Tersedia versi daring: http://jhp.ui.ac.id DOI: http://dx.doi.org/10.21143/jhp.vol47.no3.1552
BASIC WEIGHTING CRIMINAL IN INDONESIA’S MARITIME
CRIMINAL ACTS
Edita Elda
* Lecturer in Faculty of Law, Andalas University Korespondensi: editaelda@yahoo.com
Naskah dikirim: 21 Januari 2017 Naskah diterima untuk diterbitkan: 7 Juni 2017
Abstract
Indonesia is known as an archipelago with its marine natural resources. The government program especially in the periode of President Joko Widodo is to focus on crime in the area of maritime. this because of there are Many violations related to the crime of illegal fishing, marine and fisheries and shipping. Problems faced by Indonesia not only arresting foreign vessels suspected of illegal fishing, but also the legal issues that arise post-arrest. The problem in this paper is to see how the basic criminal weighting in the maritime criminal acts. The method used is a normative juridical using legal materials in the form of legislation and case related to a court decision. This writing will also review a maritime criminal cases, whether using basic weighting criminal or not. Law enforcement efforts in the field of maritime criminal acts should be done with the maximum and all related officials should be ready to build a shared commitment to uphold the law against the perpetrators of the theft of fish and marine offender.
Keywords:Basic Weighting Crime, The Maritime Criminal Acts, The Decisions of Indonesia Supreme Court
Abstrak
Indonesia dikenal sebagai negara kepulauan dengan sumber daya alam bahari. Program pemerintah khususnya di masa Presiden Joko Widodo adalah fokus pada kejahatan di bidang kelautan. Ini karena ada banyak pelanggaran terkait dengan kejahatan penangkapan ikan secara ilegal, kelautan dan perikanan dan perkapalan. Masalah yang dihadapi Indonesia tidak hanya menahan kapal asing yang dicurigai melakukan penangkapan ikan secara ilegal, namun juga masalah hukum yang timbul pasca penahanan. Masalah dalam tulisan ini adalah untuk melihat bagaimana bobot dasar penjahat dalam tindak pidana maritim. Metode yang digunakan adalah yuridis normatif dengan menggunakan bahan hukum berupa undang-undang dan kasus yang berkaitan dengan putusan pengadilan. Tulisan ini juga akan mengulas kasus pidana maritim, apakah dengan menggunakan penjahat pembobot dasar atau tidak. Upaya penegakan hukum di bidang tindak pidana maritim harus dilakukan dengan maksimal dan semua pejabat terkait harus siap membangun komitmen bersama untuk menegakkan hukum terhadap pelaku pencurian pelaku ikan dan laut.
I. Introduction
Indonesia is a country which most of its territory consists of the sea and has the potential of fisheries which is huge and diverse. Its area of ocean to reach 2/3 of the total area of Indonesia, with a population of more than 17 thousand islands. In this region contained a wealth of incredible ocean, marine and functions as an integral part of the defense system of the country. This makes the maritime sector as the country's sovereignty.1
Fisheries have the economic potential that can be harnessed for the nation's future, as the spearhead of national execution of development capital. On the President Joko Widodo government, one of the reaffirmation is Indonesia as a maritime country with rich natural Sea Islands. Therefore, many of the policies focus on the leading field and is under the coordination of the Ministry of Marine and Fisheries.2
Utilization of optimally aimed at the utilization of fish resources by considering the existing support resources. In exploiting the potential for fisheries, should be able to keep the preserved. This means that the utilization of fishery resources must be balanced with the supported power, so hopefully can provide continuous benefits. One of them is done by controlling the fishing effort through the settings of the management of fisheries. The wealth contained in the ocean can sustain life and the lives of many people. However, due to the potential wealth, will be able to cause a disaster if the management has no regard for the limits of nature.3
The expected benefits from the potential of fisheries is to increase people's welfare, improving the livelihood of fishermen and small-power bussiness of small fish, increasing acceptance of foreign countries, providing expansion and employment opportunities, improving productivity, added value and competitiveness of fisheries yield and ensure the sustainability of fish resources, fish farms and land space.4
Indonesia has sovereignty and jurisdiction over the territorial waters of Indonesia, as well as the authority in order to establish the conditions of utilization of fish resources, either to arrest or fish cultivation activities while enhancing the prosperity and justice to the highest possible utilisation for the benefit of the nation and State by remaining attentive to the principle of
1Full Paper for Presented in “The 7th CILS International Conference on Maritime Affairs”, Padang, 3-4th October 2016
1Lecturer in Faculty of Law, Andalas University and PhD Candidate in Faculty of Law, University of Indonesia.M, Hussein Umar, Berharap Pada Poros Maritim, Selisik, The Journal of Law and Business, Vol 1 Number 1 June 2015, Jakarta: Master's Degree in Legal Science Graduate School University of Pancasila, page 51.
