Abstract : Declaration of principles justice for the victim of crime and misused of power on point B of themisused power number 19 stated that the states must be consider to put under the national law, norms that haveforbidden to misused it.
Spesifically, the restoration must cover the restitution and/or compensation, togetherwith the help and support on materiil, medical, psicology and social but in the case of implementation is oftenthe legal officers conduct the wrongact in order to enforced the law, like to arrest and detention the suspectwitouht a proper procedure that mentioned under the Penal Code of procedural law, The wrongful act under thelaw implementation so the suspect is free, have found the error in persona so need to have a right forcompensation. Furthermore, it is need to analysis about the right of compensation for the suspect, defendantand convicted. The purposed of this study is to know the essence of compensation for the suspect, defendantand convicted under the criminal case. Type of this study is normative research with legal approach, philosophyapproach, case approach and concept approach. The result of this research have shown one basical things thatincluded in the penal code of procedural law which is the consideration of human rights for suspect anddefendant as a guarantee for the protection of honor and dignity. The rights of the suspect or defendant are theconstitutional right that given since they were born or given by the law. The right is given by the law related of itsstatus as a suspect or defendant, one of the principle which under the penal code procedural law is the principleof the right for compensation for the suspect, defendant and convicted under the criminal court system asmentioned under point d of the general explanation of penal code of procedural criminal law which stated thatto whom that to be arrested, to be accused or being prosecuted without any reason according to the law or dueto any mistakes must get the compensationor rehabilitation since in the level of investigation.
Therefore, itshould be if the examination of pre court of the compensation demanding is going, the investigator should not ina rush to bestow main case to the court, it shall wait until all the investigation process have finishes due the shorttime that judge only have a week to finish the examination and decide the application.Index Term :Compensation, Legal Protection, Suspect, Defendant, Convicted.I. INTRODUCTIONThe Constutution of theRepublik of Indonesia Year 1945 on the third amendment Year 2001 which is on article 1 point (3) asserted thatIndonesia is a legal state (rechtstaat), and not based on power (machtsstaat). It means that each citizen must actas the existing law.
Rechstaat concept have posited the human rights as one of the identity. There are two bigtradition of legal opinion of the state in the world, which is the state of law under European Continental traditionand State law under Anglo Saxon which is called Rule of Law.Along together with those above, one of thescholar that often as referenced whne tall about state law (Rechtsstaat) under European Continental tradition isFriedrich Julius Stahl. on his view, Rechtsstaat is the restoration from the opinion from Immanuel Kant.
Accordingto him, there are four elements that must be have and became the characteristic of the state law, they are humanrights (grondrechten); separation of power (scheiding van machten); The government based on the law(wetmatigheid van het bestuur); and administration court (administratieve rechtspraak).Those statement is alongwell with Hans Kelsen statement as mentioned by M. Hatta, that one of indication to be called state of law, likehuman rights (H. A. Mashyhur Effendi, 1994). For Indonesian Nation, the definition of human right protection iscan be seen under the constitutional law of 1945 (Fourth amendment year 2002) on the article 28 A to article 28J. While the article 28 D point (1) set that everyone have the right for recognition, guarantee, protection andjustice legal certainty also equal treatment before the law.
The protection of human right is described by the lawunder the constitutional 1945. One of the rules of law that have described human rights is law number Nomor 8Tahun 1981 on Book of procedural criminal law.Declaration for principles of justice for the victim of crime andmisused power on point B of the misused of power number 19 that mentioned “states must consider to involve itunder national law of norms that forbid the misused of power” Spesifically, the restoration must be cover therestitution and/or the compensation, also supported on materiel, medical, psikology and social demand.Although in fact, is often the legal officer under conduct their duty have done the wrongful act asmentionedInternational Journal of Scientific and Research Publications, Volume 5, Issue 6, June 2015 2ISSN2250-3153www.ijsrp.orgunder the law, like the investigatior conduct the forceaful measures like arrested andaccused which is not along with the procedure that mentioned under the criminal law procedural or due to theerror in Persona which is not that person who conduct the crime and get punishment.Case of example that wellknown to the error in persona is Sengkon and Karta cased that happened in.
Court of Bekasi and high Court ofBandung have stipulated the Sengkon bin Yakin with punishment of 12 years of jail and Karta or known as Karungknown as Encep bin Salam with the punishment of 7 years of jail due to assumed that proved to rob and killSulaiman bin Nasir and his wife Siti Haya binti Abu. While in other case, have proven that the robber and killerthe couples of Sulaiman are Gunel, Siih and warsita (Adami Chazawi, 2010). Another case is the case of the deathof Marsinah, where nine of defendants was on jail for 5 months to 2 years, before proved ungulity by the supremecourt and Mohammad Arif Budi who defendat as hold-up of taxi driver that was in jail for 166 days beforereleased by the judge of the court in North Jakarta (Leden Marpaung, 1997).In the court of North Jakarta, Precourt application that applied by Hermin which advocated to O.C Kaligis.
The applicant is brother from suspectSudarto (almarhum) that have arrested on 25 April 1985 by the police officers from Resort of Police NorthJakarta with the reason that have involved in the stealing case with torture in the village of Mauk Tangerang on24 April 1985. Under the arrested, the legal officers has not shown the letter of duty and didn’t give the letter ofarrest to Sudarto and sent the copy to his family. The applicant has applied in order the judge of pre courtdecide that the arrested was no legal and compensated the lost around Rp. 3.000.
000,- (3 millions rupiah).Morever, the judge decision stipulated that application was rejected with the reason that suspected was caughtunder hand (O.C. Kaligis, 1997).According to those above, the issue of this research is the legal officer often to