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DOI: https://doi.org/10.33258/birci.v5i4.7112 29599
Jurisdiction Overview Criminal Action of Obstacling the Judicial Process (Obstruction of Justice) Performed by Doctor
Gusti Muhammad Andre1, Joko Setiyono2
1,2Master of Law, Universitas Diponegoro, Indonesia [email protected]
I. Introduction
The State of Indonesia is a country based on law, so it is appropriate if the law is made supremacy, where everyone is obliged to submit and obey the law without exception, as stated in Article 1 Paragraph (3) of the 1945 Constitution of the Republic of Indonesia. Law enforcement in criminal acts in Indonesia still faces many obstacles, including resistance from various parties such as obstructing the judicial process. In this case, the medical profession as a health worker can also commit the crime. Referring to Law Number 36 of 2009 concerning Health in Article 1, it is stated that resources in the health sector are all forms of funds, health supply personnel, pharmaceutical preparations and medical devices as well as health service facilities and technology used to carry out health efforts by the
Abstract
Obstruction of justice is an act of someone who obstructs the legal process and disrupts the proper function in a judicial process. The act of obstruction of justice is an act against the law that bypasses and opposes law enforcement. Normatively, the act of obstructing the judicial process has been regulated in many regulations, both in the Criminal Code and in special criminal law. The problems discussed by the author are how the form of acts of obstructing the judicial process (obstruction of justice) carried out by doctors in positive law in Indonesia and how criminal liability by doctors who commit criminal acts hindering the judicial process (obstruction of justice). The method that the author uses in this research is a normative legal approach method using secondary data sources which include primary legal materials, secondary legal materials and tertiary legal materials. The results of the research and discussion show that:
the form of the act of obstructing the judicial process (obstruction of justice) carried out by the doctor that the act is all forms of intervention to the entire legal and justice process from the beginning until the process is completed both at the stage of the investigation, prosecution and the judge. In terms of the criminal liability of the medical profession who intentionally prevents, hinders, hinders, or thwarts directly or indirectly the investigation, prosecution, and examination in court against suspects and defendants or witnesses in corruption cases (Obstruction of Justice), Corruption Crimes have regulated in criminal law in Indonesia in Article 21 of Law 20 of 2001 on the replacement of Law Number 31 of 1999 concerning the Eradication of Corruption.
Keywords
doctor; obstructing the judicial process (obstruction of justice);
acts; criminal liability
Budapest International Research and Critics Institute-Journal (BIRCI-Journal) Volume 5, No 4, November 2022, Page: 29599-29607 e-ISSN: 2615-3076(Online), p-ISSN: 2615-1715(Print)
www.bircu-journal.com/index.php/birci email: [email protected]
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government, local government or community. Therefore, with these health workers, all health resources can be managed synergistically.
Professional behavior is very important to be owned by health workers as an effort to improve and maintain quality, equitable, and affordable health services. Professionalism is a behavior based on knowledge and skills that reflects the values of professionalism. The values of professionalism can be seen from the way they speak, how they interact with other people, and the way they look every day. Professionalism is very important in the world of medicine and has an important role in the diagnosis of disease. Doctor professionalism includes informed consent, communication, examination procedures and ethics. The Doctor Profession as the bearer of professional duties in various aspects related to medical services, always and often faces demands for fulfilling responsibilities, both legally and related to the medical code of ethics.
Medical practice as part of professional responsibilities is explained in the provisions of Law Number 29 of 2004 concerning Health Workers. It is explained that medical practice is a series of activities carried out by doctors and dentists for patients in carrying out health efforts (article 1 point 1).In order for every medical profession to always hold fast and behave in accordance with the honor of their profession, before carrying out their professional duties, they are required to take an oath, as a professional promise both to the public (humanity), to
"clients" or patients, colleagues, and for oneself.
The goal is that services are provided with a high level of skill, caution, thoroughness, care and ethics so that professional actions and behavior become the main basis for doctors.
Karna in carrying out medical practice activities to serve patients. Communities who use medical health services entrust themselves and their lives to doctors in handling their health so that complying with existing rules or regulations is an obligation for doctors. In fact, the behavior of some doctors in practice often violates the code of professional ethics and leads to criminal acts. This matter. For example the case of dr. Bimanesh Sutarjo on Thursday 16 November 2017 engineered Setya Novanto to be hospitalized at the Permata Hijau Medika Hospital in order to avoid the investigation by KPK investigators against Setya Novanto as a suspect in a corruption case involving the procurement of Electronic ID cards (e-KTP), here is a doctor Bimanesh Sutarjo tried to obstruct the judicial process.