2Quoted from the first State of the Union Speech as President of Indonesia, 2014-2019 Period in House of Representatives on 20 October 2014. President Joko Widodo claimed that "we have long been backs to the oceans, seas, Straits and the Bay. So, starting today, we restore the glorious ancestor as a brave seaman. The face of the storm and the waves on the boat named the Republic of Indonesia”.
3P.Joko Subagyo, Hukum Laut Indonesia Edisi Baru, Jakarta: Rineka Cipta, 2005, page. 8.
sustainability of fish resources and the environment and the sustainability of national fisheries development. The problem is a lot of crime going on, either in the form of a crime or offence in fisheries. Therefore, the necessary provisions that expressly set up for the creation of legal certainty.
The legal basis of the fish resource management will be able to accommodate all aspects of the management of fish resources and anticipate the development needs of law and technology. The provisions of legislation on fisheries are expected to anticipate as well as solutions to the enormous changes in the field of fisheries, both with regard to the availability of fish resources, the environmental sustainability of fish resources, as well as the development of fishery management methods that are more effective, efficient and moern.
Many of the violations occurred related to the criminal offence of theft of fish, the sea, and fishing and sailing. Problems faced by Indonesia is not just capture foreign ships suspected of stealing fish, but also the legal issues that arise in post arrest. Problems in fisheries that much going on in this last time, including the presence of symptoms of excess fishing, fish, theft and other illegal fishing actions that not only cause harm to the country, but also threatens the interests of fishermen and fish-power pembudi, climate, industry and national fisheries business.
These problems must be resolved in earnest, so that law enforcement in the field of fisheries became a very important and strategic in order to support the development of the fishery are controlled and sustainable manner. Problems in writing this is to see how the basic criminal weighting in criminal acts of marine and fisheries. The existence of legal certainty is a condition which is absolutely necessary in the handling of criminal acts in the field of fisheries.
The method used is the juridical normative legal form with the related legislation and court rulings on cases of criminal acts of marine and fisheries. This writing will also be reviewed by looking at cases of criminal acts of maritime and fishery, whether the courts use the basic criminal weighting in disconnected things. Law enforcement efforts in the field of maritime and fisheries should be conducted with maximum and all related authorities should be ready to build a shared commitment for the sake of enforcing the law against the perpetrators of the theft of fish marine criminal acts and the perpetrators.
II.Criminal Acts of Marine and Fisheries
Criminal offence fisheries internationally known by the term "illegal, unregulated and unreported fishing" (IUU Fishing). As stated in the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unregulated and Unreported Fishing (IPOA-IUU Fishing). Further definition of these terms will be explained.5
a. Illegal Fishingis the activity of catching fish illegally in the waters of the
region or a country's ZEE, did not have a permit from the coastal states;
b. Unregulated Fishingis the activity of catching fish in the waters of the region or a country that is not ZEE comply with the rules in force in the country;
c. Unreported Fishingis the activity of catching fish in the waters of the region or a country that is not ZEE reported good operational data as well as ship and bring results.
Maritime law related to the business activities of the marine. Maritime law is the translation of the Maritime Law, as according to the Black Law Dictionary:6
“That system of law which particularly relates to marine commerce and navigation, to bussiness transacted at sea or relating to navigation, to ships and shipping, to seamen, to the transportation of persons and poverty by sea and to marine affairs generally. The law relating to harbours, ships, and seamens divided into a variety of subject areas such as those concerning harbors, property of ships, duties and rights of masters and seamen, contracts of affereightment, avarage, salvage, etc. It extend to civil marine tort and injuries, illegal dipossession or withholding of possession from to owners of ships, municipal seizures of ships etc”.
