Ius Poenale is a journal published by Faculty of Law, Universitas Lampung, under a Creative Commons Attribution-Share Alike 4.0 International License.
Volume 4 Issue 1, March 2023: pp.60-74.
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 Decide Trials in Absentia in Desertion Crimes
Dava Prawira Wibowo
Pengadilan Negeri Tangerang, Indonesia, davapw@gmail.com
Article’s Information Abstract keywords:
Desertion, In Absentia, Military.
DOI :
https://doi.org/10.25041/ip.v4i1.2963
Military Members are limited by Laws and Military regulations so all the actions that are undertaken must also be based on Applicable laws and regulations. One of the most common crimes committed within the TNI is a criminal act of desertion desertion is the most prominent crime and must be done immediately resolved because it involves the integrity of the troop, it is necessary to regulate it specifically in order to be immediately decided and obtain legal certainty. However what if the military personnel who committed the crime of desertion could not found its existence or in this case the examination of the criminal act of desertion in absentia The method used by using a normative juridical approach method and supported by empirical juridical approach in the form of support from criminal law experts and law enforcement to support normative juridical data. Approach Normative juridical is done by seeing, analyzing and interpreting matters of a theoretical nature concerning legal principles through search related literature directly or indirectly direct Based on the results of research and discussion can be drawn a conclusion of the process the implementation of the desertion crime trial can be stated in absentia,if at the time of the third summons, the defendant still did not appear at the hearing (Law No. 31 of 1997 concerning Military Justice, Article 143). The judge's considerations in deciding the crime of desertion to three considerations, namely based on juridical considerations on formal statutory provisions, sociological considerations based on the social background of the defendant and for expediency, as well philosophical considerations with the aim that the sentence imposed against the accused as an effort to uphold discipline for each military member.
Submitted: March 17 2023; Reviewed: March 30, 2023; Accepted: March 31, 2023
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A. Introduction
The Indonesian National Army (TNI) is part of the general public specially prepared to carry out the task of defending the State and nation. In addition, the TNI is limited by laws and military regulations so that all the actions that are undertaken must also be based on to applicable laws and regulations. TNI as a tool of the State in the field of defense and security, and do not change attitudes and the behavior of TNI soldiers who must always protect society.1 To be able to carry out heavy and very special duties and obligations, the TNI is educated and trained to keep the commandments and carry them out with precision, power use and work. The higher the level of public legal awareness then all TNI soldiers must be more careful in their actions and actions act so as not to commit acts that may violate legal norms apply. Military contexts are rapidly changing and are facing unprecedented levels of uncertainty and complexity.2 Therefore, the TNI is required to have a professional attitude have an attitude that reflects a soldier leader who is responsible, loyally devoted to the nation, honest, obedient to the rules, disciplined high, and spirited leadership that is expected to be a role model for all citizens of Indonesia.
One of the different arrangements for the application of punishment between citizens common with military soldiers there is a time of application of the sentence.3 The position before the law of a military member is no different from that of a citizen other, nevertheless the legal procedures that must be followed by members of the military those who violate the law or criminal acts are different from the people in general (civilian), because members of the Military are subject to Military justice and the general public is subject to general justice.4
There are four judicial settings in Indonesia: the general court, the religious court, the military court, and the administrative court.5 As mandated by the Indonesian Constitution.6 The Military Criminal Law was first applied in Indonesia in 1798. The military criminal law rules developed based on needs according to the situation and conditions and were also influenced by experiences.7 Law has been forced to openly carry out political-ideological functions for decades and is too politicized.8 The Military Court is a special judiciary that has the authority to try certain cases or regarding certain groups of people. Law Number 48 of 2009 concerning Judicial Power emphasizes that the task of the Military Court is to have the authority to
1 Chalim, Munsharif Abdul, And Faisal Farhan. "Peranan Dan Kedudukan Tentara Nasional Indonesia (Tni) Di Dalam Rancangan Undang-Undang Keamanan 102 Nasional Di Tinjau Dari Perspektif Politik Hukum Di Indonesia." Jurnal Pembaharuan Hukum 2, No. 1 (2016): 102-110.
2 Cara Wrigley, Genevieve Mosely, Michael Mosely, Defining Military Design Thinking: An Extensive, Critical Literature Review, She Ji: The Journal Of Design, Economics, And Innovation, Volume 7, Issue 1, (2021).
