases in the State of Pancasila Law, A Perspective of Dignified Justice Theory, (Bandung: Nusa Media), p. 278-279.
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Furthermore, court decisions are needed in the case of violations of the law enforcement process, whether in criminal law or only administrative violations, which are the basis for providing compensation as a form of liability. Every court decision or decision must be final and binding so that it can be implemented immediately.24 Clear and simple court mechanisms/procedures are needed because defendants who are victims of violations of the law enforcement process are in a vulnerable position. To guarantee the rights of the defendant whose case has been acquitted and has permanent legal force, the decision or conclusion must be implemented quickly to improve the condition of the defendant. If the legal decision is not final, there are still legal remedies available for the decision, which also takes too long.
Meanwhile, the situation may worsen if the defendant's recovery is not accelerated.
2. Compensation through ADR by court order
Non-litigation or out-of-court conflict resolution, also known as Alternative Dispute Resolution (ADR), 25can compensate defendants who have been released and have permanent legal consequences. ADR and other forms of penal mediation are widely recognized in criminal law and practice, their mission being to maintain justice and balance. ADR can help streamline operations and reduce red tape. Furthermore, compensation can be given immediately and immediately, so that the injured party can obtain their rights directly.
Furthermore, ADR can also accelerate granting rights to defendants whose cases have been acquitted and have permanent legal force. However, in the process, the outcome of the out-of- court settlement must also be in accordance with the applicable provisions so that the Judge's determination to determine the outcome has binding legal certainty. If it is not in accordance with the provisions of the law, in that case, the Judge can reject the results of the ADR agreement and order the ADR process to be repeated so that the nominal compensation is by the law. The agreement of the parties regulates dispute resolution through ADR. In this situation, it does not necessarily give coercive (binding) authority to the parties but relies more on good faith. 26This means that dispute resolution through ADR is based in a voluntary sense.
Regarding the party responsible, in this ADR the most appropriate is the government or the state, 27not the apparatus. M. Yahya Harahap emphasized that holding the state apparatus accountable for compensation claims is inappropriate and counterproductive. The weight of responsibility like this will change the attitude of law enforcement officers in carrying out their duties because they are overshadowed by the prospect of having to pay compensation. It is also less effective because if the official in charge pays the demands, execution can be hampered.28 This opinion is in line with Eddy Rifai, according to him, investigators, prosecutors and judges who determine detention cannot be blamed as long as they are in accordance with the procedure.
Therefore, the state bears the responsibility for free decisions.29
Yahya Harahap gave an example of a corporal who committed an illegal act and was unable to pay compensation, so the fulfillment of compensation was complicated because his wealth and income were insufficient to pay the compensation claim, which was legalized through the Pretrial. Consequently, to prevent difficulties in claiming payments, it is necessary to account
24 AK Jaelani, Handayani IGAKR, and Lego Karjoko, “Execubility of the constitutional court decision regarding grace period in the formulation of legislation”, International Journal of Advanced Science and Technology 28, no. 15 (2019): 816-823, 816.
25 B. Balzer and Johannes Schneider, “Managing a conflict: optimal alternative dispute resolution”, The RAND Journal of Economics Vol. 52, no. 2 (2021): 415-445, 416, DOI: https://doi.org/10.1111/1756-2171.12374.
26NV Ariani, “Simple Lawsuits in the Indonesian Criminal Justice System,” DE JURE , Vol. 18 2018, p. 386.
27 L. Charkoudian, Deborah T. Eisenberg, and Jamie L. Walter, “What works in alternative dispute resolution? The impact of third-party neutral strategies in small claims cases”, Conflict Resolution Quarterly 37, no. 2 (2019): 101-121, DOI:
https://doi.org/10.1002/crq.21264.
28M. Yahya Harahap, 2006, Discussion of Problems and Application of the Criminal Procedure Code: Examination of Court Sessions, Appeals, Cassations, and Judicial Review , (Jakarta: Sinar Grafika), p. 39.
