Pretrial on SP3 Corruption Case in the Perspective of Victim Justice

Journal of Environmental Treatment Techniques

2020, Volume 8, Issue 4, Pages: 1439-1446

J. Environ. Treat. Tech.

ISSN: 2309-1185

Journal web link: http://www.jett.dormaj.com

https://doi.org/10.47277/JETT/8(4)1446

Pretrial on SP3 Corruption Case in the Perspective

of Victim Justice

Hery Firmansyah *, Eriyantouw Wahid , Amad Sudiro

Lecturer at the Faculty of Law, Tarumanagara University, West Jakarta, Indonesia

Lecturer at the Faculty of Law, Trisakti University, West Jakarta, Indonesia

Lecturer at the Faculty of Law, Tarumanagara University, West Jakarta, Indonesia

Received: 26/06/2020

Accepted: 11/09/2020

Published: 20/12/2020

Abstract

Corruption in Indonesia has spread like a virus since the 1960s that is harming the nation’s economy as well as victims of these

crimes. Although the government tried to eradicate such crimes i.e. law enforcement, the issue still exists. The normative legal research

method is used in the current study. The statute approach is utilized to review the termination of investigations as the basis for pre-trial

submission by third parties for which data was collected by library research. To analyse the data, researchers examined the obtained

materials to process it further. Results state that there is still a significant gap between law enforcement officials and people suffering

from these corruption cases. The pre-trial complaint mechanism is not effective so far thus leaving ambiguity in victims’ minds. Based

on study results, we, therefore, recommend that some serious and clear eradication mechanism should be introduced by law enforcement

agencies to reduce corruption in Indonesia as well as victims should be given special consideration in the whole justice process.

Keywords: Corruption, Criminal justice system, Criminal law, Pretrial, SP3

demonstrated by the ratified United Nations Convention

Against Corruption (UNCAC) with Law No. 7 of 2006, in

addition to Law No. 20 of 2001 on Changes to Law No. 31 of

Introduction

Indonesia is a country that has prospered since the first day

of independence with the greatest hope of society to have a just

and prosperous country. Therefore, the Indonesian nation must

protect its entirety in a great way, such as protecting the

Indonesian nation and all Indonesian bloodshed, as well as

advancing general prosperity, smartening the life of the nation,

and participating in the world order.

However, if traced back, Indonesia still goes a long way

toward achieving its own goals. One of the things that can be

seen is where the legal norms upheld in this country are far from

perfect to implement. Sudikno Mertokusumo defines the rule

as a law that determines how people should behave, behave to

protect their interests and the interests of others, or in another

sense, legal norms are a concrete form of regulation [1]. As in

the phenomenon of corruption crimes that are growing in

Indonesia, this is what that harms many parties, ranging from

the economic stability of the country to the people harmed by

the perpetrators of corruption crimes, the state is forced to

become a victim of such acts.

The issue of corruption seems to be always spoken by

various circles. Although efforts to reduce such crimes have

been vigorously implemented by the government, the problem

has not been resolved yet [2]. The problem of corruption [3] is

not only a problem faced by a nation or a state, but corruption

is a problem faced by mankind because the impact of this crime

is extraordinary [4, 5]. Not only are the disadvantages of the

economic aspect, but almost all aspects of life are influenced

including social, cultural, political, and security [6].

999 on the Eradication of Corruption Crimes. As a criminal

offense classified as an extraordinary crime, law enforcement

has also used extraordinary means, such as the establishment of

the Corruption Eradication Commission (KPK). Marwan

Effendy conducted research quoted from the World Bank,

stating Corruption is An Abuse of Public Power for Private

Gains or could be referred to as an abuse of authority for

personal gain [7].

Eradication of corruption is one of the means to create a

healthy and authoritative governance climate to create a climate

of people's lives that are comfortable, safe, protected, and have

legal certainty. The eradication of corruption is not the goal, but

rather the means (tools) to achieve that goal [8]. In line with

this, there needs to be law enforcement in the eradication of

corruption that is carried out as a preventive and repressive

effort [9].

Related to the discussion proposed pretrial of corruption

crimes, that pretrial aims to uphold and provide protection of

human rights of suspects /defendants in the examination of

investigations and prosecutions. This is related to the

discussion proposed pretrial of corruption crimes, that pretrial

aims to uphold and provide protection of human rights of

suspects /defendants in the examination of investigations and

prosecutions. This mechanism is seen as a form of horizontal

surveillance of the rights of suspects/defendants in preliminary

examinations.

The reasons for granting the authority to stop the

Indonesia's commitment to eradicate corruption is

Corresponding author: Hery Firmansyah, Lecturer at the Faculty of Law, Tarumanagara University, West Jakarta, Indonesia. E-mail:

heryf@fh.untar.ac.id

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2020, Volume 8, Issue 4, Pages: 1439-1446

investigation of these investigators are: to uphold the principles

of a swift, precise and light-hearted judiciary, and at the same

time to establish legal certainty in people's lives. If the

investigator concludes that based on the results of the

investigation, there is not enough evidence or reason to

prosecute the suspect in advance of the trial, for what protracted

handling and examining the suspect. It is better for the

investigator to formally declare the termination of the

investigation, to immediately create legal certainty. Pretrial as

part of the prevailing criminal justice system in Indonesia is an

effort to combat penal crimes by using criminal law as the main

means of material criminal law as well as formal criminal law.

