Beranda Berita Penyiksaan Oleh Penyidik Dalam Proses BAP Untuk Mendapatkan Pengakuan Tersangka

Penyiksaan Oleh Penyidik Dalam Proses BAP Untuk Mendapatkan Pengakuan Tersangka

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SindoNewsToday – Jakarta

SAYA bekerja sebagai teknisi pengisian uang ATM di sebuah bank ternama di Indonesia. Pada saat saya libur kerja, saya hendak mengambil uang di ATM bank tempat saya bekerja, pada saat itu layar atau monitor mesin atm tesebut error maka saya berinisiatif untuk membetulkannya namun hasilnya nihil.

Dua bulan kemudian ditemukan bahwa beberapa lembar uang di ATM tersebut hilang yang bejumlah kurang lebih 200 juta rupiah. Atas laporan perusahaan tempat saya bekerja, saya diperiksa oleh penyidik sebagai tersangka tanpa ada surat perintah dan pada saat itu penyidikan saya diancam dan dipukuli. Bagaimana jika pihak penyidik melakukan penyiksaan terhadap saya untuk mendapatkan pengakuan dan bagaimana jika saya ditangkap tanpa surat perintah dan surat penangkapan?

Ismail
Ciputat (alamat ada pada redaksi)
Nara Sumber : Ismail Ciputat :
media : RMOL.co

Jawaban:
PENYIDIK dilarang menggunakan kekerasan atau penekanan dalam bentuk apapun saat melakukan pemeriksaan terhadap tersangka, yakni dalam proses penyidikan. Jika Berita Acara Penyidikan (BAP”) dibuat dalam keadaan tersangka disiksa secara fisik, maka BAP tersebut tidak sah dan dapat diupayakan praperadilan, serta dapat juga dijadikan dasar untuk membatalkan dakwaan.

Penjelasan lebih lanjut dapat Anda simak dalam ulasan di bawah ini.

I. Penyiksaan dilakukan oleh penyidik saat melakukan pemeriksaan terhadap tersangka.

Mengenai BAP, M. Yahya Harahap dalam bukunya “Pembahasan Permasalahan dan Penerapan KUHAP Penyidikan dan Penuntutan” menjelaskan (hlm. 137) bahwa jika suatu BAP adalah hasil pemerasan, tekanan, ancaman, atau paksa, maka BAP yang diperoleh dengan cara seperti ini tidak sah.

Penyiksaan yang dilakukan oleh Penyidik terhadap Saudara untuk mendapatkan sebuah pengakuan adalah secara nyata telah bertentangan dengan UUD 1945 dan peraturan perundang-undangan lainnya sebagaimana yang akan dijabarkan sebagai berikut:

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– Pasal 52 Kitab Undang-undang Hukum Acara Pidana mengatur bahwa seorang tersangka atau terdakwa berhak memberi keterangan secara bebas:

“Dalam pemeriksaan pada tingkat penyidikan dan pengadilan, tersangka atau terdakwa berhak memberikan keterangan secara bebas kepada penyidik dan atau hakim”.

– Tata cara penyidikan itu dilakukan berdasarkan Keputusan Kapolri No. Pol.Skep/1205/IX/2000 tentang Revisi Himpunan Juklak dan Juknis Proses Penyidikan Tindak Pidana, khususnya dalam bagian Buku Petunjuk Pelaksanaan tentang Proses Penyidikan Tindak Pidana (“Juklak dan Juknis Penyidikan”). Bab III angka 8.3.e.6 Juklak dan Juknis Penyidikan telah yang menegaskan:

“Pada waktu dilakukan pemeriksaan, dilarang menggunakan kekerasan atau penekanan dalam bentuk apapun dalam pemeriksaan.”

Hal ini juga berkaitan dengan salah satu hak yang dimiliki oleh tahanan, yaitu bebas dari tekanan seperti; diintimidasi, ditakut-takuti dan disiksa secara fisik. Dalam hal ini, saudara memiliki kemerdekaan memberikan keterangan tanpa adanya tekanan bahkan penyiksaan dari pihak manapun.

– Pasal 28 ayat (1) UUD 1945 menyatakan:

“Hak untuk hidup, hak untuk tidak disiksa, hak kemerdekaan pikiran dan hati nurani, hak beragama, hak untuk tidak diperbudak, hak untuk diakui sebagai pribadi di hadapan hukum, dan hak untuk tidak dituntut atas dasar hukum yang berlaku surut, adalah hak asasi manusia yang tidak dapat dikurangi dalam keadaan apa pun.”

– Pasal 4 Undang-Undang Nomor 39 tahun 1999 tentang Hak Asasi Manusia menyatakan:

“Hak untuk hidup, hak untuk tidak disiksa, hak kebebasan pribadi, pikiran dan hati nurani, hak beragama, hak untuk tidak diperbudak, hak untuk diakui sebagai pribadi dan persamaan di hadapan hukum, dan hak untuk tidak dituntut atas dasar hukum yang berlaku surut adalah hak asasi manusia yang tidak dapat dikurangi dalam keadaan apapun dan oleh siapapun.”

