Juridical Analysis of the Use of Notary Right to Disclaimer (Case ...

International Journal Concept of Multi Discipline (IJCMD) Vol. 2, No. 2, July 2021

Juridical Analysis of the Use of Notary Right to Disclaimer 770

Juridical Analysis of the Use of Notary Right to Disclaimer

(Case Study Number 1003K/PID/2015)

Winda Mandasari; Azmi Fendri; Yasniwati

Faculty of Law, Andalas University, Padang, Indonesia

https://ijcmd.com/?page=pages/detailarc&idart=23

Abstract Notary in carrying out his office is obliged to keep everything about the deed he made and all

information obtained for the making of the deed in accordance with the oath/promise of office, unless the

law stipulates otherwise. This means that a Notary must be able to hold and guarantee a secret position that is closely related to the provisions in Article 54 UUJN Number 2 of 2014 Notary Position "Notaries

can only provide, show, or notify the contents of the Deed, Grosse Deed , Copies of Deeds, or Deed

Quotes. , to people who have a direct interest in the Deed, heirs, or people who have rights, unless otherwise stipulated by laws and regulations. on the use of notary rights in case number 1003K/PID/

2015? (2) What is the judge's consideration in relation to the notary' s right to deny in the case decision

number 1003K/PID/2015? (3) What are the legal consequences? the use of a notary right of denial in case

number 1003/K/PID/2015 ?The method used in this research is normative research, the research results obtained are (1) restrictions on the use of the right of denial Notary has the obligation to keep the contents

of the deed he made and all information given by the appearers secret so that the Notary is obliged to keep

it secret. However, if the deed made by the Notary has indications of a criminal act, the Notary must relinquish or ignore the obligation to keep secrets related to the contents of the deed because it is in the

public interest or the State and assists the legal process, (2) the judge's consideration based on the expert' s

statement explains that if the change after signing the deed is invalid , and this can be sued for compensation to the Notary. (3)because of law administrative sanctions are imposed on the notary and

criminal responsibility because the notary is proven to have falsified an authentic letter.

Keywords: Right of Denial, Notary, Criminal, Judge's Consideration

Introduction The Republic of Indonesia is a legal state (rechtstaats) which is expressly stated in the 1945

Constitution of the Republic of Indonesia, in a state of law, it must be equipped with guarantees of legal

certainty, legal order, and legal protection that are cored in the values of truth and justice. Services to the

general public in the field of civil law carried out by State organs called public officials, both executive/government or State Administrative Officers both carry out public duties, while public officials

who are also state organs have the authority to provide services to the general public only in the field of

civil law, because public officials are not State Administrative Officers and vice versa State



Administrative Officers are not public officials, these public officials are then known as Notaries.1

The aspirations or interests of the people entrusted to the administrators of state law, in this case the Notary, are actually evidence of the existence of the functioning of the law in the hands of the Notary,

when the Notary carries out his role correctly according to the law, it means that the Notary is carrying out

his role as the organizer of state law.2 In its development, each individual who carrying out legal actions requires legal certainty and guarantees of legal protection by the state so that what is mandated by the

1945 Constitution of the Republic of Indonesia can be achieved. One form of legal certainty itself is the

existence of valid and written evidence and has legal force. basically this is a community need as an effort

to seek legal protection.

The notary profession as a skill, of course, can only be carried out if the person concerned goes

through special education, even the implementation of notary duties is the implementation of the duties of

a position esoteric, namely a profession that requires special education and adequate ability to run it.3 In Indonesia, the notary profession is strongly influenced by the system's tradition civil law. In this tradition,

the notary profession includes public officials who are delegated the authority to make deeds whose

contents have the power of formal evidence and are capable of execution. This type of notary is called a

functional notary.notarial functionnel).Professional notary (professional notary) in the system tradition common lawThe deeds do not have the power as stated, even though this professional organization is

regulated by the government.4

Article 4 of Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning Notary Positions (UUJN) concerning Notary Oaths and Promises and Article 16 paragraph (1)

letter (f) of the Law on Notary Positions requires Notaries to maintain the confidentiality of everything

regarding the deed he made and all information obtained for making the deed in accordance with the oath of office unless the law provides otherwise. This means that the notary is obliged to keep the contents of

the deed confidential, not only what is included in his deeds, but also everything that is notified or

conveyed to him in his position as a notary, even if it is not included in the deeds. As one of the legal

instruments, a notary has the right to refuse as a professional public official, by having to hold his oath of office not to reveal the contents of the deed, on the other hand a notary must stand in the interests of the

state which refers to the public interest in order to complete the legal process in the judiciary, so as to

produce a fair, beneficial decision and guarantee legal certainty. Violation of these obligations based on Article 16 paragraph (11) of the Law on Notary Positions, a Notary may be subject to sanctions in the

form of verbal warnings up to dishonorable dismissal.

The emergence of legal problems between the Notary's obligation to maintain the confidentiality of the deed and there are provisions of laws and regulations that invalidate the right of refusal. It becomes

a legal dilemma that makes the Notary profession's right to renege in the obligation to maintain the

confidentiality of the deed. The existence of written evidence in the form of an authentic deed clearly

determines the rights and obligations of a person and guarantee legal certainty, besides that authentic deeds are expected to minimize disputes in legal traffic and legal relations between the parties. an

authentic deed.The role of the Notary is expected to be better in carrying out his duties as a public official

who is authorized to make an authentic deed which by a general regulation is assigned to him, as well as other matters related to his authority as a public official.

1 Sjaifurrachman and Habib Adjie, Aspects of Notary Accountability in Making Deeds, CV. Mandar Maju, Surabaya,

2011, p. 53. 2 Abdul Wahid, Mariyadi, Sunardi, Enforcement of the Notary Professional Code of Ethics, Nirmana Media, South

Tangerang, Third Printing, 2017, p. 116. 3 Habib Adjie, Civil and Administrative Sanctions Against Notaries as Public Officials. Refika Aditama, Bandung,

2009, p. 35. 4 Siddhartha, Morality of the Legal Profession, An Offering Framework, Refika, Bandung, 2006. p. 81.



Notary profession is a profession that provides services to the public for the manufacture of

evidence in the form of an authentic deed. The nature of the work of a Notary as a public official who carries out some of the public functions of the State, especially in the field of civil law and public law has

its own characteristics and can pose a high risk if the principles of prudence and trust given by the public

to the Notary are not protected and monitored regularly and strict, especially in making an authentic deed which is used as the existence of a right and obligations to the maker.

In carrying out his position, a Notary must comply with the provisions of the applicable laws and

regulations. Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning

Notary Positions (UUJN) regulates in such a way as to the authority, rights, and obligations of Notaries. The position of a Notary as a position of trust, automatically gives birth to the obligation to keep the

contents of every deed made by/or before him confidential. Article 4 Paragraph (2) UUJN Number 2 of

2014 (Notary Position (UUJN) states: "That I will keep the contents of the deed and information obtained in my position

confidential."

Furthermore, in Article 16 Paragraph (1) letter f UUJN Number 2 of 2014 Notary Position

(UUJN) stated that: "In carrying out his position, the Notary is obliged to keep everything regarding the Deed he

made and all information obtained for the making of the Deed in accordance with the oath/

promise of office, unless the law provides otherwise".

This means that a Notary must be able to hold and guarantee the secret of the position which is

closely related to the provisions in Article 54 UUJN Number 2 of 2014 Notary Position (UUJN) which in

essence is that: "Notaries can only provide, show, or notify the contents of the Deed, Grosse Deed, Copies of

Deeds, or Deed Quotes, to people who have a direct interest in the Deed, heirs, or people

who have rights, unless otherwise stipulated by laws and regulations".

After the decision of the Constitutional Court Number 49/PUUX/2012 on May 28, 2013 there were there is an addition, namely Article 66 paragraph (3) which stipulates that if law enforcers including

Polri investigators and prosecutors wish to summon a notary to be examined in the judicial process, it

must be with the approval of the Honorary Council. Furthermore, based on Article 27 of the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 7 of 2016 concerning the

Notary Honorary Council, it is stated that the Notary Honorary Council gives approval to Investigators,

Public Prosecutors, and Judges for the benefit of the judicial process in summoning a notary, carried out by:

a. There is an allegation of a criminal act related to the minutes of the certificate and/or notary letters in

the notary's depository.

b. The right to sue has not yet expired based on the provisions regarding expiration in the legislation in the field of criminal law

c. There is a denial of the validity of the signature of one or more parties.

d. There is an allegation of reduction or addition to the minutes of the deed. e. There is an allegation that the notary has postponed the date.