It is the nature of the purpose of the law, one of which is to talk

about justice. Justice is one of the purposes of every legal

system among other purposes, namely legal certainty and

benefit. This writing focuses on the pretrial of SP3 in corruption

crimes and the perspective of pre-trial victims of corruption

crimes which will be described normatively with the main

source being legal material. The review of this legal material

focuses on normative rules as well as pre-trial rulings against

SP3.

clarity to this research.

2.4 Data Analysis

Activities carried out in the analysis of normative legal

research data utilizing data obtained, analysed descriptively

qualitatively i.e. analysis of data that cannot be calculated. The

legal materials obtained are then discussed, examined, and

grouped into certain sections to be processed into information

data. The results of the analysis of legal materials will be

interpreted using (a) systematic methods; (b) grammatical; and

intended to deceive the legal structure in this study. Systematic

interpretation (systematische interpretation, dogmatische

interpretation) is to interpret other legal texts.

Results

.1 Pre-trial against SP3 in Corruption Crimes

The issue of corruption is a problem that can never be solved,

the position of corruptors who are good at exploiting the

situation of existing legal loopholes. Either in terms of rules

that have not reached the behaviour of these corruption crimes

or internal factors of law enforcement that is not maximal in

conducting law enforcement. Good law enforcement should

still refer to the existing rule of law and reflect the value of

community justice. One of the legal efforts that can be made by

the public as victims is to submit a pre-trial legal action against

a corruption case that never gets certainty about the ongoing

legal process both handled by the KPK, prosecutors, and the

police.

Pretrial should not always be interpreted dogmatically as an

order to follow the sound of the constitution, but more than that,

it should pay attention to the social facts that occur in society,

because legal certainty does not always reflect justice, justice is

desirable not only in the conceptual but must touch feelings for

everyone seeking justice or substantive justice.

Methods

.1 Approach to the problem

The debate over the importance of pretrial submissions in

SP3 cases that were not issued, but the case has not been

processed by law for many years, opens up the potential for the

case to lose the right to be prosecuted before the law. The legal

loophole stipulated in the KUHAP arrangement makes many

question marks as to whether it is permissible to file a legal

action beyond the one stipulated by KUHAP. In practice, many

corruption cases are found that are not processed but still are

not issued SP3 by law enforcement. The limitations that people

have in accessing and putting pressure on law enforcement

officials to be serious in processing the law of a corruption case

is a mandate of the law. It is not uncommon when submitted to

the pretrial, the main difficulty is to open the veil related to the

true extent that the legal process is underway in law

enforcement because being processed by law and in the

interests of the investigation does not make the public feel

doubtful about the eradication of corruption that is underway.

So, there needs to be a special study that looks at the perspective

of SP3 conducted by third parties concerned in the case of

corruption crimes to become a horizontal control of the law

enforcement of corruption crimes through pretrial legal efforts.

Pretrial as a complaint mechanism to date has not been

effective. This is in stark contrast to the spirit of pretrial

protection of human rights, something that never materialized

during the Het Herziene Inlandsch Reglement (HIR).

In this study, the Authors used normative legal research

methods, according to Soerjono Soekanto normative legal

research, conducted by researching library materials or

secondary data that include: Research on legal principles;

Research into legal systematics; Research on vertical and

horizontal synchronization levels; Legal comparison; Legal

history [10]. In the writing of this dissertation, the main focus

is research on the principles of the law [11], which reviewed

the tangents of norms in kuhap and corruption crime law with

norms derived from the study of philosophy and theory of law.

So found fundamental problems and solutions. Normative legal

research uses secondary data, with coverage of primary legal

materials, secondary legal materials, and tertiary legal

materials. The approach used is legal. The statute approach is

used to review the termination of investigations as the basis for

pretrial submissions by third parties based on corruption

eradication laws, which govern specifically the judicial process

and KUHAP.

.2 Nature of Research

In terms of the nature of research, authors are more likely to

use reform-oriented research types, which Hitchinson says

intensively evaluates the adequacy of existing rules and which

recommend changes to any rules found wanting [12]. The

nature of the research that the authors use is a descriptive legal

study in the form of exposure and aims to obtain a complete

picture of the state of the law.

Discussion

.1 Pre-trial against SP3 in corruption crimes

The development of corruption in Indonesia is still high,

.3 Data Collection Methods

As is the feature of normative legal research, the method of

while the eradication is still very slow, Romli Atmasasmita,

stated that Corruption in Indonesia is already a flu virus that has

spread throughout the governing body since the 1960s. Its

eradication measures are still stalled today [13]. He further said

that corruption is related to power because with that power the

ruler can abuse his power for the benefit of his personal, family,

and cronies. Corruption is considered an exceptional crime or

data collection can be done by library research, namely by

researching library materials such as legislation, KUHAP, other

laws related to Pre-trial, Jurisprudence, seminar results,

scientific works in the form of literature and research results,

journals, legal dictionaries and other manuals that provide

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extraordinary crime", so it is often regarded as "beyond the

if one thing is still being investigated or has even been

discontinued. Pre-trial institutions with submissions based on

SP3 material is a form of respect for human rights, especially

victims of corruption crimes in the eyes of the law. In its

implementation law enforcement is far from the sense of justice

expected by the community. The public judges that the state has

not been able to guarantee justice and legal certainty evenly to

all its citizens, because there is still a cut in the crackdown on

perpetrators, especially corruption.

