PRETRIAL PROBLEMS WITH THE OBJECT OF THE ESTABLISHMENT OF SUSPECTS

Until now, there has been no legal certainty for justice seekers through pretrial. The object of determining the suspect why when someone is declared a suspect then submits the Judge accepts a pretrial. Then the investigator can re-assign him a suspect so that the determination of the suspect occurs repeatedly. The Judge will also cancel the status of the suspect repeatedly and creates legal uncertainty. This study aims to determine pretrial executors to determine the suspect (Case Decision Study No: 3 / Pr/a.Pid / 2017 / PN.Gto) and Interpreting pretrial with the object of determining the suspect. This study uses normative research by using literature as the primary source. The results showed that pretrial executors with the object of determining the suspect (Case Decision Study No: 3 / Pra.Pid / 2017 / PN.Gto) is an example of a convoluted judicial process and does not provide legal certainty for a person because the applicant even though it has been three times the Judge receives the pretrial; the investigator is still returning to determine the applicant as a suspect. Interpreting a pretrial with the object of the determination of a suspect is difficult. Determining a suspect is not a straightforward job because it relates to a person's status before the law, so accuracy and prudence are needed to determine whether someone is worthy of being a suspect. An investigator may not use excessive authority in determining a person as a suspect because the implication of having a legal status can deprive someone of his right of independence as an arrest or detention.


INTRODUCTION
Indonesia, as an independent and sovereign nation, operates following the laws and regulations. The well-known principle in criminal law is the principle of legality which reads, "there is no crime (delict), no punishment without (based on) the regulations that precede it" (nullum delictum nullapoena sine praevialegepoenali). The source of all sources of Indonesian Law is Pancasila, a state philosophy that is different from the philosophy of European countries or communist countries that use the communist philosophy of Karl Max. The Indonesian state is obliged to guarantee legal protection to all its citizens as mandated by the 1945 Constitution in the opening paragraph 4 (fourth); Then from that to form an Indonesian state government that protects the entire Indonesian nation and the entire homeland of Indonesia and to promote public welfare, educate the nation's life, and participate in carrying out world order based on freedom, eternal peace and social justice".
So far, the determination of the suspect status given by the investigator to a person is attached without a clear time limit. As a result, the person is forced to accept his status without having the opportunity to test the validity of the determination. In practice, many pretrial submissions are submitted by suspects/defendants to protect their rights from the arbitrariness of law enforcement. This pretrial also has legal certainty which is regulated in the Criminal Procedure Code (KUHAP) in article 1 point 10 and chapter X, the first part in article 77 to article 83 of the Criminal Procedure Code.
The pretrial has had legal certainty in protecting the rights of the suspect/defendant in coercion, as stated in article 77 of the Criminal Procedure Code that: "The District Court has the authority to examine and decide, per what is regulated in this law regarding: a. The validity of the arrest, detention, termination of investigation or termination of prosecution. b. Compensation and/or rehabilitation for a person whose criminal case is terminated at the level of investigation or prosecution." As part of the criminal justice system that applies in Indonesia, Pretrial is an effort to overcome criminal crimes that are penalized by using criminal law as the primary means of material criminal law and formal criminal law. Pretrial as part of law Jurnal Al-Dustur Vol. 4 No. 2 Tahun 2021 ProgramStudiHukum Tata Negara Pascasarjana Institut Agama Islam Negeri (IAIN) Bone enforcement, as stated by Barda Nawawi Arief, that the problem of law enforcement, both in abstracto and in concreto, is an actual problem that has recently received sharp attention from the public.
Today pretrial has such an essential place in criminal procedural law, and it can even be said that almost everyone suspected of committing a crime is then designated as a suspect, the first legal remedy being pretrial. The demand for pretrial is getting more robust in the community who are accused of committing a crime. This is because the various criminal cases that have occurred so far have shown that pretrials show protection regarding justice and the protection of human rights.
In essence, the purpose of pretrial is to protect human rights as well as to become a means of horizontal supervision, which means protecting human rights, especially the rights of suspects so that other people or law enforcers do not violate them. The Criminal Procedure Code does not recognize an investigating judge in France or a Rechter Commissioner in the Netherlands who has the authority to determine the charges to be imposed against a person. Thus, there is a "legal vacuum" in pretrial institutions regulated in the Criminal Procedure Code, which can be filled by jurisprudence concerning the purpose of establishing the pretrial institution, namely protecting human rights from suspects and defendants. Filling the legal vacuum (rechtvacuum) is a function of jurisprudence, not throwing the law away.
Based on the opinion above, this is what Judge Sarpin follows in deciding pretrial cases. Other judges do not necessarily follow it. The reason is that our country adheres to a continental European legal system that prioritizes the law, not court decisions (jurisprudence) but problems. It appears when this law already has recognition through the official interpretation of the final and binding constitutional Court (last and binding) and in addition to the enactment of the ergaomnes principle (the Court's Decision is generally accepted). Until now, there is no legal certainty for justice seekers through pretrial. With the object of determining the suspect, why is it that when someone is declared a suspect, then submits a pretrial and is accepted by the Judge, the investigator may redetermine him as a suspect so that the determination of the suspect occurs repeatedly? The Judge will also cancel the status of the suspect repeatedly and create legal uncertainty.

