The Influence of Court Decision toward Overcapacity in Surabaya

Detention Facility

Suherman

Postgraduate School Universitas Airlangga, Faculty Magister Science Law and Development, Surabaya, Indonesia

Keywords: Overcapacity, Detention Facility, Court Decision.

Abstract: The Database System of Directorate General for Penitentiaries of Indonesian Ministry of Law and Human

Rights states that the detention facility located in surabaya has been overcapacity. Based on the data, it is

found that the overcapacity reaches 461%. Prisoners with drug cases are among the dominant population in

this prison. This normative study describes the legislation and regulation on the detention facility (Rumah

Tahanan) as well as the factors causing the overcapacity related to drug cases by exposing the results of

court decisions and analyzing them. This Research shows the factors that cause the problem of overcapacity

are court decisions that lead to imprisonment of drug convicts.

1 INTRODUCTION

The penitentiaries’ Overcapacity problem is now in

the spotlight of the world. Drugs abuse should be the

focus to deal with since it is very difficult to

eradicate. Overcapacity due to different criminal

decisions. This is because the settlement of criminal

problem becomes a barometer of justice in criminal

law and law enforcement. Criminal law is often

referred to as punishment derived from the word

punishment.

According to Dr. Abdullah mabruk, criminal law

as part of the whole law applied in a country that

carried out the basis and rules to (kuliahhukum.com,

2018):

1. Determine which actions may not be carried

out, which are prohibited, accompanied by

threats or sanctions in the form of certain crimes

for those who violate the prohibition.

2. Determine when and in what ways those who

have violated the prohibition can be imposed or

punished as a threat.

3. Determine in a certain way how to impose the

offense if someone is suspected of having

violated the prohibition.

According to Sudarto, the crime itself is the grief

of someone who violates the provisions of the law

(criminal law), intentionally to feel grief. Simons

defines Crime as a condition linked by criminal law

to a violation of a standard issued by a court

decision for someone who is guilty

(pengertianahli.id, 2018). The most important part of

the criminal law is the law or the criminal justice

system. The criminal justice system includes the

type of criminal procedure, the way to execute it,

including the rules for reducing the addition and

exclusion of criminal convictions for criminal law.

Of the rules, how to implement them, a country can

judge how its government is against the people

themselves or against foreigners who have violated

the criminal law in Indonesia.

Based on data from the Directorate General

Corrections, the number of residents of the Surabaya

detention facility is as follows:

Table 1: Based on data amount of inmates.

No Period

Detainee

Prisoner

Detainee

Capacity

& Over

DL DP TD AL AP TA DL DP TD AL AP TA Prisoner

Capacity

1 January 2185 164 2349 54 3 57 309 5 314 3 0 3 2723 504 440

698

Suherman, .

The Inﬂuence of Court Decision toward Overcapacity in Surabaya Detention Facility.

DOI: 10.5220/0007549906980703

In Proceedings of the 2nd International Conference Postgraduate School (ICPS 2018), pages 698-703

ISBN: 978-989-758-348-3

2 February 2127 191 2318 60 2 62 268 3 271 4 0 4 2655 504 427

3 March 2122 134 2256 46 2 48 280 5 285 7 0 7 2596 504 415

4 April 2109 149 2258 39 2 41 400 7 407 17 0 17 2723 504 440

5 May 2282 174 2456 54 1 55 343 7 350 5 0 5 2866 504 469

6 June 2174 134 2308 47 0 47 336 6 342 2 0 2 2699 504 436

7 July 2282 156 2438 26 0 26 356 2 358 4 0 4 2826 504 461

8 Agust

9 Septembe

10 October

11 November

12 December

TDL : Male adult

detainee

TDP : Female adult

detainee

TAL : Male juvenile

detainee

TAP : Female juvenile

detainee

NDL : Male adult

prisoner

NDP : Female adult

prisoner

NAL : Male juvenile

prisoner

NAP : Female juvenile

prisoner

Source:

http://smslap.ditjenpas.go.id/public/grl/detail/monthly/upt/ db62ca60-6bd1-1bd1-8ad0-313134333039, accessed on 04 July

2018

Explanation of the table above the detainee is a

person who is in detention, where detention is the

placement of a suspect by investigators, prosecutors

or judges. While detainees are convicted on the basis

of judicial decisions that have permanent legal force.

