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All Journal Jurnal Akta Jurnal Hukum Lex Generalis
Erwin Susilo
Pengadilan Negeri Pangkalan Balai
Law, Crime, Criminology & Criminal Justice

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Pembatasan Upaya Hukum Peninjuan Kembali di Jerman dan di Indonesia Dharma Setiawan Negara; Erwin Susilo; Khairul Umam Syamsuyar
Jurnal Hukum Lex Generalis Vol 6 No 1 (2025): Tema Hukum Internasional dan Perbandingan Hukum
Publisher : CV Rewang Rencang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.56370/jhlg.v6i1.1242

Abstract

Judicial review (PK) is an extraordinary legal effort that allows criminal cases to be reopened even though they already have permanent legal force (res judicata). This mechanism aims to correct judicial errors that can occur due to novum, judge's error, or conflicting decisions. However, in the Indonesian legal system, PK can only be submitted by the convict or his heirs, which has given rise to debate regarding limited access to justice. This study highlights the relevance and implications of these limitations and compares them with legal systems in other countries, such as Germany, which implements the Wiederaufnahme des Verfahrens mechanism in the Strafprozessordnung (StPO). Through comparative analysis, it was found that the Indonesian legal system still has normative ambiguity in determining the limits of judge error and the category of novum that can be used as the basis for a PK. This study proposes a reformulation of the PK concept that is more inclusive, by expanding the subjects who have the right to apply for a PK not only limited to the convict or his heirs, but also other parties who have legal interests. In addition, stricter regulations are needed regarding the limits of judge error and the validity of the novum, as implemented in Article 359 of the German StPO.
Eksaminasi Keabsahan Penggeledahan dan Penyitaan dalam Praperadilan: Rekonstruksi Kewenangan dengan Pendekatan Plain View Doctrine Erwin Susilo; Dharma Setiawan Negara; Muhammad Rafi
Jurnal Hukum Lex Generalis Vol 6 No 7 (2025): Tema Hukum Pidana
Publisher : CV Rewang Rencang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.56370/jhlg.v6i7.1244

Abstract

Pretrial motion in Indonesia, inspired by the principle of habeas corpus, has the authority to test the legality of law enforcement actions, including searches and seizures. However, this mechanism is *post-factum* and limited to formal aspects, such as the completeness of the warrant, without assessing the material requirements that determine the legality of the action. This limitation has the potential to cause injustice, especially in cases of urgent searches and seizures, where officers often act without prior court permission. This study aims to reconstruct the authority of pretrial motion by integrating the Plain View Doctrine (PVD), a doctrine from the common law system that allows the seizure of evidence without a warrant if it meets three requirements: (1) officers are legally present at the location, (2) the evidence is clearly visible (immediately apparent), and (3) there is a probable cause that connects the object to the crime. The research method used is normative juridical with a conceptual and statutory approach. The results of the study indicate that the application of PVD can strengthen the pretrial control function by expanding the scope of testing from merely formal to substantial aspects. In addition, this study proposes the optimization of digital systems such as *E-Berpadu* to accelerate the licensing process in urgent circumstances. Thus, the reconstruction of pretrial authority based on PVD is expected to ensure a balance between the effectiveness of law enforcement and the protection of human rights.
The Assessing Validity of Prima Facie Evidence in Handling the Exception of Jurisdiction in Civil Cases Dharma Setiawan Negara; Erwin Susilo; Didit Darmawan; Rommy Hardyansah; Lufsiana Lufsiana
JURNAL AKTA Vol 13, No 1 (2026): March 2026
Publisher : Program Magister (S2) Kenotariatan, Fakultas Hukum, Universitas Islam Sultan Agung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30659/akta.v13i1.48280

Abstract

The plea of lack of jurisdiction in civil cases is a procedural objection by the defendant challenging the court's authority to adjudicate. Theoretically, it does not involve substantive proof, as it precedes the case's merits. However, judicial practice often includes preliminary evidence, prompting scrutiny of its validity. This study examines the legal foundations of jurisdiction exceptions in Indonesian civil procedure and assesses the admissibility of preliminary evidence. Employing a normative juridical approach with legislative, case, and conceptual analysis, it reviews regulations like the Herzien Inlandsch Reglement (HIR), Rechtreglement voor de Buitengewesten (RBg), and Law No. 48 of 2009 on Judicial Power. Case studies of Interlocutory Decision No. 19/Pdt.Sus-Parpol/2018/PN Cbn and Decision No. 56/Pdt.G/2018/PN Cbn reveal judges accepting preliminary evidence in jurisdiction pleas. Findings indicate that, despite absent explicit rules, this practice aligns with principles of fast, simple, and low-cost justice under Article 2(4) of Law No. 48/2009. To prevent procedural delays, future regulations should restrict evidence to documents, per Positief Wettelijke Bewijstheorie. This research clarifies the legal framework for preliminary evidence in jurisdiction exceptions, enhancing civil justice efficiency in Indonesia.
Co-Authors Dharma Setiawan Negara Didit Darmawan Khairul Umam Syamsuyar Lufsiana Lufsiana Muhammad Rafi Rommy Hardyansah