P-ISSN: 2827-9832
E-ISSN: 2828-335x
http://ijsr.internationaljournallabs.com/index.php/ijsr
484
ARRANGEMENTS FOR THE TERMINATION OF INVESTIGATIONS
IN THE PROSECUTION OF CRIMINAL CASES OF DOMESTIC
VIOLENCE ACCORDING TO LAW NUMBER 8 OF 1981
CONCERNING THE CRIMINAL PROCEDURE LAW (CASE STUDY
OF THE EAST DUMAI POLICE)
Dona Antonio, Risdalina, Indra Kumala Sari M
Faculty of Hukum, Labuhanbatu University
dadonaantonio@gmail.com, risdalinasiregar@gmail.com, indrakumalsarim@gmail.com
ABSTRACT
Law No. 23 of 2004 concerning Domestic Violence in article 1 paragraph 1 states that the integrity and
harmony of a happy, safe, peaceful and peaceful household is the dream of everyone in the household. This
study aims to find out and analyze the arrangements for stopping investigations in the prosecution of
criminal cases. As well as knowing and analyzing about knowing the process of stopping investigations in
domestic violence criminal cases. This research belongs to the normative type of research. So it can be
known that investigators as members of the Police, in principle, have discretionary authority. Termination of
investigation is a discretionary policy of law enforcement with the requirement that if the perpetrator
reneges on the peace agreement by repeating the violent crime, it will be directly processed formally (court).
Based on the explanation above, it can be concluded that investigators as members of the Police, in
principle, have discretionary authority.
Keywords: Termination of Investigations, Criminal Cases, Domestic Violence
This article is licensed under CC BY-SA 4.0
INTRODUCTION
Law Number 23 of 2004 concerning Domestic Violence, states that the integrity and
harmony of a happy, safe, peaceful, and peaceful household is the dream of everyone in the
household.
Thus, everyone within the scope of the household in carrying out their rights and
obligations must be based on religion. This needs to continue to be developed in order to build
household integrity.
To realize this wholeness and harmony, it is very dependent on everyone in the household,
especially the level of quality of behavior and self-control of each person in the household.
The integrity and harmony of the household can be disturbed if quality and self-control
cannot be controlled, which in the end can occur domestic violence so that insecurity or
injustice arises against people within the scope of the household which can lead to acts of
domestic violence (domestic violence).
The reality is that there are still women victims of domestic violence who try to hide the
problems of domestic violence they experience because they feel ashamed of the social
environment and do not want to be considered a failure in the household.
The mindset that considers that what happens in the family, even if it is an act of violence,
is entirely a problem of 2 private households often makes the victim reluctant to complain about
the violence that has befallen him.
Arrangements for the Termination of Investigations in the Prosecution of Criminal Cases of
Domestic Violence According to Law Number 8 of 1981 Concerning the Criminal Procedure Law
(Case Study of the East Dumai Police)
485 2, 2., January 2023
Victims feel taboo and think it will open up their own family disgrace, especially in cases
related to sexual violence.
Moreover, there is a thought that if you report the case to the police, the complainant can
become a double victim which means that the victim must always repeat the unpleasant acts
that have happened to him, starting with the Police until the court hearing so that it tends to add
suffering/pressure to the victim (Soeroso, 2010).
Many people argue that domestic violence is an internal matter of the family within the
household.
People who see or hear of domestic violence do not want to interfere in other people's
domestic affairs.
Whereas everyone who sees and hears or knows the occurrence of domestic violence must
make efforts according to their ability to prevent criminal acts from occurring or notify the
authorities and law enforcement officials such as police, advocates, etc.
Domestic violence according to Article 1 paragraph (1) of Law No. 23 of 2004 concerning
the Elimination of Domestic Violence is "any action against a person, especially a woman,
resulting in physical, sexual, psychological, and/or domestic misery or suffering including
threats to commit acts, coercion, or unlawful deprivation of liberty within the scope of the
household".
