REFORM REGULATION OF NOVUM IN CRIMINAL JUDGES IN AN EFFORT TO PROVIDE LEGAL CERTAINTY J NDONESIAN

case, study aims to conceptualize how the regulation of PK legal remedies in criminal cases should This research is Available online at legal research, the approach used is a case approach, a comparative approach, and a conceptual approach, with a literature study research technique. After knowing the arguments for the admissibility of submitting a PK in the form of a District Court Decision, the author makes several comparisons with the Criminal Procedure Code (America and France), and concludes based on this comparison that the use of the basis for submitting a PK should be regulated clearly and firmly in the Criminal Procedure Code, because the two countries in its criminal procedural law it expressly states that the submission of a PK must be based on new facts and evidence which, if presented at the previous trial, has the potential to reduce or even abort the prosecution's charge

Available online at http://journal.unnes.ac.id/sju/index.php/jils level of prosperity or economy. This is a huge market potential for the illicit trafficking of narcotics and psychotropic substances and encourages traffickers who want to get rich quick with less effort. 3 Since 1998 there have been indications that Indonesia is no longer just a transit country, but is already a destination country, even for psychotropics, Indonesia can be said to be a source country (place of production). The problem of illegal trade and narcotics crime is a very complex problem because there are 3 (three) factors that cause the increase in the illegal circulation of narcotics, namely weak interdiction capacity which will result in an increase in the risk of illicit narcotics trafficking, an increase in narcotics abuse, and a lack of cooperation between enforcement agencies. law, both national and international, which results in a lack of effectiveness in the implementation of interdiction tasks. Available online at http://journal.unnes.ac.id/sju/index.php/jils 2. Prevent, protect, and save the Indonesian people from narcotics abuse.
3. Eradicating illicit trafficking of narcotics and narcotic precursors. Article 112 paragraph (1) "without rights or against the law owning, storing, controlling or providing Narcotics Category I is not a plant". Article 114 paragraph (1), namely "without rights or against the law, offering for sale, selling, buying, receiving, intermediary in buying and selling, exchanging or delivering Narcotics Category I"; The minimum fine is Rp. 800,000,000,-(eight hundred million rupiah) and a maximum fine of Rp. 8,000,000,000,-(eight billion rupiah). Criminal fines that are not paid by the perpetrators of narcotics crimes will be replaced with imprisonment according to the provisions: Available online at http://journal.unnes.ac.id/sju/index.php/jils Article 148, namely "If the criminal penalty as stipulated in this Law is not paid by the perpetrator of the crime of Narcotics and Narcotics Precursor, the perpetrator is sentenced to a maximum imprisonment of 2 (two) years as a substitute for a fine that cannot be paid.".
Based on this formulation, perpetrators of criminal acts tend to prefer to undergo imprisonment as a substitute for fines. In the Narcotics Law, narcotics users are also referred to as victims of the narcotics circulation. Due to the increasing number of narcotics trafficking, the more abusers or addicts are ensnared. Therefore, the state/government in this case intervenes in the prevention and eradication process, but also in the massive rescue/protection process for the young generation who have become victims of narcotics. This is also the basis for the establishment of a special agency, namely the National Narcotics Agency (BNN) with the main task of dealing with Narcotics problems, not only prevention and eradication, but also to the rescue/rehabilitation stage for people who have been exposed to narcotics abusers or addicts. The government also provides a large enough budget to build rehabilitation homes, and cooperates with public and private hospitals to help save victims of narcotics abusers or addicts. With regard to someone who is proven to be a narcotics abuser, the person concerned is obliged to undergo medical rehabilitation and social rehabilitation. This can be seen in Article 127 of the Narcotics Law, namely:: 1. Any Abusers: a. Narcotics Category I for oneself shall be sentenced to a maximum imprisonment of 4 (four) years; b. Narcotics Category II for oneself shall be sentenced to a maximum imprisonment of 2 (two) years; and c. Narcotics Category III for oneself shall be sentenced to a maximum imprisonment of 1 (one) year.
Available online at http://journal.unnes.ac.id/sju/index.php/jils 2. In deciding the case as referred to in paragraph (1), the judge must pay attention to the provisions as referred to in Article 54, Article 55, and Article 103.
3. In the event that the abuser as referred to in paragraph (1) can be proven or proven as a victim of narcotics abuse, the abuser is obliged to undergo medical rehabilitation and social rehabilitation.
However, in practice, especially in the first instance court, Article 127 of the Narcotics Law is rarely used, judges and prosecutors tend to use Article 112 of the Narcotics Law, which says that: "Any person who without rights or against the law owns, keeps, controls, or provides Narcotics Category I which is not a plant, shall be punished with imprisonment for a minimum of 4 (four) years and a maximum of 12 (twelve) years and a minimum fine of Rp800,000,000. ,00 (eight hundred million rupiah) and a maximum of Rp. 8,000,000,000.00 (eight billion rupiah)".
