To expand the definition, A.L Melai, as quoted by A.Z Abidin, said that the work of the Public Prosecutor in eliminating prosecution based on the principle of opportuneness is 'rechvinding' (legal discovery) which must be carefully considered because the law demands justice and equality before the law.
Viewed based on the principle of functional differentiation of the criminal justice sub-system, the authority of prosecution becomes the absolute power of the public prosecutor or Prosecutor. Implicitly, the power to prosecute someone becomes the monopoly of the public prosecutor. This means that other people or bodies are not authorized to do so.
Another term states that “dominus litis” is in the hands of the Prosecutor. As stated by R.M Surachman, referring to the tradition and doctrine of prosecution, the principle of 'dominus litis' or controller of the case process is known, in several countries such as Japan, the Netherlands and France, the authority of prosecution is the monopoly of the Prosecutor. This means that in the criminal process, the Prosecutor has the authority to decide whether a case can be prosecuted to court or not.
In connection with that 'single' authority, the Public Prosecutor or Prosecutor has the right not to prosecute someone even though that person has committed a criminal act, considering that if the prosecution is carried out it will harm the public interest.
Prof. Dr. Indriyanto Seno Adji provides a limitation that in its application the principle of opportuneness must be seen in conditions where the Indonesian government has ratified the United Nations Convention Against Corruption in 2003 with Law Number 7 of 2006, which has provided several types/forms of legal protection in relation to criminal acts of corruption consisting of: Protection of witnesses, Expert and Victim (Article 32); Protection of Reporting Person (Article 33); Protection of Cooperating Persons (Article 37).
Considerations for Termination of Prosecution
Matters regarding the termination of prosecution have been regulated limitatively in the Criminal Procedure Code. In Criminal Procedure Law, there are several reasons and considerations for terminating prosecution as mentioned in Article 140 Paragraph (2) letter a of the Criminal Procedure Code, including: because there is not enough evidence, the event is not a criminal act and the case is closed in the interests of the law. Related to the third reason, it is regulated in the Criminal Code regarding the elimination of the authority to prosecute and carry out criminal acts Articles 76, 77 and Article 78 because of Nebis in idem, the accused died and expired. Likewise, several reasons can be used not to prosecute as determined in Article 46 Paragraph (1) letter b of the Criminal Procedure Code.
So it is very clear that based on the applicable legal basis that the authority to carry out 'seponering' is limitatively only in the hands of the Attorney General. As accountability for this right of opportunity, the Attorney General is accountable to the President based on Presidential Regulation Number 38 of 2010 concerning the Organization and Work Procedures of the Attorney General's Office of the Republic of Indonesia. This means that not all Prosecutors can use these tools, except for other provisions in carrying out efforts to terminate prosecution or based on a restorative justice mechanism as regulated in Attorney General Regulation of the Republic of Indonesia Number 15 of 2020 concerning Termination of Prosecution based on Restorative Justice.
If viewed from its impact, the 'seponering' tool is an extraordinary power. Therefore, it should be used objectively, proportionally and responsibly. Although there are still many differences of opinion who assume that using the principle of opportuneness has the potential to be discriminatory and override the principle of equality before the law.
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