The dilemma of filing SP3 material has very much clashed

with formal legalistic, as well as the way law enforcement

officers are still resistant to public reports or community

participation represented by third parties concerned about the

criminality of corruption. This is evident from what the

Boyamin Saiman said, that the clash between legal certainty

and legal procedures must be carried out, often the evidence

used that the law enforcement officer did not issue SP3. Even

in the early days of the pre-trial submission SP3 material is not

uncommon to pre-trial applicants that encourage that there is

clarity on a corruption case, such as legal standing that must be

fulfilled as an applicant, has no interest, has not been regulated

by law, related to the rights of the public.

Regarding the submission of pre-trial by the NGO

Masyarakat Anti-Corruption Indonesia (MAKI) shows the

participation of the community in the eradication of corruption.

Law No. 31 of 1999 on the Eradication of Corruption Crimes

regulates specifically the participation of the community in

CHAPTER V Article 41 and Article 42, that the community is

given the opportunity by this law to participate, as for the form

of participation in the prevention of corruption crimes,

especially in developing preventive and supervisory measures

that advance "a culture of accountability and transparency" or

culture of accountability and openness [18]. This is

strengthened by Government Regulation No. 43 of 2018 on

Procedures for The Implementation of Community

Participation and Awarding in the Prevention and Eradication

of Corruption Crimes, which was ratified on September 17,

2018. In this, rules are regulated regarding the award to the

people who have reported about the corruption, like the

government will reward the whistle-blower with a maximum

amount of 200 million rupiah (Rp) [19].

Pre-trial that has been submitted by MAKI Non-

Governmental Organization is one of the reasons to find out if

one case is still being investigated or has even been suspended

investigation with the absence of SP3 material. The pre-trial

submission that has been made by MAKI is a form of respect

for human rights, especially victims of corruption crimes in the

eyes of the law. This is in line with The Opinion of Komariah

Emong Sapardjaja which states that in criminal law, the

guarantee of human rights should be reflected in the law of his

criminal proceedings [20]. Criminal proceedings should not be

seen as laws that solely relate to criminals and criminal

offenders only, but should also be seen as laws that guarantee

the independence of citizens [21].

law" because it involves high-level economic and high-level

bureaucrats, both economic and government bureaucrats. Just

imagine, the crime of corruption involving this power is very

difficult to prove, besides that the will of the eradication of this

act is manifestly hit with the interests of power that are very

likely to involve the bureaucracy, as a result, it can already be

predicted that this corruption seems to be "beyond the law" and

as a form of "untouchable by the law" action [14]. This can

certainly illustrate to all of us how easy it is to handle and prove

a corruption case. Efforts to eradicate corruption have been

underway since Indonesia's independence.

The flourishing of corruption in Indonesia certainly needs to

be done very serious countermeasures through criminal politics

either through penal efforts that are tackling after the sanction

(

repressive), non-penal efforts that prevent crime

preventative), or a combination of the two. It is worth

remembering that now corruption is not just an extraordinary

crime or an "extraordinary crime", but rather corruption has

now become a humanitarian crime or a "crime against

humanity" [15].

Law enforcement to eradicate conventional corruption

crimes has so far proven to be a variety of obstacles. Public

perception of prosecutors and police and or government

agencies is seen as not functioning effectively and efficiently in

the handling of corruption cases so that the public has lost trust.

Besides, corruption has been shown to have harmed the

country's finances, the country's economy, and hampered

national development [16].

The process of handling corruption crimes has so far been

carried out with a special event law in the Corruption Crimes

Act, which is different from the law of events in the general

judiciary. With the nature of corruption as an extraordinary

crime (extraordinary crime) then the handling has done

extraordinary (extraordinary measures) anyway.

The issue of corruption is an issue that can never be solved,

the implementation of good laws must still refer to the existing

rule of law and reflect the value of community justice. One of

the legal efforts that can be made by the public as victims in the

case of corruption crimes is to file a pre-trial legal action

against a corruption case that does not get certainty against the

legal process that goes well.

The purpose of the Pre-trial is to protect human rights against

arbitrariness in the investigation process. With this pre-trial

institution, any action that undermines human rights, let alone

related to corruption crimes, is subject to strict supervision,

both vertically and horizontally from other law enforcement

agencies and interested third parties.

