Eksistensi peradilan in absentia dalam sistem hukum acara pidana di Indonesia dan relevansinya dengan hak terdakwa untuk melakukan pembelaan

Oleh :
Rina Mahnida - - Fak. Hukum

ABSTRACT In Absentia judicature potentially results in the arbitrariness and human rights’ breach. The rights of the accused disappear. A dilemma emerges here in choosing the In Absentia that removes the rights of the accused or protecting them. This research aims to study and answer the problem about the existence of In Absentia judicature in Indonesia’s criminal law sistem and how the implementation of the right of the accused is in doing defense in the In Absentia judicature. The study is a normative law research or the literary study that is descriptive in nature. This research includes secondary data and the primary as well as tertiary law materials. Technique of collecting data employed by the writer was literary study and the similar information of previous documentary study result. The technique of analyzing data employed by the writer was a qualitative analysis model with and interactive model of analysis that was conducted using both the interaction between the components and the data collection process cyclically. The result of research shows that the In Absentia judicature regulation in KUHAP does not regulate anything but the traffic violation. The provision about the examination and decision in the absence of the accused regulated in Article 196 clause (1), 214 clauses (1) and (2) of KUHAP prevail only in the examination of traffic violation case. The validity of In Absentia judicature of criminal case in addition to the traffic violation case is enabled by the provision of Article 284 clause (2) KUHAP. The specific regulation on In Absentia judicature according to Special Criminal Action Act: Act No. 20 of 2001 Article 38 clause (1), Act No.1 of 2002 about the Terrorism Article 35 clause (1) and Act No.25 of 2003 Article 33 clause (4) a. The relevance of In Absentia judicature in the examination process of criminal case with the right of the accused to do defense is that in the examination of criminal case, the accused cannot do the defense by presenting the witnesses and lawyer’s defense because of the accused’ absence in each examination process, although the right of his/her is regulated and secured by the KUHAP.