Up to June 2018 over capacity was 439%. When the

number of dwellings has exceeded the capacity of

the home of detention. This overcapacity ensures

that the rights to meet the needs of detainees in order

not to be optimal, such as health, medicine,

sanitation, monitoring of violence that occurs in

detainee and prisoner, are less optimal. For example,

prisoners can sleep or alternately sleep in a sitting

position because the occupied space does not match

the specified capacity. The problem of overcapacity

is not a new problem, but it has long been a problem

that has not been solved so far. over capacity that

Surabaya prisoners often yield are mostly drug

cases. What is the court's decision on drug issues in

overcoming overcapacity? And does the decision

about the drug cases also influence the overcapacity

of detention facility?

2 DISCUSSION

Crimes involving the main criminal cumulation in a

crime are special crimes. Such as economic crime,

corruption, drug crime. Specific types of criminal

acts, together with the legal basis, include

(arifcutomoblog.wordpress.com, 2018):

1. A criminal act of corruption

a. RI Law No. 28 of 1999 on Freedom of

Corruption, RI Law No. 20 of 1991 on

b. Eradication of Corruption, RI Law No. 30

of 2002 on the Commission to eradicate

corruption

2. Criminal acts of illegal logging RI Law No. 41

1999 on illegal logging

3. Offenses in the fisheries sector RI Act No 45 of

2009 on fisheries

4. Offenses in the household RI Law No. RI Law.

NO. 23 of 2004 concerning domestic violence

5. Crime against child protection RI Law No. RI

6. Law. NO. 23 of 2002 on child protection

7. Criminal acts relating to consumers RI Law No.

RI Law. NO. 8 of 2009 on consumer protection

The Inﬂuence of Court Decision toward Overcapacity in Surabaya Detention Facility

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8. Crime of illegal mining (illegal mining) RI Law

No. RI Law. NO. 4 of 2009 concerning Mineral

and Coal extraction

9. Crime of information technology (cybercrime)

RI Law No. RI Law. NO. 11 of 2008 on

information technology

Special crime acts that strongly influence the

survival capacity of Surabaya are related to narcotics

and psychotropic crimes. The issue of narcotics has

long been a problem in this country whose

development has been very significant and has

spread from the city to the village. Users ranging

from ordinary people, civil servants, artists, pilots,

law enforcers. Act No. 35 of 2009 is an extension of

Law No. 7 of the Republic of Indonesia No. 7 of

1997. This reform is carried out because narcotics

are considered to be transnational crimes carried out

with a high modus operandi, advanced technology

and a strong network with fantastic amounts. In

addition, Narcotics betrays young people and

millennial generation. In general, narcotics are a

type of substance that can cause certain effects for

people who use it by inserting it into the body.

Narcotics can have certain effects on the body of the

user, including (slissety.wordpress.com, 2018):

1. Affected consciousness

2. Offer encouragement that can influence human

behavior.

3. The effects can be:

a. Soothing

b. Stimulators (no sex stimuli)

c. Cause hallucinations

Law No. 35 of 2009, the Narcotics classified into

three (3) categories, namely:

1. Group I

2. Narcotics type commonly known to the public,

such as marijuana, methamphetamine, cocaine,

opium, heroin, etc.

3. Group II

4. Types Narcotics the type commonly known to

the public, such as morphine, pertidin etc.

5. Group III

6. Types The type of narcotics that is generally

known to the public is codeine etc.

Act No. 35 of 2009 to repeal Law No. 22 years

1997 on narcotics and not repealed law no. 5 of

1997. Earlier confirmation repeals law No. 5 of 1997

on the nature of the psychotropic class I and class II,

because it is designated as an anesthetic class I and

class II on Law No.