3 Dewi, Nadia Novianti Kusuma. "Pertanggungjawaban Pidana Bagi Anggota Tni Yang Melakukan Tindak Pidana Kesusilaan Dengan Orang Yang Bukan Anggota Keluarga Besar Tni (Study Putusan Nomor: 5- K/Pmu/Bdg/Al/Iv/2019)." Transparansi Hukum 6, No. 1 (2023). Dewi, Nadia Novianti Kusuma.
"Pertanggungjawaban Pidana Bagi Anggota Tni Yang Melakukan Tindak Pidana Kesusilaan Dengan Orang Yang Bukan Anggota Keluarga Besar Tni (Study Putusan Nomor: 5-K/Pmu/Bdg/Al/Iv/2019)." Transparansi Hukum 6, No. 1 (2023).
4 Warsono, April 2019, Penyelesaian Tindak Pidana Disersi Secara In Absensia Di Pengadilan Militer Ii-10 Semarang, Jurnal Spektrum Hukum, Vol. 16, No. 1, Hal-139.
5 Eny Kusdarini, Anang Priyanto, Sri Hartini, Suripno Suripno, Roles Of Justice Courts: Settlement Of General Election Administrative Disputes In Indonesia, Heliyon, Volume 8, Issue 12, (2022)
6 Ni'matul Huda, Dodik Setiawan Nur Heriyanto, Allan Fatchan Gani Wardhana, The Urgency Of The Constitutional Preview Of Law On The Ratification Of International Treaty By The Constitutional Court In Indonesia,
Heliyon, Volume 7, Issue 9, (2021).
7 Imanuel, Dennis Raja. "Proses Penyelesaian Tindak Pidana Desersi Dilingkungan Tni." Lex Crimen 5, No. 3 (2016).
8 Ija Suntana, Tedi Priatna, Four Obstacles To The Quality Of Constitutional Law Learning In Indonesia, Heliyon, Volume 9, Issue 1, (2023)
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examine, try and decide cases of military crimes in accordance with the provisions of the law and regulations. -applicable legislation (Article 25 Paragraph 4). It was also explained that the judiciary under the Supreme Court includes judicial bodies within the realm of general courts, religious courts, military courts and state administrative courts.
Regarding the duties regarding the administration of justice, it is regulated in Law Number 48 of 2009 concerning Judicial Power. In this Law it is explained that the Judicial Power is the power of an independent state to administer justice in order to uphold law and justice based on Pancasila, for the sake of the implementation of the Law State of the Republic of Indonesia.
This independent judicial power implies that the judicial power is free from interference from other state powers and freedom from coercion or recommendations coming from extra-judicial parties, except in matters permitted by law.
In carrying out their duties, a military has certain regulations must be obeyed. Where are the rules too reflects the discipline of members of the military.9One of the crimes that is often committed within the TNI is the crime of desertion. However, in reality this is different from what is expected, because of internal and external influences that become obstacle. One of these obstacles is the actions of TNI soldiers who desertion, where the act is very detrimental to the organization and military honor. Today the crime of desertion is one of the crimes that is often found in a military unit, where soldiers often leave the unit without a valid reason and without permission from their superiors. The crime of desertion is regulated in Article 87 of the Military Criminal Law (KUHPM) which states:
(1) Threatened for desertion
1st, those who leave with the intention of withdrawing forever from their service obligations, avoiding the dangers of war, crossing over to the enemy or entering military service in a country or other power without being justified for that.
2nd, those who because of their fault or intentionally make absences without permission during peacetime longer than thirty days, during wartime longer than four days.
3rd, those who intentionally make absences without permission and because they do not participate in carrying out part or all of an ordered trip.
(2) Desertion committed in peacetime, is punishable by imprisonment for a maximum of two years and eight months.
(3) Desertion committed during war time, is punishable by imprisonment for a maximum of eight years and six months.
Completion of criminal acts within the TNI environment requires regulations in order to achieve integration of ways of acting between the officials assigned authority in settlement of criminal cases within the TNI. Therefore desertion is the most prominent and mandatory crime resolved immediately because it concerns the integrity of the troop; it is necessary to regulate specifically to be immediately decided and obtain legal certainty.
