Doktoral Ilmu Hukum, Fakultas Hukum, Universitas Lampung, Bandar Lampung, Lampung, Indonesia.
Volume 4 Issue 1, March 2023: pp: 55-66 http://jurnal.fh.unila.ac.id/index.php/plr P-ISSN: 2723-262X E-ISSN: 2745-9306
Niet Ontvankelijke Verklaard (NO) Decision on the Criminal Case of Land Grabbing Perspective of Justice
Dhinda Ratri Putristira1
1Kejaksaan Negeri Tanggamus, Indonesia E-mail: ratridhinda@gmail.com
Article’s Information Abstract
keywords:
Justice, Land Grabbing, NO Decision.
DOI :
https://doi.org/10.25041/plr.v4i1.2948
In cases of land grabbing, the overlap between civil and criminal law has created pre-judicial problems.
This has resulted in the discourse of justice among those who anticipate law enforcement through criminal proceedings to be insecure. In addition, the Criminal Procedure Code does not recognize decision NO. This article examines the decision of Niet Ontvankelijke Verklaard (NO) in the final decision at the first level of the crime of land grabbing through the perspective of the value of justice. This article uses normative research using case-based, statutory, and conceptual methodologies. Data collection was carried out using literature review tools and interviews.
Furthermore, qualitative data analysis was carried out. The findings of the study show that NO's decision in the final decision for the crime of land grabbing at the first level is intended to eliminate inconsistencies between criminal and civil judgments. Still, the Criminal Procedure Code does not recognize NO. Therefore, the NO decision cannot be given in a criminal case. If the indictment cannot be used to prosecute the defendant's actions, the decision can be an acquittal or a decision free from all lawsuits. Regarding the need for a civil decision regarding land ownership, it should be resolved in an interlocutory judgment. NO's verdict in the land grabbing case Number:
376.PID.B/2021/PN KOT does not fulfill the value of justice. Victims cannot get back the items they claim as their own, the public prosecutor cannot prove the Submitted: Mar 7, 2023; Reviewed: Mar 21, 2023; Accepted: Mar 28, 2023
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accused's guilt, and the perpetrators do not know the exact status of the land. In addition, as a result of NO's decision, the case could not be retried (ne bis in idem), so justice and legal certainty were not achieved.
A. Introduction
In each case, the prosecutor must act in accordance with Article 15 of the Criminal Procedure Code (KUHAP). This is done so that the authority given to the public prosecutor is not abused and because every action or decision taken by the public prosecutor in court will affect the judge's decision. The arguments put forward must be proven so that the court can take them into account when making a decision.1
According to Article 14D of the Criminal Procedure Code, “the authority of the public prosecutor is to submit charges”. The public prosecutor must be careful when drawing up indictments because mistakes can result in reduced charges or even acquittal of the accused.2 Therefore, the indictment must include the strongest reasons. The construction of the indictment was based on the findings of the preliminary examination, which included the defendant's statement, witness testimony, and additional evidence, such as expert testimony.3
The Criminal Procedure Code does not only contain rules for public prosecutors to try, as stated in Article 14 of the Criminal Procedure Code but also determines the methods that must be taken by law enforcement officials to implement the law. The Public Prosecutor is of the opinion that the case files were received after the submission of the second phase. The public prosecutor has the ability to sue because he has met the standard of delegation of the district court. If the public prosecutor considers that the case file does not meet the requirements to be transferred to court, he has the authority to stop the prosecution.4
This article discusses the unacceptable prosecution by the Public Prosecutor or Niet Ontvankelijke Verklaard (hereinafter referred to as the NO decision) against the crime of land grabbing committed by Masruddin Bin Hi. Berlian. Defendant Masruddin Bin H. Berlian on Monday 07 June 2019 or at some point in June 2019 at Kampung Sawah Pekon Banjar Agung Hamlet, Limau District, Tanggamus Regency or at a place where the Kota Agung District Court has the authority to adjudicate the act “with the intention of unlawfully benefiting oneself or another person, selling, exchanging or encumbering with credit verband an Indonesian land right, a building, construction, planting or seeding on land with Indonesian rights, even though it is known that the owner or co-owner of the rights over it are other people”.