35 of 2009.

Order enforcers in Indonesia often use Article

111 and 112 in Law No. 35 of 2009 on narcotics to

carry out drug use in prison. According to Article

111 that:

1. Anyone who is to unlawfully or against the law

to plant, maintain, possess, store, control, or

offers Narcotics Group I in the form of plants,

shall be punished with imprisonment of at least

4 (four) years and a maximum of twelve (12)

years and criminal fine of at least Rp.

800,000,000.00 (eight hundred million rupiah)

and a maximum of Rp. 8,000,000,000.00 (eight

billion rupiah).

2. In the case of actions to plant, maintain, possess,

store, control, or offer Narcotics group I in the

form of plants referred to in paragraph (1) a

weight of more than 1 (one) kilogram or more

than 5 (five) hulls, the offender must be

sentenced to life imprisonment or imprisonment

of five (5) years and a maximum of 20 (twenty)

years and maximum sanction referred to in

paragraph (1) 1/3 (one-third).

a. According to article 12 that:

1. Anyone who possesses, stores,

controls, or offers Narcotics Group I

unlawful or unlawful, shall be

punished with imprisonment of at least

4 (four) years and a maximum of

twelve (12) years and a fine of at least

USD, 800,000,000.00 (eight hundred

million rupiah) and a maximum of Rp.

8,000,000,000.00 (eight billion

rupiah).

2. In the case of actions possessing,

storing, controlling, or offering

Narcotics Group I not plants as

referred to in paragraph (1) the

seriousness of more than five (5)

grams, the offender shall be punished

with life imprisonment or

imprisonment of five (5) years and a

maximum of twenty (twenty) and

maximum sanction in paragraph (1)

1/3 (onethird)

The significant data on narkotic and distributors can be

found in the following table:

No Periode

Amount Special

Total

Amount Special Crime

Total

SK T CBS CMB CMK MNG PBS KOR NKB NKP TE R LOG TRA PCU GNS

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1 January 2 18 0 0 3 2 25 106 776 1182 0 0 8 2 0 2074

2 February 2 13 0 0 0 8 23 96 748 1177 0 0 9 2 0 2032

3 March 3 30 0 0 2 15 50 88 762 1195 0 0 9 2 0 2056

4 April 4 21 0 0 5 8 38 84 837 1299 0 0 13 1 0 2234

5 May 2 24 0 0 0 4 30 60 882 1385 0 0 19 2 0 2348

6 June

7 July

8 Agust

9 September

10 October

11 November

12 December

Source : http://smslap.ditjenpas.go.id/public/krl/detail/monthly/upt/d b62ca60-6bd1-1bd1-8ad0-313134333039,

accessed on 03 July 2018

SKT : Sick Inmate

NKB : Drugs Seller/ Drugs

agent

CBS : Conditional

Furlough

NKP : Drugs user

CMB : Furlough before

release

TER : Terrorist

CMK : Furlough to visit

family

LOG : Illegal Logging

MNG : Amount of inmate

who is dead

TRA : Human Trafficking

PBS : Parole PCU : Money Laundry

KOR : Corruption GNS : Genocide

The number of users of the user or d dominates

from other cases. The high drug users and drugs -

illegal drugs led to many being put in prison,

resulting in overcapacity detention facility.

Paradigm importing drug users to prison is not the

correct paradigm that there should be criteria for

drug users to enter a rehab clinic. Drug users must

be subject to Article 127 of Law No 35 of 2009 on

narcotics. In article 127, paragraph 3 explains that

the abusers mentioned in paragraph (1) can be

demonstrated or proven to be the victim of drug

abuse, abusers will undergo medical rehabilitation

and social rehabilitation. Whereas Article 54 of the

Narcotics Act states that "drug addicts and victims

of drug use needed to undergo medical rehabilitation

and social rehabilitation", so it does not recognize

rights abusers to receive rehabilitation. In article 127

of the Narcotics Act was originally abusers are

guaranteed rehabilitation later became the subject

can be trapped and lose the proper rehabilitation or

unless it can be proven that the victims of the drug.

