Heru Andriyanto – It appears that no one knows for sure when a criminal trial should end.
When the Supreme Court upholds a conviction, the story does not end there. The convict can still appeal. But several legal questions remain unanswered in regard to that legal avenue, creating technical loopholes often used, for instance, by death row inmates to delay their executions.
The first question is: How many appeals are allowed in the case of a Supreme Court verdict? The Supreme Court is allowed to hear just one appeal of a decision it has issued.
Appealing a Supreme Court decision is the final level of appeal and generally requires that new evidence be submitted. But multiple appeals have been known to be filed at the Supreme Court for any number of cases.
The Constitutional Court is currently hearing a judicial review of articles in three separate laws stating that the Supreme Court is allowed to hear just one appeal of a verdict it has issued. During Thursday's hearing at the Constitutional Court, the Attorney General's Office argued that multiple appeals should not be allowed.
"If multiple appeals are allowed, we will have a protracted and prolonged criminal justice system incapable of bringing about justice and legal certainty," it offered in a statement read out at the hearing.
Lawyer Farhat Abbas in late March filed for a judicial review of articles in three laws on behalf of his client, businessman Herry Wijaya, director of private company PT Harang Ganjang.
Farhat said that for 18 years the company had been involved in a legal dispute over a piece of land on Jalan Jend Sudirman in South Jakarta with PT Graha Metropolitan Nuansa, owned by businesswoman Artalyta Suryani, who is currently serving a jail sentence for bribery in an unrelated case.
Herry's company filed an appeal with the Supreme Court and won, but Farhat claimed Graha Metropolitan somehow managed to file a separate review to strike down the decision, with the court ruling in its favor. When Harang Ganjang again sought redress, the appeal was rejected.
Farhat earlier said his client was requesting a review of Article 24 of the 2009 Law on Judicial Authority; Article 66 of the 1985 Law on the Supreme Court; and Article 268 of the Criminal Code Procedures. Farhat said the Supreme Court had several times accepted more than one appeal.
"The law is not consistently implemented because there are previous cases in which appeals have been filed more than once, even four times. Besides, limiting a review to once is unfair," the lawyer said.
Two years ago, three militants on death row for the 2002 Bali bombings lodged appeals at least three times after the AGO announced plans to execute them. The move delayed their executions for several months until the three militants – Imam Samudra, Amrozi and Ali Ghufron – were presented to the firing squad in November 2008 after the Supreme Court had rejected their last request.
Time frame
The next loophole is the absence of a regulation on any specific time frame within which a convict may request a review. Death row inmates often use the loophole to delay their execution by consistently delaying the registration of their appeal. Prosecutors cannot order an immediate execution until they are sure the inmates have exhausted all legal avenues, including appealing to the top court or requesting presidential clemency.
Gunawan Santosa, for instance, has been sentenced to death for murdering his father-in-law and an officer. When the AGO announced preparations for his execution last year, he immediately stated he was seeking an appeal, but has still not registered the necessary documentation. "Why be in a hurry? There's no law that limits our time," said his lawyer, Alamsjah Hanafiah.
The AGO has asked the Supreme Court to issue a ruling that specifies time limits for a convict to register an appeal. The court returned the request back to prosecutors for a decision – with a suggestion of 180 days for the inmate to register or he or she would lose the right for a review. No decision has been made to date.
Injured party
The third and most contentious debate concerns the injured party, and whether they are eligible to request an appeal. Legal experts have argued that since the philosophy of the appeal is the presumption that a citizen has been wrongly sentenced for a crime he or she did not commit, the right must be given exclusively to convicts or their families, but not prosecutors, who represent the state.
But prosecutors last year successfully lodged an appeal against the acquittal of former Bank Indonesia Governor Sjahril Sabirin and businessman Joko Tjandra over a scandal involving Bank Bali. As a result, both were convicted and sentenced to two years in jail.
"The unresolved debate over judicial review procedures offers no consistency in our justice system and further makes our law unpredictable," legal expert Eddy Hiariej said. "A convict today may wake up in the morning as a free man, but an acquitted defendant may someday end up in jail. We never know the end of a trial, not even after the Supreme Court delivers the final verdict."