DEMURRER

Aristo Pangaribuan

DEFINITION
M. Yahya Harahap: rebuttal or a defense which is not aimed
towards the subject matter of the case against the indictment
made by the Public Prosecutor, but the demurrer is any objection
or defense directed against any formality or formal defects in the
Public Prosecutors indictment
Andi Hamzah: rebuttal, objection disclaimer, or refutation of the
defendant and / or legal advisors that do not discuss the contents
of the indictment, but solely intended that the judge did not
accept cases that have been filed by the Public Prosecutor

DEFINITION
Luhut M.P. Pangaribuan: a defense to answer the
indictment related to three things:
The court has no authority to hear a case
The charges unacceptable
The indictment had to be canceled

Article 156 paragraph (1) Criminal

Procedure Code / KUHAP
When the accused or legal counsel raises an objection
that the court is not competent to adjudicate his case or
that the indictment cannot be accepted or that the bill of
indictment must be revoked, the judge, after giving the
public prosecutor an opportunity to state his opinion, shall
consider the objection and then make his decision.

Article 156 paragraph (2) Criminal

Procedure Code / KUHAP
If the judge declares the objection sustained, the case
shall not be examined further; whereas where rejected or
where the judge believes that the matter may only be
decided upon completion of the examination, the trial shall
be continued.

Types of Demurrer
Exception on Competence
Absolute Competence
Relative competence
Indictment is unacceptable
Litis Pedentis
Violations in the examination procedure
Error in Persona
Premature indictment
Cancelled / Null and Void

Absolute Competence
Related to the inadequacy of a judicial body to examine, hear and
decide cases filed by the public prosecutor since the type of case
is not a type of matter that is under the authority of the judicial
authorities to examine, hear and decide based on the the laws.

For example, a defendant and / or legal counsel filed an exception

stating that the examination of the case should be submitted to
the State Administrative Court and not to the District Court.

Relative Competence
The defendant and / or legal counsel argued a district court has
no authority to examine, hear and decide cases filed by the
Public Prosecutor to the District Court in question because the
case does not belong to the jurisdiction or its law authority.

For example, a defendant and / or legal counsel filed an

exception stating that the authority to examine the case in
question is the South Jakarta District Court and not the Central
Jakarta District Court.

Notes
Even if the defendant and / or legal counsel did not filed an
exception the competence or authority to examine, the judge
has the ex officio authority to declare that the court concerned
is not competent to hear the case filed by the Public
Prosecutor
Decision for Exception on Competence : Interlocutory
Judgment
Legal Remedies that can be done to interlocutory judgment :
Counter Plea

Indictment is unacceptable
If the indictment filed contains "formal defects" or
"procedural error"

Demurrer Litis Pedentis

Filed if the case is being examined by a district court, at
the same time, is also being examined by another district
court. For that, the defendant and / or his legal counsel
may ask the judge to declare the charges the prosecutor is
not acceptable.

Violations in Examination Procedure

Example:
Error procedure that violates the provisions of Article 56
paragraph (1) Criminal Procedure Code where the absence of the
appointment of legal counsel

The absence of a complaint from the victim / aggrieved party upon

the occurrence of a criminal offense if the offense is suspected /
indicted a complaint-based offense as defined in Article 72 to
Article 75 of the Criminal Code.

Error in Persona
The defendant and / or legal counsel have filed an
exception if the public prosecutor in the indictment should
make others as the indicted because those indicted by the
public prosecutor in the indictment are not the actual
criminal.

Premature Indictment
The case in question should be resolved first in the other
dispute resolution institutions before being presented to
criminal court.

Public Prosecutor did not have enough evidences to

incriminate the accused.

Notes
Decision for Unacceptable Indictment : Final Decision
Legal Remedies that can be done: Appeal to High Court and
Cassation

Verdict against this demurrer is not final, which means when

the decision has been legally binding, the case can be resubmitted with notes, the things that are considered wrong has
been removed or refined in advance by the public prosecutor.

Cancelled / Null and Void

Filed, because the indictment did not meet the
requirements as defined by the Criminal Procedure Code.
The requirements are divided into:
Formal Requirements
Material Requirements

Formal Requirements
Article 143 paragraph (2) Criminal Procedure Code :
Date and signature of the public prosecutor who indicted
Identity of the defendant (full name, place of birth, age / date of
birth, gender, nationality, place of residence, religion and
occupation)

NON-FULFILLMENT OF FORMAL TERMS = CANCELLED

/ NOT ACCEPTABLE

Material Requirements
Article 143 paragraph (2) Criminal Procedure Code :
Contain the analysis thoroughly, clearly, and completely
of the crime indicted by mentioning the time and place of
such criminal acts done

NON-FULFILLMENT OF MATERIAL TERMS = NULL AND

VOID.

Attorney General Circular Letter

No. SE-004/J.A/11/11/1993
THOROUGH ANALYSIS = DEMANDING THE ACCURACY OF THE PROSECUTOR
PREPARING FOR THE INDICTMENT FOR DEFENDANTS.

CLEAR ANALYSIS = CLEAR FACTS OF EVENTS IN THE INDICTMENT, SO THAT THE

INDICTED CAN EASILY UNDERSTAND AND CAN PREPARE THE DEFENCE WELL.

COMPLETE ANALYSIS = CONTAIN ALL ELEMENTS OF INDICTED CRIMES, ALL OF

THE ELEMENTS SHALL BE REFLECTED IN THE FACTS OF EVENTS WHICH IS
STATED IN INDICTMENT

Components
(ADJUSTED WITH THE TYPE OF CRIME INDICTED)

THE CRIME DONE

WHO DONE THE CRIME
WHERE THE CRIME DONE
WHEN THE CRIME DONE
HOW THE CRIME DONE
WHAT DAMAGES THE CRIME DONE
WHAT ENCOURAGED THE CRIME DONE
THE CRIMINAL LAW WHICH IMPLEMENTED

Notes
Decision for Unacceptable Indictment : Final Decision
Legal Remedies that can be done: Appeal to High Court and
Cassation

Verdict against this demurrer is not final, which means when

the decision has been legally binding, the case can be resubmitted with notes, the things that are considered wrong has
been removed or refined in advance by the public prosecutor.

Other Demurrer
Demurrer Nebis in Idem: The authority of prosecutors to prosecute
will be removed or void if the crime, which is charged to the
defendant, has been indicted, tried and sentenced before, and the
decision has been legally binding (the decision which the legal
considerations had entered the principal case and acquitted, freed or
sentenced). Stipulated in Article 76 of the Criminal Code

Demurrer expired prosecution period: The prosecution conducted by

the Public Prosecutor has exceeded the time limit prescribed by the
law. Provided for in Article 78 to 80 Criminal Code.

Demurrer Letter Form

Sistematics Inquiry for Demurrer Letter Form:

(i) Introduction
(ii) Types of Demurrer
(iii) Conlusion
(iv) Prayer for Relief

Introduction
Explaining about the background of Demurrer for the
case. Typically, the philosophy of why this demurrer as a
formality beforehand must be received before prosecuting
the material

Types of Demurrer
Explaining the types of demurrer based on the indictment
that the public prosecutor prepared for the defendant.

Conclusion
The Conclusion of Demurrer that were explained in (ii)

Prayer for relief

What the defendant request to the judge
Example:
1. Grant the Defendants Demurrer
2. Declare that the (*) District Court has no absolute competence to
adjudicate the case
3. Declare the indictment is unacceptable
4. Declare the indictment is null and void
5. Charge the cases expense to the state

Counter Plea
The public prosecutors response to the demurrer the
defendant filed against the indictment.