Since the 1960s, Indonesia became a member of the IMO (International Maritime Organization), a international agency dealing with the issue of the safety of cruise and sea pollution hazard shield cover sourced from the ship.7In the international world, Indonesia participated in the provisions of the United Nations Convention on the law of the sea in 1982. This provision has been ratified by law No. 17 of 1985 about Endorsement of United Nations Convention on the Law of the Sea 1982. This puts Indonesia has sovereign rights (sovereign rights) to do the utilization, conservation, and management of the fish resources in the exclusive economic zone (ZEE) of Indonesia, and the high seas are carried out based on international standards or requirements that apply.
Legal consequences over the ratification Convention of the United Nations (UN) on the law of the sea in 1982 by Act No. 17 of 1985 about the Endorsement of the United Nations Convention on The Law of the Sea of 1982 puts the unitary State of the Republic of Indonesia has the right to conduct the utilization, conservation, and management of the fish resources in the ZEE and the high seas that Indonesia was carried out based on the requirements of the applicable international standards.
The implementation of law enforcement in the field of fisheries became very important and strategic in order to support the development of the fishery
6Henry Campbell Black, Black’s Law Dictionary, Paul Minn West Publishing, 1979, hal. 873.
are controlled and in accordance with the principle of fisheries management, fisheries development so that it can run on an ongoing basis. Therefore, the existence of legal certainty is a condition which is absolutely necessary. Act No. 35 of 2004 jo. Act No. 45 of 2009 about Fisheries provide clarity and certainty of law against law enforcement upon criminal acts in the field of fisheries, including investigation, prosecution, and examination in the Court of session.
Fisheries are all activities related to the management and utilization of fish resources and the environment starting from the preproduction, production, processing up to marketing, which is implemented in a fisheries business system.8Crime in illegal fishing, i.e. do not use documents and meet all licensing requirements. Illegal fishing activities tend to increase from year to year in the past five years.9Many abusers use the fishing vessels flagged Indonesia. This does not mean the foreign flagged ships over a bit, it's just based on the examination of the Ministry of marine and fisheries, many ships use the flag, as if Indonesia was not the owner, whereas Indonesia.10
Further, presented in tables the perpetrators of illegal fishing on board fishing:11
Table 1.
The Perpetrators of The Illegal Fishing of The Fishery Ship Who Were Tried
Year Indonesia Fishery Ship Foreign Fishery Ship Amount
2010 2.089 166 2.255
2011 3.269 79 3.348
2012 4.252 74 4.326
2013 3.824 47 3.871
2014 1.632 15 1.647
Table 2.
The Perpetrators of The Illegal Fishing of The Fishery Ship That Are Further Processed
Year Indonesia Fishery Ship Foreign Fishery Ship Amount
2010 24 159 183
8Article 1 of the Act of the Republic of Indonesia Number 31 2004 jo. Act No. 45 of 2009 About Fisheries
9Quoted from the official report of the Director-General of PSDKP (supervision of Marine Resources and fisheries) Ministry of marine and Fisheries of Indonesia.
10The magazine quoted from the Trias, "Efek Jera Penenggelaman Kapal Asing Tanpa Izin " 1-15 January 2015, page 20 in Poltak Partogi Nainggolan, Agenda Poros Maritim Dunia dan Perubahan Lingkungan Strategis, Jakarta: P3DI Secretariat DPR RI, 2015, page 210.
