The Constitution Court Decision to Guarantee Equality Before The Law Principle

Remedies against the decision of pre-trial hearing have been modified by The Constitution Court (CC).  Originally, the pre-trial hearing under article 1 Criminal Procedure Code (KUHAP) is the authority of court to examine and decide the following grounds:

•  Legal or not the arrest or detention and, at the request of the suspect or his family or the request of the relevant party for the sake of law and justice;
•  Legal or not cessation of the investigation or prosecution at the request of the termination of the relevant party for the sake of law and justice, and;
• Request for compensation or rehabilitation by the suspect or his family or other parties or their proxies which his case is not presented to court.

The petition addressed to article 83 KUHAP subjecting to the remedies against the decision of pre-trial hearing.  Article 83 states that pre-trial hearing’s decision shall not been examined to the appellate court.  However, in paragraph 2 of this article, the decision which declares invalidity of cessation for inquiry/prosecution shall not been process for filing complaints. This article is only allowed for prosecutor to file complaints but not for the petitioner.  The prosecutor is allowed to file complaint if the petition of pre-trial hearing subjecting to validity of the cessation for inquiry/prosecution is granted by the court.

  

The nature of background is that the petitioner was a victim who obtained The Cessation Letter for Inquiry.  Afterwards, he filed complaints to appellate court and the complaint, unfortunately, was denied.     The petitioner prayed for relief that article 83 should be declared null and void.  In the other words, the petitioner ordered that the decision of pre-trial hearing is not allowed to be examined in appellate court. The rationale of his requests is that the article is discriminative and infringes The Constitution, particularly the equality before the law’s principle.   

In its ratio decidendi, CC argued that the article 83 paragraph 2 neither shall reflect the equality between the citizen on law and government nor provide the just legal certainty.  This article has been treated differently between the suspect/plaintiff in one side and the prosecutor in other side in the light of appeal procedure.  This article is not in line with the nature of pre-trial hearing principle to protect the suspect/plaintiff rights in accordance with his dignity and values.

At the end, CC decided that article 83 paragraph 2 infringed with The Constitution and it was declared null and void.