Pra Peradilan – Habeas Corpus

1. Pra Peradilan – Habeas Corpus The Pra Peradilan in criminal procedure can be understood from the article 1, point 10 Book of Law - Criminal Procedure Code (Criminal Code) which states that the Pre Justice is authorized to hear and rule on the court and decide:    whether it is legal or not an arrest or detention and, at the request of the suspect or his family or a request with an interest for the sake of law and justice; Whether it is Legal or not termination of the investigation or prosecution at the request of the termination of berkepntingan for the sake of law and justice, and; Demand compensation or rehabilitation by the suspect or his family or other parties or their proxies are not presented his case to court.

2. In general, the Pra Peradilan limitattif provided for in article 77 to article 88 of the Criminal Procedure Code. Apart from that, there is another article that is still associated with the pre-trial but set in a separate article is about the demands for compensation and rehabilitation as the set in articles 95 and 97 Criminal Procedure Code.

3. Specifically pre-judicial authority in accordance with article 77 to article 88 of the Criminal Procedure Code is to check whether legitimate or forceful measures (arrest and detention) and examine whether or not the termination of legal termination of the investigation or prosecution, but the associated chapters 95 and 97 pre-trial Criminal Procedure Code of authority coupled with the authority to examine and decide on compensation and rehabitilasi. Compensation benefits in this case is not just simply - the eye of the error due to forceful measures, investigation and prosecution, but can also replace the loss of revenue due to home, search and seizure that is lawful in accordance with the explanation of Article 95 paragraph (1) Criminal Procedure Code. In a decision of Minister of Justice of Republic of. M.01.PW.07.03 1982, pre-trial mentioned above can also be done wrong foreclosure action that does not include the evidence, or someone who dikenankan other action without a reason based on law - by mistake of law or of applicable laws.

4. Compensation shall be set forth in Chapter XII, Section One Criminal Procedure Code. It should be noted in section 1, point 22 states "Compensation is the right one to get the fulfillment of their demands in the form of exchange for a sum of money due to arrested, detained, or prosecuted without any reason based on law - law or by mistake or legal person that applied in the manner set law - this law. Moving on from the article above, can be captured clearly that compensation is a fulfillment tool to compensate the loss of enjoyment of freedom due to the efforts which were unlawful force. It seems very appropriate if the state is liable to pay compensation, because the act of forcible attempts by law enforcement agencies that are part of the country.

5. In Chapter X Part One from Article 79 to Article 83 Criminal Code regulated parties - the parties may submit pre-trial are:    The suspect, her family through the attorney who filed a lawsuit against the police or the prosecutor's pretrial hearing in court on the basis of whether or not lawful arrest, detention, seizure and search;    Public prosecutor or the third party concerned on the basis of whether or not the cessation of lam legitimate investigation;    Investigator or the third party concerned on the basis of whether or not the cessation of legal prosecution;    The suspect or third party claim damages bekepentingan of validity termination of the investigation or prosecution (Article 81 Criminal Code);    The suspect, or his heirs on claims for compensation by reason of the arrest or detention is not lawful, a search or seizure without valid reason or by mistake or legal person who applied, that his case is not brought to court (Article 95 paragraph (2) Criminal Procedure Code ).

6. Pretrial filings in the district court did, by making application to the Chief District Court for the future in a special register in the register of pre-trial. Of the request, in accordance with article 78 paragraph (2), Chairman of the District Court will appoint a single judge to hear pretrial matters, assisted by a clerk. For the determination date for a hearing in accordance with article 82 paragraph (1) letter c requires to immediately convene three days after the record in the register within 7 days and the case has to be in the end, while for the calling of the parties in conjunction with the determination date for a hearing by a judge yan appointed. The procedure and the form of pre-trial decision in not set in the special provisions in the Criminal Procedure Code. In accordance with a quick and simple nature of the proceeding, the judge should be meyesuaikan in conducting the trial and verdict. M. Yahya Harahap confirms starts from article 82 paragraph (1) letter c that governs the filing and examination procedures for pre-trial, judges are required to unambiguously determine the stage of pre-trial hearings and make decisions as simple as possible, or can join the Transcript of Proceedings provided that the decision includes consideration laws are complete, clear and adequate. Noting Article 82 paragraph (1) letter d, which reads "In the event a case has begun to review the District Court, while the pre-trial investigation is not finished, then the request fall" the pre-trial forever barred if:

7. Pra Peradilan ruling basically can not be appealed. unless the decision it unlawful termination of the investigation or prosecution. Article 83 paragraph (1) reads "The decision of the pre-trial referred to in Article 79, Article 80 and Article 81 can not ask for an appeal", while Article 83 paragraph (2) reads:

8. Habeas Corpus Lat. "you have the body" Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

9. The "fruit of the poisonous tree" doctrine is an offspring of the exclusionary rule. The exclusionary rule mandates that evidence obtained from an illegal arrest, unreasonable search, or coercive interrogation must be excluded from trial. Under the fruit of the poisonous tree doctrine, evidence is also excluded from trial if it was gained through evidence uncovered in an illegal arrest, unreasonable search, or coercive interrogation. Like the exclusionary rule, the fruit of the poisonous tree doctrine was established primarily to deter law enforcement from violating rights against unreasonable searches and seizures. The name fruit of the poisonous tree is thus a metaphor: the poisonous tree is evidence seized in an illegal arrest, search, or interrogation by law enforcement. The fruit of this poisonous tree is evidence later discovered because of knowledge gained from the first illegal search, arrest, or interrogation. The poisonous tree and the fruit are both excluded from a criminal trial.

10. Assume that a police officer searches the automobile of a person stopped for a minor traffic violation. This violation is the only reason the officer conducts the search; nothing indicates that the driver is impaired by drugs or alcohol, and no other circumstances would lead a reasonable officer to believe that the car contains evidence of a crime. This is an unreasonable search under the 4 th Amendement to the U.S. Constitution. Assume further that the officer finds a small amount of marijuana in the vehicle. The driver is subsequently charged with possession of a controlled substance and chooses to go to trial. The marijuana evidence culled from this search is excluded from trial under the exclusionary rule, and the criminal charges are dropped for lack of evidence.

11. Case : Please Discuss and ANAlyse Akhmad was a leader of a big political party in Eastern Indonesia. One night when he was in the important meeting he got text message that he was threathened by someone. After the meeting he went home. At that moment, he realize that he was followed by another car. Remebering the threat he got, akhmad then pulled over the car to the police station. He made a report about the threat.and when he finished the report. He came close to his car which parked in parking lot in front of the police station the police arrested him in order there was narcotics in the car. Akhmad then filled a praperadilan based on the wrong search and seizure.