The frequent use of this article in every judge's decision and the demands of the public prosecutor in narcotics crimes is accompanied by strong reasons, in addition to fulfilling the elements in Article 112 of the Narcotics Law, it is also due to the fact that the defendant's trial or the defendant's attorney cannot prove that the defendant is a victim of narcotics abuser. as required by Article 127 of the Narcotics Law. 4 In terms of demands by the Public Prosecutor, it is known that the application of Article 112 of the Narcotics Law as a Primary claim in many narcotics crimes is because the elements in Article 112 of the Available online at http://journal.unnes.ac.id/sju/index.php/jils guilty and proven legally and convincingly. guilty of committing the crime of "Owning, Storing Narcotics Category I" and therefore with imprisonment for 4 (four) years and 6 (six) months and a fine of Rp. 800,000,000,-(eight hundred million rupiah) provided that if the fine is not paid, it will be replaced with imprisonment for 1 (one) month. 5 Then after some time the convict through his legal counsel submitted an application for judicial review to the Supreme Court (MA) which the Supreme Court granted the request and then the Supreme Court tried again, through Decision Number: 244 PK/Pid.Sus/2018 with a command: 1. To declare that the convict Andy Suntoro has been legally and convincingly proven guilty of committing the crime of "Abuse of Narcotics Class I for Yourself".
However, the author's question is when talking about extraordinary legal remedies for judicial review, the main conditions that must be met as stipulated in Article 263 of the Criminal Procedure Code (hereinafter referred to as KUHAP) are: 1. Against a court decision that has obtained permanent legal force, unless the decision is acquitted or released from all legal claims, the convict or his heirs may submit a request for review. back to the Supreme Court. c. if the decision clearly shows a judge's error or a real mistake.
3. On the basis of the same reasons as referred to in paragraph (2), against a court decision which has permanent legal force, a request for reconsideration can be submitted if in that decision an act that has been accused has been declared proven but is not followed by a conviction.
Article 263 Paragraph (2) of the Criminal Procedure Code clearly states that the PK request was submitted based on a new situation (novum) and so on, but the PK petition submitted by Andy Crime where that the PK-3 novum is the judge in his consideration regarding the element for oneself; Considering, whereas the element "for oneself" contains the meaning that the narcotics abuser of class I type of methamphetamine does not have the intention of persuading or offering to other people to participate in abusing narcotics but solely for himself; Considering that from the testimony of the witnesses related to the testimony of the defendant at trial, there was no legal fact that the defendant wanted to sell or trade the shabu he had taken, but that the shabu was solely for the defendant's own consumption; Considering, that from the series of actions of the defendant, it was related to the defendant's intention to buy methamphetamine with the intention of consuming it himself, which turned out to be when Considering, that from the legal facts that were revealed at the trial as mentioned by the Panel above, it has been found that: that …..;; Considering, that based on the description of the legal facts as mentioned, it has been found that the defendant is not one of the people who has the right to use the methamphetamine and the Available online at http://journal.unnes.ac.id/sju/index.php/jils guilty was no reason for the federal court to order a new trial. This is because: 10 In any event, because the defendant has already been found guilty, the presumption of innocence no longer applies during the appellate process, and the burden of showing why the conviction should be overturned shifts to the defendant.
So, if new evidence or facts are found that are submitted by the convict to reverse the court's decision, the convict can ask the court to hold a new trial based on the new evidence or facts, without closing the possibility for the federal court to hold an appeal. According to the United States legal system, the party entitled to appeal is the defendant who is dissatisfied with the court's decision and hopes that a higher court can give a more just or appropriate decision. The public prosecutor could not appeal because it would lead to a second prosecution of the same case (double jeopardy) which is prohibited in the United States constitution. Most states deal with this by providing opportunities for public prosecutors to appeal only to pre-trial or post-conviction rulings. 11 Therefore, new evidence or facts can only be submitted by convicts who have been found guilty by the court. In this case, it can be seen that in the PK legal system in America, the main requirement in filing a PK is new evidence or new facts. Unlike Available online at http://journal.unnes.ac.id/sju/index.php/jils 1. After the verdict for the crime of murder is handed down, documents that are likely to give rise to the suspicion that someone suspected of being a murder victim is still alive.