Based on the facts revealed in the trial, the panel of judges was of the opinion that “the status of land ownership in the a quo case is included in the domain of civil law, so this case must wait for a civil decision that has permanent legal force (in kracht van gewijsde) regarding ownership status land in casu, then the prosecution by the public prosecutor must be declared unacceptable”.
1 Wijayanti Puspita Dewi, “Penjatuhan Pidana Penjara Atas Tindak Pidana Narkotika Oleh Hakim Di Bawah Ketentuan Minimum Ditinjau Dari Undang-Undang Nomor 35 Tahun 2009 Tentang Narkotika,” Jurnal Hukum Magnum Opus 2, no. 1 (February 1, 2019): 55, https://doi.org/10.30996/JHMO.V2I2.2181.
2 Madya Daka Lelana and Pudji Astuti, “Analisis Yuridis Surat Dakwaan Dalam Putusan Pengadilan Negeri Jakarta Utara Nomor (599/Pid.B/2018/Pn.Jkt Utr) Tentang Perjudian,” NOVUM : JURNAL HUKUM 7, no. 1 (September 21, 2020): 118, https://doi.org/10.2674/NOVUM.V7I1.31159.
3 Andi Hamzah, Hukum Acara Pidana Indonesia (Jakarta: Sinar Grafika, 2002).
4 Michael Barama and Vecky Y Gosal, “Pengembalian Berkas Perkara Dari Penuntut Umum Kepada Penyidik,” LEX CRIMEN 7, no. 5 (July 26, 2018): 154, https://ejournal.unsrat.ac.id/v3/index.php/lexcrimen/article/view/20554.
According to the panel of judges who tried the land grabbing case as, “Decision Number:
376.PID.B/2021/PN KOT, criminal cases related to civil disputes regarding land ownership have been regulated in the provisions of Article 1 and Article 2 Supreme Court Rules (PERMA) Number 1 of 1956 Jo. Supreme Court Circular (SEMA) Number 4 of 1980 concerning Pre Judicieel Geschil which states that if there is an examination of a criminal case it must be decided whether there is a civil dispute over an item or about a legal relationship between two certain parties, then the examination of a criminal case can be postponed to await a court decision in the examination civil cases concerning the existence or non-existence of such civil rights”.5
Then part II “Supreme Court Circular (SEMA) Number 4 of 1980 concerning Pre Judicieel Geschil stipulates that civil provisions are decided before considering criminal prosecution”.
This provision is not an obligation but merely authorizes a criminal judge to suspend an examination pending a civil judge's decision regarding a dispute.6 Furthermore, when a judge wants to use this institution, the criminal judge is not bound by the decision of the civil judge concerned. In addition, the Criminal Procedure Code does not recognize decision NO. The Criminal Procedure Code only recognizes three types of final decisions, namely “criminal decisions (Article 193 paragraph (1) of the Criminal Procedure Code), acquittals (Article 191 paragraph (1) of the Criminal Procedure Code) and release decisions (Article 191 paragraph (2) of the Criminal Procedure Code)”. Therefore the NO decision is in decision Number:
376.PID.B/2021/PN KOT) needs further study.
This article uses normative research using case-based, statutory, and conceptual methodologies. Legal research with a normative doctrinal approach, or normative juridical legal research or normative legal research, is basically an activity that will examine aspects to solve problems that exist in the internal of positive law.7 Data collection was carried out using literature review tools and interviews. Furthermore, qualitative data analysis was carried out.8
The novelty of this research will contribute to a similar criminal case in the form of land grabbing in providing a NO decision which is not recognized in the Criminal Procedure Code (KUHAP). In land-grabbing cases, there is an overlap between civil and criminal law, leading to pre-trial problems. The NO decision in the final decision on the crime of land grabbing at first instance is intended to eliminate inconsistencies between criminal and civil decisions. Still, the Criminal Procedure Code does not recognize NO. With this NO decision, the victim could not recover the goods he claimed as his own, the public prosecutor could not prove the defendant's guilt, and the perpetrator did not know the exact status of the land. In addition, due to the NO decision, the case cannot be retried (ne bis in idem), so justice and legal certainty are not achieved.