In practice, notaries are often made or positioned as Defendants by other parties, who feel that the

legal actions mentioned in the deed are categorized as notary legal acts or actions or notary legal actions

together with other parties who are also mentioned in the deed, which from the notary legal actions are considered bring harm to the other party.5

5 Ghansham Anand and Agus Yudha Hernoko, “Efforts to Claim Rights That Can Be Done By Interested Parties

Against Notary Deeds With Juridical Defects”, Legal Perspective, Vol. 16 No. 2, November 2016, p. 153.



Notaries can be referred to as being involved and taking responsibility with other participants in

realizing a crime. There are 2 conditions, namely subjective and objective, subjective requirements are classified into two, namely the existence of an inner relationship (intentional) with the crime to be

realized, meaning that the intentional act is directed at the realization of the crime and the existence of an

inner relationship (deliberately) such as knowing between himself and other participants, and even with what other participants did.6

In practice, it is often found that if the deed is problematic (regardless of what the error is from the

birth, formal, or material aspects) or because of the fault of the parties themselves who do not want to

obey the deed made by the Notary, the party who feels aggrieved reports the other party, also often also reports the Notary in criminal cases, and also places the Notary as a defendant (co-defendant) in civil

cases.

The case of limiting the use of the right of denial in maintaining the confidentiality of the position of a notary in this writing is based on the case contained in the Decision Number 1003 K/PID/2015 The

case in this decision is that the notary makes a fake letter or falsifies the letter where after the parties who

made the deed to the notary (the defendant) are in dispute in court because of the dispute due to the deed

made by the defendant, in the evidence the parties showed the Panel of Judges proof of the letter, it turned out that the copy of the Notary Deed Number 149 dated March 30, 2011 belonged to witnesses Bonar

Saragih and Mangapul Hutahaean, and the draft minuta Deed Number 149 belonged to witness Daniel

Freddy Sinambela as Director PT. Bonita Indah there are differences in Articles 4, 6 and 9. After witness Daniel Freddy Sinambela found out that there were differences in Articles 4, 6, and 9,then witness Daniel

Freddy Sinambela came to the Defendant to review the minutes of the Original Deed No. 149, dated

March 30, 2011, after the Defendant gave the Original Minutes of Deed No. 149 to witness Daniel Freddy Sinambela, it turns out that witness Daniel Freddy Sinambela saw in the Original Minutes of Deed No.

149, inside Several articles have been changed, namely the existence of scribbles and deletion of sentences

by being suppressed and then retyped using a manual typewriter, and there are articles that were discarded

without the knowledge of witness Daniel Freddy Sinambela as the first party.in several articles there are changes, namely the existence of scribbles and the deletion of sentences by being suppressed and then

retyped using a manual typewriter, and there are articles that are discarded without the knowledge of

witness Daniel Freddy Sinambela as the first party.in several articles there are changes, namely the existence of scribbles and the deletion of sentences by being suppressed and then retyped using a manual

typewriter, and there are articles that are discarded without the knowledge of witness Daniel Freddy

Sinambela as the first party.

Changes made by the Defendant in an authentic Deed must have conditions based on the

provisions of Law Number 30 of 2004 Article 50 and Article 51 Paragraphs (2) and (3) concerning the

Position of Notary. So that the Defendant's actions in terms of changing the Minutes of Deed Number 149

which is an Authentic Deed without going through the provisions of the Act or guidelines for changing the Authentic Deed are incorrect if it is done then the Authentic Deed becomes invalid or can no longer be

used as Authentic Deed which has binding force and this is where the conditions for forgery of Authentic

Deed are fulfilled where the principles to prove letter falsification, namely material falsification and intellectual falsification, have been fulfilled and changes can cause losses.

Research Method This approach to research is very much needed in legal research methods to achieve a systematic

review so that it is not flawed in conducting thesis analysis. From the above approach the author uses the

6 Hilda Sophia Wiradireja, “Criminal Liability of Notaries in Making Deeds Based on False Information Linked to

UUJN”, Journal of Legal Insights, Vol. 32, No.1, February 2015, p. 64.



Legislative approach (statute approach) and case approach (case approach) in writing this thesis is a

normative research conducted by the author in an effort to find the truth by looking at the principles contained in various laws and regulations. This research is descriptive in nature, namely research that

provides data about a situation or social symptoms that develop in the midst of society so that with this

research it is expected to obtain a comprehensive, complete and systematic picture of the object to be studied.7

Results and Discussion

A. Regulation of Notary's Right to Disclaimer in Decision Number 1003k/Pid/2015

Article 1 point 1 UUJN states that a Notary is a "General Official authorized to make an authentic

deed and has other authorities as referred to in this Law or based on other laws". The Public Officials referred to in Article 1 point 1 UUJN should be read as Public Officials or Notaries as Public Officials

authorized to make authentic deeds (Article 15 paragraph (1) UUJN) and other authorities as referred to in

Article 15 paragraphs (2) and (3 ) UUJN and to serve the public interest. The product produced by a

Notary as a public official is a deed that has legal force and perfect proof value for the parties and anyone, as long as it is not proven otherwise, that the deed is invalid by using the principle of a limited legal

presumption.

In carrying out his position, the Notary is in a neutral and impartial position, meaning that the Notary is outside the parties to the legal relationship and is not a party to the legal relationship. Notaries

carry out their positions in a neutral position among the parties who request their services, to ensure such

neutrality, the Notary must act independently and impartially and not be influenced by the wishes of certain parties, especially if the desire violates applicable legal provisions or is detrimental to other parties.

. In terms of maintaining the independence of a Notary in carrying out his position, the appointment of a

Notary is carried out by the government based on the attributive authority of the provisions of the law to

exercise part of the powers that are owned by the state.

An authentic deed is evidence for the parties in an agreement that contains the rights and

obligations of the parties related to the things that have been agreed upon. Therefore, an authentic deed is

useful for the parties to ensure their respective rights and obligations for the sake of legal certainty, order, and legal protection for the interested parties as well as for the community as a whole. The authenticity of

the deed remains even though the Notary who made it died. The signature of the Notary concerned

remains valid even though he can no longer convey information regarding the events at the time of making the deed.8

The authentic deed that has been made by the Notary does not rule out the possibility of violations

in the contents of the deed and every alleged violation of the law must undergo a process of investigation,

investigation and trial in this case the Notary will disclose the secrets related to the contents of the deed made before him. made before a notary, it should be emphasized that with the authority of a notary in

making a notarial deed, it does not mean that the notary can freely as he wishes to make an authentic deed

without the parties being asked to make a deed.9 There are three conditions that must be met in an authentic deed, namely:

a) Made by or before public officials in power (authorized public officials) where the matter issued by

the authorized official in question must be trusted and acknowledged to be in accordance with the law

(rechtmatig), for example a deed made by a Notary, auction official, official making civil registration deeds, and so on.

7 Soerjono Soekanto, Introduction to Legal Research, UI Press, Jarkarta, 2012, p. 50. 8 Habib Adjie, Op city, p. 43. 9 Ismantoro Dwi Yuwono, Understanding Various Professional and Occupational Ethics, Yustisia Library,

Yogyakarta, 2011, p. 19.



b) The format or form of the deed has been determined by law.

c) The deed is at the place where the public official is authorized or at the legal domicile of the public official.

These three conditions must be met cumulatively. If one of these conditions is not met, the power

of proof of the deed is not authentic and only has the power of proof as a deed under the hand. The requirements for the authenticity of the Notary deed are as follows: a)

The appearers appear before the Notary

a) The presenters state their meaning

b) Notary constituting the intent of the parties in a deed c) The notary reads the wording in the form of a deed to the appearers

d) The appearers put their signatures, which means confirming the things contained in the deed, and the

signing must be done at the same time. Attended by at least 2 (two) witnesses, unless otherwise stipulated by law.

The Notary's responsibilities include the material truth of the related deed, divided into 4 points,

namely:10

1. The civil liability of the Notary to the material truth of the deed he made; The juridical construction used in civil liability for the material truth of the deed made by the Notary is the construction of an

unlawful act.

2. The criminal responsibility of the Notary to the material truth in the deed he made; Regarding criminal provisions, it is not regulated in UUJN, but the responsibility of the Notary is criminally

imposed if the Notary commits a criminal act. UUJN only regulates sanctions for violations

committed by Notaries against UUJN, these sanctions can be in the form of a deed made by a Notary that does not have authentic power or only has the power as an underhand deed. The Notary himself

can be given a sanction in the form of a warning to dishonorable dismissal.

3. The Notary's responsibilities based on the Notary's Position Regulation on the material truth in the

deed he made; The Notary's responsibilities are stated in Article 65 of the UUJN which states that the Notary is responsible for every deed he makes, even though the Notary protocol has been submitted

or transferred to the Notary's protocol keeper.

