Criminal law military in the material and formal sense reviewed from corner justiciable is part from law positive , which applies for justiciable justice military , which determines basics and rules about the actions that constitute prohibitions and requirements as well as to the offender threatened with criminal , which determines in matter what and when offender can accountable on actions and what determines the method prosecution , sentencing criminal and enforcement criminal , in order to achieve justice and order law . [7] In general short law criminal military in a material sense namely that contained in the Criminal Code Military ( next abbreviated as KUHPM) and in the formal sense , namely the Criminal Procedure Law Military (Law No. 1 Drt . 1958 ) and legislation other such as the law on implementation criminal dead , rules about to -PAPERA-an. [7]

Action criminal military in general there is in the Criminal Code where there are two parts namely : 1. Action Criminal Pure Military . 2. Action Criminal Military Mixture .

Action criminal military pure is is action prohibited / required in principle only Possible violated by a military , because its condition is special or Because a interest military to wish action the determined as act criminal . [8] Action Criminal Military Mixture is actions forbidden or required in principle Already determined in legislation others , will but set up Again in the Criminal Code or in legislation others . [9] Because of the existence of something typical circumstances​ military or Because existence other properties , so that required threat criminal on crime back to with weighting the in Article 52 of the Criminal Code.12 Reasons for aggravation the is Because threat criminal in the law criminal general That felt not enough fulfil justice , remembering things special attached​ for a military . For example : a military on purpose armed For guard security , instead precisely He use weapon the For rebel , the military placed in a clothes without limited by a wall​ because of them has been fertilized with rasa korsa (corps geist ) will but just one of them from they do theft in the house the .

Action crimes committed by TNI members are purely military based on to regulation related with military . TNI members who carry out act criminal pure military as mentioned in law criminal military including crime namely : crime to state security , crime in implementation obligation war , crime interesting self from unity in implementation obligation service ( desertion ), crimes devotion , crime theft , fraud , and receiving of stolen goods , crimes to destroy , to destroy or remove goods needs force war . [10]

Action criminal military mix ( germengde) military delict) is act criminal about case connectivity It means a act crimes committed​ in a way together between civil and military in​ matter This basically to Constitution military and the Criminal Code . Example : acts criminal theft committed​ in a way Work The same between civil and military ; action criminal murder whose victim is civil ; and others. Action criminal mixture This always involving subject law namely civil Good perpetrator and also as a victim of crime criminal . In Law of the Republic of Indonesia Number 39 of 1947 concerning the Criminal Code , namely : Article 87 of the Criminal Code, paragraph : [11]

Threatened Because desertion military :

1st, The one who left with Meaning interesting self For forever from obligations his service , avoiding danger war , crossing to enemy , or enter service military in a country or other powers without justified For That ;

2nd, Because the mistake or with on purpose do absence without permission in time peace longer than​ three tens day , in time war longer than​ four day ;

3rd, The one with on purpose do absence permission and therefore No follow carry out part or all in all from a ordered travel , as described in article 85-2 .​

Desertion committed​ in time peaceful , threatened with criminal prison maximum two years eight month .

Desertion committed​ in time war , threatened with criminal prison maximum eight year six month

In Law of the Republic of Indonesia Number 31 of 1997 concerning Justice Military namely : Article 124 of Law No. 31 of 1997 paragraph : (4) In the case of file case desertion the suspect No found , minutes of examination suspect No is condition complete a file matter . Article 125 Law no. 31 of 1997 paragraph : (1) Except case desertion the suspect No found after researching file case , auditor create and deliver opinion law to the Surrendering Officer Things that can in the form of request for the case handed over to Court or completed according to the Disciplinary Law Soldier , or closed for the sake of law , interests general , or interest military . Article 141 Law no. 31 of 1997 paragraph : (10) In cases desertion the accused No found , inspection without presence defendant . Article 143 of Law No. 31 of 1997 Case act criminal desertion as meant in the Criminal Code​ The military , whose defendant run self and not found Again in 6 ( six ) months time in a row participate as well as Already attempted 3 ( three ) consecutive summons in a way valid , but No present at the hearing without a reason , can done examination and decided without presence defendant .