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– Pasal 7 UU No. 11 Tahun 2005 tentang Pengesahan Kovenan Internasional hak-hak Sipil dan Politik menyatakan:

“Tidak seorang pun yang dapat dikenakan penyiksaan atau hukum lain yang kejam, tidak manusiawi atau dijadikan objek eksperimen atau ilmiah tanpa persetujuannya.”;

– Pasal 9 ayat (1) International Covenant on Civil and Political Rights (ICCPR)

“Setiap orang berhak atas kebebasan dan keamanan pribadi. Tidak seorang pun dapat ditangkap atau ditahan secara sewenang-wenang. Tidak seorang pun dapat dirampas kebebasannya kecuali berdasarkan alasan-alasan yang sah, sesuai dengan prosedur yang ditetapkan oleh hukum.”

– Undang-Undang Nomor 5 tahun 1998 tentang Pengesahan Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Konvensi Menentang Penyiksaan dan Perlakuan atau Penghukuman Lain yang Kejam, tidak Manusiawi, atau Merendahkan Martabat Manusia) menyatakan:

“Melarang penyiksaan baik fisik maupun mental, dan perlakukan atau penghukuman lain yang kejam, tidak manusiawi, atau merendahkan martabat manusia yang dilakukan oleh atau atas hasutan dari atau dengan persetujuan/sepengetahuan pejabat publik (public official) dan orang lain yang bertindak dalam jabatannya.”

Mengingat penyiksaan tersebut dilakukan untuk mendapatkan pengakuan Saudara telah bertentangan dengan prinsip “Exclusionary Rules” sebagaimana diakui dalam Konvensi Menentang Penyiksaan yang telah diratifikasi oleh Indonesia melalui Undang-Undang Nomor 5 tahun 1998, yang menyatakan alat bukti yang diperoleh melalui cara-cara kekerasan tidak sah secara hukum dan harus dikeluarkan dari alat bukti.

II. Penangkapan dilakukan tanpa surat tugas dan surat penangkapan

Pada prinsipnya seseorang dapat ditangkap oleh pihak kepolisian jika dirinya adalah seorang tersangka. Seseorang dapat ditetapkan sebagai tersangka dengan berupa bukti permulaan yang cukup. Penangkapan dapat dilakukan jika ada surat tugas dan surat penangkapan.

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Pasal 18 ayat 1 KUHAP yang menyatakan:

“Pelaksanaan tugas penangkapan dilakukan oleh petugas Kepolisian Negara Republik Indonesia dengan memperlihatkan surat tugas serta memberikan kepada tersangka surat perintah penangkapan.”

Karena itu berdasarkan pada pasal 18 ayat I KUHAP tersebut maka penangkapan yang dilakukan oleh Penyidik atas saudara yang tanpa surat tugas dan surat penangkapan adalah tidak sah secara hukum.

Pasal 1 angka 14 KUHAP menyatakan tersangka adalah orang yang karena perbuatannya atau keadaannya berdasarkan bukti permulaan patut diduga sebagai pelaku tindak pidana.

Dalam Rakergab Makehjapol I Tahun 1984, dirumuskan bahwa yang dimaksud dengan bukti permulaan yang cukup seyogianya minimal laporan polisi ditambah dengan satu alat bukti lainnya.

Menurut PAF. Lamintang, secara praktis bukti permulaan yang cukup dalam rumusan pasal 17 KUHAP itu harus diartikan sebagai bukti minimal” berupa alat bukti seperti dimaksud dalam pasal 184 ayat 1 KUHAP, yang dapat menjamin bahwa penyidik tidak akan menjadi terpaksa menghentkan penyidikan terhadap seseorang yang disangka melakukan suatu tindakan pidana, setelah terhadap orang tersebut dilakukan penangkapan;

Mengingat ketentuan di atas, bahwa penangkapan hanya dapat dilakukan bila seseorang telah ditetapkan statusnya menjadi tersangka. Syarat untuk ditetapkan seseorang menjadi tersangka adalah adanya bukti permulaan. Bukti permulaan adalah minimal laporan polisi ditambah dengan satu alat bukti. Dengan demikian, penangkapan saudara tidak sah secara hukum karena telah melanggar pasal 17 Jo ayat 1 angka 14 UU No. 8 tahun 1981 tentang Kitab Undang-Undang Hukum Acara Pidana.

Demikian jawaban dari kami, semoga bermanfaat.

LBH Jakarta [***]

Nara Sumber : Rubrik Litigasi diasuh LBH Jakarta dan bekerjasama dengan Kantor Berita Politik RMOL.

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