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Ada Pertanyaan? Hubungi Kami Robert Sidauruk, Agus Sahbani
The limitation on filing cassation at the Supreme Court set out under Article 45A (2) of Law No. 5 of 2004 on amendment to Law No. 14 of 1985 on the Supreme Court (Supreme Court Law) is once again to be reviewed at the Constitutional Court.
The latest judicial review was filed by Mrs. Dwi Hartanty after she filed a cassation that was rejected by the Supreme Court related to her being sentenced to two months prison for domestic violence on 28 August this year.
Mrs. Hartanty journey with the legal processes and cassation started when the judges at the South Jakarta District Court found her guilty under Article 44 (4) of Law No. 23 of 2004, which carries a maximum prison term of four months. This decision was later confirmed by the Jakarta Court of Appeal on 28 August.
Not satisfied with the decision, Mrs Hartanty filed a cassation application to the Supreme Court. However, the application was rejected by the registrar of the Supreme Court based on Article 45A (2) of the Supreme Court Law that states that a cassation cannot be filed for criminal cases punishable by imprisonment of less than one year.
“The registrar at the Supreme Court asked us to revoke the cassation petition as the crime is punishable by less than a year of imprisonment,” said Robert Paruhum Siahaan, the attorney representing Mrs Hartanty, at the Constitutional Court, on Monday.
Mr. Siahaan further argued that this limitation has resulted in unfair and discriminatory treatment of his client in accessing the justice system, which contradicts Article 28D (1) of the 1945 Constitution. Mr. Robert further stated that based on the Criminal Procedural Law (KUHAP), a cassation application may be filed for any type of criminal case.
“There is a dualism on this matter between the KUHAP and Supreme Court Law,” argues Mr. Siahaan.
Responding to the petition, Justice Muhammad Alim reminded the applicant that a similar judicial review petition has also been filed by Noes Soediono. Mr. Soedino’s petition, however, is in relation to cassation applications for pretrial (praperadilan) decisions.
“The applicant should be advised that a similar judicial review petition has also been filed and is now waiting for a final decision by the Court,” informed Justice Alim.
Previously, the Constitutional Court refused a judicial review petition on the prohibition to apply for cassation against a decision rendered by the State Administrative Court (Pengadilan Tata Usaha Negara), as provided for under Article 45A (2) (c) of the Supreme Court Law.
Justices at the Constitutional Court took the view that the limitation does not violate the rights of citizens as it also opens the possibility for an applicant to take another legal action to challenge a decision made by Administrative Court through a case review petition (Peninjauan Kembali).
(hot/kc)
Robert Sidauruk, Agus Sahbani
The limitation on filing cassation at the Supreme Court set out under Article 45A (2) of Law No. 5 of 2004 on amendment to Law No. 14 of 1985 on the Supreme Court (Supreme Court Law) is once again to be reviewed at the Constitutional Court.
The latest judicial review was filed by Mrs. Dwi Hartanty after she filed a cassation that was rejected by the Supreme Court related to her being sentenced to two months prison for domestic violence on 28 August this year.
Mrs. Hartanty journey with the legal processes and cassation started when the judges at the South Jakarta District Court found her guilty under Article 44 (4) of Law No. 23 of 2004, which carries a maximum prison term of four months. This decision was later confirmed by the Jakarta Court of Appeal on 28 August.
Not satisfied with the decision, Mrs Hartanty filed a cassation application to the Supreme Court. However, the application was rejected by the registrar of the Supreme Court based on Article 45A (2) of the Supreme Court Law that states that a cassation cannot be filed for criminal cases punishable by imprisonment of less than one year.
“The registrar at the Supreme Court asked us to revoke the cassation petition as the crime is punishable by less than a year of imprisonment,” said Robert Paruhum Siahaan, the attorney representing Mrs Hartanty, at the Constitutional Court, on Monday.
Mr. Siahaan further argued that this limitation has resulted in unfair and discriminatory treatment of his client in accessing the justice system, which contradicts Article 28D (1) of the 1945 Constitution. Mr. Robert further stated that based on the Criminal Procedural Law (KUHAP), a cassation application may be filed for any type of criminal case.
“There is a dualism on this matter between the KUHAP and Supreme Court Law,” argues Mr. Siahaan.
Responding to the petition, Justice Muhammad Alim reminded the applicant that a similar judicial review petition has also been filed by Noes Soediono. Mr. Soedino’s petition, however, is in relation to cassation applications for pretrial (praperadilan) decisions.
“The applicant should be advised that a similar judicial review petition has also been filed and is now waiting for a final decision by the Court,” informed Justice Alim.
Previously, the Constitutional Court refused a judicial review petition on the prohibition to apply for cassation against a decision rendered by the State Administrative Court (Pengadilan Tata Usaha Negara), as provided for under Article 45A (2) (c) of the Supreme Court Law.
Justices at the Constitutional Court took the view that the limitation does not violate the rights of citizens as it also opens the possibility for an applicant to take another legal action to challenge a decision made by Administrative Court through a case review petition (Peninjauan Kembali).
(hot/kc)