4. The Notary's responsibilities in carrying out his/her duties are based on the Notary's code of ethics.

The Notary's oath of office and the Notary's code of ethics contain the secrets of the position held

by the Notary. As a position of trust, the Notary is obliged to keep the secret entrusted to it. The

punishment of the Notary can only be carried out with limitations, if there is legal action from the Notary on the birth, formal and material aspects of the deed that is intentional, full of awareness and conviction

and it is planned that the deed made before the Notary or by the Notary together (agree) with the appearers

to be used as the basis for committing a criminal act. There is a legal action from a Notary in making a

deed before or by a Notary which if measured based on the UUJN is not in accordance with the UUJN, and the Notary Action is also not appropriate according to the agency authorized to assess the actions of a

Notary, in this case the Notary Supervisory Council.

Article 16 letter f of the UUJN and violations of the secret of this position are regulated in Article 322 of the Criminal Code paragraph 1, stating that:

"Anyone who deliberately discloses a secret that must be kept because of his position or

occupation, both now and in the past, is threatened with a maximum imprisonment of nine

months or a maximum fine of nine thousand rupiahs".

Article 16 paragraph 1 letter F of the UUJN states to keep everything regarding the deed he made

10 Abdul Ghofur Anshori, Indonesian Notary Institution, UII Press, Yogyakarta, 2009, p. 16.



and all information obtained for the making of the deed in accordance with the oath/promise of office,

unless the law provides otherwise. Sanctions against a Notary who discloses the secret of his position by ignoring the Right of Denial attached to it can be subject to witness:

1. Criminal Sanctions: violating Article 322 paragraph (1) of the Criminal Code with a maximum

penalty of 9 months imprisonment or a maximum fine of Rp. 9,000,- 2. Civil Sanctions: violating Article 1365 of the Civil Code as an act against the law with sanctions for

compensation claims

3. Administrative sanctions are contained in Article 54 of the UUJN which witnesses can be subject to

in the form of: a. Written warning

b. Temporary stop

c. Respectful stop d. Disrespectful dismissal.

4. Sanctions of the Notary Code of Ethics regarding Obligations, Prohibitions and Exceptions contained

in Article 4 number 15, the contents of which violate the Notary Code of Ethics, and are not limited

to violations of the UUJN, the contents of the Oath of Office, the provisions in THIS AD/ART Article 6 concerning Sanctions that will be imposed for violations of the code of ethics, namely

warnings, warnings,Schorsing (temporary dismissal) from membership of the association, Onzetting

(dismissal) from membership of the association, dishonorable discharge from membership of the association.

If the deed made by or before a Notary has indications of a crime where the Notary must release

or ignore the obligation to keep secrets related to the contents of the deed because it is in the public interest or the State and assists the legal process, then Article 16 paragraph (1) letter e and Article 54

UUJN are confidential. position can be waived if there are higher interests that require the Notary to give

testimony or a statement so that the Notary is released from his oath of office in accordance with the

applicable laws and regulations.

The Notary's oath of office and the Notary's code of ethics both contain the secrets of the position

held by the Notary. Notary as a position of trust is obliged to keep the secrets entrusted by people who use

the services of a notary to him. Job secrecy is not just an ethical provision but also a legal principle given by Verschoningsrecht. In Article 170 of the Criminal Procedure Code in full it reads:

1. Those who because of their work, dignity or position are required to keep secrets, may request to be

released from the obligation to keep secrets, may request to be released from the obligation to give information as witnesses, namely regarding matters entrusted to them.

2. The judge determines whether or not the reasons for the request are valid.

3. Anyone who because of his position, job or position is required by law to keep something secret, but

only regarding matters entrusted to him because of his position, job and position. Therefore, notaries because of their position, dignity and work are obliged to keep secrets, free from testimony.

The notary is obliged to keep the contents of the deed and the information obtained in the making

of the deed confidential unless it is ordered by law that the notary is not obliged to keep secret and provide the necessary information related to the deed in the public interest and the process of law enforcement.

Secrets of Notary Positions when the deed indicated a crime committed by a Notary and a Notary can be

questioned by Law Enforcers, it often creates unrest and confusion between Notaries, Law Enforcers and

the Community.

Memorandum of Understanding between Polri and INI-PPAT, namely Memorandum of

Understanding Number 01/MOU/PP-INI/V/2006 concerning the Guidance and Improvement of

Professionalism in the Field of Law Enforcement (hereinafter referred to as the Memorandum of Understanding) which stipulates that the summons of a Notary must be made in writing and signed by the

investigator and the summons of a Notary must have obtained approval from the Notary Supervisory



Board, stating the time, place, reason for calling. Information from the Supreme Court of the Republic of

Indonesia Number: MA/Pemb/3425/86 dated April 12, 1986, regulates, among other things: a. The notary who will be examined or questioned must have a clear position and role, whether as a

witness or suspect against the deeds he made and/or as the holder of the protocol.

b. In his position and role as a witness, the examination does not need to be sworn in, unless there is a strong enough reason that he is unable to attend the examination in court as regulated in Article 116

paragraph (1) of the Criminal Procedure Code.

c. The notary has the right to know what testimony is needed by the investigator and/or about the

allegations against him. d. As far as possible the examination is carried out by the investigator, unless there is a proper and

reasonable reason and can be understood, the examination can be carried out by the assistant

investigator e. The examination is carried out at the place and time as stated in the summons or at a place and time

that has been agreed between the investigator and the Notary in accordance with valid reasons

according to the Act.

f. The notary who is called as a witness must be present and provide correct information, considering the oath of office and UUJN. Notaries can request to be released from the obligation to provide

information based on Article 170 of the Criminal Procedure Code which regulates the right to refuse

to provide information to parties, because the Notary is required to keep his position secret. g. The notary's right to deny can be released for the sake of the public interest related to the contents of

the deed; Examination of the Notary is carried out without pressure and coercion from investigators

or officers. If the Notary is examined as a suspect and it is not proven that there is a criminal element, the investigator is obliged to issue an Investigation Termination Order (hereinafter referred to as SP3)

as soon as possible after the examination of both witnesses, suspects and evidence is declared

complete.

The Right of Denial owned by a Notary related to a criminal case cannot be used, because before the law every good citizen is obliged to give true testimony and nothing other than the truth. And in this

case the role of the judge is needed whether the Notary is necessary or not in giving testimony in the

judicial process. This is needed to find out and assess whether the Notary in making the deed has complied with the mechanism according to the legislation So that in order to achieve this, it is necessary to

understand the Notary Position of the Parties, Notary and Law Enforcement which will be interrelated

when the deed made by or before a Notary indicates a Crime.

However, if the deed made by the Notary indicates a criminal act and in the public interest, the

Notary must provide information to establish the truth regarding non-crime, then according to Article 170

paragraph (2) of the Criminal Procedure Code, that the right of denial can be set aside if there is a higher

interest demanding the disclosure of the secret. position related to the deed as well as the existence of provisions for exceptions or overriding the enactment of the provisions on secrecy of office and breaking

through the existence of the right of denial based on Article 66 of the UUJN, such as the Law on

Corruption Crimes, the Tax Court Law. Where a Notary can not be threatened with criminal under Article 322 of the Criminal Code on charges of revealing a secret position because based on Article 50 of the

Criminal Code says, "Whoever commits an act to implement the provisions of the law cannot be

punished".

Notaries cannot take refuge under the right of denial when a Notary is suspected of committing a crime. Notary right to deny can not be used as a shield to avoid the criminal court process. However, the

right of refusal is specifically used for the secrecy contained in the notary deed as mandated by the Notary

Position Act. The right of denial is attached to the Notary who only protects the interests of the parties stated in the deed as a secret of the position. The refusal of some Notaries to become witnesses in criminal

proceedings usually occurs for two reasons. First, the Notary did not see, did not hear and did not



personally experience the alleged crime. Second, Background of case number 1003K/PID/2015 Defendant

NENI SANITRA, SH, M.Kn, on dated March 30, 2011 or at least at some point in 2011 at the Defendant's Office on Jalan Nangka/Tuanku Tambusai, Pekanbaru City or at least somewhere in the jurisdiction of the

Pekanbaru District Court, make a forged letter or falsify a letter that can give rise to a right, an agreement

or debt relief, or which is intended as evidence of something with the intention of using or ordering other people to use the letter as if the contents are true and not falsified if the use can cause losses, Forgery of

letters if carried out on Authentic Deeds carried out by the Defendant in the following manner.