METHODS
This research uses normative research by using literature as the primary source. 1. The Judge also explained that the pretrial must be carried out quickly to not interfere or even stop the legal certainty of the main case.

RESULTS
Moreover, the handling of the main case is limited in time.
2. Regarding the determination of repeated suspects, the Judge thinks that it is possible to carry out a re-investigation process against a suspect if sufficient evidence is found after his pretrial application is granted. This means that, as long as the main case has not been tried, the pretrial applicant can submit a pretrial application regarding the determination of the suspect.
3. Against the request of the applicant for the existence of two new pieces of evidence as a condition for re-determination of the suspect, the Judge thinks that a suspect whose determination has been canceled by a pretrial judge can still be reinvestigated in an ideal and correct manner, as long as the investigation procedure is complied with following the provisions of the legislation.
After the issuance of this Decision, the pretrial application for the determination of the suspect against the Petitioner has a legal basis to be submitted to the Court, but there are special characteristics of the pretrial submission related to the determination of the suspect: 1. The determination of the suspect is invalid because the examination of witnesses, experts, suspects, searches, and confiscations is carried out after the determination of the suspect so that 2 (two) pieces of evidence are not fulfilled; 2. The second pretrial application regarding the determination of the suspect cannot be categorized as ne bis in idem because it does not involve the subject matter of the case; The case that befell the applicant is also an implication of the Decision of the constitutional Court, which in its interpretation makes the pretrial as the object of determining the suspect. However, there is no limit on how long the case will be completed so that it is contrary to the litis finiriopertet principle (every case has an end), then it becomes legal certainty to apply the nebis in principle. This idem is carried out in pretrial institutions to maintain legal certainty and the final clarity of the process of determining the suspect, which is carried out contrary to the laws and regulations. It is inconceivable how many material and immaterial losses the applicant received, including being a DPO, being detained repeatedly because the investigators had named the suspect three times, experiencing physical and psychological pain.

Interpreting Pretrial With the Object of Determination of Suspect
This pretrial can be regarded as an effort to correct irregularities during the investigation and prosecution process. The existence of pretrial provisions in this Criminal Procedure Code is also a demand for officials involved in the investigation and prosecution process (mainly addressed to investigators and public prosecutors) to carry out their duties professionally and for the sake of upholding the rule of law. 3 In order to ensure that the provisions contained in the Criminal Procedure

Pretrial issues have become part of the duties and authorities of the District
Courts that courts in other judicial circles cannot handle. It is just that it should be noted that the kind of pretrial process is not part of the task of examining and deciding (judgmentally) the criminal case itself so that the pretrial Decision is not a duty and function to handle a (principal) crime, which is in the form of examining and deciding on a criminal case, which stands alone as a final decision.
Determining a person's suspect is not an easy job because it is related to a person's status before the law, so there is a need for thoroughness and caution in determining whether a person deserves to be a suspect or not. An investigator may not use his authority excessively in determining a person as a suspect because the implications of having such legal status can deprive a person of his right to freedom in the form of arrest or detention. 5 It must also be remembered that the determination of the suspect is not a stand-alone series, but it is only the end of the previous examination process. Before someone is determined as a suspect, the preliminary process that the investigator must pass is investigation and investigation. 6 Interpreting pretrial with the object of determining the suspect is not as easy as turning the palm. Until now, the determination of the suspect still sets aside unresolved legal problems and is very burdensome so that it does not provide legal certainty for someone whom the suspect questions by the investigator.
Regarding the determination of the suspect, the Court considers the following: 1. The Court has considered in paragraph (3:14) that Article 1 point 3 of the 1945 Constitution affirms that Indonesia is a state of law. In a state of law, the principle of the duo process of law as a manifestation of the recognition of human rights in the criminal justice process is a principle that must be upheld by all parties, especially law enforcement agencies. The realization of the 5 Amir, Praperadilan Pasca Putusan Mahkamah Konstitusi. 6 Nusa, Perdebatan Hukum Kontemporer. Code, such as the determination of a suspect, can be used as an object of pretrial?
The setting of the definition of a suspect in the Criminal Procedure Code is contained in the provisions of Article 1 number 14. A suspect is defined as a person because of his actions or circumstances based on preliminary evidence; it is appropriate to suspect that he is the perpetrator of a crime.
The meaning of preliminary evidence in the a quo provision, is interpreted through the above Constitutional Court Decision, as in its decree stating that the phrase Preliminary Evidence is contrary to the 1945 Constitution and has no legal force, as long as it does not mean at least two pieces of evidence as stipulated in Article 184 of the Criminal Procedure Code.
The thing that must be underlined is that the investigator must carry out the investigation stage, and the investigation should not just conclude that a few witness statements are used as evidence in establishing a person as a suspect. Investigators did not interpret that there was no explanation of the terminology of the initial evidence "in the Criminal Procedure Code so that it was returned to the investigator's assessment, which was sufficient." In connection with repeated stipulations of suspects, investigators must maintain the suspect's human rights and respect the Decision of the Judge who accepts the suspect's pretrial, especially if there is a decision containing declaring invalid all decisions or decisions issued further by the Respondent relating to the Determination of the Suspect against the Petitioner by the Respondent.
Looking at the case examples above, what the public prosecutor did was not supposed to happen because the actions taken were arbitrary, so that the suspect felt insecure. The public prosecutor is a law enforcer who should understand the procedure and the purpose of the law.
When studying pretrial cases, the applicant is always in a weak position because apart from the very short time set for the pretrial process, the main obstacle The pretrial trial process, which limits the time to only 7 (seven) days, is very ineffective because the time is so short that it is considered insufficient to prepare everything for the sake of evidence for the applicant and the Respondent. In addition, the weakness of the law, in this case,is the Criminal Code, which does not regulate what sanctions will be applied if the seven-day time limit is violated.
The problem of repeated suspects determinations must immediately make clear rules. For example, there must be rules that regulate the limits of determining suspects for suspects whose pretrials are accepted by the panel of judges so that this will not happen again.

CONCLUSION
Implementing a pretrial with the object of determining the suspect (Study of Decision Case No: 3/Pra.Pid/2017/PN.Gto) is an example of a judicial process that is very convoluted and does not provide legal certainty for a person. Because even though the Judge has accepted the pretrial three times, the investigators still reestablish the applicant as a suspect.
Interpreting Pretrial With the Object of Determining a Suspect is not easy Determining a person's suspect is not an easy job because it is related to a person's status before the law, so there is a need for thoroughness and caution in determining whether a person deserves to be a suspect or not. An investigator may not use his authority excessively in determining a person as a suspect because the implications of having such legal status can deprive a person of his right to freedom in the form of arrest or detention.