With the presence of the pre-trial institution it aims to carry

out the mandate and principles contained in KUHAP that

uphold human rights. And the implied purpose of pre-trial is

stipulated in Article 80 of the KUHAP which is to uphold the

law, the fairness of truth through horizontal supervision. The

horizontal oversight here is to monitor the actions taken by

investigators or prosecutors against suspects. Such actions must

be carried out following the provisions of the law, carried out

professionally and not in contravention of the law as stipulated

in KUHAP. This is to minimize abuse of power in the

implementation of law enforcement processes [17].

In the context of pre-trial submissions based on material SP3

filings, mainly due to the absence of a period of investigation

sometimes makes the investigation process so long that there

are de facto concerns that the investigation has been

discontinued but the investigator has not issued a Termination

Warrant (SP3). This prompted the Indonesian Anti-Corruption

Society (MAKI) to file for pre-trial. One of them is to find out

Respect for human rights has not been fully fulfilled both in

KUHAP and in corruption crimes. The lack of attention to

victim protection in KUHAP is also one of KUHAP’s current

weaknesses, which is considered a masterpiece of the

Indonesian nation. The position of victims in the criminal

justice system as well as in judicial practice is relatively poorly

regarded because the provisions of Indonesian law still rest on

protection for offender oriented. Whereas, from

criminological and criminal law view crime is a conflict

between individuals that inflicts harm on victims, communities,

and offenders themselves where of the three groups the

interests of victims of crime are a major part of the crime where

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according to Andrew Ashworth, "primary an offense against

the victim and only secondarily an offense against the wider

community or state” [22].

There is not enough evidence

The incident turned out not to be a criminal offense;

The investigation is discontinued for the sake of the law.

With the termination of the investigation, the investigator

The law has made obstructive restrictions a basis for

investigators to stop an investigation. This limited restriction to

avoid the possibility of termination of the investigation that

arises due to the subjectivity of the investigator of a criminal

event, thus such subjectivity is still possible. In the case of SP3

material against the basis of submission outside the provisions

of Article 109 (2) KUHAP, then the way the pre-trial judge

works is to do the method of legal discovery. In this case the

Judge has an important position in the legal system, because the

judge has a function that essentially complements the

provisions of the written law through rechtvinding (discovery

of the law) which leads to the creation of new law. The function

of the discovery of the law must be interpreted to fill the recht

vacuum and prevent the mishandling of a case on the grounds

that the law is unclear or it does not exist [23].

must inform the public prosecutor, the suspect, or his family. In

other words, the SP3 issuer is an obligation and if it is not done,

then the process will certainly suffer a formal defect.

4.1.4 Banjarnegara district court ruling number 1 / pid pra /

2017 / pn bnr.

That in Article 109 paragraph (2) of KUHAP, it is stipulated

that if the investigator stops the investigation, it is mandatory

to let know the public prosecutor and the suspect or his family.

However, in practice, Investigators rarely issue Notices of

Termination of Investigation (SP3) on the grounds of fear that

the victim/whistle-blower will conduct a pre-trial. As a result,

it is not uncommon for investigators to silence cases until the

case cannot be processed because of the prosecution as

stipulated in Article 78-80 of the Criminal Court. Even if the

investigators file a case, there is an unfinished back-and-forth

between the investigator and the prosecutor, because the

investigator is not carrying out the instructions given by the

prosecutor so that the file can be declared as the basis for

drafting the indictment. That to overcome different perceptions

even interpretations need to be carried out intense coordination

measures between investigators and the Public Prosecutor. The

spirit and willingness to coordinate will create a good

relationship and gain one view in the case and will eliminate

selfish values in carrying out the process of law enforcement.

So, in turn, it will get a better outcome than the earlier process.

KUHAP itself does not limit the number of times prosecutors

can return files. Although being aware of the back-and-forth of

the files, reduces the efficiency of the investigation and makes

the handling of the case protracted, which can create legal

uncertainty in a case. The uncertainty of the legal process can

cause disquiet for both the report and the suspect. If the case is

doable, it should be processed according to the provisions

otherwise, it is ideally discontinued, to create legal certainty.

Second, however, investigators can ask a joint title of the case,

to equate perception in the context of the Integrated Criminal

Justice System. Third, if the investigator has been unable to

develop the investigation, then the investigator stated that the

investigation is optimal.

In the investigator's notes for several pre-trial cases based on

SP3 material worth scrutiny is, the view of the judge that the

actions and attitudes of law enforcement officers who do not

immediately bestow the case file are one form of horizontal

control to the performance of law enforcement officers:

.1.1 Tanjung karang district court ruling number

1/pid/pra/2008/pn.tk

Important things to note in the judge's deliberations here are:

) that with the attitude, treatment, and actions of the

Respondent let the case of suspect Simon Susilo and the suspect

Aman Susilo protracted and has exceeded the grace period long

enough, when according to the respondent's confession in the

answer that the examination conducted by the investigator

(Police) has been optimal and has received the submission of

the suspect along with will conduct an additional examination

and it turns out that from the facts revealed in the trial as

considered above, it turns out that the additional examination

intended by the respondent as intended by the respondent

cannot be proven.

