Studi Kasus terhadap Putusan Hakim yang Menjatuhkan Pemidanaan yang Tidak Didakwakan dalam Surat Dakwaan dihubungkan dengan Putusan MA No.810/K/Pid.Sus/2012

Abstract

In a trial until judicial decisions should be based on indictment, but in practice the judicial cutting off the defendant without any in an indictment as in a verdict number: 1609/pid.b/2011 pn.sby, the judge in said the indictment alternative one or both not proved based on shema no.4 / 2010 .The judge in break the defendant with article 127 paragraph ( 1 ) the act of no.35/2009 on narcotics not present in indictment based on jurisprudence and the judge in not to the interpretation the act of systematic. The purpose of this research be held to find out whether the defendant can be described as meet article charged by of public prosecutors and to see if due to law when the judge in cutting off the defendant not present in indictment. A method of approach that is used is juridical normative and specification research used is descriptive analytical describing and analyzes pertaining to district court decision surabaya no.1609/pid . b/2011 pn.sby, the high court surabaya no.774/pid/2011/ pt.sby. And decisions of the supreme court of the republic of indonesia no.810 k/pid.sus/2012. From the research can be seen that the defendant idris deeds lukman not proved meet elements article 112 paragraph 1, 114 paragraph 1 of the act of no. 35 / 2009 on narcotics. A deed idris lukman considered by the tribunal district court judge surabaya proven meet elements article 127 paragraph 1 of the act of no. 35 / 2009 on narcotics, because idris lukman proven wear and storing shabu under the bed the defendant with heavy 0.2 grams. But article 127 paragraph 1 of the act of no. 35 / 2009 on narcotics was not based on article that there are in an indictment. The act of law enforcement officials has been contrary to the principle of balance that was found in konsideran KUHAP the letter C and the defendant is entitled demanded compensation of its and rehabilitation based on the principle of compensation and rehabilitation works in article 9 paragraph 1 of the act of no.48 / 2009 on the judicial authority and effect law decisions of the supreme court of the republic of indonesia No.810 k/pid . sus/ 2012 who threw the award to the defendant idris lukman with article not present in indictment , the decisions of the supreme court can be undone. The judge in the district court surabaya in a verdict no.1609/pid . b/2011 pn.sby, the high court surabaya in of appellate decisions no.774/pid/2011/ pt.sby and the supreme court of the republic of indonesia in a verdict kasasi no.810 k/pid.sus/2012 considered to have been beyond authority with break the defendant guilty and condemnation baseless article that is in an indictment of public prosecutors. On the basis of the principle of balance in konsideran KUHAP letter C , the principle of equality before the law, the doctrine and the act, the defendant should be concluded free in accordance with article 191 paragraph ( 1 ) Kuhap. The an oversight the judge in a clear can be used as an excuse the defendant to put forth effort judicial review .