Very difficult to prove perpetrators as victims,

because they have to look at the beginning of the use

of narcotics and drug users also evidence that drug

users are being lured, deceived, and / or threatened

to use narcotics, which is based on Article 54 of the

Law 35 of 2009 on narcotic drugs.

With regard to the authority to report based on

the law no 35 of 2009 on narcotics is still facing a

problem that reporting is the rules necessary to drug

addicts and families, as well as threats to the addict

or criminal and the parents, which is based on article

128 of the Law 35 of 2009 on narcotics. If the

reporting is compensated without criminal

prosecution. Criminal prosecution should be a last

option if there is no other effective method.

Therefore, it would be better to motivate drug users

and their families due to the large number of arrests

and incarceration of people due to the case of

narcotics, psychotropic and addictive substances

extended to overcapacity detention facility. Act No.

35 of 2009 strengthens the authority of BNN

The Inﬂuence of Court Decision toward Overcapacity in Surabaya Detention Facility

701

(National Narcotics Agency) and increasing

penalties and fines, there are still problems

according to Erfen Suwangto Gustiawan among

others:

1. This excessive authority of BNN without the

supervision of external institutions / institutions.

2. the destruction of evidence in a faster way than

the Criminal Code has the potential to cause

violations of transparency and the right of

suspects to clarify the truth of the data presented

by the investigator.

3. Serious criminal sanctions that do not

distinguish between sanctions between illegal

drug traffickers and users

The decisions to equalize between the user and

the distributor is in conflict with the theory of

victimology according to Gustiawan Erfen

Suwangto. Users who are considered criminals

cannot identify crime victims. The police often have

charged circulation article in accordance with

Article 78 of Law No. 2 of 1997 and the sale in

accordance with Article 82 of Law No. 2 of 1997 on

drug users caught by the police. This must condemn

the users / addicts to rehabilitation in accordance

with Article 85 of Law No 22 of 1997 and the

Circular of the Supreme Court. 7 of 2009. The

practice disrupting lawlessness of the police as an

example of extortion, asking for bribes, torture and

sexual abuse have been. As described Researcher

MAPPI FHUI Adam Cendy that the Criminal law

and the Narcotics Act provide a room for

researchers, prosecutors and judges to reduce

overcapacity by introducing addicts and victims of

drug abuse to medical and rehabilitation institutions

social (tribunnews.com, 2018). Therefore, judges

should investigate and decide case by pointing out

narcotics rehabilitation places closest to the suspect's

condition with the consequences to see addicted

drug users as punishment should undergo proper

treatment and expert care. Rehabilitation is not used

by users, which is more than once carried out by the

police. Penalties for people who do not report the

crime of drug parties or together with drug users that

need to be reviewed.

In addition, it does not pay attention to the

intentional / accidental element in drug offenses. He

also the element of intent to entangle people who do

not intend to commit narcotic crime include cases of

coercion, insistence and ignorance in the use of

narcotics. However, according to Adam Cendy that

law enforcement officers tend to impose a prison

sentence for the suspect / suspect / convicted drug /

user to maximize. As an example of maximizing

hukuam Cendy Adam also explained that

incarceration does not solve the problems of drug

users and often fails to produce a deterrent effect on

the community. in addition, poor supervision in

detention facility. For example:

1. Prisoners Circulating drugs in Salemba

reception center secured by Cempaka Putih

Sector Police on 25 September 2017 at 6.30 pm

WIB.

Source :

https://news.detik.com/berita/3665451/takkapok

-napi-ini-masih-edarkan-narkoba-di-

rutansalemba, accessed on 03 july 2018

2. The National Narcotics Agency takes up the

head of the Purworejo detention center in

connection with a syndicate of drug cases by

four prisoners of drugs because of the

convenience of drug trafficking in prison by

Kristian Jaya Kusuma prisoners.