The act of obstructing the judicial process normatively has been regulated in many regulations, both in the Criminal Code and in special criminal law. In the Criminal Code, this action is regulated in Articles 216-222 of the Criminal Code which stipulates that the actions of parties who hinder the legal process can be punished. obstruct the legal process shall be punished and threatened with a maximum imprisonment of nine months.
The regulation of obstruction of justice is also regulated in the Special Criminal Law, namely Law Number 21 of 2000 concerning Eradication of Criminal Acts of Corruption, Law Number 15 of 2003 concerning the Implementation of Government Regulations in Lieu of Law No. 1 of 2002 concerning Eradication of Criminal Acts of Terrorism, Law No. - Law Number 21 of 2007 concerning Eradication of the Criminal Act of Trafficking in Persons, Law Number 8 of 2010 concerning Prevention and Eradication of Money Laundering, Law Number 35 of 2009 concerning Narcotics and Law Number 8 of 2016 concerning Persons with Disabilities. Obstruction of justice is actually not a new term in the legal world, but this crime is not well known, some of the problems that make this term less popular are the reluctance of law enforcers to use this legal instrument in taking action against the perpetrators of obstruction of justice and there are differences in perception. in law enforcement circles regarding the form of obstruction of justice in Law Number 21 of 2000 concerning the Eradication of Corruption Crimes. According to the author, this is very dangerous and unfortunate because it will affect the law enforcement process.
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II. Research Method
According to the field, this research includes descriptive research. Descriptive research is research that is intended to provide data as accurately as possible about humans, circumstances, other symptoms. The intent is primarily to reinforce hypotheses, in order to help strengthen old theories, or within the framework of constructing new theories. The approach that the author uses in this study is a normative legal approach, namely literature review research using secondary data. Analyzing the problem from a point of view or point of view by looking at the provisions of the applicable legislation and relating to existing problems.
III. Discussion
Obstruction of justice is one type of contempt of court criminal act. Obstruction of justice is an act that is intended or has the effect of twisting, disrupting the proper function in a judicial process. Some examples are to openly oppose an order outside the court, others are attempts to bribe a witness or threaten the witness so that the witness denies or falsifies the information given. The crime of obstructing the judicial process can be carried out by anyone, not only law enforcers, but also by a professional doctor as a health worker can also commit the crime. As we know that the profession of a doctor has a very noble position in the eyes of society. Karna serves the interests of humanity.
Doctors who practice medically cannot be separated from the possibility of violating the medical code of ethics and violating the law in providing services to patients. This can happen because of the doctor's unprofessionalism in carrying out his work. For example the case of dr. Bimanesh Sutarjo on Thursday, November 16, 2017 engineered Setya Novanto to be hospitalized at the Permata Hijau Medika Hospital in order to avoid the investigation by KPK investigators against Setya Novanto as a suspect in a corruption case involving the procurement of an Electronic ID Card (e-KTP), On November 16, 2017 around 11.00 WIB, Fredrich contacted dr. Bimanesh Sutarjo, who previously knew each other, and asked for help so that Setya Novanto could be hospitalized at the Medika Permata Hijau Hospital with a diagnosis of several diseases, one of which was hypertension.
In order to confirm the request, Frederick at around 14.00 WIB came to see dr.
Bimanesh Sutarjo ensured that Setya Novanto was hospitalized at Medika Permata Hijau Hospital. Frederich also provided a photo of Setya Novanto's medical record data at Premier Jatinegara Hospital which was photographed by Frederich a few days earlier, even though there was no referral letter from Premier Jatinegara Hospital for Setya Novanto to be hospitalized, then dr. Bimanesh Sutarjo then agreed to fulfill Frederich's request even though he knew Setya Novanto was having legal problems at the KPK related to the corruption case in the procurement of E-KTP.