5 Bandaharo Saifuddin, Bandaharo Saifuddin, and Tris Widodo, “Penyelesaian Tindak Pidana Yang Didalamnya Terdapat Perselisihan Perdata (Suatu Tinjauan Normatif),” Jurnal Justitia : Jurnal Ilmu Hukum Dan Humaniora 7, no. 1 (January 31, 2020): 35, https://doi.org/10.31604/justitia.v7i1.30-36.
6 Abdul Rahim dan Muhammad Ibnu Fajar Rahim, “Kupas Tuntas Penerapan Prejudiciel Geschil Dalam Perkara Pidana,”
PLENO JURE 11, no. 2 (2022): 32.
7 Kornelius Benuf, Muhamad Azhar, “Metodologi Penelitian Hukum sebagai Instrumen Mengurai Permasalahan Hukum Kontemporer”, Jurnal Gema Keadilan, Volume 7 Edisi I, Juni 2020 : 20-33.
https://doi.org/10.14710/gk.2020.7504
8 Anis Farida and Priyo Handoko, “Normative and Islamic Theology on the Enforcement of COVID-19 Health Protocol in Indonesia,” HTS Teologiese Studies / Theological Studies 77, no. 3 (2021), https://doi.org/10.4102/HTS.V77I3.6531.
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B. Discussion
1. Criminal Law Study of the Decision of Niet Ontvankelijke Verklaard (NO) in the First Instance Final Decision on the Crime of Land Grabbing
Each judiciary implements the law and prosecutes lawbreakers according to their respective jurisdictions. However, law enforcement and punishment for lawbreakers sometimes require several scopes of control because each action includes aspects regulated by two (2) different norms.9 It is this intersection between legal norms which, in turn, gives rise to “pre- judicial disputes”, namely:10
a. Geschill Prejudicieel Institution, which specifically covers the intersection between criminal cases and civil cases at the same time.11
b. The Aanhagige Rechtsvordering or Lis Pendens Institution, which specifically covers the intersection between civil cases and civil cases at the same time, but its scope is not limited to general courts, but also: (1) religious courts that examine and try religious civil cases for those who are Muslim, and (2) Administrative Court which examines and adjudicates civil administration.12
The intersection of two different legal norms handled in other judicial processes raises questions about “which case must be decided first, which case must be adjourned or stopped or adjourned, and as an alternative, whether these two issues can be examined simultaneously?”
Currently, there are many land disputes in Indonesia, including land grabbing, which are complicated to resolve, even in court. This is because the land has a high cultural, philosophical, political, and social economic value, in which it is not uncommon for the parties to claim that the land belongs to one another.13 As “Decision of the Kota Agung District Court Number:
376.PID.B/2021/PN KOT”.
Based on the elements of Article 385 of the Criminal Code, based on the land grabbing case, the actions of Masruddin Bin Hj. Berlian has met the elements. From the actions taken by the perpetrator, namely “selling land belonging to another person, namely Husin Ansari Bin Abdul Majid with proof of ownership of Freehold Title land (SHM) on November 6, 2018, in the name of Husin Ansari Number 08.07.24.06.1.00562 without the permission and knowledge of the owner to witness Aro Jais for Rp. 25,000,000 (twenty-five million rupiahs), so the actions of the perpetrator Masruddin have fulfilled the element of error. The defendant Masruddin Bin Hj. Berlian has been examined at the investigative to prosecution stage and has not found an element of forgiveness from the defendant and the defendant has been competent so that the defendant's element of guilt has been fulfilled.
Based on this decision, the Panel of Judges considered that the elements of this article concerning land ownership must also be proven to determine whether the defendant's actions fulfilled these elements. The Panel of Judges considers it a civil dispute and enters the realm of
9 Febriansyah Ramadhan, Xavier Nugraha, and Patricia Inge Felany, “Penataan Ulang Kewenangan Penyidikan Dan Penuntutan Dalam Penegakan Hukum Pelanggaran Ham Berat,” Veritas et Justitia 6, no. 1 (June 28, 2020): 172–212, https://doi.org/10.25123/VEJ.V6I1.3514.
10 M. Yahya Harahap, Hukum Acara Perdata: Tentang Gugatan, Persidangan, Penyitaan, Pembuktian, Dan Putusan Pengadilan (Jakarta: Sinar Grafika, 2017).