The National Police of the Republic of Indonesia is one of the government institutions that
serve as the spearhead of law enforcement in Indonesia.
The task carried out is not light because it will deal with the community. Law enforcement,
not only must the public be aware of the law and obey the law but more meaningful in the
implementation of the law as it should be and those who violate it must also be acted upon
according to applicable legal procedures and provisions.
Polri as law enforcement in charge of maintaining order and ensuring public security,
maintaining state safety, and maintaining the safety of people, objects, and the community
including providing protection and assistance and giving and striving for the observance of
citizens and the public to all forms of regulations.
The role of the police in the event of domestic violence is very important because when
police receive reports of domestic violence, they must immediately explain the rights of victims
to services and assistance.
In addition, it is also very important for the police to introduce their identities and
emphasize that domestic violence is a crime against humanity so it is the duty of the Police to
protect victims.
For justice seekers (whistleblowers, victims, even suspects/ defendants) of course, open
information about what and why the investigating police decide something related to the
handling of criminal acts is very important.
The general public or particularly justice seekers should at all times be able to know (or
be informed) why a case could be lost.
The disclosure of information about it should be part of the responsibility of the police,
not only as investigators but especially also as part of the civilian government responsible for
criminal law enforcement.
Arrangements for the Termination of Investigations in the Prosecution of Criminal Cases of Domestic Violence
According to Law Number 8 of 1981 Concerning the Criminal Procedure Law (Case Study of the East Dumai
Police)
486 2, 2., January 2023
Polri as an investigator because of its obligations has authority as stipulated in Article 7
paragraph (1) of the Criminal Procedure Code (KUHAP), furthermore this authority is also
regulated in Article 16 paragraph (1) of Law Number 2 of 2002 concerning the National Police
of the Republic of Indonesia.
Handling domestic violence crimes sometimes the police take action to stop investigations
because of the issuance of SP3.
The law mentions in a limited way the reasons that investigators can use as a basis for
stopping an investigation. The mention or outlining of these reasons is important because it
avoids the tendency of the investigating officer.
With this outline, the law expects that in exercising the authority to terminate the
investigation, the investigator tests it on the prescribed grounds.
Not all of them are legally accountable, and at the same time provide a basis for parties
who object to the lawfulness or invalidity of the termination of the investigation.
Likewise, for pretrial, the outlining of the reasons for the termination is a cornerstone in
the examination of the pretrial hearing. If there is a request for examination of whether or not
the investigation is valid or not.
Since the issuance of SP3, many people think that the police still lack optimal performance
in handling domestic violence crimes in Indonesia.
METHOD
The research method used in this study is a normative legal research method. Normative
legal research is legal research carried out by examining library materials or secondary data
(Soekanto, 2007).
According to Peter Mahmud Marzuki (2010), normative legal research is a process to find
a rule of law, legal principles, and legal doctrines to answer the legal issues faced.
In this type of legal research, often the law is conceptualized as what is written in
legislation or law is conceptualized as a rule or norm that is a benchmark for human behavior
that is considered appropriate (Amiruddin, 2012).
RESULTS AND DISCUSSION
1.1 Arrangements for the Termination of Investigations in the Prosecution of Criminal
Cases
For the Police, the legal basis of the authority to issue SP3 is not (only) the provisions of
Article 109 of Law Number 8 of 1981 concerning the Criminal Procedure Code.
Even though Article 109 paragraph (2) of the Criminal Procedure Code stipulates the
formal reasons for issuing SP3. For investigators from the police force, the provisions are more
important and the distance is not too far.
Therefore, the concrete reference that regulates their behavior is the Police Chief
Regulation Number 14 of 2012 concerning the Management of Criminal Investigations. And
the Regulation of the Head of the National Police CID Regulation of the Head of the Criminal
Investigation Agency of the National Police of the Republic of Indonesia Number 2 of 2014
concerning Standard Operating Procedures for Organizing Criminal Investigations.
