Fair Trial Principles in the Basis of Judges Considering Decisions Based on Testimonium De Auditu

Abstract

After the enactment of the Constitutional Court Decision Number 65 / PUU-VIII / 2010, the history in the process of proving a criminal incident in Indonesia began to experience development. However, this creates a new problem because the decision of the constitutional court regarding the generalization of witness is contrary to legal norms in Law Number 8 of 1981 concerning the Criminal Procedure Code, especially in article 185 paragraph 1 and its exegesis. The decision of the constitutional court itself provides an opportunity for the testimonium de auditu to be used as evidence but does not provide a detailed explanation of the classification of the de auditu witness evidence including its type of evidence as evidence for witness testimony or indicative evidence following Article 184 of the Indonesia Criminal Procedure Code, exceptions regarding the acceptance of de auditu witnesses are used as evidence and the validity of testimony heard from other people (testimonium de auditu) is used as evidence. This also affects the quality of the judge's consideration when the de auditu witness must be used by the judge as a basis for his consideration, especially in the aspect of justice (fair trial). This study uses a normative juridical method that uses two primary and secondary data sources. The results showed that the importance of detailed arrangements in the Criminal Procedure Code regarding exceptions using the testimony de auditu with certain conditions to ensure justice, certainty, expediency to create a fair trial.