11 Alexandros Z. Spyropoulos et al., “Semantic Representation of the Intersection of Criminal Law & Civil Tort,” Data 7, no.
12 (December 1, 2022): 176, https://doi.org/10.3390/DATA7120176/S1.
12 Zainul Haqqi et al., “The Strategy of The Siak Sri Indrapura Religious Court in Realizing a Modern Jurisdiction with Integrity,” KnE Social Sciences 2022 (July 5, 2022): 167–76, https://doi.org/10.18502/KSS.V7I10.11355.
13 Maciej Serda et al., “Gerakan Perlawanan Masyarakat Urutsewu Kebumen Terhadap Penyerobotan Lahan Oleh Tni,” ed. G.
Balint et al., Journal of Politic and Government Studies 11, no. 2 (March 8, 2022): 34–58, https://doi.org/10.2/JQUERY.MIN.JS.
proof regarding proving property rights. Civil disputes are not included in the field of proving criminal cases. Because there is an element of a civil dispute regarding land ownership, so according to law, the settlement must be determined by means of civil evidence to determine the status of land ownership and is not the scope of criminal proof that has no jurisdiction in terms of adjudicating and deciding the level of ownership rights over land or civil disputes relating to land ownership.14
Prejudicial geschil is used to consider decisions because it is very decisive regarding disputes regarding proof of ownership.15 If the defendant consciously admits that the right to the land belongs to the victim, then Article 385 paragraph (1) of the Criminal Code will be proven. However, in his determination, the defendant proved otherwise by submitting documentary evidence and witness statements. Then added evidence involving the National Land Agency (BPN), which in its report contains land measurements and land boundaries which are civil domains. This means that there are ownership disputes that cannot be decided in proving a criminal case.
Then regarding, criminal cases that are related to civil disputes regarding land ownership, it has been regulated in the provisions of “Article 1 and Article 2 of Supreme Court Rules (PERMA) Number 1 of 1956 Jo. Supreme Court Circular (SEMA) Number 4 of 1980 concerning Pre Judicieel Geschil which states that if there is an examination of a criminal case it must be decided whether there is a civil dispute over an item or about a legal relationship between two certain parties, then the examination of a criminal case can be postponed to await a court decision in the examination civil cases regarding the existence or non-existence of such civil rights.
Regarding this matter, the Panel of Judges also agreed with the rules as in “Decision Number 118/Pid.B/2015/PN.Bdw and Decision Number 19/Pid.B/2014/PN.Msh which basically stated that in their consideration, because of a case criminal law relating to property rights disputes (civil disputes) between victims and defendants, so taking into account the prejudicial geschil provisions above, the examination of this case must wait for a civil case decision which will determine the status of land rights (disputed object) this criminal matter”.
Based on their considerations, the Panel of Judges is also of the opinion that in order to carry out the precautionary principle in deciding a case and pay attention to the principles of legal certainty, justice and benefit, the status of land ownership in the a quo case is included in the realm of civil law, so this case must wait for a civil decision that has permanent legal force regarding the status of land ownership in casu, then the claim by the Public Prosecutor must be declared unacceptable.16
Referring to the “Decision of the Kota Agung District Court Number: 376.PID.B/2021/PN KOT, the handling of pre-judicial disputes is one part of the law enforcement process. The handling of pre-judicial disputes involves at least two sub-system components in the legal system so that it can function optimally, namely the legal structure and legal substance. This is because the substance of the law affects the implementation of law enforcement duties.17 Regarding the handling of pre-judicial disputes themselves, there are 2 (two) types of rules,
14 “Juridical Review Of The Criminal Action Of Forgery Signature In Making Land Certificate | Journal of Judikaltura,”
accessed February 7, 2023, https://hasmed.org/index.php/Joura/article/view/23.
15M. Hadi Shubhan, “Industrial Relation and Criminal Sanction the Case of Indonesia,” September 19, 2019, https://papers.ssrn.com/abstract=3456489.
16 Syamsul Haling and Andi Taufik, “Analysis Of Judge's Decision That Was Out Of The Crime Of Murder,” Journal Indonesia Law and Policy Review 4, no. 1 (October 31, 2022): 26–42, https://doi.org/10.56371/JIRPL.V4I1.107.