2011 30 76 106
2012 42 70 112
2013 24 44 68
2014 23 15 38
In Act No. 31 of 2004 jo Act No. 45 of 2009 about changes to the Fisheries Act, there are criminal provisions, as a criminal offence as referred to as many as 22 of the fisheries chapter, with namely:
No Article Point Fisheries Crimes Criminal
Sanctions
1 84 1 Every person who, intentionally, within
the Indonesian Fish Cultivation
Territory, catches and/or breeds fish using chemical substances, biological substances, explosives, tools and/or means and/or structures, which may damage and/or endanger conservation
of fish resources and/or the fish catching specialists and ship crews
who, intentionally, within the
Indonesian Fish Cultivation Territory, catch and/ or breed fish using chemical substances, biological substances, explosives, tools and/or means and/or structures, which may damage and/or endanger conservation of fish resources and/or the environment thereof, as set forth in Article 8 paragraph (2)
Imprisonm fishery companies, managers of fishery
companies and/or fishing boat
endanger conservation of fish resources and/or the environment thereof, as set forth in Article 8 paragraph (3)
two billion Rupiah
4 Owners of fish cultivation companies, authorities of fish cultivation companies and/or managers of fish cultivation companies, who, intentionally, catch and/ or breed fish using chemical substances, biological substances, explosives, tools and/or means and/or structures, which may damage and/or endanger conservation of fish resources and/or the environment of which, as set forth in Article 8 paragraph (4)
Imprisonm
control,carry, and/or use fish catching means and/or fish catching auxiliary means disturbing anddamaging the continuity of fish resources in
3 86 1 Every person who, intentionally, within
the Indonesian Fish Cultivation
Territory, commits an act causing pollution and/or damage to fish resources and/or the environment thereof, as set forth in Article 12
2 Every person who, intentionally, within
the Indonesian Fish Cultivation
Territory, breeds fish that endangers fish resources and/or the environment thereof and/or human health, as set forth in Article 12 paragraph (2)
Imprisonm
million Rupiah
3 Every person who, intentionally, within
the Indonesian Fish Cultivation
Territory, breed fish as a result of
genetic engineering, which may
endanger fish resources and/or the environment thereof and/or human health, as set forth in Article 12 negligence, within the Indonesian Fish Cultivation Territory, causes damage to sperm plasma relating to fish resources, as set forth in Article 14 paragraph (4)
Imprisonm
4 87 1 Every person who, intentionally, within
the Indonesian Fish Cultivation
Territory, damages sperm plasma relating to fish resources, as set forth in Article 14 paragraph (4) negligence, within the Indonesian Fish Cultivation Territory, causes damage to sperm plasma relating to fish resources, as set forth in Article 14 paragraph (4)
million Rupiah
5 88 Every person who, intentionally,
introduces, exits, procures, distributes and/or breeds fish causing damage to the society, fish breeders, fish resources and/or the environment thereof into and/or from the Indonesian Fish fish processing standards, quality guarantee system and safety of fishery
7 90 A person who, intentionally, introduces
or exits fish and/or fishery products from and/or into the Indonesian
territory not completed with a
certificate of health for human consumption, as set forth in Article 21
Imprisonm
raw materials, additives, auxiliary materials and/or tools, which endanger human health and/or the environment, in han dling and processing fish, as set forth in Article 23 paragraph (1)
one billion five
hundred million Rupiah
9 92 Every person who, intentionally, within
the Indonesian Fish Cultivation
Territory, operates fishery business in the fields of fish catching, breeding,
transportation, processing and
marketing and does not have SIUP, as set forth in Article 26 paragraph (1)
Imprisonm
operating afish catching ship flying Indonesian flagcatching fish in the fishery management zoneof the State of the Republic of Indonesiaand/or in the open seas, not possessing theSIPI referred to in Article 27 paragraph (1)
Imprisonm fishery managementzone of the State of the Republicof Indonesia, not carrying the originalSIPI referred to in Article
maximum two billion Rupiah
4 Any person operating a fish catching shipflying a foreign flag in the ZEEI, not carryingthe original SIPI referred to in Article 27paragraph (3)
11 94 Every person who owns and/or operates
fish transporting boat within the Indonesian Fish Cultivation Territory transporting fish or doing the relevant activities and not having SIKPI, as set forth in Article 28 paragraph (1)
Imprisonm
12 94A14 Any person falsifying and/or using false
SIUP, SIPI, and SIKPI as meant in
six hundred million Rupiah
14 96 Every person who operates fishing boat
within the Indonesian Fish Cultivation Territory not registering the fishing boat as an Indonesian fishing boat, as set forth in Article 36 paragraph (1)
Imprisonm
with a foreign flag and does not have a license to catch fish, who, up to this time, operates in the Indonesian Fish Cultivation Territory, stores fish catching tools in the hold, as set forth in Article 38 paragraph (1) with a foreign flag and does not have a license to catch fish with a certain type of fish catching tool within a certain
3 Master who operates fishing boat with a foreign flag and has possessed license to catch fish, but does not keep fishing gears in the hold during operating outside the permitted fish catching area within the Indonesian Fish Cultivation Territory, as set forth in Article 38
16 9815 Captain of a fishing ship not possessing
theSailing Approval Letter referred to in Article 42paragraph (3)
Monetary Cultivation Territory and does not have a license from the government, as set forth in Ar ticle 55 paragraph (1)
Imprisonm
provision of Article 7 paragraph (2)
Monetary inArticle 28A, falsifying the approval referred toin Article 35 paragraph (1), and falsifying theregistration as meant in Article 36 involves an official
The
paragraph (3), Article35 paragraph (1), Article 36 paragraph (1), Article38, Article 42 paragraph (3), or Article 55paragraph (1) was committed by a minor fishermanand/ or minor fish cultivator
hundred fifty million rupiah.