) Based on the above considerations, according to the District

Court that although the Respondent has not issued a termination

letter of prosecution on behalf of the suspect Simon Susilo and

the suspect Aman Susilo. However, with the attitude, treatment,

and actions of the respondent as considered above, the case file

on behalf of suspect Simon Susilo and suspect Aman Susilo to

Tanjung Karang District Court for trial can be categorized or

likened to the act of "Termination of Prosecution" and therefore

the actions of the Respondent shall be declared invalid.

4.1.5 South Jakarta district court ruling number

24/pid/pra/2018/pn.jkt.sel.

Because there are no standard guidelines in KUHAP and

prone to irregularities in its implementation, then some judges

make inroads by interpreting the actions of investigators

categorized as a form of termination of investigation as referred

to in the phrase "termination of investigation" in KUHAP.

From the facts obtained as mentioned above, there has been

sufficient preliminary evidence about alleged corruption

offenses in the form of abuse of authority in the granting of

FPJP and The Determination of Bank Century as a Bank to fail

to have a systemic impact by Bank Indonesia Officials namely

Siti Ch. Fadjriah, Budi Mulya.......which can inflict financial

losses of the State that can be suspected to have violated Article

3 of Law No. 31 of 1999 Eradication of Corruption Crimes jo.

Article 55 paragraph (1) to -1 jo. Article 64 paragraph (1) of the

Pent-Up" and the report is also known to WARIH SADONO as

Deputy for The Field of Suppression in the KPK; In this case,

the judge is very observant and wise in considering the legal

challenges proposed by the parties. The Pre-trial judge

disagreed with the Applicant that the KPK had materially

suspended the investigation, but in the interests of law and

.1.2 Central Jakarta district court ruling number

4/pid.prap/2010/pn.jkt.pst

The judge who examines the pre-trial application case argues

that the Central Jakarta District Court is authorized to examine

and adjudicate the applicant's pre-trial application. In the

evidence of criminal law sought is material truth, so the

precedence is the substance of whether the right respondent I

(Government of the Republic of Indonesia, President of the

Republic of Indonesia, and Attorney General of the Republic of

Indonesia) has conducted a secret termination of prosecution

then the benchmark is the propriety. So this becomes a

guideline in the action of law enforcement officers on the

matters he handled.

.1.3 Boyolali district court ruling number 01/pra/2014/pn.byl

That in Article 109 paragraph (2) KUHAP has authorized the

investigator to be able to stop the investigation based on the

following reasons:

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justice and protection of human rights, the KPK should

continue to thoroughly investigate and prosecute the cases

mentioned in the indictment of Budi Mulya, whatever the risks

because that is the logical consequence that the KPK must bear

to the public. In some of these rulings, related to the nature of

the pre-trial verdict Number 01/Pid.Prap/2008/PN. TNK,

are terminated due process will also be suspended his right to

justice. Article 80 KUHAP only accommodates the application

to check the validity or not the termination of the investigation

or prosecution, so in this case the more interested are the

victims. Victims of crime can perform the role and function of

horizontal supervision of the implementation of the criminal

justice system to uphold law, justice, and truth. Supervision is

carried out by the victim as an interested party in the form of a

request for examination about the legitimacy or not termination

of the investigation and prosecution through the pre-trial

institution [28].

4/Pid.Prap/2010/PN.Jkt.Pst, 0101/Pid.Prap/2014/PN. Byl,

PID. Prap/2017/PN.Bjn, 24/Pid.Prap/2018/PN.Jkt.Pst is final

and binding. This is as stated in Article 83 of KUHAP [24],

which then becomes a juridical answer to investigators to act

on the warning of the judge's ruling as a law.

Based on the above description, it is precisely said that the

pre-trial institution used as a form of horizontal control of law

enforcement to work under the law and not apply arbitrarily,

because another important issue in the application of SP3

material is related to minimal public information, many things

in the legal press subjectivity of the dominant investigator and

prosecutor, so sp3 this material is akhrinya as a step to correct

the matter.

The process of resolving criminal cases through criminal

justice is interesting when viewed from the perspective of the

victim as the party that suffers the most losses. It is unfortunate

that in the criminal justice process victims are not actively

involved. Criminal justice prosecutes perpetrators for allegedly

violating criminal law, not violations of the rights of victims,

although it is the victims who suffer the most harm. As stated

at the beginning of this section of the paper, that in the early

stages of the process of resolving cases through criminal

justice, victims of crime have great and decisive authority but

at the next stage, that authority becomes lost, while the

authority of the police and prosecutors strengthens. The loss of

the victim's authority in the criminal justice settlement process

will invite a lot of problems, especially about the roles of

police, prosecutors, and judges as well as the mechanism of

settlement of criminal cases through criminal justice according

to the view of the victims of crime.

The legal conceit that will arise if no proper formulation of

SP3 material or SP3 is secretly issued by the investigator is that

the case will lose the right to be prosecuted in advance of the

law, and will return to the provisions of daluarsa in Article 78

of the Criminal Code. Regarding the prosecution provision

stipulated in Article 78 paragraph (1) of the Penal Code, which

states that the authority to prosecute criminals is removed due

to expiry: about all violations and crimes committed by printing

after one year; crimes threatened with a fine, imprisonment, or

imprisonment of at least three years, after six years; about

crimes threatened with a prison sentence of more than three

years, after twelve years; crimes threatened with the death

penalty or life imprisonment, after eighteen years [29].

