Understanding The Proses Of Evidence And The Rights Of Defendant Ferdy Sambo

Ferdy Sambo will undergo the first trial of the death of Brigadier J at the South Jakarta District Court on October 17, 2022. (VOI/Rizky Adytia Pramana

The Ferdy Sambo trial for the alleged murder of Brigadier Nofriansyah Yosua Hutabarat will again be held at the South Jakarta District Court on October 26, 2022 with an agenda for interim decisions.

If the judge approves the legal advisor's exception on the indictment of the public prosecutor, then the indictment does not continue or the judge orders the prosecutor to rearrange his indictment. On the other hand, if they refuse, Ferdy Sambo's trial may continue to the agenda of proof.

To be able to prove the guilt or not of a defendant, one must go through a process of examination before the trial, namely by paying attention and considering evidence.

"So, no one is innocent and will be punished. Also, if someone is guilty, don't get too harsh a sentence. The punishment must be commensurate or balanced with his mistake," said Andi Muhammad Sofyan in his book "The third punishment".

In accordance with Article 6 of Law No. 48 of 2009 concerning Judicial Power, no one can be sentenced, unless the court, because legal evidence according to law, believes that a person who is considered responsible has been guilty of the act charged against him.

The legal means of proof as regulated in the provisions of Article 184 paragraph (1) of the Criminal Procedure Code include:

Menurut Pasal 1 angkat 27 KUHAP, salah satu alat bukti dalam perkara pidana yang berupa keterangan dari saksi mengenai suatu peristiwa pidana yang ia dengan sendiri, ia lihat sendiri dan ia mengalami sendiri dengan menyebut alasan dari pengetahuannya itu, kata Andi.

Before giving testimony, witnesses are obliged to take an oath or promise according to their respective religions. The public prosecutor or legal adviser with the presiding judge of the trial was given the opportunity to ask questions to witnesses.

Whenever a witness has finished giving testimony, the presiding judge of the trial asks the defendant what he thinks about the statement. In this regard, the defendant can file an objection or rebuttal against the witness' testimony or vice versa accept and/or add and clarify the testimony of the witness, in accordance with Article 164 paragraph (1) of the Criminal Procedure Code.

The entangling question should not be submitted to witnesses, Andi continued in his book.

If there is still a need for an examination to clarify the disclosure of the case, both the public prosecutor and the defendant or legal advisor can propose an expert to provide expert testimony in front of the trial.

When a reasonable objection arises from the defendant or legal advisor to expert testimony, the judge can order to re-examine and be carried out by the original agency with a different composition of personnel and other agencies that have the same authority. This is in accordance with Article 18 of the Criminal Procedure Code.

"In the event that it is necessary to clear up the situation that arose in court hearings, the presiding judge of the trial asked for expert information and could also request that new materials be submitted by those with interest, in accordance with Article 180 paragraph (1) of the Criminal Procedure Code," said Andi.

Legal letter evidence in the trial included, among others, minutes and other letters in official form made by the general authorized official.

Also, a certificate from an expert who contains opinions based on his expertise regarding something that or something was officially requested.

"For example, according to the investigation report made by the National Police investigators, the court examination report, and so on," said Andi.

As referred to in Article 188 of the Criminal Procedure Code, the instructions as evidence are:

According to Article 189 Paragraph 1 of the Criminal Procedure Code, the defendant's statement is a statement given by the defendant in front of the trial about the actions he committed or what he knew or experienced himself.

The defendant's statement given outside the court can be used to help find evidence at trial, provided that the statement is supported by a valid piece of evidence as long as it is related to what he is accused of.

The defendant's statement can only be used against himself. The defendant's statement alone is not enough to prove that he was guilty of committing the act he was accused of but must be accompanied by other evidence," reads Article 189 paragraphs 2 and 3.

The problem of proof is important. Article 6 paragraph 2 of the Criminal Procedure Code has confirmed that no one can be convicted, unless the court for legal evidence according to law, believes that a person who is deemed responsible has been guilty of the act charged against him.

The proof system adopted in Indonesia is a negative system according to law. The judge can only impose a sentence on the defendant if the defendant's mistake can be proven based on at least two pieces of evidence, "wrote Andi still in the book "The third edition".

Related to that, the defendant also has the rights as stipulated in the Criminal Procedure Code, including: