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KONSEP ASAS LEGALITAS DALAM TERMINUS KITAB UNDANG – UNDANG HUKUM ACARA PIDANA (KUHAP) DAN KITAB UNDANG – UNDANG HUKUM PIDANA (KUHP)

LAW FIRM APPE HAMONANGAN HUTAURUK & ASSOCIATES 

 

KONSEP ASAS LEGALITAS DALAM TERMINUS KITAB UNDANG – UNDANG HUKUM ACARA PIDANA (KUHAP) DAN KITAB UNDANG – UNDANG HUKUM PIDANA (KUHP)

 

Prinsip atau Asas LEGALITAS menurut HUKUM PIDANA FORMIL termaktub dalam KONSIDERAN KUHAP huruf a, yang berbunyi: “Bahwa negara Republik Indonesia adalah negara hukum  yang berdasarkan Pancasila dan Undang – Undang Dasar 1945 yang menjunjung tinggi hak asasi manusia serta yang menjamin segala warga negara bersamaan kedudukannya di dalam hukum dan pemerintahan dan wajib menjunjung tinggi hak asasi manusia serta yang menjamin segala warga negara bersamaan kedudukannya di dalam hukum dan pemerintahan dan wajib menjunjung tinggi hukum dan pemerintahan itu dengan tidak ada kecualinya”.

Sedangkan Asas LEGALITAS menurut HUKUM PIDANA MATERIL termaktub dalam Pasal 1 ayat (1) KUHP yang menyebutkan, “Tiada suatu perbuatan (feit) yang dapat dipidana selain berdasarkan kekuatan ketentuan perundang – undangan pidana yang mendahuluinya”. Asas Legalitas Hukum Pidana Materil ini dikenal dalam bahasa LATIN yang menyatakan,”Nulum delictum nulla poena sine praevia legi porenali” yang berarti “Tidak ada delik, tidak ada pidana, tanpa ketentuan pidana yang mendahuluinya”. Atau pepatah Latin yang juga sering digunakan adalah dengan istilah “Nullum crimen sine lege stricta” yang berarti “Tidak ada delik tanpa ketentuan yang tegas”.

Keberlakuan Hukum Pidana atau Undang – Undang Tindak Pidana dalam praktek penerapan criminal justice system,   sangat berhubungan dengan waktu (TEMPUS) dan tempat (LOCUS) perbuatan atau tindak pidana tersebut dilakukan.

Dalam konteks inilah hubungan kedua asas legalitas tersebut saling bertautan (saling terkoneksi), sebagaimana ditentukan dalam Pasal 143 ayat (2) huruf b KUHAP, yang pada pokoknya menyatakan  “Surat Dakwaan yang diberi tanggal dan ditandatangani serta berisi: uraian secara cermat, jelas dan lengkap mengenai tindak pidana yang didakwakan dengan menyebutkan waktu dan tempat tindak pidana itu dilakukan”.

Ketentuan yang disebutkan dalam Pasal 143 ayat (2) huruf b KUHAP merupakan SYARAT MATERIL dari Surat Dakwaan, sehingga syarat tersebut bersifat NORMATIF – IMPERATIF  dengan konsekwensi yuridis yaitu apabila syarat materil tersebut tidak dipenuhi maka berdasarkan ketentuan Pasal 143 ayat (3) KUHAP harus dinyatakan “BATAL DEMI HUKUM”.

 

Created and Posted By:
Appe Hamonangan Hutauruk, SH., MH.
Lecturer, Advocate and Legal Consultant
Handphone: 0818964919, 085959597919, 081213502002

 

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  • Mempersilahkan rekan – rekan dan khalayak umum untuk mengcopy seluruh konten yang terdapat dalam website https://beritahukum-kebijakanpublik.com. Akan tetapi sebagai ungkapan KEPEDULIAN kiranya berkenan memberikan partisipasi sukarela melalui transfer ke rekening Bank BNI No. 0263783536 atas nama APPE HUTAURUK.

Semoga dengan kepedulian yang diberikan, saya dapat terus berkarya memposting artikel – artikel yang bermanfaat bagi dunia pendidikan, masyarakat serta bangsa dan negara.

 

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LAW  FIRM APPE  HAMONANGAN   HUTAURUK & ASSOCIATES
KETUA  UMUM  DPP LSM  KOMAKOPEPA
AKTIVIS’98

About Author: Appe Hamonangan Hutauruk

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Appe Hamonangan Hutauruk selaku Penulis tunggal pada Website: "BERITA HUKUM & KEBIJAKAN PUBLIK" 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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