.2 Victim's perspective on corruption crimes

Speaking of victims of crime at first, it is certainly the victim

of an individual or individual himself; this view is not wrong

for the common good in society. For example murder,

persecution, theft, and so on. In the view of Criminal Law

Science the notion of "victim of crime" is the terminology of

Criminology and Victimology [25] and was later developed in

the criminal law and/or criminal justice system. The logical

consequence of victim protection in the 1985 UN Congress in

Milan (on "The Prevention of Crime and the Treatment of

Offenders") suggests that victims' rights should be seen as an

integral aspect of the total criminal justice system (“victims’

rights should be perceived as an integral aspect of the total

criminal justice system”). With the social construction of the

law itself, all crimes have victims. In fact, an act is defined as a

crime because a person or something is seen as a victim. In this

sense, victimization–which is the conception of the victim–

precedes the definition of the act as criminal. Victims cannot be

imagined, that criminal law is made not enforced. A victimless

crime can only be one of the facts defined by outside observers

(by the social construction of law itself, all crimes have a

victim. Acts are defined as criminal because someone or

something is conceived of as a victim. In this sense, the victim-

that is a conception of the victim- precedes the definition of an

act as criminal. If a victim cannot be imagined, criminal law is

nether created not enforced. A victimless crime can only be one

that is defined after the fact by an outside observer) [26].

Theoretically and in practice in the Indonesian Criminal

Justice System the interests of victims of crime are represented

by the Public Prosecutor as part of the protection of society

following the theory of social contract argument and social

solidarity theory (social solidary argument) [27]. In general, in

the theory there are two models of protection, namely: First, the

procedural rights model or in France called the partie civile

model (civil action system). This model emphasizes the

possible role of victims in criminal justice processes such as

assisting prosecutors, being involved in every level of judicial

examination, must be heard if the convicted is released on

parole, and so on. Also, by actively participating in the criminal

justice process, the victim can regain her self-esteem and

confidence. However, with the involvement of victims has a

positive facet in law enforcement, and has a negative facet

because the active participation of victims in the

implementation of criminal justice processes can cause

personal interest to lie above the public interest. Victims who

are interested in criminal cases that have caused harm to him

Against the actions of investigators who do not follow up on

a criminal case that has been reported to the authorities, then

the Whistle-blower or Victim of a Crime, or Suspect, pursues a

legal path by submitting a request for examination through the

Pre-trial Institution, i.e. to conduct a test against the legitimate

or not a termination of the investigation. Although there is an

application received or granted by the Judge of the Pre-trial

Institution with legal consideration, that even if, the fact of the

trial there is no Termination of Investigation Warrant (SP3) in

the investigation process, but on the other hand, there is also a

test application for the termination of the investigation which is

rejected with the consideration of the law that for the actions of

the investigator who does not follow up on a criminal case, as

long as it is not issued or issued an Investigation Termination

Warrant (SP3), does not include the termination of the

investigation and therefore, is not the object of the Pre-trial, so

the Pre-trial Judge rejects the Pre-trial Application submitted

by the Pre-trial Applicant.

Moreover, in KUHAP that applies in Indonesia, it does not

contain provisions regarding the understanding of the

termination of the investigation, resulting in different

interpretations related to the termination of the investigation.

The fact of this law, increasingly shows that there has been a

legal blurring of Article 77 KUHAP related to the authority of

the Pre-trial Institution to test the validity of the termination of

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the investigation as one of the objects or scope of the Pre-trial

as stipulated in the applicable Criminal Code in Indonesia, and

with the rejection of the Pre-trial Application for a termination

of the investigation in the absence of follow-up and clarity from

the Investigator , with legal consideration due to the absence of

formality of the Termination of Investigation Warrant (SP3)

issued by the Investigator and notified to the Whistleblower or

Victims of Criminal Acts or Suspects, precisely resulting in the

criminal case not also getting follow-up and protracted until an

indefinable time limit, thus indicating that the Pretrial

Institution has not been able to provide legal protection, either

for the Whistleblower, The Victim of the Crime , or suspects

whose criminal cases are not followed up at the level of

investigation [30].

In looking at the issue of SP3 material or discreetly that has

no rules in the current criminal proceedings' law, then, the

author asks a mediator why then the evidence to propose the

basis of SP3 material or the cessation of investigation in secret

can seek the presence of a sense of justice for the community.

The protection of victims of crime in carrying out legal efforts

of its existence is very important considering that based on

empiric studies it turns out that the victim's reaction to the

court's ruling is judged incompatible with the sense of justice

while from another dimension it turns out that the victim

himself cannot do something to test the verdict because the

existing law does not provide an opportunity to make legal

efforts against the court's ruling. Departing from the above

dimensions, there may be constraints manifested in the

protection of victims through procedural rights [31].

in the form of the construction of projects for the benefit and

prosperity of the community.

