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HAPUSNYA HAK ATAU KEWENANGAN EKSEKUSI  PIDANA

HAPUSNYA HAK ATAU KEWENANGAN EKSEKUSI  PIDANA

 

 

Secara prinsip, setelah adanya putusan Pengadilan (vonis)  yang berkekuatan hukum tetap (inkracht van gewijsde), Jaksa pada kesempatan pertama akan melakukan eksekusi, sebagaimana ditentukan dalam  Pasal 270 KUHAP yang berbunyi,”Pelaksanaan putusan pengadilan yang telah memperoleh kekuatan hukum tetap dilakukan oleh jaksa, yang untuk itu panitera mengirimkan salinan surat putusan kepadanya”. Dalam praktek, terdapat hal – hal yang menyebabkan Jaksa tidak dapat melakukan eksekusi atau hak eksekusi telah habis, sehingga putusan Pengadilan yang telah mempunyai kekuatan hukum tetap tersebut tidak dapat dilaksanakan untuk selama – lamanya, oleh karena peristiwa hukum (wettelijke omstandigheden) berupa  Kematian Terpidana, Daluarsa, dan adanya Grasi yang diberikan oleh Presiden.

Berkaitan dengan pelaksanaan putusan Pengadilan (vonis) maka menurut Andi Hamzah, “Dalam pelaksanaan keputusan pengadilan ini tegas KUHAP menyebut “jaksa”, berbeda dengan pada penuntutan seperti penahanan, dakwaan, dan lain – lain disebut “penuntut umum”. Dengan sendirinya ini berarti jaksa yang tidak menjadi penuntut umum untuk sesuatu perkara boleh melaksanakan keputusan pengadilan”.[1]

I. KEMATIAN TERPIDANA

Doctrine  (pendapat ahli hukum yang terkemuka)  menganut prinsip hukum bahwa pidana  atau hukuman (straf, punishment)  dijatuhkan semata – mata terhadap pribadi Terpidana atau Terhukum (the condemned), dan tidak dapat dibebankan kepada ahli warisnya. Dengan demikian, apabila Terpidana  meninggal dunia maka tindakan atau hak eksekusi tidak dapat dilakukan atau dilaksanakan.

Sebelum berlaku Kitab Undang – Undang Hukum Acara Pidana (KUHAP), terdapat pengecualian yang diatur dalam Pasal 368 HIR, yang berbunyi: “Jika orang yang melakukan pelanggaran pidana telah meninggal setelah putusan Hakim yang tidak dapat diubah lagi, maka dalam perkara – perkara pelanggaran peraturan pajak dan cukai, semua denda dan perampasan serta biaya – biayanya ditagih dari ahli – ahli waris atau wakil – wakil orang yang meninggal itu”.

Akan tetapi Ketentuan sebagaimana dimaksud dalam Pasal 368 Herziene Inlands Reglement (HIR)  tersebut tidak diatur dalam ketentuan KUHAP, dan dengan sendirinya pada saat  berlakunya.KUHAP maka ketentuan KUHAP tersebut tidak berlaku lagi.

II. BERLAKUNYA KETENTUAN DALUARSA

Keadaan  lain yang dapat mengakibatkan hapusnya hak eksekusi pidana yaitu daluarsa (expired according to law, verlopen volgens de wet). Mengenai daluarsa hak eksekusi diatur dalam Pasal 84 KUHP, yang berbunyi sebagai berikut:

(1)  Kewenangan menjalankan pidana hapus karena daluarsa;

(2)  Tenggang daluarsa mengenai semua  pelanggaran lamanya dua tahun, mengenai  kejahatan yang dilakukan dengan sarana percetakan lamanya lima tahun, dan mengenai  kejahatan – kejahatan  lainnya lamanya sama dengan  tenggang daluarsa bagi penuntutan  pidana ditambah sepertiga;

(3)  Bagaimanapun juga, tenggang daluarsa  tidak boleh kurang dari lamanya pidana  yang  dijatuhkan;

(4)  Wewenang  menjalankan pidana mati tidak kena daluarsa.

III.  PEMBERIAN GRASI OLEH PRESIDEN

Ketentuan Pasal 1 angka 1 Undang –  Undang  Noomor  22 Tahun 2002 Tentang Grasi (menggantikan Undang – Undang Nomor 3 Tahun 1950 Tentang Permohonan Grasi), ditegaskan bahwa GRASI  adalah pengampunan berupa perubahan, peringanan, pengurangan, atau penghapusan pelaksanaan pidana kepada terpidana yang diberikan oleh Presiden”.  Mengenai  REHABILITASI terhadap Terpidana sebagaimana termaktub  dalam Pasal 14 ayat (1) UUD 1945, yaitu tindakan hukum berupa “dilakukan pemulihan dalam kemampuan, kedudukan dan harkat serta martabatnya, dan dikembalikan kepada kedudukannya” (vide: Keputusan Presiden Republik Indonesia  Nomor 142 Tahun 2000, pemberian rehabilitasi pada Sdr. Nurdin AR).

Pemberian Grasi  merupakan wewenang Kepala Negara in casu  Presiden secara ex officio, untuk menghapuskan seluruh hukuman atau pidana  yang telah dijatuhkan Hakim atau Pengadilan berdasarkan putusan yang telah mempunyai kekuatan hukum tetap (inkracht van gewijsde), atau mengurangi hukuman, atau menukar hukuman pokok  yang berat dengan suatu hukuman yang lebih ringan.

_________________________________________________

[1] Andi Hamzah. Pengantar Hukum Acara Pidana Indonesia. Penerbit Ghalia Indonesia, Jakarta, Cetakan Keempat, Tahun 1990. halaman 287.

 

Writer and Copy Right:

Dr. (Cand.) Appe Hamonangan Hutauruk, SH., MH.

Lecturer, Advocate and Legal Consultant

Handphone: 0818964919, 085959597919, 081213502002

 

About Author: Appe Hamonangan Hutauruk

Appe Hamonangan Hutauruk selaku Penulis tunggal pada Website: "Law Firm Appe Hamonangan Hutauruk & Associates" adalah seorang "Pegiat Penegakkan Hukum dan Hak Asasi Manusia" serta "Pemerhati Sosial Kemasyarakatan" yang berprofesi sebagai Advokat (Advocate), Konsultan Hukum (Legal Consultant) dan Dosen (lecturer) pada salah satu Universitas swasta di Jakarta, selain itu juga menduduki jabatan sebagai Ketua Umum pada Lembaga Swadaya Masyarakat (LSM) bernama "Komunitas Masyarakat Anti Korupsi dan Penggelapan Pajak (KOMAKOPEPA). youtube.com/c/BeritaHukumKebijakanPublik

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