For this reason, Law Number 31 of 1997 concerning Military Courts has separately regulated the settlement of desertion crimes where the accused is not present at trial or from the beginning of the examination in absentia. In absentia is a concept in which the accused has been legally summoned and does not appear at trial without a valid reason, so that the court conducts an examination at the court without the presence of the defendant.5
The novelty of this study regarding Law Number 31 of 1997 concerning Military Justice has separately regulated the settlement of desertion crimes in a case trial. This arrangement applies to desertion cases where the accused flees themselves and not found again within 6 (six) consecutive months as well as attempted summons 3 (three) times in a row legally, but no present at trial without reason, can be examined and decided without presence of the accused. Then in the explanation, it was stated that time 6 (six)
9Mulyana, Yusep. "Pertanggungjawaban Pidana Terhadap Tni Pangkat Titular Yang Melakukan Pelanggaran Hukum." Jurnal Pendidikan Dasar Dan Sosial Humaniora 2, No. 3 (2023): 467-478.
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months shall be calculated after the case file is transferred to court. The provisions of the Act should be a guide for para law enforcement in the military environment to enforce the law in the environment Military.
Settlement of a case should present the defendant, if a criminal trial is not attended by the defendant it greatly robs the right of a defendant to defend in a trial then this is contrary to one of the principles in the Court, namely the principle of the Court Examining Criminal Cases in the Presence of the Defendant, then Law no. 8 of 1981 Article 154 paragraph (4) also disagrees, "If it turns out that the defendant is legally summoned but does not appear at trial without a valid reason, the examination cannot be carried out and the head judge at trial orders that the defendant be summoned once more". The method used research using a normative juridical approach and supported by an empirical juridical approach in the form of support from criminal law experts and law enforcement to support normative juridical data. Approach Normative juridical is done by seeing, analyzing and interpreting matters of a theoretical nature concerning legal principles through search related literature directly or indirectly direct
B. Discussion
Military Criminal Law is basically the law that applies and is imposed on military member.
Military criminal law is a general provision that regulates a military man who contains actions that are considered in the category Violation or Crime or is a prohibition or obligation, as well as sanctions punishment as a threat to those who violate these regulations.
According to Amiroeddin Sjarif, only a few people paid attention to it military law.
Maybe people think that military law is enough to known only to the military. This is certainly not wrong. But also not completely correct. The military law of a country is a sub-system of law from that country. Because the military is part of a society or nation
Military law in a broad sense includes the notion of military criminal law in the material sense and criminal law in the formal sense. That is explained that:
a. Military Criminal Law in Material Meaning
According to Moch Faisal Salam, material criminal law is a collection of criminal act regulations that contain orders and prohibitions to uphold legal order and if these orders and prohibitions are not obeyed, they are subject to criminal penalties.
b. Military Criminal Law in the Formal Meaning
Meanwhile, formal criminal law, which is better known as criminal procedural law, is a collection of legal regulations that contain provisions regarding judicial powers and procedures for examination, investigation, prosecution and sentencing for military personnel who violate material criminal law. Formal criminal law is also called criminal procedural law which is tasked with maintaining material criminal law.
Military Crime in the Military Criminal Code is divided into two parts, namely:
a. Pure Military Crime (Zuiver Militire Delict), which can only be committed by a military person, because of its special military nature;
b. Mixed Military Crime (Gemengdemilire Delict) is a crime that has been regulated in other laws, but because the threat of punishment is felt to be relatively light if it is committed by a military man, the provisions regulated in other laws are rearranged. in the Military Criminal Code with more severe punishment. 38
Examples of Pure Military Crimes and Mixed Military Crimes:
a. Examples of Pure Military Crimes:
1) The crime of desertion as regulated in Article 87 of the Military Criminal Code (KUHPM);
2) Insubordinate Crime as regulated in Articles 105-109 of the Criminal Procedure Code b. Examples of Mixed Military Crimes:
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1) Rape committed by a military during the war. If rape is committed in a peaceful state, then the rapist is subject to the punishment that applies in the Criminal Code. But if it is done during the war then it will be subject to the provisions of the Criminal Procedure Code.
2) Theft of military equipment where the military is given the task of guarding it, then the military who commits the theft is not subject to the provisions stipulated in the Criminal Code, but is subject to the provisions stipulated in the Criminal Code. The existence of military law does not mean that general criminal law does not apply to the military. However, for the military it applies to general criminal law as well as military criminal law. Article 1 of the KUHPM reads:
(amended by Law No. 39 of 1947) "For the application of this Code the general criminal law provisions apply, including the ninth chapter of the first book of the Criminal Code, unless there are deviations determined by Constitution".