From the above description, it can be said that it is not easy

to realize substantial legal justice in law enforcement in

Indonesia. The Pretrial Institution, which is expected to be the

umbrella of the law so that there is no violation of the rights of

a person or those caught up in litigation.It does not fully meet

expectations, because there are still irregularities due to abuse

of power or the use of legal loopholes. Victims of crime are the

most suffering as a result of crime, instead not getting as much

protection as the law provides to the perpetrators of the crime.

As a result, by the time the perpetrator of the crime has been

convicted by the court, the condition of the victim of such a

crime is not cared for at all. Whereas the issue of justice and

respect for human rights; applies not only to the perpetrators of

crimes, but also victims of crime.

Conclusions

.1 Pre-trial against sp3 in corruption crimes

The debate over the importance of pretrial submissions in

SP3 cases that were not issued but the case has not been

processed by law for many years, opens up the potential for the

case to lose the right to be prosecuted before the law. In

practice, many corruption cases are found that are not processed

but are not issued SP3 by law enforcement. The limitations that

people have in accessing and putting pressure on law

enforcement officials to be serious in processing the law of a

corruption case is a mandate of the law. So there needs to be a

special study that looks at the perspective of SP3 conducted by

third parties concerned in the case of corruption crimes to

become horizontal control of the law enforcement of corruption

crimes through pre-trial legal efforts. The work of law

enforcement officers in eradicating corruption needs to be

supervised for actions taken under the law to boil down to

community justice. The submission of SP3 material looks at the

purpose of the Pretrial itself which is to protect human rights,

based not only on the defendant but also on the victim's side,

against the arbitrariness in the investigation process of the case.

With this pretrial institution, any action that undermines

human rights, let alone related to corruption crimes, is subject

to strict supervision, both vertically and horizontally from other

law enforcement agencies and interested third parties. That the

basis of SP3 is legal, should not be based on the subjectivity of

law enforcement officers. The need for legal certainty in the

investigation of a corruption case not only provides legal

protection for the accused, but also to the victims of corruption

to continue to push the legal process to other agencies so that

no violator of the law who has committed corruption activities

that loses the finances of the country is free from the deterrent

of punishment (loss of the right to prosecution due to daluarsa,

or loss of evidence or suspects fleeing). Public participation

becomes inevitable in eradicating corruption in its capacity as

a third party of interest in filing a material SP3 pretrial

application (cases that are stopped silently or without clarity).

Law enforcement to eradicate corruption crimes committed

so far has proven to be a variety of obstacles. Even today

corruption has become an extraordinary crime so it must be

dealt with extraordinary measures. The public's view of

prosecutors and police and or government agencies is seen as

not yet effective and efficient in its handling of corruption cases

so that the public almost loses trust in law enforcement. The

The criminal justice system is a system in society to ward off

crime, intending to prevent people from becoming victims of

crime, resolving crimes that occur as the public is satisfied that

justice has been upheld and the guilty convicted and trying

those who have committed crimes not to repeat their crimes

[32]. If we look at that from a justice perspective, then we can

do that in the theory of dignified justice, who adheres to the

principle that a legal practitioner cannot say that he works

without inspiration from legal philosophy, legal theory, or

doctrinal.

Some legal studies assert that victims and witnesses should

get legal protection as a form of reward for their contribution to

the judicial process, rather than simply being treated as a "tool"

in the judicial process. The issue of crime always revolves

around the question of what can be done to criminals and no

one questions what can be done to the victim. Everyone thinks

that the best way to help the victim is to catch the criminal. So

far the victim has not received enough attention. With the

taking of an action or crimes against the perpetrator, the

problem against the victim is considered to have been resolved

[33]. There is still an understanding that crime is a form of an

attack on the state so that the crime is a conflict between the

perpetrator and the victim.

The state protects citizens, so it is the country that is dealing

with the perpetrators of the crime. This is where the position of

the victim appears as the party that is the most harmed related

to a crime of losing its role [34]. The terminology "the

aggrieved party" refers to the victim, as set out in the

explanation of the article. By incorporating civil proceedings

into criminal proceedings, legislators intend to expedite

procedures and cut the cost of litigation that is known to be high

enough.

Termination of investigation or termination of prosecution

harms victims who suffer as a result of a crime. In the case of

corruption, the victims are the state and the community because

in the finances of the state there are also sourced from the

community such as taxes that will be returned to the community

criminal justice system is essentially

a criminal law

enforcement process, while the purpose of Pretrial is to protect

human rights against arbitrariness in the investigation process.

With this pretrial institution, any action that undermines human

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rights related to corruption crimes, is subject to strict

supervision, both vertically and horizontally from other law

enforcement agencies and interested third parties. In the context

of pretrial submissions based on material SP3 filings, mainly

due to the absence of a period of investigation sometimes

makes the investigation process so long that there are de facto

concerns that the investigation has been discontinued but the

investigator has not issued a Termination Warrant (SP3). This

prompted the Indonesian Anti-Corruption Society (MAKI)

NGO to file for pre-trial. One of them is to find out if one thing

is still being investigated or has even been discontinued.

Pretrial institutions with submissions based on SP3 material is

a form of respect for human rights, especially victims of

corruption crimes in the eyes of the law.