Starting in March 2011, PT. Bonita Indah was invited to participate in the tender for the

procurement of 210 (two hundred and ten) light cars without a driver which will be leased to PT. Chevron Pacific Indonesia, after receiving the invitation, witness Daniel Freddy Sinambela as Director of PT.

Bonita Indah immediately held a meeting to collaborate with witness Bonar Saragih and witness

Mangapul Hutahaean to participate in the tender at Chevron and finally the agreement between witness Daniel Freddy Sinambela, witness Bonar Saragih and witness Mangapul Hutahaean was carried out at the

Notary Office of the Defendant NENI SANITRA, SH, M.Kn, on Jalan Nangkal Tuanku Tambusai,

Pekanbaru City, where the meeting was held by witness Daniel Freddy Sinambela, witness Mangapul

Hutahaean and witness Bonar Saragih explaining the intent and purpose of participating in the procurement tender at Chevron,

- Article 2 reads that for the purposes of this cooperation, the First Party provides the Company, all

administrations and permits owned by the First Party to carry out the contract, while the Second Party enters/provides capital.

- Article 4 reads that this cooperation is managed/led by the First Party as the executor.

- Article 6 reads that the management and responsibilities regarding this cooperation business are carried out by the First Party as the person in charge of the administration of the company's

management. The First Party is obliged to maintain financial books in the context of this cooperation.

The First Party is obliged and bound to provide a monthly report on the finances of this business in

writing to the Second Party on the business it undertakes. the. - Article 7 reads as a service fee/contra-performance for this collaboration, the Second Party is entitled

to receive a service fee/fee in the form of 4 (four) units of 4 (four) wheeled motorized vehicles of

various types which are submitted after the contract ends. If there is a contract extension/contract addendum, then the result of the extension of the contract on the 4 (four) units of the car is wholly

owned by the Second Party. In addition to receiving the service fee/fee above, the First Party as the

executor/as the Board of Directors is entitled to a salary of Rp. 5,000,000.00 (five million rupiah) per month for the duration of the contract.

- Article 9 reads if it turns out that the First Party in carrying out the work experiences delays which

result in a warning, sanction and/or imposition of a fine by the bouwheer party, then all consequences

arising in connection with the delay are the responsibility and must be borne by the Second Party itself.

The Second Party is hereby (as far as necessary with a separate power of attorney) fully

empowered with the right of substitution by the First Party in the execution of the work and for that purpose takes all necessary and useful actions to resolve matters relating to the work. After the

doslag/draft of the cooperation agreement was completed by the Defendant, then the Defendant submitted

the draft to witness Daniel Freddy Sinambela as the First Party, while witness Bonar Saragih and witness

Mangapul Hutahaean as the Second Party, to be read and studied, then the witnesses took the draft home and when witness Daniel Freddy Sinambela read and studied the draft of the cooperation agreement, it

turned out that in Article 7 it was stated, Minuta draft of Deed No.149, witness Daniel Freddy Sinambela

immediately asked the Defendant to correct the sentence of the Second Party to become the First Party, and for the change in the sentence in Article 7, witnesses Bonar Saragih and Mangapul Hutahaean as the

Second Party agreed.



After the draft Minutes of Deed No.149 were corrected, the Defendant immediately made Minutes

of Deed No.149, with the sound of Article 7 which was amended according to the request of witness Daniel Freddy Sinambela and on March 30, 2011, the Minutes of Deed No.149 were finally initialed and

signed by witness Daniel Freddy Sinambela (Party First), witness Bonar Saragih and witness Mangapul

Hutahaean (Second Party), but the Defendant has not yet submitted a copy of the Minutes of Deed No. 149 to witness Daniel Freddy Sinambela, on the grounds that the copy of the Deed has not been

completed.

It turned out that without the knowledge of witness Daniel Freddy Sinambela as the First Party, in

Article 4, Article 6 and Article 9 which were originally mentioned by the First Party have been changed to the Second Party, where the Defendant ordered the witness Febriani Eka Putri to change by means of the

First Party in Articles 4, 6, and 9 being deleted using an eraser then retyped using a typewriter to become

the Second Party and the reason for the change was made to adjust the changes in Article 7, which turned out to be a change in Article 7 that the Defendant also made using a typewriter, besides that the Defendant

also made a deletion of Article 6.

That without knowing that there were changes made by the Defendant, according to Article 4

Minutes of Deed No.149 witness Poltak Sinambela who was a staff of witness Daniel Freddy Sinambela at PT. Bonita Indah submitted a bid to PT. Chevron Pasifik Indonesia, according to the agreement of the

Second Party, namely witness Bonar Saragih and witness Mangapul Hutahaean as funders deposited

money in the form of offer guarantee in the form of Deposit at Bank Niaga in the amount of Rp.5,000,000,000.00 (five billion rupiah). And after the implementation of the tender offer, it turned out

that PT. Bonita Indah even competed with PT. Bosar and PT. Alam Wisesa, which is a company owned

by witness Bonar Saragih, where prior to the announcement of the auction winner, witness Bonar Saragih and witness Mangapul Hutahaean asked witness Daniel Freddy Sinambela from PT Bonita Indah to

withdraw from the procurement of PT Chevron Pasifik Indonesia, however the request was not fulfilled by

witness Daniel Freddy Sinambela, so that without the knowledge of witness Daniel Freddy Sinambela, on

May 15 2011 on behalf of PT. Bonita Indah, witness Bonar Saragih and witness Mangapul Hutahaean sent a letter of resignation from contract No.781867 to PT Chevron Pacific Indonesia, but PT Chevron Pasifik

Indonesia confirmed to witness Daniel Freddy Sinambela about the resignation letter, then on May 16

2011 witness Daniel Freddy Sinambela immediately sent a statement of willingness and ability to carry out the work of providing light vehicle services without driver services. C781867 to PT Chevron Pasifik

Indonesia, and on May 6, 2011 it was stated that PT. Bonita Indah as the winner of the lowest number one

bid.

On May 6, 2011, witness Bonar Saragih again asked witness Daniel Freddy Sinambela to

withdraw from the tender but the request was rejected by witness Daniel Freddy Sinambela considering

the impact on the credibility of PT. Bonita Indah for the next tender, and the agreement does not state if

PT. Bonita Indah won the tender and had to withdraw, however, before the announcement of the auction winner, on April 12, 2011, witness Bonar Saragih and witness Mangapul Hutahaean withdrew the bid

security deposit of PT. Bonita Indah who is at Bank Niaga, so to survive in the tender submission, PT.

Bonita Indah entered the replacement security deposit that had been withdrawn by witness Bonar Saragih in the amount of Rp. 5,000,000,000.00 (five billion rupiah), because he was disappointed with the witness

Daniel Freddy Sinambela as the Director who was considered a default, he did not want to withdraw from

the auction of PT. Chevron Pasifik Indonesia, then on September 16, 2011 witness Bonar Saragih and

witness Mangapul Hutahaean sued PT. Bonita Indah in Civil Law. The civil trial process at the Pekanbaru District Court, on the agenda of proof because it has not yet received a copy of Deed Number 149, dated

March 30, 2011, witness Daniel Freddy Sinambrela as Director of PT. Bonita Indah used the draft minute

Deed No.149 dated March 30, 2011 as evidence, while witness Bonar Saragih and witness Mangapul Hutahaean used a copy of the Notary Deed No. 149 dated March 30, 2011. When each party showed the

Panel of Judges proof of the letter, it turned out that between the copies of the Notary Deed Number 149,



dated March 30, 2011 belonging to witnesses Bonar Saragih and Mangapul Hutahaean, and the draft

minutes of the Deed Number 149 belonging to witness Daniel Freddy Sinambela as Director of PT. Bonita Indah there are differences in Articles 4, 6 and 9.

After witness Daniel Freddy Sinambela found out that there were differences in Articles 4, 6, and

9, then witness Daniel Freddy Sinambela went to the Defendant to review the minutes of the original Deed Number 149 dated March 30, 2011, after the Defendant gave the Original Minutes of Deed No.149 to

witness Daniel Freddy Sinambela, it turns out that witness Daniel Freddy Sinambela saw in the Original

Minuta Deed No. 149, in several articles there were changes, namely the existence of scribbles and

deletion of sentences by being suppressed, then retyped using a manual typewriter, and there were articles that were discarded without the knowledge of witness Daniel Freddy Sinambela as the first party, where

the changes were made by the Defendant including:

1. Article 4 reads that this Cooperation is managed/led by the Second Party as the executor for the light vehicle service contract without a driver Number 781867.