2.
After the verdict or verdict is handed down, whether it is a crime or a violation, the court of first instance or an appeal has rendered a decision with the same charge on a different defendant, because the verdict is different, then the conflicting decision becomes evidence that one of the parties or parties who have been found guilty will become not guilty.
3. Since the verdict was handed down, one of the witnesses who testified has been charged and sentenced to give false testimony against the defendant; the witness will not be heard at the new trial.

4.
After the verdict is handed down, a new fact emerges or is discovered that was not previously known by the court in the trial, which is likely to raise doubts or doubts about the guilt of the convict.
When compared with the provisions of the Indonesian criminal procedure law which broaden the notion of novum as the basis for filing a PK, the French criminal procedure law narrows the notion of novum or fait nouveau as the basis for filing a revision. Novum as the basis for PK according to Indonesian criminal procedure law can be anything as long as it is not known beforehand and has the quality to Available online at http://journal.unnes.ac.id/sju/index.php/jils reasons for submitting a PK, procedures for submitting a PK, the principles in a PK and the forms of decisions in a PK.
Article 263 paragraph (1)  Code can be divided into two elements. The first element contains the conditions for filing a PK legal action, namely a court decision that has obtained permanent legal force. Court decisions in this case include decisions made by all court institutions, starting from the District Court, High Court, to the Supreme Court. All decisions of the judicial institutions can be requested for PK, as long as they meet the requirements, namely they have permanent legal force and as long as this has not happened, PK legal remedies cannot be used. 17 As an extraordinary legal remedy, the Criminal Procedure Code limits the reasons on which the PK is filed. This is regulated in Article 263 Paragraphs (2) and (3)   In order to answer this question, the author conducted a literature search related to the meaning of novum, and the characteristics of the novum, it is known that the term novum (singular form) or novi (plural form) which comes from Latin. 21 Grammatically it means something new or new facts, including new legal conditions. 22 Novum in Latin has the full term noviter perventa, which means "newly discovered facts, which are usually allowed to be introduced in a case even after the pleadings are closed". 23 Article 263 paragraph (2)  "A new thing that arises later after a court decision has obtained permanent legal force that has never been discussed before or has never been questioned in court. The novum had never been known before by the judge examining the case, while the new situation, either alone or in relation to the previous evidence, could not be adjusted to the judge's decision, thus giving rise to a strong suspicion that if the situation had been known at the time of the While the trial is still in progress, the court's decision will be different from the decision that has been taken".