Arrangements for the Termination of Investigations in the Prosecution of Criminal Cases of
Domestic Violence According to Law Number 8 of 1981 Concerning the Criminal Procedure Law
(Case Study of the East Dumai Police)
487 2, 2., January 2023
The provisions of Article 76 paragraph (1) of Perkap 14/2012 stipulate that the termination
of the investigation as referred to in Article 15 letter ,is carried out if:
a. There is not enough evidence;
If the investigating police do not obtain enough evidence to prosecute the suspect or the
evidence obtained by the investigating police is insufficient to prove the suspect's guilt before
the trial, the investigator has the authority to decide on the termination of the investigation.
The size of when and when an investigation should be terminated is determined by the
availability of at least two valid pieces of evidence.
The two pieces of evidence in question must show, firstly, that a criminal act has been
committed, and secondly that there is a suspect who is a perpetrator who is guilty of committing
the crime.
The investigating police in this case must pay attention to the provisions of Article 183 of
the Criminal Procedure Code which affirms the principle of "minimum limit of proof" (there
are at least two pieces of evidence). Valid evidence based on the provisions of Article 184
paragraph (1) of the Criminal Procedure Code is witness statements, expert testimony, letters,
instructions, and statements of the accused. Meanwhile, the definition of "sufficient evidence"
can also be seen authentically in the provisions of Article 1 number 22 of PerKap 14/ 2012,
namely: "Evidence in the form of a Police Report and 2 (two) valid evidence, which is used to
suspect that a person has committed a criminal act as a basis for detention." So if it is viewed
by the investigating police that in the case the evidence is not sufficient, the investigation of
the case will be stopped. However, if in the future the investigating police (on their own
initiative or at the urging/request of interested parties) can succeed in collecting sufficient
evidence, then the case that has been stopped reopening Harahap (2002) means that the case is
not stopped lastly. This is most likely also related to the chances of additional evidence or new
evidence being found.
In practice, it was revealed that investigating police rarely used the excuse of insufficient
evidence. The reason they are reluctant to use this is to prevent the impression (of the
authorized superiors who are authorized to assess their performance or the whistleblower) that
they are not working optimally in searching and finding evidence.
As a result, many cases later, instead of being in SP3 because of lack of evidence, seemed to
be left (hanged). The term commonly used is in the ice box (Focus Group Discussion with
members of the Police, 2015)
The term ice box is also known as a cold case which means that the case is cold because it is
not continued and it is not clear the final result of the settlement process (Nasional, 2015).
b. The incident did not constitute a criminal offense;
If from the results of the investigation, the investigating police argue that what is alleged
against the suspect (reported) is not a criminal act as regulated in the Criminal Code or other
criminal rules (offenses outside the Criminal Code), the investigator has the authority to stop
the investigation.
In reality, it is not so easy to find out whether an act committed by a person falls within
the scope of a criminal act or is not a criminal act (entering into the scope of civil law or
administrative law).
Arrangements for the Termination of Investigations in the Prosecution of Criminal Cases of Domestic Violence
According to Law Number 8 of 1981 Concerning the Criminal Procedure Law (Case Study of the East Dumai
Police)
488 2, 2., January 2023
Sorting criminal cases from non-criminal cases (being solely administrative law matters) is
also complicated by the many and variety of acts regulated in administrative law (requiring
recommendations, permits, or dispensations that can be written or unwritten) which are often
argued to eliminate the unlawful element of the acts committed.
The illustration of this is a case of environmental pollution or spatial planning violations
(Silalahi, 1996).
All criminal acts of pollution and destruction of the environment can lose their unlawful nature
due to the existence of permits (which can even be taken care of later post-factum) or simply
neglect by state administration officials.
