Understanding Seponering

Most of us are still often confused in using the terms deponering and seponering. However, in some legal literature, most experts use the term seponering rather than deponering.

From a linguistic point of view, seponering or seponeren means terzijde leggen (setting aside), niet vervolgen (not prosecuting). This terminology is only known in criminal law as regulated in Het Nederlands Strafprocesrecht. The synonym for seponeren is sepot. Termination of prosecution because it is considered unnecessary is called beleidsspot (policy termination), while termination due to insufficient evidence is called technischspot.

Seponering is a form of implementation of the principle of expediency inherent in the Prosecutor based on Article 35 letter c Law Number 11 of 2021 concerning Amendments to Law Number 16 of 2004 concerning the Attorney General's Office of the Republic of Indonesia which reads: “The Attorney General may set aside a case in the public interest.”

It is also emphasized in the explanation of the article that what is meant by 'public interest' is the interest of the nation and state and/or the interests of the community. Setting aside as referred to in this provision is the implementation of the principle of expediency which can only be carried out by the Attorney General after considering suggestions and opinions from state power bodies that have a relationship with the matter.

The principle of expediency itself or opportuniteitsbeginsel is the authority of the Attorney General to set aside a case in the public interest. In short, the rule of the principle of expediency means setting aside a case in the public interest. Based on this principle of expediency, the Prosecutor is given the authority to prosecute and not prosecute a case to court, either with or without conditions. The public prosecutor may decide conditionally to make procesution to court or not.

To expand on this definition, A.L Melai, as quoted by A.Z Abidin, says that the work of the Public Prosecutor in eliminating prosecution based on the principle of expediency 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 to prosecute 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.