This essay based on experience to handle the case on behalf of the defendant AT in Surabaya District Court and the defendant RS in Lubuk Pakam District Court, North Sumatera. Both defendants have been involved on narcotic case and punished with death penalty in District Court and High Court, then in Supreme Court is punished with life sentence. These cases were handled since beginning as regulated under Criminal Procedures Indonesia.
Basically, according to Law No. 35 of 2009 concerning Narcotics (“Narcotic Law”) there are several Articles which stipulated death penalty, Article 113 paragraph (2), Article 114 paragraph (2), Article 116 paragraph (2), Article 118 paragraph (2), Article 119 paragraph (2), Article 121 paragraph (2). As for the Defendant AT is subjected to Article 113 paragraph (2) Narcotic Law, while RS is subjected to Article 114 paragraph (2) Narcotic Law.
Normatively according to the Narcotics Law, Article 113 paragraph (2) stipulated that someone who is proven to import/export in the form of plants exceeding 1 kg or in non-plant form more than 5 grams will be sentenced to death. As well as, the case with Article 114 paragraph (2), which stipulated that someone who offers to sell, sell, buy, become an intermediary in buying and selling, exchanging, delivering, or receiving Narcotics of Class I as referred to in paragraph (1) in the form of plants more than 1 (one) kilogram or exceeding 5 (five) tree trunks or in the form of non-plants 5 (five) grams, will be sentenced to death.
But the fact is, if the case is proceed to the court then the Prosecutor will determine the sentence in his prosecution referring to the internal SOP in which the SOP does not as well as making charge on defendants carrying narcotics above 1 kg (plants) or above 5 grams (not plants) sentenced to death. As in the practice that the author has experience, there are a number of cases that may be a reference with narcotics from 2 kg, 3 kg, 6 kg, and 40 kg. Among these cases, only 6 kg and 40 kg were sentenced to death.
In cases for weigh 6 kg, the type of drug is MDMA which is the basic ingredient of making ecstasy. The convicted is AT, who is a Dutch citizen. In other words, AT imported the narcotic which is to bring narcotics in the customs area (airport).
At the point, in this case AT was sentenced to death by Surabaya District Court on the basis of importing drugs in non-plant form. Furthermore, at the appeal level (High Court), the defendant AT is still sentenced to death with legal consideration that the act is a transnational crime so it should be sentenced in the form of “ultimum remedium”. But then at the cassation level it turned into a life sentence with unique legal consideration, the Supreme Court rejecting all the arguments of the petitioners of Cassation (AT), but the Supreme Court has its own opinion as a supervisor over all judicial decisions under it. The Supreme Court considered that the death penalty for AT was deemed inappropriate and unfair, because AT was not the true owner and also AT had regretted his actions.
In other cases, RS experienced the same thing as AT, which was sentenced to death at the District Court and High Court level, then sentenced to life at the Supreme Court level. RS is subject to Article 114 paragraph (2) of the Narcotics Law, which is a type of methamphetamine around 40 kg.
RS only provides assistance to bring the drugs that is ordered by the dealer who is also a day-to-day employer where RS is the stock farmer of chickens owned by the employer. The Facts during the trial, the defendant never knew the goods that he bring is narcotic because he usually bring any goods which ordered by employer. In this case, it can be said that the defendant is a victim of a drug syndicate.
Based on the both case, it is very clear that narcotics crime is a serious crime because the panel of judges did not hesitate to impose capital punishment for the defendant. Although capital punishment arise hard debate in Indonesia, the fact is that the death penalty is still applied in the criminal law system in Indonesia, especially for crimes according Narcotics Law.
author: wilopo husodo