The special regulations that apply to the military are as follows:
a. Military Compulsory Law
The law that regulates military conscription is Law Number 66 of 1958 State Gazette No.
117/1958. New people's defense can be realized when in peacetime it is possible to prepare the people to train themselves in carrying out defense tasks, where all the people can be mobilized, namely:
1) Armed Forces Reserves consisting of compulsory military personnel who were educated and trained periodically during peacetime;
2) Trained people consist of those who are not included in the armed forces (voluntarily or compulsorily) to perform non-military specific defense tasks, and assist the armed forces in carrying out their tasks directly or indirectly.
The military must be distinguished from trained people, because if the military is obligated the person concerned is active service as a military man, until the mandatory period is over.
b. Voluntary Military Act
To become a voluntary military member, namely a permanent member of the military, is regulated by Law no. 19 of 1958 concerning the Stipulation of Emergency Law No. 26 of 1957 concerning Members of the Armed Forces Based on Voluntary Service Association (Voluntary Military) (State Gazette of 1957 No. 83) as a Law. What is meant by voluntary military are those who enter the armed forces based on voluntary service ties, namely those who voluntarily wish to become members of the armed forces. Those who are accepted or who tie themselves with voluntary military service fish.
c. Army Discipline Regulations (PDT)
Every citizen who enters military service, whether mandatory or voluntary, since being appointed as a soldier in question must know and obey the army discipline regulations stipulated in Government Regulation No. 24 of 1949.
In the life of the army, discipline is an absolute requirement: 1) Comply with all army regulations and all official orders from each superior as well as regarding small matters in an orderly, precise, perfect and high awareness;
2) Upholding life in a new and regular army.
In the life of the army, the discipline must be with full confidence, obedience and obedience, loyalty to superiors by adhering to the principles that have been stated in the saptamarga and soldier's oath.
d. Soldier Honor Regulations
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Respect is always done with eyes fixed on the party being honored, and the person receiving the honor is always obliged to repay the honor.
Types of military honors:
a) Respect for greatness, which is delivered to:
1) Corpses in military ceremonies;
2) National flag in official ceremonies;
3) Head of state/deputy head of state;
4) National anthem in official ceremonies;
5) Army banners;
6) Minister of Defense/Army Commander;
7) Force Commander;
8) Disaster;
9) All high ranking officers;
10) Regional Commander/equal official.
b) Military honors are usually given to all or fellow rankers (to create corps ties). The great military salute is carried out with a gun salute for soldiers who use long weapons, and those who use swords for ceremonial commanders.
e. The Military Discipline Law Code for members who violate military discipline laws, they can be subject to disciplinary law, which is regulated in the Republic of Indonesia Law Number 25 of 2014 regarding the Military Discipline Law, disciplinary violators are subject to disciplinary punishment by the violator's direct superior, in a disciplinary judge's hearing, consisting of the Troop Commander and his staff. The disciplinary violations are as follows:
1) Not specified in criminal regulations;
2) Contrary to an official order or service regulation;
3) Not allowed to happen in the order and order of the army.
f. Military Criminal Law and Military Criminal Procedure Law are special laws, called special laws with the meaning to distinguish them from general criminal law and general criminal procedure law which apply to all people.
In terms of the law, absenteeism court is a way to examine someone and convict him even if the defendant is not present in this case.10 The crime of desertion is a crime specifically committed by a military man because it is against the law and contrary to law, especially military criminal law.11 The nature of the crime of desertion committed by perpetrators within the military environment is absenteeism or withdrawing from their service obligations in an illegal way, at the place or in the places that have been determined for them. Desertion, in other words, is an illegal or intentional absence, which is specifically carried out by the military because it is against the law and contrary to the law, especially military criminal law.
Desertion is contained in the Military Criminal Code contained in Article 87:
(1) Threatened for desertion, military:
1st, those who leave with the intention of withdrawing forever from their service obligations, avoiding the dangers of war, crossing over to the enemy or entering military service in a country or other power without being justified for that.
10 Purwanta, I. Wayan Kusuma, Anak Agung Sagung Laksmi Dewi, And Ni Made Sukaryati Karma. "Akibat Hukum Bagi Prajurit Tni Melakukan Tindak Pidana Desersi Yang Diputus In Absentia Dalam Praktek Pengadilan Militer Iii-14 Denpasar." Jurnal Konstruksi Hukum 2, No. 1 (2021): 123-127.
