The determination of policy issuance to stop investigation in the perspective of the renewal of Indonesian criminal law procedure

The authority is the first part of administration law science, because the new government (administration) can carry out its functions on the basis of the authority it obtains (Sadjijono, 2008).

According to Miriam Budiarjo, power is often equated with authority, and energy is often interchanged with the term authority and vice versa. Management usually forms a relationship because “there is one party who rules and another party is governed” (the rule and the ruled) (Budiardjo, 1998). Power related to law by Max Weber is referred to as rational or legal authority; authority based on a legal system is understood as a rule that has been recognised and obeyed by society and even strengthened by the state (Setiardja, 1990). In public law, authority relates to power. Power has the same meaning as an authority because the executive, legislative and judiciary powers are formal. Power is an essential element of a state in the process of administering government in addition to other factors, namely: (a) law; (b) authority; (c) fairness; (d) honesty; (e) bestarian policy; and (f) benevolence (Rusadi Kantaprawira, 1998).

Juridically, the notion of authority is the ability granted by laws and regulations to cause legal consequences. The definition of authority according to H.D. Stoud as quoted by Irfan Fachrudin is: Bevoegheid wet kan worden omscrevenals het geheel van bestuurechttelijke bevoegdheden door publiekrechtelijke rechtssubjecten in het bestuurechttelijke rechtsverkeer (authority can be explained as a whole of the rules relating to the acquisition and use of government authority by public law subjects in public law) (Setiardja, 1990).

Of the various definitions of authority, as mentioned above, the authority has a different meaning from competence. Authority is a formal power that comes from the law, while authority is a specification of authority. It means that whoever (legal subject) is given authority by law is authorised to do something within that authority. According to Syafrudin (2000), authority (authority, gezag) requires to be contrasted with authority (competence, bevoegheid). Authority is what is called formal power, power that comes from the power granted by law, while authority is only about a certain “onderdeel” (part) of authority.

The definition of criminal law enforcement in a narrow sense is the enforcement or implementation of criminal rules that apply to violations of illegal regulations. One of the law enforcers in Indonesia is the police. The existence of the police is an integral part of the criminal justice system. Internationally this can be seen in the report of the 5th UN Congress in 1975 regarding “The prevention of crime and the treatment of offenders”, which specifically discussed the emerging roles of the police and other law enforcement agencies and emphasised: “It was recognized that the police were a component of the larger system of criminal justice which operates against criminality”. In the series of the Criminal Justice System, the responsibility of the police is to function as an Investigator whose task is to deal with violations of the provisions of criminal regulations. The criminal justice system is a process of enforcing criminal law. In the criminal justice system's operation, various law enforcement agencies are components or subsystems of criminal justice. According to Mardjono Reksodipuro, the criminal justice system is a crime control system consisting of police agencies, prosecutors, courts and prisons for convicts (Setiardja, 1990). Indonesia is known for five institutions that are subsystems of criminal justice studied from the perspective of the Criminal Justice System. The terminology of the five institutions is known as the Five Houses of Law Enforcement: the police, prosecutors, courts, correctional institutions and advocates (Setiardja, 1990). With the regulation of advocates by Law Number 18 of 2003 concerning advocates, according to Sidik Sunarya, advocates are an integral part (subsystem) of an integrated criminal justice system (Integrated Justice System). Thus, an integrated criminal justice system means synchronisation or simultaneity and harmony. The synchronisation can be divided into Structural, Substance and Cultural Synchronization (Packer, 1978). Structural synchronisation is the existence of synchronisation and peace in the framework of relations between law enforcement agencies (Police–Attorney–Judiciary–Penitentiary). In contrast, substantial synchronisation is the existence of simultaneity and harmony that is vertical and horizontal concerning positive law. On the other hand, cultural synchronisation is concerned with the simultaneity and peace in living the views, attitudes and philosophies that as a whole underlie the running of the criminal justice system. Thus, the criminal justice system can be described as a series of regular and continuous activities to seek and find justice by synchronising or aligning structurally, substantively and culturally. As with criminal procedure in the Criminal Procedure Code, the results of investigative activities that produce the minutes of examination (BAP) of the suspect and the witnesses, as well as the available evidence, are the input used as the basis for the Public Prosecutor's prosecution. The results of the activities of the Public Prosecutor and the defence of the accused or his Legal Counsel (advocate) in the trial are input for the Judge to try and decide; so, based on the decision of the criminal Judge in the form of a criminal conviction, the Penitentiary will guide the convicts.

The response to a restorative justice settlement has received a positive appreciation from the community and law enforcement officials. This suggests the need to accommodate the settlement of criminal cases through restorative justice against criminal acts in the criminal procedure code and the criminal code that will come with certain conditions (Awaliah Nasution et al., 2022).