The dilemma of filing SP3 material is much bumped up with

formal legalistic, as well as the perspective of law enforcement

officers who are still resistant to community reports or

community participation represented by third parties concerned

about the criminality of corruption. Pre-trial that has been

submitted by MAKI NGO one of the reasons is to find out if a

case is still being investigated or has even been suspended

investigation with the absence of SP3 material. The pretrial

submission that has been made by MAKI is a form of respect

for human rights, especially victims of corruption crimes in the

eyes of the law. The lack of attention to victim protection in

KUHAP is also one of KUHAP's weaknesses at this time. The

position of victims in the criminal justice system as well as in

judicial practice is relatively poorly regarded because the

provisions of Indonesian law still rest on protection for offender

oriented.

The function of horizontal supervision of the preliminary

examination process conducted by the pretrial institution is part

of the framework of the integrated criminal justice system.

Public participation to correct or provide this feedback can

evaluate the actions of law enforcement officers. In the case of

SP3 material that is the basis of filing outside the provisions of

Article 109 (2) OF KUHAP, then the way the pretrial judge

works is to perform the method of finding hokum because the

judge has a function that complements the provisions of the

written law through rechtvinding (discovery of the law) that

leads to the creation of new law.

The opportunity for a new legal effort based on the

submission of SP3 material to reduce the release of legal

deterrents against perpetrators of corruption should be based on

clear rule of law, such as the new rule of law which contains

time limits related to the investigation and prosecution of cases.

So it can then be said that pretrial agencies are used as a form

of horizontal control of law enforcement to work under the law

and not to apply arbitrarily, due to other important issues in the

filing of SP3 material.

through criminal justice. According to the view of the victims

of crime legal consequence that will arise if the discovery of

the proper formulation of SP3 material or SP3 issued secretly

by the investigator is that the case will lose the right to be

prosecuted in advance of the law, and will return to the

provisions of daluarsa in Article 78 of the Criminal Court.

Against the actions of investigators who do not follow up on a

criminal case that has been reported to the authorities, then the

Whistleblower or Victim of a Crime, or Suspect, pursues a legal

path by submitting a request for examination through the

Pretrial Institution, i.e. to conduct a test against the legitimate

or not a termination of the investigation.

There are several weaknesses in the pretrial institution, one

of which is that there are many legal loopholes in the provisions

of KUHAP where the practice relies heavily on the discretion

of law enforcement officers. Pretrial is judged to be able to

work when violations of the implementation of forced attempts

have occurred (post factum), so it is more repressive than

preventive. Efforts to combat and win resistance to corruption

certainly cannot be done individually, but it needs the

involvement of the wider public. To make sure justice for the

parties who are litigation in court. In the case of pre-trial

applications whose material is outside the provisions of Article

77 KUHAP is decided not granted and or rejected because the

judge thinks conventionally, solely based on the provisions of

KUHAP in a normative juridical perspective. The protection of

victims of crime in carrying out legal efforts of its existence is

very important considering that based on empiric studies it

turns out that the victim's reaction to the court's ruling is judged

incompatible with the sense of justice while from another

dimension. It turns out that the victim himself cannot do

something to test the verdict because the existing law does not

provide an opportunity to make legal efforts against the court's

ruling. Departing from the above dimensions, there may be

constraints realized victim protection through procedural

rights. Victims and witnesses should receive legal protection as

a form of reward for their contribution to the judicial process,

and not simply treated as a "tool" in the judicial process.

Recommendations

There need to be clear rules based on pretrial submissions

based on the reason for the sp3 material as well as the

arrangement of more assertive pretrial objects.

There needs to be a judge's independence, related to the

pretrial on corruption matters.

That victims should be given special attention in the

criminal justice system, taking into account the rights of

victims in legal protection and regulated in the new

KUHAP

Ethical issue

.2 Pre-trial victim perspective in corruption crime

The provisions in KUHAP contain human rights protections

Authors are aware of, and comply with, best practice in

publication ethics specifically about authorship (avoidance of

guest authorship), dual submission, manipulation of figures,

competing interests, and compliance with policies on research

ethics. Authors adhere to publication requirements that

submitted work is original and has not been published

elsewhere in any language.

and formal-adjudicative that must go through various

procedures or stages such as investigation, arrest, detention,

search, seizure, pretrial, prosecution, examination at a court

hearing (through regular or brief or quick examination), to the

implementation of the court's ruling, as well as legal efforts

based on the procedures specified in KUHAP. In the process of

resolving the case through criminal justice, the victim of the

crime has great authority and determines but at a later stage that

authority becomes lost, while the authority of the police and

prosecutors strengthens. The loss of the victim's authority in the

criminal justice settlement process will invite a lot of problems,

especially regarding the roles of police, prosecutors, and judges

as well as the mechanism of settlement of criminal cases

Competing interests

The authors declare that no conflict of interest would

prejudice the impartiality of this scientific work.

Authors’ contribution

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2020, Volume 8, Issue 4, Pages: 1439-1446

All authors of this study have a complete contribution to

data collection, data analyses, and manuscript writing.

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