Difference Attitudes regarding Crown Witnesses within the Criminal Evidential System
Within the practice of crown witnesses in occasions of legal participation (deelneming), in which the first defendant made a witness against the other defendant in cases where evidence is lacking or non-existent.
There is already a formula for the evidential system within Law No. 8 of 1981 pertaining to Criminal Procedural Code (‘Kitab Undang-Undang Hukum Acara Pidana ‘‘KUHAP’). This evidential system formula is made in support of a purpose of Criminal Procedural Law, namely, to search and obtain material truth. In implementations of this evidential system formula is at its core guided by principles such as Presumption of Innocence, Equality before the Law, as well as Inspection of the Accuser.
In the book Hukum Acara Pidana dalam Praktik (1998), Darwan Prinst asserted that the accused or the defendant, as subject of examination, has the freedom to defend themselves against accusations or charges against them. Next, in the book Pembahasan Permasalahan dan Penerapan KUHAP: Penyidikan dan Penuntutan (2003), Yahya Harahap described a defendant as a subject of examination is not responsible for Burden of Proof.
Hari Sasangka and Lily Rosita in Hukum Pembuktian dalam Perkara Pidana untuk Mahasiswa dan Praktisi (2003), enumerated four kinds of evidential systems that are recognized by theory. First, conviction in time, in which the system is based on the judge’s singular belief (an sich) in giving a verdict on whether or not the defendant has been proven guilty.
Second, conviction in raisonne, is an evidential system guided by the judge’s belief on giving a verdict on the defendant’s guilt being based on logical rationale. This is what differentiates conviction in raisonne from the previously mentioned system.
Third is the system positief weteljik stelsel (positive evidential system), based on evidence, as determined by the law, in deciding on a verdict pertaining the defendant’s guilt. Opposite of this system is the negatief weteljik stelsel system, which doesn’t rely on evidence alone, as it also relies on the judge’s belief in the verdict.
In a paper titled ‘Eksistensi Saksi Mahkota sebagai Alat Bukti dalam Perkara Pidana’ (2007), Setiyono assessed that the Criminal Procedural Code adheres to the negatief wetelejik stelsel (negative evidential system) in accordance with Article 183 of the Criminal Procedural Code which contains the principle of minimal evidence as well as the judge’s belief. The principle of minimal evidence means that to prove guilt, there must be at least two pieces of evidence. The absence of any legitimate evidence results in the release of the defendant.
Crown Witness is not recognized within the Criminal Procedural Code/KUHAP
In practice, the implementation of crown witnesses (kroongetuide) is often seen within the criminal evidential process. In Criminal Procedural Code however, ‘crown witness’ as a term is not recognized. Though, as mentioned, crown witnesses can be found in practice of proving criminal cases in the form of legal participation and said criminal case has a separation (spiltsing) done since the examination process at the investigation level. Generally, crown witnesses are used in criminal cases due to the lack of evidence submitted by the public prosecutor.
Article 184 of the Criminal Procedural Code lists five types of evidence: witness statement, expert witness statement, letter, clue, and defendant statement. Setiyono (2007) explained that in gradation, the existence of witness statement is a very important piece of evidence. Meanwhile, evidence in the form of the defendant statement is a recent concept of evidence, which had replaced the concept of conservative evidence in the form of confession of the defendant as regulated in Article 295 of Het Herziene Inlandsch Reglement (HIR). Defendant statement as evidence is also the consequence of the adoption of the Inspection of the Accuser principle.
Witness as defined in Article 184 is the same as Witness as regulated in Article 1 No. 26 of the Criminal Procedure Code, namely, “A witness is a person who can provide information for the purposes of investigation, prosecution and court process regarding a criminal case of which he is involved, of which he saw for himself, and of which he experienced himself”. (‘Saksi adalah orang yang dapat memberikan keterangan guna kepentingan penyidikan, penuntutan, dan peradilan tentang suatu perkara pidana yang ia dengan sendiri, ia lihat sendiri, dan ia alami sendiri.’)
Constitutional Court Decision No. 65/PUU-VII/2010 then further expands the definition of Witness to “a person who can provide descriptions in regards of investigation, prosecution, and court process of a criminal case which he does not necessarily always heard himself, saw for himself, and experienced for himself”. (‘orang yang dapat memberikan keterangan dalam rangka penyidikan, penuntutan, dan peradilan suatu tindak pidana yang tidak selalu ia dengar sendiri, ia lihat sendiri, dan ia alami sendiri.’)
