Criminal Expert Explains Reasons Why Heru Hidayat's Demand For Death Penalty Is Wrong

JAKARTA - Lecturer for Criminal Law Studies at the Faculty of Law, University of Indonesia, Eva Achjani Zulfa, assessed that the prosecution for the death penalty against the President of PT Trada Alam Minera Heru Hidayat in the alleged corruption case of Asabri by the Public Prosecutor (JPU) was wrong. Because the conditions are not met, especially regarding the repetition of a crime by the defendant.

In the Asabri case, Heru Hidayat, there are differences in the articles imposed, namely Article 2 paragraph 1 but the prosecution is subject to Article 2 paragraph 2 of Law Number 31 of 1999 concerning the Crime of Corruption (Tipikor).

"Therefore, the indictment must be clear and accurate and complete. Errors in the indictment cause the indictment to be null and void. See article 143 of the Criminal Procedure Code. Because the indictment is a guide for prosecutors and judges in examining cases," he said in a written statement, Thursday, December 9.

Eva said the prosecutor did not align the charges with the demands. While the charges that have been handed down are for life, what applies is the absorption punishment system in which the criminal is then absorbed by the past.

"Repetition of a crime or recidive is basically an aggravating situation. The meaning of recidive or repetition is if the defendant has previously been convicted and has served part or all of his sentence," he explained.

In the case with the defendant Heru Hidayat, there is no repetition. As the requirements for repetition written in Articles 486-489 of the Criminal Code, but at the same time as a crime or same-loop or also called concursus.

The punishment for this action refers to Article 65 of the Criminal Code, which is the heaviest of more than a third of the criminal penalties. Referring to Article 2 paragraph 1 contained in Heru Hidayat's indictment, the penalty is 15 years plus a third of the total maximum sentence of 15 years, which is 20 years.

"Because the threat is not combined with Jiwasraya, it is considered a lagging offense, Article 71 of the Criminal Code. So the calculation is 20 years of punishment that was handed down in the previous verdict," he explained.

Meanwhile, the prosecutor's claim against Heru Hidayat, he said, used Article 2 paragraph 2 which is a form of weighting against Article 2 paragraph 1 of the Anti-Corruption Law. If a crime is committed under certain circumstances, the punishment may be increased, for example, corruption in a disaster situation.

"So the claim for weighting should have referred to Article 2 paragraph 2 of the Anti-Corruption Law in conjunction with Article 71 of the Criminal Code," he said.

He said the charges that differed from the indictment reflected the prosecutor's inaccuracy in making his charges. "So as in Article 143 of the Criminal Procedure Code, it should be null and void. In this case, the claim cannot be withdrawn," he concluded.