The definition of novum based on the opinion of Hadari
Djenawi Tahir is not limited to new evidence, but is broader, namely a new matter that is known or emerged after the judge's decision has permanent legal force. Hadari Djenawi Tahir also emphasized that the word 'new' must be compared with the circumstances that were discussed at the time and during the trial process where the decision 24 HADARI DJENAWI TAHIR. BAB TENTANG HERZIENING DI DALAM KITAB UNDANG-UNDANG HUKUM ACARA PIDANA. 95 (1982) Available online at http://journal.unnes.ac.id/sju/index.php/jils was not yet final and binding. The judge who has the authority to decide a case before the decision is legally binding is considered not to know the circumstances other than those in question in the trial, so it is the duty of the interested parties to bring the matter to trial. The element known in Article 263 paragraph (2) letter a of the Criminal Procedure Code has the meaning that it has never been discussed in the trial because it has not been questioned by one of the parties.
Starting from the provisions of Article 263 paragraph (2)   "is a valid evidence, because the information is in accordance with Article 185 and Article 186 of the Criminal Procedure Code, which is a new situation as referred to in Article 263 paragraph (2) letter a of the Criminal Procedure Code, which can be used as material in forming the evidence guide".
Based on the explanation of the novum above, the author feels that he has found reasons and arguments that are quite clear regarding the reasons why district court decisions can be used as a novum in a PK application for narcotics crimes, among which the author will describe as follows: 2) The testimony of a witness alone is not sufficient to prove that the defendant is guilty of the act he is accused of.
3) The provisions as referred to in paragraph (2)  (2) letter a of the Criminal Procedure Code: "If there is a new situation (novum) which gives rise to a strong suspicion, that if the situation was known at the time the trial was still ongoing, the result would be an acquittal (vrijspraak) or an acquittal decision (ontslag van alie rechtsvolging) or the prosecution's claim was not acceptable (niet ontvvankelijk verklaring) or to the case lighter criminal provisions are applied".  CET. 1, 125 (1999) Available online at http://journal.unnes.ac.id/sju/index.php/jils "So, in compiling the basis for the reason for reconsideration in the form of a novum or novi, it must really show concrete things that lead to the existence of strong evidence that is a condition for an acquittal, or a condition for a decision to be free from all lawsuits, or a condition for a decision or determination to be granted an acquittal.
stating "the demand of the public prosecutor is unacceptable" or the terms of the decision containing a lighter criminal provision". Based on this view, we can conclude that there are 2 (two) major views from experts in Indonesia in viewing the novum, as a condition for submitting an application for reconsideration (PK), which include: a.
in the event that the PK novum application submitted is evidence, and b. in the case that the PK novum application submitted is not only bound as evidence (free) as long as it has a correlation with the decision and has the quality as a novum.

II. The Principle of Judges May Not Reject Cases (Principle of Ius Curia Novit)
In the dynamics of everyday life, conflicts often occur in society.
Conflicts that occur often cannot be resolved by the parties involved.
To be able to resolve the conflict, it is often necessary to intervene by a special institution that provides an objective resolution, the resolution of which is of course based on objectively applicable guidelines. This function is usually carried out by an institution called the judiciary, which is authorized to examine, assess and make decisions on conflicts. This authority is known as judicial power which in practice is carried out by judges. 36  Available online at http://journal.unnes.ac.id/sju/index.php/jils judge or judges have great power over the disputing parties regarding the problem or conflict that is brought before the judge or judges.
However, this also means that the judges in carrying out their duties fully bear a great responsibility and must be aware of this

III. Reconstruction of Novum Arrangements in Criminal Cases
As it is known, that in the history of Judicial Review (PK) is not known in criminal justice, PK has just been adopted in the instrument of criminal procedural law as very extraordinary legal tools that should not be used arbitrarily, therefore when opened (Herzien  PIDANA. 75 (1982) Available online at http://journal.unnes.ac.id/sju/index.php/jils permanent legal force, then according to a reasonable estimate, the judge will declare the public prosecutor's claim to be unacceptable.
d. Novum which leads to a verdict with lighter criminal provisions.
Regarding the quality of this novum, Soedirjo argued: "Not every novum that results in the adoption of a lighter sentence is sufficient for review. There must be a legal basis in the law to reduce the crime (wettelijke strafverminderingsgrond), which causes the maximum penalty (those threatened by law) to be reduced.". Meanwhile, Mangasa Sidabutar linked this novum with changes to the law regarding the sanctions applied. According to him: "What was found was that at the time the decision was handed down, there had actually been a change in the "sanction" (sanctie) which became the basis for the decision of the court concerned".
Taking into account the two opinions, Soedirjo's opinion contains a broader meaning or limitation compared to Mangasa Sidabutar's opinion which specifically states that the novum in this case is in the form of changes to the law regarding lighter sanctions for the same crime to the convict.
Therefore, based on this explanation, the judge must be observant in seeing whether a material presented as a novum has accommodated the qualities stated above. "if in various decisions there are statements that something has been proven, but the things or circumstances as the basis and reasons for the decisions that are stated to have been proven have contradicted each other".
What the author means is in accordance with the view of Oemar Seno Adji which states that the basis for the submission of the revision above (Les cas de revision), the second is the basis which according to the Indonesian Criminal Procedure Code is called a judicial conflict, or in French procedural law it is called la contrariete. de jugements. 48 48 Id.