Next dr. Bimanesh Sutarjo contacted dr. Alia, who at that time served as Plt. The Manager of Medical Services at Medika Permata Hijau Hospital by telephone to prepare a VIP room for inpatient treatment on behalf of Setya Novanto who was planned to be admitted to the hospital with a diagnosis of severe hypertension, even though dr. Bimanesh Sutarjo has never done a physical examination of Setya Novanto. Besides that, dr. Bimanesh Sutarjo also conveyed to dr. Alia said that she had contacted another doctor, namely dr. Mohammad Toyibi and dr. Joko Sanyoto to carry out joint treatment of a patient named Setya Novanto even though the two doctors were never notified by dr. Bimanesh Sutarjo.
In the inpatient cover letter, dr. Bimanesh Sutarjo wrote the diagnosis of hypertension, vertigo, and diabetes mellitus as well as kept a doctor's diary which was a record of the
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results of the initial examination of the patient, whereas dr. Bimanesh Sutarjo has never examined Setya Novanto nor has he received confirmation from the doctor who previously treated Setya Novanto from Premier Jatinegara Hospital.
At around 18.45 WIB, Setya Novanto arrived at Medika Permata Hijau Hospital and was immediately taken to VIP room 323 according to the Inpatient Cover Letter made by dr.
Bimanesh Sutarjo. After Setya Novanto was in VIP room 323, dr. Bimanesh Sutarjo ordered Indri (nurse) to throw away the inpatient cover letter from the ER that he had made and replace it with a cover letter from Poli filled in by dr. Bimanesh Sutarjo for patient registration on behalf of Setya Novanto in the inpatient administration department even though that afternoon was not dr. Bimanesh Sutarjo.
If we look at the chronology of the case, as mentioned above, in the case of the act of obstructing the legal process carried out by dr. Bimanesh Sutarjo stated that these actions were all forms of intervention to the entire legal and justice process from the beginning to the end of the process, the authors analyzed that as follows:
1. Forms of Obstructing Actions in the Investigation Process The acts of obstruction referred to in the investigation process are:
a. The suspect intentionally hides and/or destroys evidence before or after the investigation process begins.
b. The suspect deliberately avoided the investigation process in order to buy time.
c. A third party intentionally helps conduct and/or facilitates the escape process of a suspect in a criminal act.
d. Bribing law enforcement officers and/or government officials to discontinue the legal process and close the case.
2. Actions to hinder the prosecution process the actions to obstruct the prosecution process are:
a. The defendant, in the process of his investigation, lied and intentionally omitted evidence, which at this time caused the pre-prosecution process to be hampered because it was deemed that the police lacked evidence.
b. Committing a criminal act that is laden with efforts to thwart the delegation of case files to the Prosecutor's Office.
3. Actions to hinder the trial process in court The actions to obstruct the proceedings referred to in the trial are:
a. The defendant intentionally harmed himself before and after the trial process took place.
b. The defendant was silent and lied when the judge asked questions
c. Expert witnesses and/or interpreters in this case provide misleading information or statements regarding the material and theory presented.
d. The doctor in this case intentionally participates in making false statements and lies to protect the defendant which is considered to violate the law.
With various forms of action to hinder the judicial process above. The author sees that the act of obstructing the judicial process is a form of action that is a medical error. When viewed from the form of Actions to hinder the judicial process, the form of violations committed by dr. Bimanesh Sutarjo was the first in the investigation process to intentionally hide and/or eliminate evidence before or after the investigation started, deliberately avoiding the investigation process with the aim of buying time.
In this case, Dr. Bimanesh Sutarjo has engineered the results of Setya Novanto's medical record with the aim of buying time. The second form of action by Dr. Bimanesh Sutarjo is Obstructing the Prosecution Process, namely Dr. Bimanesh Sutarjo in the investigation process, the suspect lied and deliberately omitted evidence which at this time
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caused the pre-prosecution process to be hampered because it was considered that the police lacked evidence.
In this case, Dr. Bimanesh Sutarjo made a fake referral letter so that Setya Novanto was treated. So it is clear from the above case, Dr. Bimanesh Sutarjo has committed a criminal act of obstructing the judicial process has committed, ordered to do or participated in committing acts that intentionally prevent, hinder, or thwart directly or indirectly investigations, prosecutions, and examinations in court proceedings against suspects or defendants or witnesses in criminal cases of corruption in the procurement of Electronic ID cards (e-KTP).