11 Tambunan, Fransiscus Aparius Andri. "Penyuluhan Hukum Dalam Pencegahan Desersi Dan Thti Di Kalangan Prajurit Tni Ad Dan Implikasinya Bagi Ketahanan Organisasi (Studi Di Yonif R 631/Atg Kota Palangka Raya, Provinsi Kalimantan Tengah)." Jurnal Ketahanan Nasional 28, No. 3 (2022).
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2nd, those who, due to their fault or intentionally, are absent without permission during peacetime longer than thirty days, during wartime longer than four days.
3rd, those who intentionally make absences without permission and because they do not participate in carrying out part or all of an ordered trip.
This article explains that there are three types of desertion:
1) Desertion for the purpose, as referred to in Paragraph (1) 1st:
a) Leaving and meant withdrawing forever from his service obligations.
b) Avoiding war.
c) Crossing over to the enemy.
d) Unlawfully enlisted in the military service of a foreign country.
2) Desertion due to time, as referred to in Paragraph (1) 2nd:
a) Unlawful absence due to his fault, the duration of which exceeds thirty days of peacetime.
b) Unlawful absence due to his fault, four days longer during wartime.
c) Unlawful absence due to intention, during peacetime longer than thirty days and during wartime longer than four days.
3) Desertion as a result, as referred to in Paragraph (1) 3: Generally included in the meaning of Article 85 2 coupled with an element of intent on the part of the perpetrator. 44
The desertions carried out as referred to above, the provisions of this article can be applied to the perpetrator. Desertion is also regulated in Article 89 of the KUHPM it is explained:
“Punished with capital punishment, life imprisonment or temporary imprisonment for a maximum of twenty years:
1st, Desertion to the enemy;
2nd, (Amended by Law No. 39 of 1947) Desertion during wartime, and from troop units, ships or airplanes assigned to the security service, or from a place or a post that is attacked or threatened with attack by the enemy. Desertion to the enemy is the meaning with the intention of crossing over to the enemy as referred to in Article 87 Paragraph (1) 1st. Desertion to the enemy means that the perpetrator must already be in the area or the enemy's side or in other words the perpetrator has really cooperated and provided an advantage to the enemy. This act can also be classified as an act of military treason as referred to in Article 64 of the Criminal Code in conjunction with Article 124 of the Criminal Code.
The definition of desertion above is the main characteristic of the criminal act of desertion, namely the absence without permission by a military person at a place determined for him, where the military should be located and carry out his duties and service obligations.
Such absence may take the form of traveling, hiding oneself, crossing over to the enemy, entering military service in another country or causing oneself to be left behind on purpose. The crime of desertion is quite prominent in the military justice environment compared to other crimes.12 In absentia comes from the Latin which means not present. According to Andi Hamzah, the term in absentia comes from the Latin language, namely in absentia or absentium, which in legal terms and proverbs in Latin means in a state of absence or absence. In French it is called absentia and in English it is called absentie.46Aggravation in the crime of desertion is also known as repetition or recidive, is if the perpetrator has ever been sentenced by a judge for committing a crime similar to the one he is currently committing, in this case desertion or unlawful absence on purpose. Sanctions for the crime of desertion with Weighting is divided into two, namely in peacetime and in wartime. Penalty the crime of desertion with punishment in peacetime is regulated in Article 88 paragraph (2) KUHPM and criminal sanctions for desertion with weighting during wartime are regulated in Article 88 paragraph (1) KUHPM
12 Priambada, Bintara Sura, Andi Sutrasno, And Hervin Rahadian Janat. "Proses Penuntutan Terhadap Anggota Militer Yang Melakukan Tindak Pidana Kekerasan Dalam Rumah Tangga Di Lingkungan Militer." Syntax Literate; Jurnal Ilmiah Indonesia 7, No. 7 (2022): 9410-9418.