2. Article 6 reads that the management and responsibility for this cooperative effort shall be carried out

by the First Party as the person in charge of the administration of the company's management. The

Second Party is obliged to maintain financial books in the context of this cooperation. 3. Article 7 reads as a reward for services/contra-performance for this collaboration, the First Party is

entitled to a service fee/fee in the form of 4 (four) units of 4 (four) various types of motorized

vehicles delivered after the contract ends. If there is a contract extension/contract addendum, then the result of the contract extension for the 4 (four) cars will be wholly owned by the First Party. In

addition to receiving the service fee/fee mentioned above, the First Party as the executor/as the Board

of Directors is entitled to a salary of Rp. 5,000,000.00 (five million rupiah) per month for the duration of the contract.

4. Article 9 reads If it turns out that the Second Party in/has carried out the work experiencing delays

resulting in a warning, sanction and/or imposition of a fine by the bouwheer party, then all

consequences arising in connection with the delay are the responsibility and must be borne by the Party. Second alone. The Second Party is hereby (as necessary with a separate power of attorney)

given full power of attorney with the right of substitution by the First Party in the execution of the

work and for that purpose takes all necessary and useful actions to resolve matters relating to the work.

Criminal Expert Prof. DR. ISMANSYAH, SH, MH, explained that changes made by the

Defendant in an authentic Deed must have conditions based on the provisions of Law Number 30 of 2004 Article 50 and Article 51 Paragraphs (2) and (3) concerning the Position of Notary. Based on the

statement of Notary Expert Dr. Syahril Syofyan, SHMKn, that if the parties do not agree with the words or

sentences contained in the minutes, the notary in this case the Defendant is obliged to make corrections or

renvoi on the minutes of the Deed until the draft minutes are felt to be perfect and signed by the parties, witnesses and Notary, where such changes must be made as follows:

1) The notary must review (appointment) the incomplete clause according to the parties and the

incomplete clause must be crossed out in an orderly manner and still remain can be read and then the correct clause is made on the left side of the blank Minuta of the Deed and after it has been

written/replaced it must be initialed by the parties, witnesses and a notary.

2) If the change is made after signing then the change is considered invalid.

3) If the crossed-out clause is then simply replaced with the deletion method, the typing overlaps, then the change is invalid and against the notarial law as regulated in Article 49 of Law no. 30 of 2004

concerning Notary.

4) If the change is not known by the parties or one of the parties is then made a copy of the Deed, then the Deed contains an element of falsehood in accordance with Article 263 of the Criminal Code.

5) The notary has the authority to correct typographical errors or typos in the minutes of the Deed

which has been signed by the parties and the correction is carried out by making a Minutes and



providing notes about it in the minutes of the original Deed by mentioning the date and number of

the Deed of the Minutes of Correction and the Minutes of the corrections. must be submitted to the parties.

Changes made by the Defendant in Articles 4, 6, 7 and Article 9 in the minutes of Deed No.149

are not in accordance with the rules stipulated in Law No.30 of 2004 in Articles 48,49, 50 and 51 so that a copy of the notarial deed made and refers to to the minutes of the Deed which has been corrected not in

accordance with the procedure or in an incorrect manner, the copy of the Deed is declared invalid.

The defendant's actions were witnessed by Daniel Freddy Sinambela as the director of PT. Bonita

Indah has reported the Defendant to the Notary Regional Representative Council and a trial has been carried out with a decision, stating that the complainant's complaint Daniel Freddy Sinambela is

acceptable, punishing the Defendant Neni Sanitra, SH, M.Kn, with a verbal reprimand for deleting,

overlapping and replacing it with another against Articles 4, 6, 7 and 9 of Deed Number 149 dated March 30, 2011, so that the Defendant is declared to have violated Article 48 Paragraph (1) of Law No. 30 of

2004, namely the contents of the Deed may not be changed or added, either in the form of overlapping

writing, insertion , deletion, or deletion and replace it with another.

As a result of the Defendant's actions, he changed the contents of the Deed Number 149 so that the situation was not in accordance with the actual PT. Bonita Indah lost in the civil trial and was required

to pay compensation of Rp. 1.300.000.000,00 (one billion three hundred million rupiah) and 4 (four) cars

owned by PT. Bonita Indah in the form of 1 (one) Toyota Fortuner car and 3 (three) Mitsubishi Pajero Sport cars were confiscated as collateral so that it cannot be operated anymore and witness Daniel Freddy

Sinambela as Director of PT. Bonita Indah has to pay installments of 4 (four) units of the vehicle every

month. The Defendant's actions as regulated and threatened with criminal offenses violate Article 264 paragraph (1) of the Criminal Code.

Article 16 paragraph 1 letter F of the UUJN states to keep everything regarding the deed he made

and all information obtained for the making of the deed in accordance with the oath/promise of office,

unless the law provides otherwise. Criminalization of a Notary can only be done because there is legal action from a Notary on the birth, formal and material aspects of the deed which is intentional, full of

awareness and conviction where in the case above the Notary deliberately makes changes without the

agreement of both parties and there is legal action from the Notary in making deed by a Notary which if measured based on UUJN is not in accordance with UUJN, and the Notary's actions are also not

appropriate according to the agency authorized to assess the actions of a Notary in this case the Notary

Supervisory Council has also sentenced the Notary to his mistake.

Based on the theory of authority in case number 1003K/PID/2015, it is related to the use of the

right of notarization, namely the notary cannot take refuge under the right of denial when the notary

commits a crime even though the power is granted by law. Notary right to deny can not be used as a shield

to avoid the criminal court process. However, the special right of denial is used for the confidentiality contained in the Notary deed as mandated by the Notary Position Law, the right of refusal is not an

instrument for protecting the Notary from the crime he has committed related to the making of a Notary

deed, the right of refusal is attached to the Notary which only protects the interests of the parties stated in the deed as a secret of the position. Therefore, the Notary cannot refuse to be a witness in a criminal

process because the Notary has seen, heard and experienced the alleged crime. Then there is the obligation

of the Notary to open the contents of the deed.

B. Judges' Considerations in connection with the Use of Notary's Right to Disclaimer in the

Decision on Case Number 1003k/Pid/2015

Article 5 of Law number 48 of 2009 concerning Judicial Power states that judges are obliged to explore, follow, and understand legal values and a sense of justice that live in society, and Article 50 also



states that court decisions must include the reasons and basis for the decision, but also contain certain

articles of the relevant laws and regulations or unwritten legal sources that are used as the basis for adjudicating.

Proof of the opposite of the actual truth (feitelijke waarheid) is allowed in principle in ways

permitted by law. Judges should pay attention to allegations that are not based on the law itself, left to the judge's consideration and vigilance, which however may not pay attention to other allegations other than

that which are important, thorough and certain, and in accordance with one another. Such suspicions may

only be considered in cases where the law allows evidence with witnesses, as well as when a rebuttal of an

act or a deed is filed, based on reasons of bad faith or fraud.

The Judiciary Institution as one of the executor of judicial power has the main task of receiving,

examining, and adjudicating and resolving cases submitted to it to enforce the law. In examining a case, it

must pay attention to the case or event that is disputed by the parties, while the criminal charges of the Public Prosecutor at the Pekanbaru District Attorney are criminal charges of the Public Prosecutor at the

Pekanbaru District Prosecutor, dated January 29, 2015, as follows:

1. To declare the Defendant NENI SANITRA, SH, M.Kn, legally and convincingly guilty of

committing the crime of falsifying a letter against an authentic deed, as in our Primary indictment, namely violating Article 264 paragraph (1) of the Criminal Code.

2. Sentencing the Defendant NENI SANITRA, SH, M.Kn, with imprisonment for 2 (two) years.

3. Determine the evidence in the form of: 1) 1 (one) copy of the original Deed No.149 made by Notary NENI SANITRA, SH, M.Kn, March

30, 2011.

2) 1 (one) Exemplar Photocopy of Minutes of Deed No.149, Cooperation Agreement in the procurement of driverless cars at PT. Chevron Pacific Indonesia between PT. BONITA INDAH

(DANIEL FREDI SINAMBELA) with Br. BONAR SARAGI and Br. MANGAPUL

HUTAHAEAN, which was made and signed on March 30, 2011 which has been legalized in

accordance with the original. 3) 1 (one) copy of the original Deed No. 150 made by Notary NENI SANITRA, SH, M.Kn, dated

March 30, 2011 Returned to the Defendant.

4) 2 (two) print outs of Bank Mandiri Cab. Ahmad Yani regarding the details of the installment payments for the Mitsubishi Pajero SportBM 1224 JH, BM1225 JH, and BM 1226 JH.

5) 1 (one) bundle of proof of payment for 1 (one) unit of Toyota Fortuner BM1481 JH with Engine

Number 2TR7066747 V/AT Year 2011. 6) 1 (one) copy of the original Deed No.149 made by Notary NENISANITRA, SH, M.Kn, March

30, 2011.

