Session13

Lapse of the right to prosecute and of the punishment

IntroductionThe right to prosecute and punish an offender or to enforce asentence imposed upon him/her can lapse for different reasons.

A. within the Criminal Code (KUHP)

General Reasoning

1. Ne bis in idem/Double jeopardy (Art. 76)

2. The death of an offender/accused ( Art. 77)

3. Statute of limitation to prosecute (Arts. 78-81)

4. Settlement outside the court (Art. 82)

Specific Reasoning

There is no report/complaint on the litigated crime (there is astatute of limitation to file a complaint) Art. 72-75

B. Outside Criminal Code (KUHP):

1. Abolition

2. Amnesty

Ne Bis In Idem (Art. 76) A person cannot be prosecuted/punished more than once

for the same act (or facts) if such act has been processed anddecided by the final verdict.((de kracht van een rechterlijkgewijsde)

no one shall be twice tried for the same offence; that is, thatwhen a party accused has been once tried by a tribunal inwhen a party accused has been once tried by a tribunal inthe last resort.

Common law system : double jeopardy.

Requirements:

1. The same action,

2. The same person,

3. The existence of previous decision which is final andbinding.

Court Decision1. Sentence (veroordeling) if all elements of crimes are met

and there is no reason to excuse or justify a crime. j

2. Acquittals (keputusan bebas, “vrijspraak”) – do not proveguilty – no prove that an offender meet part or allelements of crimes.

Dismissal (Lepas dari segala tuntutan, ontslag van alle3. Dismissal (Lepas dari segala tuntutan, ontslag van allerechtsvervolging):

- proved guilty but the act does not constitute a crime(according to Art. 191 of KUHAP)

The court decision refers to the decision on merit but notpreliminary decision.

What is an act or feit?1. An act means circumstances or an event (misdadig voorval);

2. An act means an action which is the subject of prosecution(de handeling zoals die is te laste gelegd);

3. An act means materiil action. (Materiele handeling).

Ne bis in idem in the complicity of crimein the case that an offence is conducted by more than oneoffender, if one of them has been convicted, the others whohave not been convicted can still be prosecuted for the sameoffender.

See the case in page 218 of Utrecht book II

HR 23 Juli 1935, NJ 1936, page 173,W Nr. 12987 and on 3June 1935, Nj 1936, Nr. 57.

Statute of Limitation for prosecuting an offender

# the maximum time after an event that legal proceedings based onthat event may be initiated

Arts 78 and 79 of Criminal Code

Art. 78

The right to prosecute shall lapse by the time:

1. Misdemeanors and for the crimes committed by means of1. Misdemeanors and for the crimes committed by means ofthe press : in one year;

2. The crimes upon which fine, custody or imprisonment of notmore than three years (=/<3 year): after 6 years

3. The crimes upon which temporary imprisonment for more thanthree years (> 3 tahun): after 12 years

4. The crimes upon which capital punishment or life imprisonment:in 18 years.

5. Minor < 18 years before the commission of the act – 2/3

When does the statute of limitation starts?

Art. 79 :

1. The statute of limitation starts on the next day after the dayon which that act has been committed (formal and materialcrimes are the same); Act + 1 day

2. Exception:2. Exception:- forgery or mutilation of coins : after the day on which usehas been made of the object with respect to which theforgery or mutilation of coins has been committed.- 28, 329, 330, 333 : the next day after the day of the releaseor of the death of the person against whom the crime hasbeen immediately committed.- misdemeanors in Art. 556 - 558 a: on the next day after

the day on which all registers be transferred to the judicialtribunal.

The following day or the next day aftera crime is committed.

Two opinions:

1. After an action of crime is committed.

2. Depending on the type of a crime

- Here, see “when a crime takes place or when a crime is fullycompleted”– tempus delichtiecompleted”– tempus delichtie

- Formal versus Material crime;

Further study:

dr Remmelink page 437 & Utrecht page 240-dst

Exercise

Tempus Delicti + 1 day + length of statute oflimitation+ 1 day= Statute of limitation to prosecute

Contoh :A committed a crime under Art. 245 KUHP: 1 – 1 – 1961.Whencan he walk freely without being fear of prosecution?can he walk freely without being fear of prosecution?

the crime took place 1 – 1 – 1961

Answer :

Art.79 : 1 – 1 – 1961 + 1 day = 2 – 1 – 1961

Art. 78 : max punishment > 3 years: after 12 years

2 – 1 – 1961 + 12 years = 2 – 1 – 1961

A can walk freely on = 2 – 1 – 1961 + 1 day = 3 – 1 - 1961

Termination of the statute of limitation

– STUITING –

Article 80

1. Each of prosecution terminates the statute of limitationproviding that such action is known to the accused or madeknown to him/her in the manner as determinated by generalregulations.regulations.