21 100C In the event the criminal act referred to
inparagraph (2) of Article 7 was committed by aminor fisherman and/ or minor fish cultivator
Monetary charge of maximum one hundred million rupiah.
22 101 In case that the criminal acts, as set
forth in Articles 84 paragraph (1), 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95 and 96 are committed by a corporation
The claims and
penalty
will be
imposed
on its
managers
plus a
monetary charge of 1/3 (one-third) of the penalty imposed
Based on the above mentioned data data in the table above, there are two classifications of criminal act fisheries, namely the crimes and violations.
a. Crime, contained in 8 aticle, namely Article 84, article 85, article 86, article 88, article 91, article 92, article 93, and section 94. More will be classified as follows:
1. Catches and/or breeds fish using chemical substances, biological substances, explosives, tools and/or means and/or structures, which may damage and/or endanger conservation of fish resources and/or the environment thereof;
3. Commits an act causing pollution and/or damage to fish resources and/or the environment thereof;
4. Breeds fish that endangers fish resources and/or the environment thereof and/or human health;
5. Breed fish as a result of genetic engineering, which may endanger fish resources and/or the environment thereof and/or human health;
6. Introduces, exits, procures, distributes and/or breeds fish causing damage to the society, fish breeders, fish resources and/or the environment thereof into and/or from the Indonesian Fish Cultivation Territory;
7. Uses raw materials, additives, auxiliary materials and/or tools, which endanger human health and/or the environment, in handling and processing fish
8. Operates fishery business in the fields of fish catching, breeding, transportation, processing and marketing and does not have SIUP18;
9. Possessing and/or operating a fish catching ship flying Indonesian flag catching fish in the fishery management zone of the State of the Republic of Indonesia and/or in the open seas, not possessing the SIPI19;
10. Possessing and/ or operating a fish catching ship flying a foreign flag catching fish in ZEEI not possessing the SIPI
11. Operating a fish catching ship flying Indonesian flag in the fishery management zone of the State of the Republic of Indonesia, not carrying the original SIPI
12. Operating a fish catching ship flying a foreign flag in the ZEEI, not carrying the original SIPI
13. Owns and/or operates fish transporting boat within the Indonesian Fish Cultivation Territory transporting fish or doing the relevant activities and not having SIKPI20.
b. The offence, contained in 9 article i.e. Article 87, article 89, article 90, article 95, article 96, article 97, article 98, article 99 and article 100. More will be classified as follows:
1. Damages sperm plasma relating to fish resources;
18Fishery Business License, which is hereinafter called SIUP, is a license, in writing, which must be possessed by a fishery company to operate fishery business using means of production as set forth in that license.
19License to Catch Fish, which is hereinafter called SIPI, is a written license, which must be possessed by a fishing boat to catch fish and is an inseparable part of SIUP.