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Article 88 paragraph (2) KUHPM.13 KUHPM does not mention criminal understanding in writing. However KUHPM threatens a member the military committed the crime desertion, as noted in Article 87 KUHPM.14
The definition of trying or imposing a sentence in absentia is trying a defendant and being able to sentence him/her without the presence of the accused alone. Criminal cases generally require the presence of the accused in an open court hearing, as stated in Article 1 sub 15 of the Criminal Procedure Code, that the accused is a suspect who is prosecuted, examined and tried in court. 47 It can be understood that in legal terms, the court in absentia is an attempt to try someone and punish him without the presence of the defendant of the case. Acts of absence of military members from a place to carry out their duties service is determined as a crime, because the appreciation of discipline is very urgent of military life because discipline is the backbone of military life. Another case with non-military organizational life, that the act is not a crime, but rather as a violation of organizational discipline.15 Prejudice was a stronger predictor of support for reconciliation.16
In the elucidation of Article 143 of Law no. 31 of 1997 formulated that what is meant by an examination without the presence of the accused in the sense of in absentia is an examination carried out so that the case can be resolved quickly for the sake of upholding soldier discipline in order to maintain the integrity of the troop, including in this case the delegation of cases where the accused has never been examined because since initially fled and was not found again within a period of 6 (six) consecutive months and had been legally summoned three (3) times in a row, but was not present at the trial without a reason, then a decision can be handed down without the defendant being present at trial. Calculation of the grace period of 6 (six) consecutive months after the case file is transferred to the Court. The substance of Article 143 provides requirements for desertion trials to be conducted in absentia, namely:
a. The deadline for the case file is 6 (six) months from the date of handing over to the court;
b. Has been summoned to court 3 (three) times;
c. It can be applied to desertion cases where the investigation is carried out in absentia.
The judge's consideration is one of the most important aspects in determining the realization of the value of a judge's decision which contains justice (ex aequo et bono) and contains legal certainty, besides that it also contains benefits for the parties concerned so that this judge's consideration must be addressed carefully, both , and careful. If the judge's consideration is not thorough, good and careful, then the judge's decision originating from the judge's consideration will be canceled by the High Court of the Supreme Court.
1. Juridical Considerations
Juridical considerations are judges' considerations who view law as a complete system which includes legal principles, legal norms, and legal rules. It is in this juridical consideration that the judge assesses the severity of the sentence that will be imposed on the defendant at trial. the judge's considerations based on juridical facts revealed in the trial and by law have been determined as matters that must be included in the decision. In this paper, what is meant is: the
13 Pratama, Tri Utoyo. "Kajian Yuridis Tindak Pidana Desersi Dengan Pemberatan (Analisis Putusan No. 9-K/Pm.
I-02/Al/Ii/2020)." Jurnal Ilmiah Mahasiswa Hukum [Jimhum] 2, No. 2 (2022).
14 Nurcahyo, Raden Indra Dwi, And Dini Dewi Heniarti. "Tinjauan Umum Terhadap Tindak Pidana Desersi Yang Dilakukan Oleh Prajurit Tni Dalam Perspektif Sistem Peradilan Pidana Militer Dihubungkan Dengan Pasal 87 Kuhpm." Prosiding Ilmu Hukum (2019): 894-901.
15 Amu, Robi. "Kajian Hukum Pidana Militer Indonesia Terhadap Tindak Pidana Desersi." Jurnal Legalitas 5, No.
01 (2012).
16 Bryan Bilven, Boglárka Nyúl, Anna Kende, Exclusive Victimhood, Higher Ethnic And Lower National Identities Predict Less Support For Reconciliation Among Native And Chinese Indonesians Through Mutual Prejudice, International Journal Of Intercultural Relations, Volume 91, (2022)>
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indictment of the public prosecutor, statements of the accused and witnesses, evidence, articles in the criminal law regulations and so on.
2. Sociological Considerations
Decisions that fulfill sociological considerations, namely decisions that do not conflict with the laws that live in society (community habits). Meanwhile, according to M. Solly Lubis, sociological considerations reflect the demands or needs of the community that require settlement as a means of guaranteeing benefits. Sociological considerations are considerations that use approaches to background, socio-economic conditions and values that exist in society.
Decision considerations are adjusted to the rules, principles and beliefs that apply in society.
Because of that knowledge about sociology, psychology needs to be owned by a judge. This is a legal consideration of a judge in making a decision.
3. Philosophical Considerations
Philosophical considerations, namely considerations or elements that focus on the value of justice for the defendant and the victim. Justice is generally defined as an act or actor who is just, while fair is impartial, not impartial. Justice in philosophy, as stated in the basic values of the state, can be exemplified if the two principles are fulfilled, not to harm someone and to treat every human being for what is his right.