According to Simons, the definition of error is that there is a certain psychological error in someone who commits a crime and there is a relationship between this situation and the act committed, in such a way that the person can be reproached for committing the act. Based on this opinion, it can be concluded that there are two things besides committing a crime, namely, a psychological state and a certain relationship between the psychological state and the act that causes reproach.
The basic concept of error in criminal law (schuld) is so different from the basic concept of error in the disciplines of medical science and medical ethics. The difference lies in the general nature (lex generalis) of errors in criminal law, and the special nature (lex specialist) in the disciplines of medical science and medical ethics. In addition, errors in criminal law, prioritize the consequences of a criminal act, for example a violation of Article 359 of the Criminal Code.
The actions of a doctor as a legal subject in public relations are divided into two, namely his daily actions that are not related to his profession and actions related to the implementation of his profession. Doctors in carrying out their professional duties are often faced with a legal problem that sometimes the law asks for accountability on the basis of the doctor's actions in carrying out his profession as medical personnel to provide health services to patients or other people (society).
Legal liability here is legal responsibility. In this case, legal liability is largely determined by the existence of an error in the sense of dolus or culpa. Thus, in the science of law, errors are always related to the unlawful nature of an act committed by a person who is able to be responsible for being responsible. Therefore, every act of a responsible person is formulated as an act that can be punished or a criminal act (strafbaar feit).
Acts committed by doctors are criminal acts of obstruct the judicial process of corruption. So it is a crime related to corruption. The word "related" indicates that there is no crime without corruption. Therefore, it can be said as a type of "derivative" crime which also describes the criminalization of certain actions or actions. Acts that are categorized as obstructing the judicial process of criminal acts of corruption are based on the forms of actions that violate the elements of criminal acts in Article 21 of Law no. 31 of 1999 in conjunction with Law no. 20 of 2001, namely:
"Everyone who intentionally prevents, hinders, or thwarts directly or indirectly the investigation, prosecution, and examination in court against a suspect or defendant or witnesses in a corruption case, shall be punished with imprisonment for a minimum of 3 (three) years and a maximum of 3 (three) years. 12 (twelve) years and or a fine of at least Rp.
150,000,000.00 (one hundred and fifty million rupiah) and a maximum of Rp.
600,000,000.00 (six hundred million rupiah).”
In addition to the rules in the Corruption Act, obstruction of justice has also been agreed in the UN Convention against Corruption (UNCAC). Article 25 mandates that ratifying countries are obliged to take political and legal actions to fight actions that hinder the legal process of criminal cases of corruption. This means that the KPK has full authority to process anyone who tries to hinder a corruption case that is being handled by the KPK. On that basis, the KPK must act actively to immediately ensnare the person concerned by using
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Article 21 of the Anti-Corruption Law. The offense that regulates obstruction of justice is classified as a formal offense so that every action, whether completed or attempted, can actually be ensnared by law enforcement officials.
From the forms of actions that are formulated in Article 21 of the Anti-Corruption Law above, the criteria for obstructing the judicial process of criminal acts of corruption are:
Preventing the judicial process of corruption. The meaning of the word prevent in the Indonesian dictionary includes: "enforce, restrain, disobey, hinder and prohibit." The act of preventing this is when law enforcement is or will conduct a judicial process in a corruption case, the perpetrator of a crime has committed certain actions with the aim that the judicial process cannot be carried out and the efforts of the perpetrators of the crime are indeed successful.
Obstructing the judicial process of corruption. The meaning of hindering, hindering, disturbing, disturbing. Obstacles can be defined as making it difficult for an action to be taken. What is meant by the act of the perpetrator of a crime is that when law enforcement is or will conduct a judicial process in a corruption case, the perpetrator of a criminal act has committed a certain act with the aim that the ongoing judicial process is hindered from being carried out, and whether the act can be achieved or not. no, not a requirement. So here it is sufficient to prove that there are indications of successful efforts lead to acts of thwarting or obstructing the judicial process.
Thwarting the judicial process of corruption. The meaning of failing to load includes: to fail. What is meant by the act of the perpetrator of a crime is that when law enforcement is or will conduct a judicial process in a corruption case, the perpetrator of a criminal act has committed certain actions with the aim that the judicial process being implemented is not successful and the efforts of the perpetrator of the criminal act are successful. To thwart is to make an action have no effect or to make an action that has been done a failure.