2. Causes damage to sperm plasma relating to fish resources;
3. Handles and processes fish not in accordance with fish processing standards, quality guarantee system and safety of fishery products;
4. Introduces or exits fish and/or fishery products from and/or into the Indonesian territory not completed with a certificate of health for human consumption;
5. Constructs, imports, or modifies fishing boat without prior approval;
6. Operates fishing boat within the Indonesian Fish Cultivation Territory not registering the fishing boat as an Indonesian fishing boat;
7. Operates fishing boat with a foreign flag and does not have a license to catch fish, who, up to this time, operates in the Indonesian Fish Cultivation Territory, stores fish catching tools in the hold;
8. Operates fishing boat with a foreign flag and does not have a license to catch fish with a certain type of fish catching tool within a certain part of ZEII bringing any other fish catching tool;
9. Operates fishing boat with a foreign flag and has possessed license to catch fish, but does not keep fishing gears in the hold during operating outside the permitted fish catching area within the Indonesian Fish Cultivation Territory ;
10. Captain of a fishing ship not possessing the Sailing Approval Letter;
11. Foreigner who performs fishery research in the Indonesian Fish Cultivation Territory and does not have a license from the government;
12. Breaches the provision in doing business and/or fisheries management activities.
Types of criminal sanctions under the Fisheries Act are imprisonment and monetary charge. The shape of the threat in the form of the criminal. Further details will be presented in the table below, namely:
No. Imprisonment for a maximum Monetary charge of maximum
(Rupiah)
1 1 year 100 million
2 3 year 200 million
3 5year 250million
4 6 year 500 million
5 7 year 800 million
6 10 year 1 billion
7 1 billion two hundred million
8 2 billion
9 20Billion
existing in Indonesia:
No Name of Court Amount of Cases
1 Court of North Jakarta21 15
2 Court of Medan22 76
3 Court of Pontianak23 118
4 Court of Bitung24 24
5 Court of Tual25 8
6 Court of Tanjung Pinang26 81
7 Court of Ranai27 131
8 Court of Ambon28 9
21Data of Search For Case Information System (SIPP) Court of North Jakarta in
http://sipp.pn-jakartautara.go.id/list_perkara/type/MXh2RXppcklQWlhONDVMb3FDRXg0SThJS2F0RVF 2VlVsN2FUeDVWZzFtbFFuelBOeVYwM3RCYndmeEprSDM2eC90cUkraks2MFFDZmZ0 TlJVeUI1bmc9PQ==/SHQ1SjdEdGFZNlNSOTZJRWpFeW9vdzNycjF5NzJ6dDR4Q2l5MX NnMFNKSjJTcFFoNTFoNUlEa3VMMlJjSkZOZ21CZUhGVEVHMHp4OGRmTklydk1yN EE9PQ==
22Data of Search For Case Information System (SIPP) Court of Medan in
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23Data of Search For Case Information System (SIPP) Court of Pontianak in
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24Data of Search For Case Information System (SIPP) Court of Bitung in
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25Data of Search For Case Information System (SIPP) Court of Tual in http://sipp.pn-tual.go.id/list_perkara/type/dmxoZFVLQVZJSDdIODJxckluendrT2RZSGhFVGdyQjJ2cWZI UFVjWGE4L1hZNVc4MEVRZUttQ3V3Y1dnZ3RHZXVZcFRGTS9ZYXhTdTlPdzRXLzgr Znc9PQ==/R0djWnVkdnZsc1N3M04wNmRuZ0d5Nzd1RjExbTlFZThEZlE5L216T1BNQjd yeFI5ekV5bHkxM2RJd0tISDN5UTFxNlpkVVV6OVFHQTlXci9YL2czWEE9PQ==
26Data of Search For Case Information System (SIPP) Court of Tanjung Pinang in
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27Data of Search For Case Information System (SIPP) Court of Ranai in http://sipp.pn-ranai.go.id/list_perkara/page/3/UGE5SjdBL2lQTXFSZkQvckVobno0Z2FjRDh2VzJHNlVDZ 0RtaDBROHNMRkxiMzlNUlQyLzlZdUJDU2laUk55VXpTd3FPTDhHWWFwTEROQmJ6 RTdMVmc9PQ==/key/col/2
28Data of Search For Case Information System (SIPP) Court of Ambon in
9 Court of Sorong29 15 10 Court of Merauke30
Amount 477
Petition to free the ship and/or people who are arrested for committing criminal acts in the area of management of fisheries RI can be done at any time before there is a decision from the Court of fisheries by giving a decent amount of money guarantee, which was done by the Court of its fisheries. Objects and/or tools used in the and/or resulting from a criminal act fisheries can be taken for the country.