Elements act criminal desertion in the provisions of Article 87 paragraph (1) 2 of the Criminal Code which are emphasized following : "which is because the mistake or with on purpose do absence without permission in time peace longer than​ three tens days ” Based on Article 87 paragraph (1) 2nd, then There are 5 (five) elements act criminal desertion , namely : First , Military ; Second , With intentionally ; Third , Doing absence without permission ; fourth , in times of peace ; and fifth , longer than three tens day . [12] Against elements mentioned above​ there is understanding that element : Military It means First , according to Article 46 of the KUHPM , namely those who are related service in a way volunteer for the mandatory Armed Forces is at in service in a way Keep going continuously in grace period time service said ( called military ) or all volunteer others in the force war and the obligatory military during they is at in service . Second , both military voluntary and also military must is is justiciable justice military meaning​ to they can charged or applied terms and conditions law criminal military on the side terms and conditions law criminal general , including here​ defendant as member military / TNI. Third , that in Indonesia what is meant with military is strength force war from a country. Fourth , that a military marked with have : Rank , NRP ( Number) Central Registration ), Position , Unit in the carry out his job or on duty use clothes uniform in accordance with The dimension complete with sign rank , location of unit and attributes other .

With intentionally . That which is meant with intentionally (dolus) in the Criminal Code No There is understanding and also the interpretation in a way special , but interpretation “ With on purpose or Intentional “ adjusted ” with development and awareness law society because of That there is Lots teachings , opinions and discussions about term intentional this . [13] Do absence without permission , That do absence without permission means No present in the unit as usually a TNI members , among others, were preceded with apple morning , carry out tasks assigned​ or which becomes not quite enough he answered , then apple afternoon . While what is meant without permission It means absence without to the best of my knowledge or with valid permission from Commander or Its unity or his obligation as TNI members . In time peace . That which is meant in the future peace means that defendant or a TNI members do absence without permission that is the Republic of Indonesia in condition peace or its unity No carry out task as meant in Article 58 of the Criminal Code , namely expansion from condition war . Longer than​ three tens day . That do absence longer than​ three tens day means defendant No present without permission in a way consecutive more from time three tens day .

Actions with on purpose interesting self from obligations service as meant in Article 90 of the Criminal Code , namely : [14] with reason turtle or a series essay lie , interesting self from obligation For temporary time ; interesting self For forever ; and intentionally make himself No used . While action forgery letter leave as meant in Article 91 of the Criminal Code is : act to fake letter leave ; action tell someone else or request letter leave That with a fake name ; and a letter leave That used Alone or used by others. The military deliberately using a travel pass , card security , command road , letter leave , from someone else, as it were he is the person mentioned in it , threatened with criminal search maximum two years . In connection with Article 91 of the Criminal Code and Article 92 of the Criminal Code it is emphasized return in Article 93 of the Criminal Code that if one of them crimes formulated in Article 91 and Article 92 of the Criminal Code or Article 267, Article 268, or Article 270 of the Criminal Code carried out by the military in time war , for make it easier crime desertion , threatened with criminal prison maximum seven year .

Based on decision No: 135-K/PM.III-16/AD/X/2022 that defendant Sugianto, Rank Prada 31210477440502, Position Ta Munisi 3 / Cuk 2 / Ru 1 / Morsel / Kibant . Defendant enter become Indonesian Army members in 2021 through Secata PK Education at Secata A Rindam XIV/ Hsn for 5 months , then The College of Education Infantry at Dodiklatpur Rindam XIV/ Hsn in Bancee Bone for 3 months and after graduating was placed in Yonif Para Raider 432/ Wsj until Now with rank last Prada NRP 31210477440502. That with thus Defendant leave unity Yonif PR 432/ Wsj without valid permission​ from Commander of Infantry Battalion PR 432/ Wsj since December 18 , 2021 to with July 18, 2022 or for 212 (two hundred and twelve ) days in a way consecutive in time peace . That during Defendant leave unity without valid permission​ from Commander of Infantry Battalion PR 432/ Wsj or other authorized superiors , the Unitary State of the Republic of Indonesia in condition peace and unity Defendant No currently prepared For carry out task operation military . That cause Defendant leave Unit Because Defendant Afraid beaten by his senior One company The Defendant . That during Defendant No enter service , no Once contact Unit , good through letter and also through phone . That Defendant feel regret and promise No will repeat it Again as well as Defendant will on duty more Good Again forward . That during No enter service Defendant No Once do violation outside However only helping parents in the village . That at the time Defendant leave Unit , good Defendant and also Unit Yonif PR 432/ Wjs No currently prepared For task operation Military and unitary state republic Indonesia in condition peace .

