UPAYA HUKUM BANDING

Summary

This transcript discusses the legal process of 'banding' as an ordinary legal remedy within Indonesian criminal law. It explains the procedure for appealing court decisions through a higher court (Pengadilan Tinggi), including the roles of the defendant, the prosecutor, and the defense. The focus is on the specific criteria for filing an appeal, timelines for submission, and the types of decisions eligible for appeal. It also covers the nuances of the legal process, such as the submission of memoranda of appeal and potential reexaminations by the higher court, all within the framework of legal rights and procedural laws.

Takeaways

• 😀 **Appeal (Banding)** is a regular legal remedy available after a District Court's decision in criminal cases, allowing review of the facts and law by a higher court.
• 😀 **Judex Facti**: The higher court reviews the facts of the case, but it does not physically re-examine witnesses or evidence unless necessary.
• 😀 **Eligibility to Appeal**: Both the defendant and the prosecutor (JPU) can file an appeal, but appeals cannot be filed for acquittals ('bebas') or decisions that dismiss all legal claims ('lepas').
• 😀 **Timeframe for Filing an Appeal**: The appeal must be filed within seven days after the verdict is announced or received by the defendant.
• 😀 **Appeal Procedure**: The appeal must be submitted in writing and can be filed directly by the defendant or through their legal representative.
• 😀 **Appeal Withdrawal**: An appeal can be withdrawn before the case is reviewed by the higher court, within the given time frame.
• 😀 **Memori Banding (Appeal Memorandum)**: While not mandatory, a memorandum outlining the grounds for appeal is highly recommended to help the higher court understand the appeal's basis.
• 😀 **Outcome of the Appeal**: The higher court may confirm, amend, or overturn the original decision based on its review of the facts and law.
• 😀 **Simplified Trials Exemption**: Cases handled under expedited or simplified trial procedures (e.g., minor offenses like traffic violations) are not eligible for appeal.
• 😀 **Exceptions to Appeal**: Acquittals and cases decided under expedited procedures cannot be appealed, ensuring a clear limitation on the appeal process.

Q & A

What are the two main types of legal remedies in Indonesian criminal law?

The two main types of legal remedies are ordinary remedies (*upaya hukum biasa*) and extraordinary remedies (*upaya hukum luar biasa*). Ordinary remedies include appeal (*banding*) and cassation (*kasasi*), while extraordinary remedies involve legal actions like cassation in the interest of justice (*kasasi demi hukum*) or judicial review (*peninjauan kembali*).

What is an appeal (*banding*) in the Indonesian legal system?

An appeal (*banding*) is a legal remedy that allows a defendant or the public prosecutor to request a review of a verdict issued by a District Court (*Pengadilan Negeri*). The appeal examines the facts of the case rather than the legal reasoning, and the High Court (*Pengadilan Tinggi*) will reassess the case based on the presented facts.

Who can file an appeal in Indonesia?

An appeal can be filed by the defendant (*terdakwa*), the public prosecutor (*penuntut umum*), or their legal representatives. The legal representatives may include lawyers who act on behalf of the defendant or the prosecutor.

What is the deadline for filing an appeal in Indonesia?

The deadline for filing an appeal is seven days after the verdict is delivered. If the parties involved were not present at the trial, the seven-day period is counted from the moment they receive the formal notification of the verdict.

What types of decisions cannot be appealed in Indonesian criminal law?

Appeals cannot be filed against decisions involving acquittals (*putusan bebas*), dismissals of charges (*putusan lepas*), or decisions made in expedited trials (*putusan acara cepat*) related to minor offenses.

What is the difference between a statement of appeal and a memorandum of appeal?

A statement of appeal is a formal request to the High Court to review the verdict. A memorandum of appeal (*memori banding*) provides detailed reasons for challenging the verdict and is submitted to the High Court. While the statement of appeal is required, the memorandum is not mandatory, though it is often recommended.

How long after filing an appeal can the memorandum of appeal be submitted?

The memorandum of appeal can be submitted up to fifteen days after the appeal is filed. It serves to outline the specific grievances regarding the original court decision.

Can an appeal be withdrawn, and if so, when?

Yes, an appeal can be withdrawn before the High Court makes its decision. The appellant must notify the court of their intent to withdraw the appeal. Once the appeal is withdrawn, the case is considered closed.

What happens after an appeal is filed and the case is reviewed by the High Court?

After the appeal is filed, the High Court reviews the case file and may call for additional evidence or testimonies if necessary. The High Court can either uphold the original verdict, amend it, or annul the verdict and issue a new decision.

How does the High Court handle cases with incomplete or incorrect legal proceedings from the District Court?

If the High Court finds that there was an error or incomplete legal procedure in the District Court’s verdict, it can order the District Court to correct the mistake. The High Court may also annul the initial decision or send it back to the District Court for further clarification.