7) 1 (one) bundle of decisions from the PMD of Riau Asli Province.

8) 1 (one) copy of the original Deed No. 150 made by Notary NENI SANITRA, SH, M.Kn, March

30, 2011. Returned to Daniel Freddy Parlindungan Sinambela.

4. To stipulate that the Defendant NENI SANITRA, SH, M.Kn, pay court fees of Rp. 2,000.00 (two thousand rupiah).

The decision of the Pekanbaru District Court, Number 906/Pid.B/2014/PN.Pbr, dated March 19,

2015, whose full order is as follows:

1. To declare that the Defendant, NENI SANITRA, SH, M.Kn, is proven to have committed the act as charged in the Primary indictment, but it is not a criminal act.

2. Release the Defendant NENI SANITRA, SH, M.Kn, from all lawsuits.

3. Restoring the rights of the Defendant in his ability, position, dignity and worth. 4. Charge case fees to the State

Deed of Application for Cassation Number 10/Akta.Pid/2015/PN.Pbr, drawn up by the Registrar



at the Pekanbaru District Court, which stipulates that on March 31, 2015, the Public Prosecutor filed an

appeal against the decision of the District Court. Taking into account the memorandum of cassation dated April 13, 2015, from the Defendant as the Petitioner for Cassation which was received at the Registrar of

the Pekanbaru District Court, on the same day, also observing the counter memorandum of cassation dated

April 27, 2015, from the Attorney of the Defendant as the Respondent for Cassation based on a Special Power of Attorney dated April 16 2015, which received at the Registrar's Office of the Pekanbaru District

Court, on the same day.

The District Court's decision was handed down by the presence of the Cassation Petitioner/ Public

Prosecutor at the Pekanbaru District Attorney, on 19 March 2015, and the Cassation Petitioner/Public Prosecutor filed a cassation request on 31 March 2015, and the memorandum of cassation has been

received at the District Court Registrar's Office. Pekanbaru, on April 13 2015, thus the appeal for

cassation along with the reasons has been submitted within the time limit and in a manner according to law.

Considering, whereas Article 244 of the Criminal Procedure Code (KUHP) stipulates that with

respect to a criminal case decision rendered at the last level by a court other than the Supreme Court, the

Defendant or the Public Prosecutor may submit a request for cassation to the Supreme Court, Considering, that it will However, the Supreme Court is of the opinion that as the Supreme Judicial Body which has the

duty to foster and maintain that all laws and laws throughout the territory of the State are applied

appropriately and fairly, as well as with the decision of the Constitutional Court No. 114/PUU-X/2012, dated 28 March 2013, which states that the phrase “except for acquittal” in Article 244 of Law No. 8 of

1981 does not have binding legal force, then the Supreme Court has the authority to examine the cassation

request against the acquittal. The reasons put forward by the Cassation Petitioner/Prosecutor are basically as follows:

a. That the Pekanbaru District Court Judge did not apply the legal regulations correctly or applied the

legal regulations incorrectly.a quo, Whereas the Panel of Judges of the Pekanbaru District Court is in

their deliberations regarding evidence and evidence.

The Pekanbaru District Court Panel of Judges has reviewed in detail the facts regarding the

legal facts, which in our opinion are legal facts in the civil trial between Bonar Saragih and Mangapul

Hutahean as the Plaintiffs and Daniel Freddy Parlindungan Sinambela as the defendant, where the legal facts in detail are the actions of the witness Daniel Freddy Parlindungan Sinambela or PT.

Bonita Indah from participating in the tender at PT. Chevron Pacific Indonesia, then cooperated with

witnesses Bonar Saragih and Mangapul Hutahean, However, based on these considerations, the Pekanbaru District Court Panel of Judges was wrong in revealing the fact that when they were about

to enter into a cooperation agreement, it turned out that the meeting was only attended by witness

Daniel Freddy Parlindungan Sinambela and witness Mangapul Hutahean, who explained the purpose

of the meeting without Bonar Saragih attended, this is based on facts -factual statements of witnesses at the trial of the Defendant NENI SANITRA, SH, M.Kn.

The witnesses at the criminal trial of the Defendant NENI SANITRA, SH, M.Kn, when

giving their statements, no one detailed the incident as in the civil trial and the Pekanbaru District Court Panel of Judges was too detailed in describing the facts regarding the cooperation process until

Daniel was sued. Freddy Parlindungan Sinambela by Bonar Saragih and Mangapul Hutahean, we

think this is because one of the judges handling the civil lawsuit between Bonar Saragih and

Mangapul Hutahean against Daniel Freddy Parlindungan Sinambela Director of PT. Bonita Indah during the civil trial, Bonar Saragih and Mangapul Hutahean used copies of the Deed Number 149

and Deed Number 150 dated March 30, 2011/and in the civil trial Bonar Saragih and Mangapul

Hutahean won.

Whereas in civil cases the truth is only formal truth, while in criminal cases the truth is



material truth or essentially in the sense that it must consider the testimony of witness Daniel Freddy

Sinambela and must put aside the statements of witness Bonar Saragih and witness Mangapul Hutahaean because the parties concerned have used Deed Number 149 dated March 30, 2011 which

was denied by witness Daniel Freddy Sinambela as the basis for a civil lawsuit. Whereas in addition,

the Panel of Judges of the Pekanbaru District Court in making consideration of the criminal case on behalf of the Defendant NENI SANITRA, SH, M.Kn, explained based on evidence and evidence, but

in our opinion, the Panel of Judges did not consider the evidence and goods at all. evidence, where

based on the facts at trial we have submitted the Expert evidence, namely;

1. Criminal Expert Prof. DR. ISMANSYAH, SH, MH, whose Minutes of Expert Examination were read and had been sworn in, explained in essence that changes made by the Defendant in an

authentic deed must have conditions based on the provisions of Article 50 and Article 51

Paragraphs (2) and (3) of Law Number 30 2004 concerning the Position of Notary. 2. Notary Expert Dr. Syahril Syofyan, SH, M.Kn, whose Minutes of Expert Examination were read

and sworn to explain the essence; that if the parties have not agreed with the words or sentences

contained in the minutes, the notary in this case the defendant is obliged to make corrections or

renvoi on the minutes of the deed until, the draft of the minutes is felt to be perfect and signed by the parties, witnesses and the notary, where changes must be done as follows:

a) The notary must review (appointment) the incomplete clause according to the parties and

the incomplete clause must be crossed out in an orderly manner and can still be read, then make the correct clause on the left side of the empty deed minutes and after it is written / is

replaced then must be initialed by the parties, witnesses and a notary.

b) If the change is made after the signing, the change is considered invalid. c) If the crossed out clause is then simply replaced with the deletion method, the typing

overlaps, then the change is invalid and against the notarial law as regulated in Article 49 of

Law No. 30 of 2004 concerning Notary.

d) If the change is not known by the parties or one of the parties is then made a copy of the deed, the deed contains elements of falsity in accordance with Article 263 of the Criminal

Code.

e) The notary has the authority to correct typographical errors or typos in the minutes of the deed that has been signed by the parties and the corrections are made by making a Minutes

and giving notes about it in the original minutes of the deed by stating the date and number

of the deed of rectification and the minutes of the correction must be submitted to the parties.

The Panel of Judges of the Pekanbaru District Court in the decision of the criminal case on

behalf of the Defendant NENI SANITRA, SH, M.Kn, did not consider the evidence presented at the

trial, so the Panel of Judges was wrong, because the status of the evidence eventually became unclear.

b. The Panel of Judges of the Pekanbaru District Court in their considerations regarding the following

elements:

1) the consideration of the Panel of Judges on proving the elements of Whoever has been fulfilled, which as for describing whether the Defendant has actually committed the act as charged,

depends on the fulfillment of other elements which will be considered later.

2) That the element of making a fake letter or falsifying a letter, That the Pekanbaru District Court

Panel of Judges in their decision outlined the facts at trial, but the Panel of Judges made a mistake and immediately concluded that "Amendments to Articles 4, 6 and 9 have apparently

been denied by witness Daniel Fredi Sinambela because according to him, only Article 7 was

approved to be amended, although witnesses Bonar Saragih and Mangapul Hutahean were supported by witness Febriani Eka Putri, the change was justified and took place before all

parties and witnesses signed the Deed. The Panel of Judges also considered that this element had

been fulfilled on the grounds that there was a denial of one of the parties appearing to it, it could



be concluded that the contents of the deed were not the will of one of the interested parties or

were fake. While the Criminal Expert Prof. DR. Ismansyah, SH, M. 3) the consideration of the Panel of Judges on the proof of elements that can give rise to a right, an

obligation (obligation) or debt relief, or which is intended as evidence of something.