Auditor Military in his demands state that defendant proven do act criminal The military with on purpose do absence presence in time peace longer than​ three tens day , as regulated and threatened criminal in Article 87 Paragraph (1) 2 Juncto Paragraph (2) of the Criminal Code. Based on The indictment the so The elements contained in Article 87 Paragraph (1) 2 Juncto Paragraph (2) of the Criminal Code contain 4 elements : ( 1) Military ; (2) Which is because the mistake or with on purpose do absence presence without any reason permission ; (3) Within the time peace ; (4 ) Longer than three tens day .

The judge is the main actor who is functional carry out power judiciary . The nature task the main judge is receive , examine , judge , decide , and resolve every the case filed to him .

A number of duties and obligations the main judge in field justice in a way normative has set up in Constitution Power Judiciary (UUKK) includes : (a) Adjudicating according to law with No distinguishing people (Article 4 paragraph (1)); (b) Helping people seek justice and endeavor as loud as possible overcome all obstacles and barriers to achieving simple , fast and cost effective justice light (Article 4 paragraph (2)); (c). Should not reject For examine and judge a the case filed with pretext that law No There is or not enough clear , but must examine and try him (Article 10 paragraph (1)); (d) Give information , considerations and advice about questions law to state institutions and agencies government (Article 22); (e) Obliged to explore , follow and understand values law and a living sense of justice in community (Article 5 paragraph (1)).

Beside​ the judge's duties in normative as determined in legislation , judges also have task in a way concrete in examine and judge a case through three action in a way in stages , namely : (1) Consolidating about the occurrence a incident namely the judge determines the occurrence incident concrete based on the evidence available . The judge is very much required ability For identify issue law in a way right . Ca n't denied sometimes seeker justice submit problem as if loaded with problem law However indeed No problem law . (2) Qualifying , in matter this judge tried find the law in a way appropriate to events that have occurred constatir with road apply regulation law to incident said . After issue the law above obtained , the judge determines the legal norm as correct major premise . Constitution as the major premise must be customized with the event so that the law the can covers or covering the event . (3) Through the process of syllogism from major premise is connected with fact relevant laws​ will can found and applied law positive in question . In providing verdict , the judge needs to pay attention factors that should be applied in a way proportional that is justice , certainty its law , and its benefits ( zweckmassigkeit ).

The judge's consideration or Ratio Decidendi is argument or the reasons used by the judge as consideration the law that becomes base before to cut off case . In practice before consideration legal This proven , then the judge first formerly will interesting the facts in proceedings that arise and constitute conclusion cumulative from witness statements , statements​ defendant , and goods evidence . Lilik Mulyadi stated that : " The essence of consideration juridical judge is proof elements from a crime , is it action defendant the meet and comply with the offense charged by the prosecutor general judge's decision ." [15]

Judge's considerations in to drop decision according to Rusli Muhammad it is divided into two categories , namely : (1) Considerations of a legal : Considerations of a legal nature legal is the judge's considerations are based on facts revealed juridical​ in court proceedings and by law set as things to do loaded inside​ decision . The matters referred to the among others: Public Prosecutor's Charges , Statement Defendant , Statement witnesses , Goods evidence ( Definition) goods proof here is all things that can charged Objects or bill suspect or defendant all in all or part allegedly obtained from act criminal or as results act criminal ) . (2) Non - juridical considerations : Background defendant , consequence action defendant , Condition self defendant , defendant's religion .

Based on matter the The Panel of Judges is of the opinion that Element to four longer than 30 days​ fulfilled Because defendant leave unity Yonif PR 432/ Wsj without valid permission​ from Commander of Infantry Battalion PR 432/ Wsj since December 18 , 2021 to with July 18, 2022 or for 212 (two hundred and twelve ) days carried out in a way consecutive in time peace .

That the Judge in decide case the own considerations For to drop criminal to defendant no solely only punish those who are guilty do act criminal but also has objective For educate the person concerned can repent return to the right way become Good Citizen and Soldier​ in accordance with The philosophy of Pancasila and Sapta Marga. Therefore That before The panel of judges sentenced criminal on self Defendant in case This need more formerly notice conditions that can occur lightening and aggravating the crime namely : Mitigating factors : ( 1) The defendant continue clear and acknowledged his annoyance as well as promise No will repeat it again. (2) The defendant Still easy and yet Once sentenced . (3) The defendant return to Unit with method deliver self to Military Police Parepare . Aggravating factors : ( 1) The defendant leave unity relatively long and its task must replaced by soldiers others . (2) Actions Defendant can influence coaching discipline other soldiers in the unit .