17 S. Salle, Sistem Hukum Dan Penegakan Hukum (Makasar: CV. Social Politic Genius, 2020).
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namely arrangements that require judges to postpone a case and wait for other cases and arrangements that give judges the authority to postpone or not postpone a case.
Judges have an important role in deciding how to handle cases systematically, in terms of deciding which matters should be decided first and which cases should be adjourned or dropped.18 In actualizing the idea of justice, judges require a conducive situation, both from external and internal factors from within a judge.19 Efforts must be made for judges to handle cases systematically because, in practice the “chaotic” case process creates many difficulties.
Unsystematic handling of pre-judicial conflicts will lead to at least two (2) problems, namely the problem of the validity of evidence and the problem of inconsistency in decisions.
Related to this, for example, at the meeting point of criminal and civil cases, in the
“Decision of the Kota Agung District Court Number: 376.PID.B/2021/PN KOT” with the defendant Masruddin Bin Hi. Berlian, the case decision was suspended until there was an inkracht civil decision regarding land ownership rights. In this case, of course, the court found out that there was a land ownership dispute between Masruddin Bin Hi. Berlian and witness Husin.
Observing the decision of the Kota Agung District Court Number: 376.PID.B/2021/PN KOT with the defendant Masruddin Bin Hi. Berlian, the decision has been systematic and in accordance with the validity of the evidence and has prevented the emergence of contradictions between decisions.20 Holistic and systematic handling of pre-judicial disputes by judges in accordance with the “Decision of the Kota Agung District Court Number: 376.PID.B/2021/PN KOT” is very important because it aims to avoid the invalidity of evidence and the emergence of contradictions between decisions.21
Although the NO decision in the land grabbing case aims to avoid contradictions between criminal and civil decisions, according to Maroni, the NO decision is contrary to the Criminal Procedure Code. There may not be a NO decision for criminal cases because if the indictment cannot be used as a basis for trying the defendant's actions, then the decision can be in the form of an acquittal or a decision free from all lawsuits.
The NO decision essentially states that the lawsuit cannot be accepted because it contains formal defects. This usually happens in civil cases because we need to know that the final decision in a criminal case based on the Criminal Procedure Code only recognizes three types of final decisions, namely “criminal decision (Article 193 paragraph (1) of the Criminal Procedure Code), acquittal (Article 191 paragraph (1) of the Criminal Procedure Code) and free (Article 191 paragraph (2) of the Criminal Procedure Code)”. So for the criminal case of land grabbing, in my opinion, it would be inappropriate if it was decided with a NO decision and violated the provisions of the Criminal Procedure Code.
Regarding the consideration of the judge who decides on land ownership cases, it must be proven first in a civil court, after knowing the application, the criminal case can be resubmitted.
Suppose the judge decides to decide on NO with these considerations. In that case, it should be stipulated in an interlocutory decision so that in this case there is no confusion. After the final
18 Peter Jeremiah Setiawan et al., “Konsep Penegakan Hukum Yang Sistematis Dalam Perselisihan Pra-Yudisial Di Indonesia,”
Jurnal Hukum IUS QUIA IUSTUM 29, no. 1 (January 31, 2022): 68–92, https://doi.org/10.20885/IUSTUM.VOL29.ISS1.ART4.
19 Hasanal Mulkan, “Peranan Hakim Dalam Persidangan Perkara Pidana Sebagai Upaya Penegakan Hukum Pidana”, Jurnal Hukum Samudra Keadilan, Vol 16 No 2 (2021): 305-319.
https://doi.org/10.33059/jhsk.v16i2.4118
20 Rommy Haryono Djojorahardjo, “Mewujudkan Aspek Keadilan Dalam Putusan Hakim Di Peradilan Perdata,” Jurnal Media Hukum Dan Peradilan 5, no. 1 (2019): 95.
