Pre-Trial Authority in Examining Evidence: A Case Study of Setya Novanto

One of the social phenomena in Indonesia is the increasing prevalence of corruption. In the process of eradicating corruption, more and more major cases have been successfully uncovered by the Corruption Eradication Commission (KPK), one of which is the electronic ID card mega-project case that implicated the name of the chairman of the Indonesian House of Representatives, Setya Novanto, as a suspect, and several members of the Indonesian House of Representatives and other government agencies were also involved. However, in the legal process, there are still various problems, especially in terms of how to obtain evidence.

Evidence is an important aspect in the process of uncovering corruption. The examination in court will reveal facts that determine whether a person accused of corruption is proven guilty or not. The truth sought is the material truth that emerges from the evidence. Tackling corruption is considered difficult because of the complicated problem of evidence. The difficulty of proving corruption cases is a challenge for law enforcement officials, because the perpetrators of corruption commit their crimes neatly.

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Brief Chronology

On July 17, 2017, the KPK named Setya Novanto as a the suspect corruption case in the electronic ID card (e-KTP) procurement project. The project procurement took place in the period 2011-2012, when Setya Novanto served as Chairman of the Golkar Party Faction in the DPR. The e-KTP corruption, which was carried out jointly with other officials, resulted in state losses of IDR 2.3 trillion from the project value of IDR 5.9 trillion.

After being a suspect for more than a month, on September 4, 2017, Setya Novanto officially registered a lawsuit pre-trial hearings against the KPK at the South Jakarta District Court with number 97/Pid.Prap/2017/PN Jak.Sel. Setya Novanto requested that the determination of his status as a suspect by the KPK be canceled. On September 11, 2017, the KPK summoned Setya Novanto for questioning as a suspect, but Setya Novanto was not present due to illness. Then Setya Novanto sent a letter to the KPK requesting that the KPK postpone the investigation process against him until the pre-trial decision was issued. On the other hand, the KPK considers the pre-trial process to be separate from the investigation process, so the KPK will still schedule an examination of Setya Novanto as a suspect.

On September 18, 2017, the KPK (Corruption Eradication Commission) summoned Setya Novanto again for questioning as a suspect. However, Setya Novanto was absent again due to illness. On September 29, 2017, Judge Cepi Iskandar granted part of Setya Novanto's pre-trial motion a quo and rejected the exception filed by the KPK on the grounds that the determination of Setya Novanto as a suspect was invalid because it was carried out at the beginning of the investigation, not at the end of the investigation. The judge also questioned the evidence used by the KPK to ensnare Setya Novanto because the evidence had been used in the investigation of Irman and Sugiharto, two officials of the Ministry of Home Affairs who had been convicted in court. 

Considerations of the Pre-Trial Judge

In one of the considerations of Pre-Trial Judge Cepi Iskandar, namely regarding several pieces of evidence obtained by the KPK that could not be used as valid evidence because they were considered not in accordance with applicable law, especially the law regarding corruption. In this case, the KPK was considered to have obtained evidence in a manner not based on applicable legal procedures, so that every action in obtaining evidence in the Setya Novanto corruption case was carried out in an unlawful manner and there were no two valid pieces of evidence that became the basis for determining Setya Novanto as a suspect.

Another Judge's consideration is that the same evidence and items of evidence in different criminal cases cannot be reused. The evidence in question is “Evidence of other people's cases in casu is Case Number 41/PID.SUS/TPK/2017/PN.JKT.PST”. The evidence and items of evidence refer to 200 (two hundred) items of evidence written as initial evidence or sufficient evidence in determining a person's suspect status. 

Pre-Trial Authority in Examining Evidence 

The pre-trial judge is guided by the provisions of Article 1 point 2, Criminal Procedure Code, so that the process of determining a suspect, besides the existence of 2 (two) valid pieces of evidence, there must also be a prospective suspect in the final process of the investigation. This is very contradictory to the evidence in the principal trial because the validity of the evidence and how to obtain evidence are basically never tested in the investigation process, considering that this is the full authority of the investigator or investigating officer. 

Meanwhile, the rights of the suspect in fighting for their rights are facilitated in the evidence in the principal trial. The pre-trial judge should only consider evidence that is relevant to the subject matter of the case and the evidence in terms of whether Setya Novanto can prove his pre-trial application with the evidence submitted.

The authority of pre-trial examination in the Setya Novanto case this must remain in the understanding of an examining judge whose examination is limited to formal administration and does not enter a wider scope, namely an investigating judge, who examines whether or not the evidence used as the basis for the suspicion of a criminal element is valid. In other words, this can only be done in the examination section of the court judge who examines the principal case.

The Judge's consideration regarding evidence and exhibits that are the same as in other criminal cases cannot be reused is based on the judge's belief. However, in reality, the Judge's interpretation in the a quo case raises various opinions from experts. criminal law because it is considered inappropriate considering that in reality, the use of the same evidence is widely used in resolving criminal cases. Especially in the case of Setya Novanto's corruption itself, it is a unified e-KTP corruption case that ensnares many perpetrators and is still interconnected, so the evidence used will directly have a connection with each other.

It is necessary to form a regulation governing the use of the same evidence from other cases in a criminal case, because in reality there are many cases of using the same evidence in several criminal cases, but there is no specific regulation governing this matter. This results in Judges having to make their own interpretations, which instead raises concerns about multiple interpretations, resulting in a lack of legal certainty for the public. 

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