The investigation comes from the Dutch opsporing contained in the Het Herzine Inslandsch Reglement (HIR) staatsblad 1941 No. 44, which can be interpreted as “investigation”. Investigation is a series of actions conducted by the Investigator in terms of and according to the method stipulated in this law to search for and collect evidence, the objective of such an exercise being to bring to light, through evidence-based substantiation, the actual character of the criminal acts that occur and to find the suspect (Purba, 2018).

In the Republic of Indonesia's Law No. 2 of 2002 concerning the Indonesian National Police, the term “investigation” is no longer used, but “police investigation” is now in use. According to the Law of the Republic of Indonesia, Number 8 of 1982 concerning Criminal Procedure Code Article 1 paragraph (2), the following is stated: “Police investigation is a series of investigative actions actions in matters and according to the methods regulated in this law to seek ad collect evidence with which evidence makes clear about crime that occurred and to find the suspect”.

The National Police, as a law enforcement tool and protector of the community, is obliged to maintain law enforcement, justice and protection of human dignity and respect, as well as order and legal certainty. In carrying out its duties, one of the authorities possessed by the Indonesian National Police (Polri) is to conduct investigations into allegations that a crime has occurred. Hopefully, this investigative effort will shed light on the criminal acts that have occurred and also find out who the suspects are. Auxiliary science is needed, namely criminalistics, which seeks to investigate crimes in the broadest sense based on evidence and statements, using the results determined by other sciences to expedite the investigative task (Packer, 1978). In an examination at the crime scene (TKP) to collect evidence, a search plan is needed that covers the entire background of the incident. The guidelines for Investigators in their efforts to collect evidence are as follows: (Packer, 1978).

a. Strips Method

In this method, the area is blocked out as a rectangle. The three searchers, A, B and C, proceed slowly at the same piece along paths parallel to one side of the rectangle. When evidence is found, the finder announces his discovery and all halt until the evidence is cared for. A photographer is called as necessary. The evidence is collected and tagged, and the search proceeds at a given signal. At the end of the rectangle (O'Hara & O'Hara, 2003).

b. Grid Method

A modification of this plan is the double strip of grid method. Here, the rectangle is traversed first parallel to the base and then parallel to the side.

c. Zone/field Method

One searcher is assigned to each subdivision of a quadrant. Depending on the size of the area, it is divided into quadrants, and then each quadrant is cut into another set of quadrants (O'Hara & O'Hara, 2003).

d. Wheel Method

In this method, the area is considered to be approximately circular. The searchers gather at the centre and proceed outward along radii or spokes. The procedure should be repeated several times depending on the size of the circle and the number of searchers. One shortcoming of this method is the significant increase of relative area to be observed as the searcher departs from the centre (O'Hara & O'Hara, 2003).

e. Spiral Method

In the spiral method, three officers line up sequentially, starting a search outside the spiral and then circling towards the centre of the loop. Investigators use the spiral form to collect evidence, such as forest locations, bushes and others. In other words, the spiral method is used when only a small number of people can cover a large outdoor area. With this quest, the evidence seeker will walk straight and turn a right corner in the place to be investigated/examined until the evidence can finally be found.

According to Satjipto Raharjo, the police are a tool of the state whose job is to maintain security and public order and provide protection and protection to the community (Rahardjo, 1980). Although it might validly be supposed that the law aims to create order in society, including fighting crime, ultimately it is the police who will concretely determine what constitutes order enforcement (Rahardjo, 1980).

In Republic of Indonesia Law No. 2 of 2002 concerning the National Police of the Republic of Indonesia, in Article 1 paragraph (1), it is explained that the Police are all matters relating to the functions and institutions of the Police following statutory regulations. The term police in this law encompasses two meanings: the part of the Police and the police institution. In Article 2 of Law No. 2 of 2002 concerning the State Police of the Republic of Indonesia, the function of the Police as one of the functions of the state government is in the field of maintaining public security and order, law enforcement, protection and community service. At the same time, the police institution is a government organ designated as an institution and is given the authority to carry out its functions based on statutory regulations.

Police duties in general, as stated in Article 13 of the Republic of Indonesia Law No. 2 of 2002 concerning the Indonesian National Police, says that the main tasks of the Indonesian National Police are: (a)

maintaining public order and security;

The Criminal Procedure Code does not formulate definitions concerning the meanings of the terms Investigation Warrant or Investigation Decree (Harun, 1991). However, Article 109 of the Criminal Procedure Code, paragraph (1) regulates the Termination of Investigations. If an Investigator has started investigating an event that constitutes a criminal act, the Investigator informs the Public Prosecutor about this. Paragraph (2) mentions that if the Investigator stops the investigation because of any of the following reasons:

there is not enough evidence; or

Paragraph (3) mentions the following: If the termination of the investigation referred to in paragraph (2) is carried out by the Investigator as referred to in Article 6 paragraph (1) letter b, notification regarding this matter shall be immediately conveyed to the Investigator and Public Prosecutor. Therefore, it can be formulated that the termination of an investigation is the action of an Investigator to stop the analysis of an event that is suspected of being a crime because of the requirement to obtain clarity with regard to the incident and determine the perpetrator who is suspected of having committed the crime; there is not enough evidence; from the results of the investigation, it is known that the incident is not a crime; or the analysis is terminated for the sake of the law. The reasons for stopping the investigation for the sake of law are, according to Harun (1991), the following: 1)

There is a revocation of the complaint if the criminal act being investigated is a criminal act of protest (Article 75 of the Criminal Code).