21 Menerjemahkan Keadilan, Dalam Putusan, and Hakim Yunanto, “Menerjemahkan Keadilan Dalam Putusan Hakim,” Jurnal Hukum Progresif 7, no. 2 (October 31, 2019): 202, https://doi.org/10.14710/HP.7.2.192-205.
decision is made, the Public Prosecutor must determine his attitude within 7 (seven) days if the decision is not in accordance with the demands so that the judge's consideration in the NO decision cannot be carried out by the Public Prosecutor while proving the ownership of the civil case requires a long time.
2. Niet Ontvankelijke Verklaard (NO) Decision on the Criminal Case of Land Seizure from the Perspective of the Value of Justice
Based on John Rawls's theory of justice, namely “equal freedom and equal opportunity”.
The judge's decision in the case of land grabbing is meant to protect the interests of the victim and the accused. Bearing in mind the “Decision Number: 376.PID.B/2021/PN KOT” the Kota Agung District Court judge wants equality of free and balanced will between the parties in terms of providing opportunities and time for the parties to be able to quickly resolve land ownership disputes, ordered so that the case files and evidence are returned to the Public Prosecutor.
According to Imam Yudha Nugraha, the freedom is the same in this case that “from the victim's side, the Public Prosecutor and the Judge have the right to prove that the perpetrator's actions were a criminal act because they had sold the land belonging to the victim (land grabbing), as well as the perpetrators have the freedom the same to defend his argument against the article that has been charged with the perpetrator”.22 Then the same opportunity in this case that “from the victim's side the Public Prosecutor, the Judge and the perpetrator also have the same opportunity to prove the truth in this case, however the NO decision does not provide clear legal certainty for both the victim and the perpetrator. Opportunity to correct an injustice:
in this case, the victim certainly does not have legal certainty regarding the NO decision in the final decision of the criminal case, so in this case, the Public Prosecutor submits an appeal, the public prosecutor and the victim have the opportunity to correct the injustice experienced by the victim.23
Likewise, with Mardian's opinion regarding John Rawls's theory of justice, based on the considerations of the Panel of Judges as outlined in their decision, the decision fulfilled the value of justice. Regarding equal freedom, the Judge gives freedom to all parties, the public prosecutor and the defendant, in terms of evidence. Related, the same opportunity has also been given. The opportunity to correct injustice has also been given the opportunity to make legal efforts both on appeal and cassation.24
When viewed from the value of justice, the NO Decision in the criminal case of land grabbing, “Number: 376.PID.B/2021/PN KOT”, has met the material and formal requirements.
The material requirement required for a decision is an act in the form of legal considerations used by the judge in deciding a case before him (the substance of the decision). The second component is the formal requirement, which must contain the matters concerned in the judge's decision which will result in null and void if omitted.
Even though the NO decision in the case of the criminal act of land grabbing “Number:
376.PID.B/2021/PN KOT” has met the material and formal requirements, but based on the literature review and the opinions of the sources above, the NO decision in the case of the crime of land grabbing does not meet the value justice because there is no legal certainty for victims, defendants and the community. The NO decision has not satisfied the public prosecutor and the victim's sense of justice because the victim has not been able to own land that is claimed as her own. The public prosecutor has not been able to prove the guilt of the perpetrators, nor the
22 Hasil Wawancara Dengan Imam Yudha Nugraha Selaku Jaksa Pada Kejaksaan Negeri Tanggamus, 24 Januari 2023.
23 Ibid.
24 Hasil Wawancara Dengan Mardian Selaku Hakim Pada Pengadilan Negeri Tanggamus, 18 Januari 2023.
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perpetrators to know for sure the status of the land because the judge considers who must first determine land ownership in civil cases, so with this NO decision, there is no legal certainty so that it has not fulfilled the sense of justice for the parties.25
NO decisions in criminal cases also arise because judges do not understand the consequences that will arise from NO decisions, such as the lack of justice and legal certainty.
After all, the case cannot be retried (ne bis in idem).26 One of the criteria for a judge's decision that provides a sense of justice for the community is paying attention to the provisions of Article 197 of the Criminal Procedure Code.27 There are three types of final decisions that can provide a sense of justice for the community based on the Criminal Procedure Code, namely “criminal decisions (Article 193 paragraph (1) of the Criminal Procedure Code), acquittal decisions (Article 191 paragraph (1) of the Criminal Procedure Code) and acquittal decisions (Article 191 paragraph (1) 2) Criminal Procedure Code). The sense of justice for the community is the existence of legal certainty as 3 (three) of the final decisions, if the judge decides on one of these types of decisions, legal certainty is fulfilled so that a sense of justice is created for the community.28
According to Supreme Court Circular (SEMA), the judges were not affected by the current civil and criminal cases or by the decisions of either case. However, because the victim did not register property rights, the criminal court could not immediately decide it outside the procedural law. According to the facts, although it does not provide justice for all parties, especially victims, at least there are benefits.