Source:

https://www.liputan6.com/news/read/3229749/i

nilahkepala-rutan-purworejo-yang-terima-uang-

dari-napinarkoba, accessed on 03 july 2018

3. Arrest of officers Warden of drug suppliers in

detention centers Tanjung Redeb, Berau, East

Kalimantan because they are supplier of

methamphetamine to the cell.

Source:

https://www.merdeka.com/peristiwa/sipirpemas

ok-narkoba-ke-rutan-berau-diciduk-uang-rp-

180-juta-disita.html, accessed on 03 july 2018

With the emergence of drug in the community

and without causing a deterrent effect for drug users

/ traders in the cell, it is necessary to find the right

solution to tackle the problem.

The decision following drug users:

1. Decision 1 Year in Prison for drug users by the

suspect Devina Olivia and Maria mahdalena

Source:

http://jejakrekam.com/2017/11/02/hakimvonis-

setahun-kurungan-wanita-cantik-

penggunanarkoba/, accessed on 03 July 2018

2. The Supreme Court Decision No. 1524 K /

PID.SUS / 2015

Source:

https://putusan.mahkamahagung.go.id/putusan/4

1c24 2c202b4360d4b9b0c6d4f0ec33b, accessed

on 03 july 2018

3. South Jakarta Court Decision No. 65 / Pid.Sus /

2015 / PN.Jkt.Sel

Source:

https://putusan.mahkamahagung.go.id/putusan/4

101a 38aa69791ee6a21b55b3b46c62c, accessed

on 03 july 2018

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4. Decision 4 Years in Prison and a fine of 800

million rupiah Artist Jennifer Dunn (arrested

three times)

Source:

https://www.liputan6.com/citizen6/read/357028

0/seb elum-divonis-4-tahun-penjara-jennifer-

dunn-santaihadiri-sidang-putusan, accessed on

03 july 2018

5. The decision of the court in Surabaya 5 years 6

months in prison and a fine of one million

rupees for Susetyo HARIWANTO (arrested for

the first time) No. 2285 / Pid.Sus / 2015 /

PN.Sby

Source:

https://putusan.mahkamahagung.go.id/putusan/5

4ac0 594e48861e4924bf19b9ae87d2b, accessed

on 03 July 2018

The above decisions that the prosecutor often

tends to maximize imprisonment by making appeals

and cassation. Where we need to look at decisions

that make decisions that reduce the overcapacity of

prisoners by rehabilitating users / addicts. Often we

see the news on television celebrated artists can be

rehabilitation, while ordinary people afflicted by

drug cases often do not get rehabilitation so that

people believed it was possible because of the

money or the irresponsible person who use these

gaps to get money or other things, there should be no

difference in punishment between the artist / official

/ ordinary community. Moreover, we must see as for

the victims who are forced, deceived, threatened or

framed by the individual or his own friends so the

defense is very difficult because there must be

evidence. As explained above for the evidence, it is

very difficult, so the integrity of the judge is

necessary to look carefully and with conscience. The

judge must maximize the use of medical and social

rehabilitation penalties to overcome the overcapacity

of prisoners. While the government must increase

the number of rehabilitation places for drug users so

that it can help deal with the overcapacity of

detention facility.

3 CONCLUSIONS

To overcome overcapacity requires the support of

different authorities. In addition, it is necessary to

socialize the problems, supervision and possible

human rights violations caused by law No. 35 of

2009 affecting the overcapacity of detention facility

and the socialization of places to rehabilitate drug

users. There must be clarity and there is no

confusion in these rules and does not discriminate

the penalties imposed by drug users.

REFERENCES

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2018

http://smslap.ditjenpas.go.id/public/grl/detail/monthly/

upt/db62ca60-6bd1-1bd1-8ad0-313134333039,

accessed on 04 june 2018

http://pengertianahli.id/2013/10/pengertian-

pidanamenurut-para-ahli.html accessed on 25 june

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