In cases of pollution and/or environmental destruction, the legal/non-legal determination
of acts (meaning also the presence/absence of criminal acts) is also dependent on the
presence/absence of permits (exceptions to general prohibitions) issued by the government
(Law Number 32 of 2009 concerning Environmental Management, n.d.).
Similar problems arise in the field of spatial planning (Law Number 26 of 2007 concerning
Spatial Planning, n.d.). The use of space (for buildings or other purposes) is always
presupposed to have obtained permission from the government and this permit can even be
followed to remove the punishable nature of the deed.
For example, in the form of a building without being equipped with permits or whose
permits are in the process of being managed.
In such a case, the termination of the investigation or non-follow-up of community reports
about alleged violations of criminal law is likely to occur because the investigator or the Police
are reluctant to make missteps or doubts regarding the presence/absence of a permit that
determines the nature of the crime.
In addition, many activities in the civil sector (buying and selling; borrowing and
borrowing of goods) are related to criminal acts (fraud-embezzlement, even defamation or
unpleasant acts).
In particular, it can be mentioned here the intersection between default or tort and fraud-
embezzlement. Cases like this often arise and employers (who are bound by civil contracts)
often use or "abuse" the investigator's authority (including the authority to use coercive efforts)
as a means of suppressing the debtor or who commits defaults.
Likewise, those who feel that they have suffered losses (material or immaterial) due to
unlawful acts (for example criticized through electronic media). This opens the opportunity
for the person concerned to report the defaming party on the basis of a criminal defamation act,
or based on an unpleasant act, simply so that the insulter/polluter is summoned and examined
by the police or then, as the final target, sentenced to imprisonment by a criminal court.
The civil and criminal case between Prita Muliasari vs. RS Omni (and the Prosecutor's
Office) that occurred in 2008-2009 is the best illustration of this. It is also alleged that the
"abuse" or "use" of discretionary authority in the course of investigations for other purposes
outside the criminal law (business interests, including collecting debts from delinquent debtors
or taking hostages or simply out of the offense and for the sake of maintaining honor) occurs
due to the stalling and slowness of civil litigation.
Not helping is the unpopularity of out-of-court dispute resolution (mediation and
arbitration).
Arrangements for the Termination of Investigations in the Prosecution of Criminal Cases of
Domestic Violence According to Law Number 8 of 1981 Concerning the Criminal Procedure Law
(Case Study of the East Dumai Police)
489 2, 2., January 2023
c. For the sake of the law, because:
(1) The suspect died;
(2) The case has expired;
(3) The complaint was dismissed (specifically for complaints); and
(4) The crime has obtained a judge's ruling that has permanent legal force (nebis in
idem).
In practice, formal reasons such as those previously presented can be referenced. The
reason that there is not enough evidence nor is it a criminal case at any time can be reopened
often arises whenever new evidence is found that indicates otherwise.
Beyond that, another reason (not found in the above rule of law) is the existence of a peace
agreement between the two parties followed by the revocation of the case or the "omission of
the file" with the aim of eliminating the administrative traces of the reporting or complaint.
Peace agreements can arise because in principle cases are civil cases (accounts receivable,
for example) and police interference is needed because they have the authority to apply
coercive efforts (arrest, detain,) that arise in the context of investigative investigations.
This policy support is a commodity that can be offered to consumers who can afford to
pay and want to solve any legal problems and do not need to be suspected of criminal acts.
The investigator in this case is abused as a seller of services and in that process no longer
protects and serves the interests of the general public (to protect and to serve) as mandated in
his position as a developer of government functions.
In addition, it is often heard that the term is politicized. In this case, criminal law enforcement
actions – including those carried out by the Police – are considered to be carried out solely for
short-term purposes, that is, to advance the political interests of a group of people.
Politicians in Indonesia often use "police services" or at least threats to be processed by
the police to strengthen their bargaining position in front of the public or punish members of
the public who accuse them of corruption.
The police interference described above is principally aimed at forcing the other party
(opponent) to sit down together and reach an agreement (peace) which will undoubtedly be
followed by the issuance of SP3 or the ejection.