The Legal Basis of Crown Witness
Meanwhile, crown witness that is not defined within Article 184 of the Criminal Procedure Code, by the judiciary as the applicant for cassation in the Supreme Court Decision No. 2437 K/Pid.Sus/2011, is defined as “a witness who was one of the suspects or other defendant(s) who together had committed a criminal act, in which case the witness is given a crown. The crown, given to the witness with the status of a defendant, is in the form of waiving the prosecution of his case or giving a very light charge if the case is transferred to court or is forgiven for mistakes that have been made.” (‘saksi yang berasal atau diambil dari salah seorang tersangka atau terdakwa lainnya yang bersama-sama melakukan perbuatan pidana, dan dalam hal mana kepada saksi tersebut diberikan mahkota. Adapun mahkota yang diberikan kepada saksi yang berstatus terdakwa tersebut adalah dalam bentuk ditiadakan penuntutan terhadap perkaranya atau diberikannya suatu tuntutan yang sangat ringan apabila perkaranya dilimpahkan ke pengadilan atau dimaafkan atas kesalahan yang pernah dilakukan’)
The late Prof. Dr. Loebby Loqman, Criminal Law Professor at the University of Indonesia, explained that what is meant by a crown witness is the testimony of a fellow defendant, which usually occurs during events of legal participation. Meanwhile in the Attorney General’s Office Circular Letter No. B-69/E/02/1997 concerning the Law of Evidence in Criminal Cases, it is stated that in the Criminal Procedure Code there is no term for crown witness, though before the Criminal Procedural Code went into effect, crown witness as a concept was already known and commonly presented as evidence, although within Investigation Reports, said term was never specified.
In practice, crown witnesses are used in events of legal participation (deelneming), in which one defendant is used as witness against other defendant(s) when other evidence pieces are either non-existent or very minimal. In consideration of his status as a defendant, his statement only be relevant to himself in accordance with the stipulations of Article 189 (3) of the Criminal Code, therefore based on Article 142 of the Criminal Code, the case file must be split (splitsing) so the defendants can be tried separately, and one defendant can be a witness against other defendant(s).
In the Attorney General’s Circular Letter No. B-69/E/02/1997, it is stated that the jurisprudence that has been adhered to so far recognizes crown witnesses as evidence. For example, Supreme Court Decision No. 1986 K/Pid/1986 dated March 2nd, 1990, states that the Public Prosecutor is permitted by law to present acquaintances of the defendant who participated in the criminal act as witness at the District Court trial with the condition that this witness, in his position as a defendant, is not included in the case file given by the testimony.
The Attorney General’s Office cannot turn a blind eye to the crown witness’ having been rejected by judges in court for mentioning court proceedings of the murder of workers’ activist Marsinah, the only court decision that rejects crown witnesses as evidence is the Supreme Court Decision in the Marsinah murder case, which states “crown witnesses are contrary to the law as stated in Supreme Court Decision No. 1174K/pid/1994, 287K/Pid/1994, 1592K/pid/1994 and 1706K/pid/1994”.
As a result, this Attorney General’s Circular Letter states that to anticipate judges using said Supreme Court Decision regarding the murder of Marsinah as legal basis of their verdict, in using crown witnesses, significant effort should still be expended in obtaining additional pieces of evidence.
Different Interpretations regarding Crown Witness
Meanwhile, a different interpretation can be found in Supreme Court Jurisprudence No. 1174 K/Pid/1994, May 3rd, 1995, jo No. 1592 K/Pid/1994 dated May 3rd, 1995, which states that the examination of crown witnesses should not be carried out because it’s against human right principles that criminal procedural law upholds. Former Supreme Court Judge of Indonesia, Adi Andojo Soetjipto, in the books Menyongsong dan Tunaikan Tugas Negara Sampai Akhir: Sebuah Memoar, also stated that crown witness as a piece of evidence is not correct and is prohibited according to legal knowledge.
According to University of Indonesia’s Prof. Dr. Indriyanto Seno Adji in the book Pergeseran Hukum Pidana (2011), “if a defendant in a particular criminal case file is put in a position as a witness in another separate criminal case file in regards of the same criminal act, it violates the defendant’s human rights, specifically the defendant’s rights regarding the principle of Non-Self Incrimination”. (‘apabila kedudukan seorang terdakwa dalam suatu berkas perkara pidana tertentu ditarik sebagai saksi dalam berkas pidana lainnya yang terpisah namun mengenai tindak pidana yang sama adalah melanggar hak asasi manusia, khususnya hak terdakwa mengenai prinsip Non-Self Incrimination’)
Furthermore, according to Indriyanto, there is no sense in a defendant incriminating himself in separate criminal case files. “In one criminal case file the defendant denies his own actions, but as a witness in a separate criminal case file he admits to committing the very act he denies on doing”. (‘Dalam satu berkas terdakwa menyangkal perbuatannya, namun dalam kedudukannya sebagai saksi dalam berkas perkara pidana yang terpisah ia mengakui melakukan perbuatan yang disangkalnya sendiri’)
Meanwhile, several Advocates explained that the Criminal Procedural Code provisions both letter A and letter B explicitly state that defendants cannot be witnesses for fellow defendants: Unless the law states otherwise, the following shall not be heard and may withdraw as witnesses: a. blood relatives or relatives in a straight line upwards or downwards up to the third degree of the defendant or “fellow defendants”; b. “relatives of the defendant or fellow defendants” relatives of the mother or relatives of the father, as well as those related through marriage and children of defendant’s relatives up to the third degree.
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