2.After the termination, the new term of statute of limitation shallstart.

ProsecutionArticle 14 of the Criminal Procedure Act (Law No. 8/1981)

The public prosecutor shall have the authority:a.Accept and examine the dossier of a case under investigation submitted by an

investigator or an assistant investigator;b.To conduct pre-presecution if there are shortcomings in the investigation with

due regard to Art. 10 para (3) and (4) by giing instructions to the investigatoron ways to improve his investigation;

c. to grant an extention of detention to carry out a detention or a furtherdetention and/or to change the status of a detainee after his case has beenturned over to him by the investigator;detention and/or to change the status of a detainee after his case has beenturned over to him by the investigator;

d.To prepare bills of indictment;e.To bring actions before the court;f.To give notification to the accused of the day and time the case will be tried

accompanied by summonses, both to the accused and to witnesses, to appear atthe designated trial session;

g.To conduct a prosecution;h.To close a case in the interest of law;I. To take other acts within the scope of his duties and responsibilitiesj.To executie rulings of a judge.

Prosecution Broad meaning: all actions taken by public prosecutor.

Specific meaning:

The tranfer of the dossier of a case to the court includingthe evidence for further investigation and decision.

- SCHORSING -

Art. 81

The suspension of a penal prosecution in case of prejudicialdispute shall suspend the statute of limitation .

Penyelesaian di Luar Sidang(Afdoening buiten Process)Pasal 82 KUHP

(1) Kewenangan menuntut pelanggaran yang diancam dengan pidana denda saja menjadihapus, kalau dengan suka rela dibayar maksimum denda dan biaya-biaya yang telahdikeluarkan kalau penuntutan telah dimulai, atas kuasa pejabat yang ditunjuk untukitu oleh aturan-aturan umum , dan dalam waktu yang ditetapkan olehnya.itu oleh aturan-aturan umum , dan dalam waktu yang ditetapkan olehnya.

(2) Jika di samping pidana denda ditentukan perampasan, maka barang yang dikenaiperampasan harus diserahkan pula, atau harganya harus dibayar menurut taksiranpejabat dalam ayat 1.

(3) Dalam hal-hal pidana diperberat karena pengulangan, pemberatan itu tetap berlakusekalipun kewenangan menuntut pidana terhadap pelanggaran yang dilakukan lebihdahulu telah hapus berdasarkan ayat 1 dan ayat 2 pasal ini.

Settlement outside the court(Afdoening Buiten Process)Can only be done:

misdemeanor

punishmen : fine.

How:

- To pay the fine (+ expense of the case)- To pay the fine (+ expense of the case)

- To public prosecutor

Note:

A ground for Residive

Art. 82 para (1) does not apply to minor

ABOLITION

A right to determine that a prosecution to an offender has to belapsed or terminated.

AMNESTYAMNESTY

A right to declare the Criminal Code will not issue any legalconsequences for a person who is already convicted for acrime (s)

The lapse of the right to enforcepunishmentpunishment

Within the Criminal Code

1. the death of the convicted person(Art. 83)

2. Statute of Limitation (Arts. 84 &85)

Outside the Criminal CodeOutside the Criminal Code

1. Amnesty

2. Grassi

Art. 14 of the Indonesian Constitution

Statute of Limitation (Art. 84 (2) ofCriminal Code)

Misdemeanor : 2 years

Crimes committed by means of the press: 5 years

Other crimes: statute of limitation to + 1/3-nya

There is no statute of limitation to execute capitalpunishment/death penalty (Art. 84 para (3))

When does the calculation starts? A day after the verdict/court decision may be executed (Art.

85 (1))

When may the court decision be executed:

- it is final and binding (Kracht);

- there is an order from judges to execute the sentence- there is an order from judges to execute the sentencealthough the convicted person goes for appeal or cassation.

Termination (stuiting)1.A convicted peron escape:

a new term of statute of limitation to execute thepunishment re-commences the next day after he/sheescapes

2.The temporary release is withdrawn:2.The temporary release is withdrawn:

the next day after the temporary release is withdrawn – anew term of statute of limitation commences. baru

The term of statute of limitation which already passed willnot be re-considered.

Suspension (schorsing) Based on the law

When the convicted person are detained in temporarydetention.

GRASI A pardon granted by the President which usually forms as

the changes, mitigation, or abolition of sentences of aconvicted person.

Law No. 05 tahun 2010

Type of verdict which usually can seek for grasi: Type of verdict which usually can seek for grasi:

1. Death penalty

2. Life sentence

3. Imprisonment min 2 year.