If it is interpreted negatively, the peace can be made by the "person" of the Police in the
event that the complainant actually has other purposes (collecting debts and using the Police
as a suppressor, or simply to punish the reported person for offending self-esteem or simply
embarrassing the complainant), or the complainant is a complaint.
On the other hand, if it is interpreted positively, then according to Bekto Suprapto, peace
can be carried out by the Police in order to enforce customary law (which for certain cases
based on the area of occurrence) is felt to be fairer.
Another possibility is that the case in question is a case of domestic violence (KDRT). In
cases like this, the Police investigator issued SP3 on the grounds that, among other things, the
complainant had reconciled with the reported person, because the complainant wanted his
family to remain intact, the reported person admitted guilt, the complainant promised not to
repeat his actions based on the affidavit he had signed before the police investigator and
subsequently the complainant withdrew his testimony as a witness and as a victim (and that
means also there is no longer sufficient evidence).
Arrangements for the Termination of Investigations in the Prosecution of Criminal Cases of Domestic Violence
According to Law Number 8 of 1981 Concerning the Criminal Procedure Law (Case Study of the East Dumai
Police)
490 2, 2., January 2023
Of the 3 reasons above that are relevant to the discussion here is the reason that there is
not enough evidence and the event does not constitute a criminal offense. Compared to sp3's
reasoning for the sake of the law (decided based on objective facts that are beyond the control
of the investigator). So the other two reasons are only possible for police investigators to decide
based on findings in the field. The investigator for all 2 of the above (beyond reason for the
sake of law) must obviously weigh the facts at hand and within the scope of the authority
conferred by the law, assess, and decide.
Dismissing SP3 on the basis of two reasons involves the use of discretionary authority and
therefore is also vulnerable to abuse (abuse de Droit).
Here is not specifically discussed the issuance of a Model A2 Notice of Investigation (SP2HP).
The point of this letter is that the case cannot proceed to the level of investigation.
This possibility is open when the community complaint from the beginning is clearly not
a criminal act or the case is too "light" so that it can be resolved directly by the Police, who
often also act as mediators or peacemakers for social conflicts that occur in society.
1.2 The Process of Stopping Investigations in Domestic Violence Crimes Cases
Institutionally, the settlement of domestic violence through penal mediation can be carried
out if it meets the formal requirements as specified in the Police Circular Letter Number 8 /
VII / 2018 concerning the Application of Restorative Justice in the Settlement of Criminal
Cases, namely:
1. The existence of a peace request for both parties (whistleblower and reported)
2. A statement of peace (akta dading) and dispute resolution of the litigants (whistleblower,
reported, family, and representatives of community leaders are known to the
investigator's superiors.
3. Minutes of Additional Examination of litigants after the settlement of restorative justice.
4. Recommendations for special case titles approving restorative justice settlements.
5. The perpetrator does not object to the liability of damages or is made voluntarily.
6. Restorative justice can be applied to common crimes that do not inflict human casualties.
Penal mediation is one of the options implemented to solve domestic violence cases.
There must be special attention from the police because it concerns the issue of professional
responsibility which demands foresight and responsiveness to catch problems that exist in the
field.
Penal mediation is one of the methods that are good enough to be applied so that the
percentage of case resolution through the courts can be suppressed and minimized by allowing
the integrity of the households of the parties who are threatened with rupture due to violence.
Penal mediation is one of the instruments to achieve the concept of restorative justice.
It is the parties who determine the value of justice they want, not the judiciary ().
Penal mediation is a suitable dispute resolution method for handling domestic violence
cases in Indonesia.
The majority of people still prioritize peaceful settlement in dispute resolution,
especially in family disputes because harmony and family integrity are priorities in the culture
of Indonesian society which continues to be maintained.