4) Whereas the element with the intention of using or ordering other people to use the letter as if the letter was genuine and not falsified, on page 50, the Panel of Judges of the Pekanbaru

District Court considered, namely; interested parties to be able to use the deed properly. At trial

it was revealed that on deed No. 149, the Defendant had submitted a copy to the second party

(Bonar Saragih and Mangapul Hutahean). The Panel of Judges was wrong and did not reveal the real facts, because the Panel of Judges did not consider. Witness Daniel Freddy Parlindungan

Sinambela explained that the copy of Deed Number 149 never reached the hands of witness

Daniel Freddy Parlindungan Sinambela and witness Daniel Freddy Parlindungan Sinambela only received a print draft or doshlag from the Defendant's employees and the Defendant NENI

SANITRA, SH, M.Kn, was obliged to submit a copy of the deed Number 149. That based on the

facts at the criminal trial, when finally witness Daniel Freddy Parlindungan Sinambela was sued,

and witness Daniel Freddy Parlindungan Sinambela asked the Defendant for a copy of the deed of agreement, but witness Daniel Freddy Parlindungan Sinambela also could not get a copy,

because the Defendant still did not provide a copy of the deed of agreement to the witness

Daniel Freddy Parlindungan Sinambela. 5) That the element if the use can cause harm. which essentially explained that witnesses Bonar

Saragih and Mangapul Hutahean had withdrawn from the cooperation agreement when

witnesses Bonar Saragih and Mangapul Hutahean withdrew a security deposit of Rp. 5,000,000,000.00 (five billion rupiah) and witness Daniel Freddy Parlindungan Sinambela to

maintain credibility and good name PT. Bonita Indah in the future at PT. Chevron Pasifik

Indonesia then reimbursed the guarantee fund of Rp5,000,000,000.00 (five billion rupiah) and

continued the work, so witnesses Bonar Saragih and Mangapul Hutahean should not have sued witness Daniel Freddy Parlindungan Sinambela based on Deed Number 150.

The trial of the criminal case of the Defendant HENISANITRA, SH, M.Kn, was inseparable from

the trial of the civil case between Bonar Saragih and Mangapul Hutahean as the Plaintiffs and Daniel Freddy Parlindungan Sinambela as the defendant, but the Panel of Judges was wrong if they did not

consider the testimony of witness Daniel Freddy Parlindungan Sinambela, and witness Edward Barner

Purba, Notary Expert DR. Syahril Sofyan, SHMKn, and Criminal Law Expert Prof. DR. Ismansyah, SHMH, as well as Evidence of the Decision of the Notary Supervisory Board of Riau Province Number:

02/PTS/MJ/PWN.Prov Riau/XI/2012, dated November 9, 2012, with the following ruling:

a) To declare the complainant's complaint DANIEL FREDDY SINAMBELA (acceptable).

b) Sentencing sister NENI SANITRA, SH, Pekanbaru City notary with a verbal warning sanction, for having deleted, overlapped and replaced it with another, against Article 4, Article 6, and Article 7,

Deed Number 149, dated March 30, 2011 so that Notary Neni Sanitra, SH , was declared to have

violated Article 48 paragraph 1 of Law No. 30 of 2004 which reads as follows "The contents of the deed may not be changed or added, either in the form of overwriting, insertion, deletion, or deletion

and replacing it with something else". It is crucial that the Defendant before the trial admitted that he

had admitted an error that did not follow the provisions of Law No. 30 of 2004 concerning the

Position of a Notary, where the Defendant admitted to having deleted, overlapped and replaced it with another, against Articles 4, 6, and 7.

In addition, the Panel of Judges had very wrongly considered the defense of the Defendant, where

the Panel of Judges assessed and confirmed that the Defendant had no specific intention or purpose to make changes to make changes by changing the minutes in such a way, so that the contents were different

from the original. The Panel of Judges concluded that the changes made by the Defendant could be

justified because the basis for the request of witness Daniel Freddy Parlindungan Sinambela, which the



Defendant responded by adding changes by changing other articles, namely Articles 4, 6 and 9 on the

Defendant's own initiative, even though these changes were not legally justified because the changes to Articles 4, 6 and 9 were not carried out before the court. the parties so that it is possible that amendments

to Articles 4, 6 and 9 will change the meaning of the contents of the agreement. The Panel of Judges

considered that the change was approved by the other party (which means that the other party was witnesses Bonar Saragih and MangapuI Hutahean), even though the facts at trial, the other party, namely

witness Daniel Freddy Parlindungan Sinambela did not know the changes and denied the contents of the

copy of the cooperation agreement Number 149 of these.

With the Panel of Judges assessing and justifying the act but the Defendant had no specific intention or purpose, so that the Panel of Judges decided to declare the Defendant the act that was charged

to the Defendant had been proven, but the act was not a criminal act. Onslaag van Recht Vervolging), so

that the Pekanbaru District Court Panel of Judges did not apply the legal regulations correctly or applied the legal regulations incorrectly. The reasons for the appeal, the Supreme Court is of the opinion that the

reasons of the Public Prosecutor can be justified, becauseJudex Facti has wrongly applied the law by

releasing the Defendant, that the expert's statement is not binding, the expert explains that if the change

after the signing of the deed is invalid and this can be sued for compensation to the Notary, it is different with the Criminal Law that the invalidity causes the loss of the other party is that it has fulfilled the

elements who was indicted. Notary should change in front of both parties in accordance with the

agreement of both, or as the procedure should be.

The Supreme Court considers aggravating and mitigating factors. Aggravating things The

Defendant's actions were very detrimental to witness Daniel Freddy Parlindungan Sinabela. Mitigating

factors: The defendant has never been punished, the defendant regrets his actions. Based on the reasons described above, the Supreme Court is of the opinion that the decision of the Pekanbaru District Court,

Number 906/Pid.B/2014/PN.Pbr, dated March 19, 2015, can no longer be defended, therefore it must be

annulled and the Supreme Court will adjudicate the case himself, as stated below;

Considering, whereas since the Public Prosecutor's cassation request was granted and the Defendant was found guilty and sentenced to a crime, the costs of the case at all levels of the judiciary

were borne by the Defendant. Observing Article 264 Paragraph (1) of the Criminal Code, Law Number 48

of 2009, Law Number 8 of 1981, Law Number 14 of 1985 as amended by Law Number 5 of 2004 and the second amendment by Law Number 3 Year 2009 and other relevant laws and regulations.

Granted the petition for cassation from the Cassation Petitioner/General Prosecutor at the

Pekanbaru District Prosecutor, it canceled the decision of the Pekanbaru District Court, Number 906/Pid.B/2014/PN.Pbr, dated March 19, 2015. The trial declared the Defendant NENI SANITRA, SH,

M. Kn, the above is proven legally and convincingly guilty of committing the criminal act of

"FRAUDING AUTHENTIC LETTER". And imposed a sentence against the Defendant with

imprisonment for 1 (one) year. Efforts to find a law against a case that is being examined in trial, the Panel of Judges. Based on the facts above related to the evidence and considerations regarding the evidence, it

must be stated that it is proven that the Defendant NENI SANITRA, SH, M.Kn, mentioned above is

legally proven and convincingly guilty of committing the crime of "authentic letter forgery". And sentenced the defendant to imprisonment for 1 (one) year. 30 of 2004 concerning the Position of Notary,

where the Defendant admitted that he had deleted, overlapped and replaced it with another, against

Articles 4, 6, and Article 7. Where it is clear that the deed made by the Defendant was the matter of

changing the Minutes of the Deed.

Number 149 which is an Authentic deed without going through the provisions of the law or

guidelines for changing the Authentic deed is not true, then the Authentic Deed becomes invalid or cannot

be used anymore as an Authentic deed which has binding force. Based on the theory based on the theory of certainty and justice, the judge in considering the decision on the crime of forging authentic documents



must provide and realize the values of justice, certainty, order, and peace so that one party is not harmed

and can enjoy all the rights protected by law, therefore the proof stage is considered by the judge who must be considered to determine legal provisions that are in accordance with the facts at trial which make

legal certainty after the case is decided. Because with the existence of legal certainty the contents of the

agreement will become law for the parties who make the agreement.

C. Legal Consequences Of Using The Use Of Notary Rights In Case Number 1003/K/ Pid/2015

A violation of the position of a notary, can now lead to an accountability for the notary profession,

be it administrative responsibility, compensation in the civil realm, or criminal liability. The notary profession also requires a responsibility both individually and socially, especially towards positive legal

norms and a willingness to submit to the professional code of ethics, even something that is mandatory so

that it will strengthen existing positive legal norms.