In the end, every judge's decision must be accountable. The responsibility of the judge for his decision lies in his legal considerations. The Supreme Court of the Republic of Indonesia has determined that “the judge's decision must consider all aspects that are juridical, philosophical, and sociological so that the justice to be achieved, realized, and accounted for in the judge's decision is justice oriented to legal justice (legal justice), moral justice ( moral justice ), and community justice ( social justice )”.29
Justice is at the core of the legal system. The other two components, certainty and expediency, are not independent entities separate from equity. Certainty and benefit must be included in the framework of justice. Because according to Radbruch the purpose of justice is to foster virtue in human existence. This feature must influence legislation. Therefore, according to Radbruch, legal certainty aims to ensure that the law (which contains justice) works as a norm that can be enforced. By ensuring that laws are obeyed, justice contributes to the greater well-being of humanity. It is clear that in Radbruch's view, justice, certainty, and expediency do not clash. Certainty and benefit must be included in the justice framework and become an intrinsic component of justice itself.
As explained in the discussion above, in terms of the value of justice, the NO decision in the criminal case of land grabbing “Number: 376.PID.B/2021/PN KOT” has met the material and formal requirements. The concrete issue is how abstract justice can be used as a guide in law enforcement. The role of law enforcers, especially judges, is to change the thoughts and ideals of justice into real forms that society can accept. In this case, it is hoped that the judge's decision reflects the ideals of justice. However, justice concerns will continue growing because the law has a symbolic meaning that requires a different interpretation.
25 Hasil Wawancara Dengan Imam Yudha Nugraha Selaku Jaksa Pada Kejaksaan Negeri Tanggamus, 24 Januari 2023.
26 Hasil Wawancara Dengan Maroni Selaku Akademisi Hukum Pidana Universitas Lampung, 28 Desember Tahun 2022.
27 Ibid .
28 Hasil Wawancara Dengan Imam Yudha Nugraha Selaku Jaksa Pada Kejaksaan Negeri Tanggamus, 24 Januari 2023.
29Ahmad Rifai, Penemuan Hukum Oleh Hakim Dalam Perspektif Hukum Progresif (Jakarta: Sinar Grafika, 2010).
C. Conclusion
The case for the criminal act of land grabbing as “Decision Number: 376.PID.B/2021/PN KOT” basically fulfills the elements in Article 385 Paragraph (1) of the Criminal Code, it's just that it is still necessary to know the ownership of the land and the NO Decision in the decision At the end of the first stage of the criminal act of land grabbing, the aim is to prevent contradictions between criminal and civil decisions from arising. However, the NO decision is contrary to the Criminal Procedure Code. The Criminal Procedure Code only recognizes three types of final decisions, namely “criminal decisions, acquittals and acquittals”. Therefore, there may not be a NO decision for criminal cases because if the indictment cannot be used as a basis for trying the defendant's actions, then the decision can be in the form of an acquittal or a decision free from all lawsuits. Regarding the consideration of the judge who decided on the land-grabbing case, it was first proven that the ownership was civil. It should have been decided in an interlocutory decision so that in this case, the case could be resubmitted as a criminal case.
NO's decision in the case of the criminal act of land grabbing has not met the value of justice because there is no legal certainty for victims, defendants and the community. Victims have not been able to reclaim the land that they claim to own and the public prosecutor has not been able to prove wrongdoing for the perpetrators, as well as for the perpetrators who do not know for sure the status of the land, because of the consideration of the judge who must first prove ownership of the land in a civil case so that with The NO decision does not yet have legal certainty so that it does not fulfill the sense of justice for the parties. In addition, one of the consequences of the NO decision is that the case cannot be retried (ne bis in idem) so that justice and legal certainty are not realized.
References
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