This model in theory is called victim-offender oriented (Vom), a model of solving
criminal cases in a win-win solution by involving parties related to criminal acts. However, of
Arrangements for the Termination of Investigations in the Prosecution of Criminal Cases of
Domestic Violence According to Law Number 8 of 1981 Concerning the Criminal Procedure Law
(Case Study of the East Dumai Police)
491 2, 2., January 2023
the many advantages of penal mediation, this method also has several disadvantages, such as
the perpetrator's lack of follow-up to the agreement that has been made, the postponement of
the trial of criminal acts that have been committed, and the verdict due to the penal mediation
process. The amount of time it takes to participate in the penal mediation process (when using
shuttle mediation).
CONCLUSION
Based on the explanation above, it can be concluded that investigators as members of
the Police, in principle, have discretionary authority.
This authority arises and is regulated in laws and regulations: written sources of law in a
formal sense (Government Administration Law, Police Law, and Criminal Procedure Code)
and beleidsregels (policy rules made by the Police to regulate and limit the use of the
discretionary authority of investigators:
In the form of standard operating procedures). It should be added that the existence of
standard operating procedures relating to the investigation process does not necessarily negate
the discretionary authority that exists with police investigators.
Faced with allegations of criminal acts, they should possess and enjoy the freedom of
wisdom (beleidsvrijheid) and freedom of judgment (beordelingsvrijheid).
Especially when dealing with norms that are not always clear. Vagueness or obscurity
In addition, the peace agreement between the perpetrator and the victim and his family as a
result of penal mediation has legal consequences for the law enforcement process in the form
of stopping the investigation process of domestic violence crimes that are currently occurring.
Because the peace deed agreed upon by the parties is a legal product that has the
binding legal force to be respected and executed by the parties in order to provide legal
certainty for the status of the case in the future.
Termination of investigation is a discretionary policy of law enforcement with the
requirement that if the perpetrator reneges on the peace agreement by repeating the violent
crime, it will be directly processed formally (court).
This requirement aims to provide protection efforts for the security and safety of
victims post-peace.
REFERENCES
Amiruddin, H. (2012). Zainal Asikin, Pengantar Metode Penelitian Hukum. Jakarta: Rajawali
Pers.
Harahap, M. Y. (2002). Pembahasan permasalahan dan penerapan KUHAP: Pemeriksaan
sidang pengadilan, banding, kasasi, dan peninjauan kembali.
Marzuki, P. M. (2010). Penelitian Hukum, Kencana Prenada Group. Jakarta. h, 35.
Nasional, K. K. (2015). Cold Cases: Apa dan Bagaimana. KOMPOLNAS, Jakarta.
Peraturan Kapolri Nomor 14 tahun 2012 tentang Manajemen Penyidikan Tindak Pidana.
Peraturan Kepala Bareskrim Polri Peraturan Kepala Badan Reserse Kriminal Kepolisian
Negara Republik Indonesia Nomor 2 Tahun 2014 tentang Standar Operasional Prosedur
Pengorganisasian Penyidikan Tindak Pidana.
Silalahi, D. (1996). Hukum lingkungan: dalam sistem penegakan hukum lingkungan Indonesia.
Arrangements for the Termination of Investigations in the Prosecution of Criminal Cases of Domestic Violence
According to Law Number 8 of 1981 Concerning the Criminal Procedure Law (Case Study of the East Dumai
Police)
492 2, 2., January 2023
Soekanto, S. (2007). Penelitian hukum normatif: Suatu tinjauan singkat.
Soeroso, M. H. (2010). Kekerasan dalam rumah tangga dalam perspektif yuridis-viktimologis.
Sinar Grafika.
Undang-undang Nomor 23 tahun 2004 tentang kekerasan dalam Rumah Tangga.
Undang-Undang Nomor 26 Tahun 2007 tentang Penataan Ruang.
Undang-Undang Nomor 32 Tahun 2009 tentang Pengelolaan Lingkungan Hidup.