The main authority of the judge is to try which includes the activities of receiving, examining and deciding criminal cases. In this case the main guideline is the Criminal Procedure Code/KUHAPMIL which is based on the principles of freedom, honesty and impartiality. Some of the judges' considerations in deciding a case include:
1. Juridical Considerations
It needs to be emphasized again that juridical considerations are the judge's considerations based on juridical facts revealed in the trial and by law it has been stipulated as something that must be included in the decision. The judge's consideration or Ratio Decidendi is arguments or reasons used by judges as legal considerations that form the basis for deciding a case.
The judge's considerations which are classified as juridical considerations are:
a. Public Prosecutor's Indictment b. Defendant's Statement
c. Witness Statement d. Evidence
e. Articles of Criminal Law Regulations.
2. Philosophical Considerations
Philosophical considerations, namely considerations or elements that focus on the value of justice for the defendant and the victim. Justice is generally defined as an act or actor who is just, while fair is impartial, not impartial. Justice in philosophy as stated in the basic values of the state can be exemplified if the two principles are fulfilled, not to harm someone and to treat every human being for what is his right.
3. Sociological Considerations
Sociological considerations, namely considerations or elements that focus on factual considerations, namely the background of the crime, the consequences, the defendant's condition, the defendant's socio-economic situation and family environment, and religious factors. Sociological considerations of judges are regulated in Article 5 paragraph (1) of Law no. 48 of 2009 concerning Judicial Power states that judges are obliged to explore, follow and
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understand legal values and a sense of justice that lives in society. Factors that must be considered sociologically by a judge in making a decision on a case, include:
a. Paying attention to unwritten sources of law and values that live in society.
b. Paying attention to the good and bad characteristics of the defendant as well as the mitigating and aggravating values of the defendant.
c. Paying attention to whether there is peace, mistakes, the role of the victim.
d. Community factors, namely the environment in which the law applies or is applied.
e. Cultural factors, namely as a result of creativity and taste based on human initiative in social life
Based on the theoretical and practical vision, it can be seen that the judge's decision is a decision pronounced by the judge because of his position in court cases which are open to the public after carrying out the process and procedural law of criminal procedure in general containing convictions, or acquittals or releases from all lawsuits made in written form with the aim of settling the case. it is difficult to determine what specifically these impressive results can be attributed to. It is unlikely to be any one significant factor.17
Soedarto said that the freedom of judges is absolutely necessary especially to guarantee the objectivity of judges in making decisions. The judge gave his decision regarding the following matters:18
1. The decision regarding the event, is whether the defendant committed the act he was accuse of.
2. Decisions regarding the law, namely whether the actions committed by the defendan constitute a crime and whether the defendant is guilty and can be punished.
3. Decision regarding the sentence, whether the accused can indeed be punished.
The judge's considerations in sentencing the perpetrators of the crime of desertion committed by military personnel with due regard to aggravating and mitigating matters so that the sanctions received by the defendant still fulfill a sense of justice, so that the judge in deciding can be said to be relevant, in imposing punishments against unscrupulous members of the military.
The judge's considerations in sentencing the perpetrators of the crime of desertion committed by military personnel with due regard to aggravating and mitigating matters so that the sanctions received by the defendant still fulfilling a sense of justice, so that the judge in deciding can be said to be relevant, in imposing punishments against unscrupulous members of the military, the considerations that underlie the justification of the crime of desertion in absentia are guided by Article 143, namely: to resolve cases quickly and to uphold soldier discipline in order to maintain troop integrity.
Whereas the formulation of Article 143 and its explanation are very clear, the formulation is both limitative and imperative, therefore we only carry out what is stated and ordered by the law. This opinion is based on the premise that in order to guarantee legal certainty and also lead to justice, judges and law enforcers must implement the law. A new interpretation can be made in the framework of recht vinding or recht schepping if the law is not clear or there is no law governing it. The issue of the six-month grace period formulated in the law is not meaningless and has no purpose.
That in order to be able to try desertion cases in absentia, it must be obeyed and guided by the requirements outlined in Article 143 above. The six-month time limit also applies to desertion cases where investigations are carried out in absentia. Thus, an examination of a desertion case in absentia which is not in accordance with the provisions, whatever the reasons and considerations are, is not justified because it contradicts the formal requirements formulated
17 T. Woolley, J.A. Round, M. Ingram, Global Lessons: Developing Military Trauma Care And Lessons For Civilian Practice, British Journal Of Anaesthesia, Volume 119, Supplement 1,(2017).