Article 21 has a broad formulation regarding the actions referred to as Obstructs, this article narrows the scope of the legal process aimed at the acts of "preventing, hindering, or thwarting" mentioned above. The legal process referred to only in the process of
"investigation, investigation, and execution is not included in the formulation. The scope of the process is slightly wider in the provisions of the Criminal Code. From this it must be interpreted that the investigation process is also referred to in the process aimed at by the Obstruction of Justice act. In other words, all the arrangements regarding the Obstraction of Justice in Positive criminal law do not reach the execution stage. The formulation of this problem is a confusing thing for law enforcement.
As one of the legal subsystems, without law enforcement, the law will be dead. The law can never be implemented if it is not implemented by its structure. On the other hand, the law will be implemented if it is supported by law enforcement officials. Furthermore, the law will be implemented effectively if law enforcement officers carry out professionally and in accordance with existing provisions.
Law enforcement officers are the police, prosecutors, KPK and courts. All of these institutions are law enforcers in cases of corruption. According to Pratiwi (2020) in social life, law and society are two interrelated things that can never be separated. Through instruments, unlawful behavior is prevented and repressive measures are pursued (Tumanggor, 2019). From the aforementioned provisions, it proves the existence of new developments regulated in this Law (Purba, 2019). So, all the findings that will be further elaborated are related to the four institutions. Considering the case carried out by Dr.
Bimanesh Sutarjo together with Frederich, the lawyer, Setya Novanto, who obstructed the judicial process against criminal acts in the form of obstructing the investigation and prosecution of corruption cases carried out by Setya Novanto as a suspect in the corruption case in the procurement of Electronic Identity Cards (e-KTP), On November 16, 2017 at
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around 11.00 WIB, Fredrich contacted dr. Bimanesh Sutarjo, who previously knew each other, and asked for help so that Setya Novanto could be hospitalized at the Medika Permata Hijau Hospital with a diagnosis of several diseases, one of which was hypertension. Then Dr.
Bimanesh Sutarjo then agreed to fulfill Frederich's request even though he knew Setya Novanto was having legal problems at the KPK related to the corruption case in the procurement of E-KTP.
Based on the available information and evidence that the Defendant has committed, ordered to do or participated in committing an act intentionally to prevent, hinder, or thwart directly or indirectly the investigation, prosecution, and examination in court of a suspect or defendant or witness in a corruption case. Procurement of Electronic KTP (e-KTP).
The Defendant's actions are criminal acts as regulated and subject to criminal penalties in Article 21 of Law Number 31 of 1999 concerning Eradication of Criminal Acts of Corruption as amended by Law Number 20 of 2001 concerning Amendments to Law Number 31 of 1999 concerning Eradication of Criminal Acts Corruption in conjunction with Article 55 paragraph (1) of the 1st Criminal Code. Taking into account article 21 of the Law of the Republic of Indonesia. No. 31 of 1999 concerning the Eradication of Criminal Acts of Corruption as amended by Law no. 20 of 2001 concerning amendments to the Law on the Republic of Indonesia. No. 31 of 1999 concerning the Eradication of Criminal Acts of Corruption in conjunction with article 55 paragraph (1) to 1 of the Criminal Code in conjunction with the articles of Law no. 8 of 1981 concerning the Criminal Procedure Code and the provisions of other laws and regulations relating to the case.
IV. Conclusion
To determine the criteria for doctors in carrying out acts of obstructing the judicial process (obstruction of justice), from the process of proving fault/intentional. In the discipline of medicine, medical auditing is very much needed, so that it can be used as a basis for determining the act of obstructing the judicial process (obstruction of justice) carried out by doctors who have criminal elements, namely Dolus and culpa. The act of obstructing the judicial process or (obstruction of justice) is an act of someone who obstructs the legal process, because the act of obstructing this is an act against the law which is clearly against law enforcement. Because what is hindered is the judicial process, whether investigation, prosecution, and examination in court. So that it can be categorized as an act of obstructing the judicial process.The criminal responsibility of the medical profession who intentionally prevents, hinders, hinders, or thwarts, directly or indirectly, investigations, prosecutions, and examinations at court proceedings against suspects and defendants or witnesses in corruption cases (Obstruction Of Justice). Regulated in the criminal law in Indonesia in Article 21 of Law 20 of 2001 on the replacement of Law Number 31 of 1999 concerning the Eradication of Criminal Acts of Corruption.
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