29The results of an interview with Eddy Rifai, as a Lecturer at the Faculty of Law, University of Lampung.
for them to the state. The government or state must be responsible for the activities of its officials.30
This provision for state accountability is stipulated in Article 11 Paragraph (1) of the PP on the Implementation of the Criminal Procedure Code, which stipulates that based on the excerpt of the court decision as referred to in Article 10, the Minister of finance shall pay compensation. In the general explanation of Article Paragraph (1) it is determined that the payment of compensation shall be charged to the State Revenue and Expenditure Budget.
Compensation through ADR with a court decision is in line with the opinion of Yoses Kharismanta Tarigan, stating that the settlement of criminal cases cannot be left to the agreement of the victim and perpetrator. This is because violations of criminal law are within the jurisdiction of public law. 31This means that the decision is stated in a judge's determination or court decision.32
As a result of their mistakes or omissions that result in the state having to pay compensation, officials may be subject to action in accordance with applicable regulations. Of course, by guaranteeing legal certainty for the guilty parties, the judiciary is carried out quickly and with minimal costs. Imposing fines on law enforcement officials/officers who commit procedural errors raises public awareness of the need for law enforcement officers to be more careful and professional in carrying out their duties. Law enforcers who violate the law are seen as the same as people who violate the law, equality before the law.33 This encourages learning and prevention efforts for law enforcement officers who misapply the law and demands that law enforcement officers exercise caution in the legal process to ensure that defendants' rights are respected.34
In addition to the two alternative models described above, there are several other options regarding criminal law policies regulating the defendant's right to detention whose case is acquitted and has permanent legal force. These options include compensation through a civil lawsuit, a simple civil lawsuit, and the decision of the Administrative Court. However, the three alternative efforts require a long time and complicated procedural provisions. Meanwhile, as explained earlier, the rights of the accused whose case is acquitted and has legal force must still be fulfilled immediately based on the principles of quick, simple, and low-cost trial. In addition, if the compensation mechanism must be submitted through a civil process and the Administrative Court, it will cause difficulties for the defendant, who is generally not a legal expert. Therefore, compensation is included in court decisions, and ADR with a court order is seen as the most appropriate alternative to guarantee the defendant's right to detention whose case is acquitted and has permanent legal force.
C. Conclusion
In addition to pretrial, future criminal law policies related to the provision of compensation for the detention of defendants whose cases are acquitted and legally binding can be carried out through 2 (two) alternatives. First, in the event of a loss, the criminal Court's decision must also include compensation for the loss. This is because no rules clearly describe the details in the sentencing decisions as regulated in Article 197, Article 199, and Article 200 of the Criminal Procedure Code, especially regarding compensation in the form of a determination. Second, compensation for the detention of defendants whose cases are acquitted and legally binding can
30 Ibid.
31Results of an interview with Yoses Kharismanta Tarigan, as the Gunung Sugih District Court Class II.
32Lilik Mulyadi, 2007, Judge's Decision in Criminal Procedure Law (Bandung: Citra Aditya Bakti), p. 121.
33 D. Acemoglu and Alexander Wolitzky, "A theory of equality before the law", The Economic Journal Vol. 131, no. 636 (2021): 1429-1465, 1429, DOI: https://doi.org/10.1093/ej/ueaa116.
34 G. Gulati, Alan Cusack, Brendan D. Kelly, Shane Kilcommins, and Colum P. Dunne, “Experiences of people with intellectual disabilities encountering law enforcement officials as the suspects of crime–A narrative systematic review”, International journal of law and psychiatry 71 (2020): 1-8, DIO: https://doi.org/10.1016/j.ijlp.2020.101609.
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still be made through out-of-court dispute resolution (non-litigation), commonly known as Alternative Dispute Resolution (ADR).
Based on the research findings, the novelty of this research is that it is suggested that judges need to determine the amount of loss that must be paid by the state to the defendant so that the defendant who is acquitted by a decision that has legal force still does not need to file a compensation claim. These alternative means are needed so that future criminal law policies can ensure that the state continues to protect the rights of defendants who have been declared free and have permanent legal force and do not become biased in applying for compensation.
In addition, the procedure for applying for compensation for wrongful arrests and detention after a court decision has an accessible and effective system for the defendant to take in this case, and the complexity of disbursing compensation funds also adds to the record of system improvements and compensation management for errors in detention and arrest.
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