18 Soedarto, Kapita Selekta Hukum Pidana, (Bandung: Alumni, 1986), Hal-74.
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in the Law. It is understood that the considerations underlying the justification of the criminal act of desertion in absentia are guided by Article 143, namely: To resolve cases quickly and to uphold soldier discipline in order to maintain troop integrity. Where judicially it is justified in absentia in absentia to be carried out and investigators carry out their duties according to the guidelines of the applicable rules, the desertion crime has harmed the unit as well as the agency and also the country, then it is fitting that military personnel who commit criminal acts of desertion whose whereabouts are unknown should be dealt with immediately continue in order to maintain the integrity of the troops and the unity of the place where he served which was tried to produce a decision that has permanent legal force (BHT), this is useful as a clear and fundamental effort regarding the military status of military personnel who commit criminal acts of desertion, and also as a clear example the military against other military members to carry out their duties as members of the military and also comply with the general and special rules that apply in Indonesia.
The author is of the opinion that the Panel of Judges in imposing a sentence on the defendant must believe that by imposing the sentence it will deter the defendant from being a member of the military who commits the crime of desertion. According to the author, the judge's consideration in imposing a sentence, which in this case is a juridical and sociological aspect, is used to consider the severity or lightness of the sentence imposed. The judge will consider the applicable rules and the attitude of the defendant who does not exemplify the spirit of chivalry which is why it has harmed the state, agencies and units, as well as being an example of law enforcement against other members of the military so that they remain disciplined and have a chivalrous spirit and are ready to be responsible for all their actions and maintain an attitude as a good military man. If reviewed from the juridical, sociological and philosophical aspects as well as considerations related to the military itself, the author feels that this is sufficient because dismissal from military service is the most severe punishment for members of the TNI. Associated with According to Lawrence M. Friedman, what is meant by the elements the legal system, namely the legal structure, legal substance and legal culture, in the crime of desertion what TNI soldiers do, namely by examine the legal substance of the case in absentia carried out by TNI Soldiers referring to Article 141 paragraph (10) in conjunction with Article 143 of Law Number 31 of 1997 on Justice The military is also used as a reference for consideration by the Panel of Judges examined this matter in absentia stating that in case of desertion where the Defendant is indeed not found, then it can carried out an examination and decided without the presence of the Defendant, the legal structure can assessed from their professionalism and leadership as well as legal culture soldier against the crime.19
C. Conclusion
The Judge in deciding this case by paying attention to three considerations, namely based on juridical considerations on formal statutory provisions, sociological considerations based on the social background of the defendant and for expediency, as well as philosophical considerations with the aim that the sentence imposed against the accused as an effort to uphold discipline for each military member. Juridical considerations are judges' considerations who view law as a complete system which includes legal principles, legal norms, and legal rules Decisions that fulfill sociological considerations, namely decisions that do not conflict with the laws that live in society (community habits). Philosophical considerations, namely considerations or elements that focus on the value of justice for the defendant and the victim.The judge's considerations in sentencing the perpetrators of the crime of desertion committed by military personnel with due regard to aggravating and mitigating matters so that the sanctions received by the defendant still fulfill a sense of justice, so that the judge in
19 Achmad Ali, Menguak Teori Hukum (Legal Theory) dan Teori Peradilan (JudicialPrudence) Termasuk Interpretasi Undang-undang (Legisprudence). Jakarta: Kencana Prenada Media Group, 2009, hlm. 204.
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deciding can be said to be relevant, in imposing punishments against unscrupulous members of the military.
The author's suggestion is that of the many criminal acts that ensnare members of the TNI, the majority of cases are desertion crime with various causes and factors therefore to Indonesian National Armed Forces to do more prevention, especially against Members of the TNI with the rank of Bintara and Tamtama. Then to the Superiors Who Have the Right to Punish (ANKUM) in this case who regulates to pay more attention to and supervise members of the TNI in the military environment, this is an attempt by ANKUM to find out the activities / activities of its members / subordinates in order to minimize neglect of their duties and authority as members of the TNI, as well as ANKUM's approach to its members to get to know its members more closely and enable them to know the needs of their members. This is an effort to increase chemistry between superiors and subordinates in the military environment.
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Regulation:
Kitab Undang-Undang Hukum Pidana Militer (KUHPM).
Undang-Undang Republik Indonesia Nomor 31 Tahun 1997 tentang Peradilan Militer.
Undang-Undang Republik Indonesia Nomor 25 Tahun 2014 tentang Hukum Disiplin Militer.
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