III. The Position of The Fisheries Court in Indonesia
In Act No. 45 of 2009 jo. Act No. 31 of 2004 about fisheries, has been set up in particular the law of criminal procedure. this act was mentioned about evidence, investigation, prosecution and the courts in the field of fisheries. Law enforcement against criminal acts in the field of fisheries that occur during this proven experience various barriers. so, we should have law enforcement methods which are specifically related to the law of judicial review and legal formil.
In order to improve the efficiency and effectiveness of law enforcement against criminal acts in the field of fisheries, then in a regulated Fisheries legislation regarding the formation of the Court of Justice environment fisheries in General. The Court is a Special Court in the Fisheries environment General authority of judicial review, judge, and break the criminal acts in the field of fisheries. The Court was formed based on the Fisheries Act No. 31 of 2004 regarding Fisheries and changes through Act No. 45 in 2009. For the first time, the Court Fisheries established in five regions of the country, namely the Court environment:31
1. Court of North Jakarta, 2. Court of Medan, 3. Court of Pontianak, 4. Court of Bitung, and 5. Court of Tual.
Given the still needed preparation, then the Court fisheries have been set up,
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29Data of Search For Case Information System (SIPP) Court of Sorong in
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30Data of Search For Case Information System (SIPP) Court of Merauke can not acsess in http://www.pn-merauke.net/
the new duties and functions at least 2 (two) years counted from the date of the fishery Act took effect. The area of the law court in accordance with the fisheries law area of the concerned District Court Court the duty and fisheries authorities inspect, judge, and break the criminal acts in the field of fisheries conducted by Tribunal judges that consist of 1 (one) person Career Judges District Court and two judges ad hoc. Judge ad hoc is someone who comes from the fishing environment, among other things, higher education in the field of fisheries, the Organization in the field of fisheries, and has expertise in the field of fisheries law.
The establishment of the Court fisheries conducted in stages in accordance with the requirements set forth by presidential decree. Currently there are 10 (ten) the Court Fisheries throughout Indonesia. In addition to the 5 (five) of the courts has been established through the Fisheries Act, there is an additional formation.
a. Based on Presidential Decree No. 15 of 2010 formed Court of fisheries in the region:
1. Court of Tanjung Pinang; 2. Court of Ranai.
b. Based on Presidential Decree No. 6 of 2014 formed Court of fisheries in the region:
1. Court of Ambon; 2. Court of Sorong; and 3. Court of Merauke.
To ensure legal certainty, both at the level of investigation, prosecution, and at the level of the examination in the court hearing in the case of fisheries, criminal act specified the timeframe explicitly, so that the formulation of the law of the event (formil) is faster. In carrying out its duties and powers of investigation, prosecution, and examination in the Court of session, in addition to following the law set forth in UndangUndang No. 8 of 1981 on the book of the law of criminal procedure, the provisions of the Fisheries Act also contained a separate law as special provisions (lex specialists). Examination in the Court of session could be held without the presence of the accused.32
Investigation of criminal acts in the field of fisheries in the area of management of fisheries of the Republic of Indonesia is carried out by:33
1. The investigating officer of civil servant in Ministry of Fisheries; 2. The investigating Officer of TNI AL (Tentara Nasional
Indonesia Angkatan Laut);
3. Republic of Indonesia National Police Investigators.
IV. Criminal Weighting in the Criminal Offence of Fisheries
In fisheries, there is a criminal offence classification principals as a subject of law which may be requested of criminal responsibility in performing the criminal act of fisheries, including:
1. Any person;
2. Small fishing and/or minor fisherman power-small fish; 3. The Skipper of the fishing vessel or leader;
4. People who are experts in fishing; 5. Ship’s Crew;
6. The owner of the fishing vessel; 7. The owner of a fishing company; 8. The company in charge of the fisheries; 9. Fishery vessel Operators;
10. The owners of the company the cultivation of fish; 11. The power of the owner company of cultivating fish; 12. The company is in charge of the fish farms;