Regarding the procedure for the termination in Article 109, paragraphs (2) and (3), of the Criminal Procedure Code, it is only determined that the Investigator shall notify the Public Prosecutor, as well as the suspect or his family, about the matter (Harun, 1991). In the Additional Guidelines for the Implementation of the Criminal Procedure Code, point 4 can be found, which specifies the following instructions: If the Investigator stops the investigation, the Investigator must carry out the provisions of Article 109, paragraph (2), of the Criminal Procedure Code, namely notifying the Public Prosecutor, the suspect and his family (Harun, 1991). The law has stated “limitatively” the reasons Investigators can use as a basis for terminating an investigation.

The policy of stopping the investigation implies the existence of a policy that determines the events that have occurred or that the case has been completed – even though considering the complexity of reports or public complaints about the events that happened, it is not always straightforward to uncover them, meaning that the determination of whether sufficient evidence has been collected, as well as whether it is clear that the incident is a crime or not, would not be immediately possible. Still, sometimes Investigators are faced with extraordinary events, complicated and complex; so, uncovering them is rather tricky and requires a long time. It must be determined whether enough evidence has been collected or whether it is clear that the incident was a crime or not. Based on this, it is necessary to formulate policy stages that could serve as a basis for Investigators in issuing orders for the termination of investigations – as can be done at the level of prosecution based on Article 140 of the Criminal Procedure Code, as follows: (1)

If the Public Prosecutor thinks that a prosecution can be carried out from the results of the investigation, he shall make an indictment as soon as possible.

Issuance of a stipulation of termination of the investigation is given following the considerations of the Polri investigators. The reviews are of juridical, theoretical and sociological urgency. The juridical speed regarding the issuance of a letter of termination is that the police are given authority in law enforcement, and the National Police is part of the Criminal Justice System as an investigator who has law enforcement (repressive) capabilities and international police cooperation in anticipating international crimes. The theoretical urgency is the issuance of SKP2 based on the restorative justice process. The beneficial justice process is carried out through discretion (wisdom). This diversion attempts to divert from the criminal justice process outside the formal process to be resolved by deliberation. Meanwhile, based on sociological urgency, this policy is related to Indonesian society, where the community's cultural roots are oriented towards family cultural values, prioritising the principle of deliberation to reach a consensus in the resolution of a dispute within a social system.

As for the explanation of juridical considerations based on the 1945 Constitution, the same can be found in the following: the Decree of the year 2000, People Consultative Assembly; 4.3.1.3. Law No. 2 of 2002 concerning the Indonesian National Police; Jurisprudence, unwritten law; and Law No. 8 of 1981 (Book of Criminal Procedure Codes). The theoretical considerations used are the three theories that underlie the issuance of SKP2, namely the Theory of Legal Purpose, the Theory of Police Authority and the theory of law enforcement. Furthermore, sociological considerations concern the settlement of cases outside the court, such as using ADR.

The implications posed by issuing a decree on terminating an investigation by Polri investigators can be seen from the embodiment of justice. Currently, the legal justice in Indonesia is retributive justice, which only focuses on legal and state defence. In addition, the provided restoration of righteousness is only in terms of the awarding of a punishment to the perpetrators, and there is no accountability for the victims. With a refreshing justice approach, many parties will benefit. In contrast, the direct benefits that perpetrators of criminal acts can obtain are related to fulfilling and protecting their rights and educating them to be responsible for the damage they have done.

Furthermore, the implications in terms of strengthening the existence of police authority gave rise to the era of the new managerialism of police organisation, a period in which the police is seen not merely as an enforcer of the law but as an organisation whose performance is subject to public scrutiny and as a public institution that is obliged to work in a state of compliance with principles similar to those applying to a private institution, namely paying attention to efficiency and effectiveness, accountability and achievements. Finally, there are implications for the realisation of legal obligations. It being required of the police to carefully preserve and present before the court the objects of tangible evidence that can support the allegations levelled against the defendant in a case, as well as to bring to the court's attention their existence, is an exemplar illustration of this obligation; such a practice would also have as its aim facilitating the performance of further investigations. One of the reasons for stopping the research is that there is no other evidence, and the process could result in a new criminal case.