13. The Corporation; 14. The Officials.
In the criminal code, there are three (3) things that are made, i.e. criminal prosecution were reasons are assuming an Office or ambtelijk hodanigheid (article 52 of the Criminal Code), residive or recurrence (title 1 of book 6 of the Criminal Code) and combined or samenloop (article 65 and 66 of the Criminal Code).34In terms of fisheries crime committed by corporations and officials, then it can be brought down pemberatan in the threat of criminal sanctions, plus 1/3 of the principal criminal.35
The intended of Criminal weighting is a criminal act committed is a criminal act committed:
1. Involve the Officials in:
a. Falsify SIUP (Surat Izin Usaha Perikanan), SIPI (Surat Izin Penangkapan Ikan), and SIKPI (Surat Izin Kapal Pengangkut Ikan); b. Use SIUP, SIPI, and fake SIKPI;
c. Ministerial approval to build Forgery, import, or modify the fishing vessel;
d. Fisheries vessel registration Counterfeiting 2. Involve the Corporation
V.Conclusion
The increase in penalty in criminal acts of fisheries is the addition of 1/3 of criminal subject matter, in which case the offender is a corporation and the crime committed involving officials. Types of threats of criminal sanctions that are used is a maximum, i.e. criminal imprisonment and criminal fines. Terms
34Rusli Muhammad, Potret Lembaga Pengadilan Indonesia, Jakarta: Raja Grafindo Persada, 2006, page. 145.
of the threat of criminal sanctions in the Fisheries Act Number 31 2004 jo.Act No. 45 of 2009 be criminal a criminal arrangement in the absence of a
maximum of at least cause the verdicts meted out by judges are
References
Books
Ariadno, Melda Kamil, Hukum Internasional Hukum Yang Hidup. Jakarta Diadit Media. 2007
Black, Henry Campbell, Black’s Law Dictionary. Paul Minn West Publishing. 1979
Idham, Anis, Pranata Jaminan Kebendaan Hipotik Kapal Laut dan Masalah Eksekusi Hipotik Kapal Laut Ditinjau Dari Hukum Maritim.
BandungAlumni. 1995.
Muhammad, Rusli, Potret Lembaga Pengadilan Indonesia. Jakarta Raja Grafindo Persada.2006.
Nainggolan, Poltak Partogi, Agenda Poros Maritim Dunia dan Perubahan Lingkungan Strategis. Jakarta P3DI Setjen DPR RI.2015.
Subagyo, P. Joko. Hukum Laut Indonesia Edisi Baru. Jakarta. Rineka Cipta.2005.
Sularso, Aji, Permasalahan IUU Fishing. Jakarta Seminar.2002.
Supramono, Gatot, Hukum Acara Pidana dan Hukum Pidana di Bidang Perikanan. Jakarta Rineka Cipta. 2002.
Journal / Article
Darmika, Ketut, “Penegakan Hukum Tindak Pidana Perikanan Oleh Kapal Perang Republik Indonesia (KRI) dalam Perspektif Undang-undang RI Nomor 45 Tahun 2009 tentang Perikanan”. The journal of law and the judiciary. Vol. 04. No. 3. November 2015.
The Trias Magazine, " Efek Jera Penenggelaman Kapal Asing Tanpa Izin ". Edition1-15 January 2015.
Umar, M, Hussein,“Berharap Pada Poros Maritim”. Selisik, The Journal of Law
and Business. Vol. 1. No.1. June 2015.
Law
Act Number 31 of 2004 concerning Fisheries (The State Gazette of the Republic of Indonesia 2004 Number 118, An Additional Sheet of The Republic of Indonesia Number 4443).
Act Number 45 of 2009 about Amendment in the Law Number 31 of 2004 concerning Fisheries (The State Gazette of the Republic of Indonesia 2009 Number 154, An Additional Sheet of The Republic Of Indonesia Number 5073).
Law of the Sea 1982.
The Decision of the President of the Republic of Indonesia Number 15 in 2010 on the Establishment of the Court Fisheries at Tanjung Pinang State Court and State Court Ranai.
The Decision of the President of the Republic of Indonesia Number 6 in 2014 on the Establishment of the Court Fisheries at AmbonState Court, SorongState Court and MeraukeState Court.
United Nations Convention on The Law of the Tea of the year 1982.
Internet
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