Based on UUJN it is regulated that when a notary in carrying out his position is proven to have

committed a violation, the notary can be subject to sanctions or sanctions, in the form of civil sanctions,

administrative sanctions, and the code of ethics for the position of a notary. The sanctions have been

regulated in such a way, previously regulated in the Notary Position Regulations (PJN) and now the UUJN and the Code of Ethics for the Notary Position. In practice, it is found that a legal action or violation

committed by a notary can actually be subject to administrative or civil sanctions or a code of office

ethics, but is later withdrawn as a crime committed by a notary.11

Someone has committed a crime, it is not necessarily that the person is convicted. Because before

determining the person or the defendant to be sentenced, two things must first be determined, namely

whether the act of the defendant is a criminal act or not, and whether the act can be accounted for or not. Criminal responsibility cannot be separated from the sanctions that will be imposed as a result of these

actions. There are various theories that discuss the reasons that justify ( justification) sentencing

(sanctions). Among them are absolute theory and relative theory:12

1. Absolute Theory (Vergeldingstheorie) The punishment is imposed as retaliation against the perpetrators for committing crimes that cause misery to other people or members of the community.

2. Relative Theory (Doeltheorie) This theory is based on goals (doel) as follows:

a) Deterrence By imposing a sentence, it is hoped that the perpetrator or the convict will become a deterrent and will not repeat his actions again and the general public will know that if they

commit an act as committed by the convict, they will suffer the same punishment.

b) Improving the convict's personality Based on the treatment and education given during his sentence, the convict feels sorry so that the convict will not repeat his actions and return to the

community as a good and useful person.

c) To destroy or render the convict incapacitated. To destroy means to impose a death sentence,

while to render the convict incapacitated is to impose a life sentence.

The form of responsibility of a notary in the field of criminal law, as in judicial practice in

general, includes 3 (three) forms of responsibility:

1) Responsibilities as a suspect, defendant, or convict. 2) Responsibilities as witnesses.

3) Responsibilities as an expert in providing information and explanations in court.

Criminal liability is deemed to exist unless there are reasons for the abolition of the crime, in other

words, criminal liability can be done as long as the maker does not have defense (protection) when committing a criminal act. In the field of criminal proceedings, this means that a defendant is considered

responsible for the crime he has committed, if he cannot prove that he has defense when committing the

11 Habib Adjie, Op. cit,p. 120. 12 Laden Marpaung, Principles-Theory-Practice of Criminal Law, Sinar Graphic Offset, Jakarta, 2008, p. 4.



crime.

A person's act is said to be a criminal act if the act has been stated in the law. In other words, to find out the nature of the act is prohibited or not, it must be seen from the formulation of the law. The

principle that determines that no action is prohibited before the provisions of the applicable laws and

regulations first, is known as the principle oflegality, The formulation of the criminal responsibility of a notary who violates the laws and regulations is not specifically regulated in Law Number 30 of 2004

concerning the Position of a Notary as amended by Law Number 2 of 2014 concerning the Position of a

Notary. and not responsible for it. In general, there are several criminal acts that are often carried out by

notaries in carrying out their positions, namely: a. The crime of forgery of letters is regulated in Article 263 paragraph (1), (2), and Article 264, 266 of

the Criminal Code.

b. The crime of embezzlement as contained in Article 372 of the Criminal Code. c. The crime of fraud as regulated in Article 378 of the Criminal Code.

The qualification of the crime is related to the following aspects:13

a) The certainty of the day, date, month, year and time of the face.

b) The party (who is the person) who appears before the notary. c) Signature of the appearer.

d) The copy of the deed does not match the minutes of the deed.

e) A copy of the deed is available, without the minutes of the deed being made. f) The minutes of the deed are not signed in full, but the minutes of the deed are issued.

If this aspect is violated by a notary, then the notary concerned can be sentenced civil and

administrative sanctions, this aspect is a limitation which, if it can be proven, can be used as the basis for imposing civil or administrative witnesses to a notary. On the other hand, such limitations are imposed

criminally or used as the basis for criminalizing a notary, on the basis that the notary has made a forged

letter or falsified a deed with qualifications as a crime committed by a notary.14

Furthermore, based on Article 27 of the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 7 of 2016 concerning the Notary Honorary Council, it is stated that the

Notary Honorary Council Approval to Investigators, Public Prosecutors, and Judges for the benefit of the

judicial process in summoning a notary, is carried out by: a. There are allegations of criminal acts related to the minutes of deed and/or notary letters in the

notary's depository.

b. The right to sue has not yet been terminated based on the provisions regarding expiration in the laws and regulations in the field of criminal law.

c. There is a denial of the validity of the signature of one or more parties.

d. There is an allegation of reduction or addition to the minutes of the deed.

e. There is an allegation that the notary has postponed the date.

As a concrete example of a criminal act committed by a Notary domiciled in Pekanbaru, in

Decision Number 1003 K/PID/2015 Declaring that the Defendant NENI SANITRA, SH, M.Kn, was

legally and convincingly proven guilty of committing the crime of "FRAUDING AUTHENTIC LETTER". And sentenced the Defendant to imprisonment for 1 (one) year. The defendant's actions as

regulated in Article 264 paragraph (1) of the Criminal Code. Based on the facts at trial, we have presented

the Expert evidence, namely;

1. Criminal Expert Prof. DR. ISMANSYAH, SH, MH, whose Minutes of Expert Examination were read and had been sworn in, explained in essence that changes made by the Defendant in an authentic deed

13 Habib Adjie, Op. cit, p. 80. 14 Ibid.



must have conditions based on the provisions of Article 50 and Article 51 Paragraphs (2) and (3) of

the Law. Number 30 of 2004 concerning the Position of a Notary. 2. Notary Expert Dr. Syahril Syofyan, SH, M.Kn, whose Minutes of Expert Examination were read and

sworn to explain the essence; that if the parties do not agree with the words or sentences contained in

the minutes, the notary in this case the defendant is obliged to make corrections or renvoi on the minutes of the deed until, the draft of the minutes is felt to be perfect and signed by the parties,

witnesses and the notary, where the changes must be made as follows:

1) The notary must review (appointment) the incomplete clause according to the parties and the

incomplete clause must be crossed out in an orderly manner and can still be read then the correct clause is made on the left side of the empty deed minutes and after it has been written/ replaced

then must be initialed by the parties, witnesses and a notary.

2) If the change is made after signing then the change is considered invalid. 3) If the crossed out clauses are then simply replaced with the deletion method, with overlapping

typing, then the changes are invalid and against the notarial law as regulated in Article 49 of

Law No. 30 of 2004 concerning Notary.

4) If the change is not known by the parties or one of the parties is then made a copy of the deed, then the deed contains elements of falsehood in accordance with Article 263 of the Criminal

Code.

5) The notary has the authority to correct typographical errors or typos in the minutes of the deed which has been signed by the parties and the correction is carried out by making a Minutes and

giving notes about it in the original minutes of the deed by stating the date and number of the

deed of the minutes of correction and the minutes of the correction. must be submitted to the parties.

The position of a notary deed is as perfect evidence in investigations and examinations in court.

The notary deed is used as evidence in the process carried out by the judge. In order to have perfect

evidentiary power, all procedures and procedures for making authentic deeds must be in accordance with UUJN. Judging from the procedures that are not fulfilled and this can be proven, then the deed can be

declared invalid. The legal consequences of a notarial deed containing the parties who do not agree with

the words or sentences contained in the minutes, the notary in this case the defendant is obliged to make corrections or renvoi on the minutes of the deed until, the draft of the minutes is felt to be perfect and

signed by the parties, witnesses and the notary, if not If the deed is carried out, the deed will be null and

void, while the contents contained in the deed will be null and void.

Based on the theory of accountability, the principle of responsibility is a legal responsibility that is

imposed on the perpetrator of an unlawful act to see whether the person concerned in carrying out his act

has an element of error or not, in this case the perpetrator can be held legally responsible, even though in

committing the act the perpetrator is responsible. does not do so intentionally and does not contain elements of negligence, carelessness or impropriety. Because the above notary is proven to have falsified

an authentic letter, it is used as the basis for imposing a witness to the notary concerned and imposing

administrative sanctions on the notary. On the other hand, such limitations are taken criminally or used as the basis for criminalizing a notary.

Conclusion Based on the results of the research that the author did, it can be concluded as follows:

1. The regulation on the use of a notary right of refusal in case number 1003K/PID/2015 is related to a

notary right of refusal, namely that the Notary is a public official and as a position of trust (vertronwens ambts) has the obligation to keep the contents of the deed made secret by and before

him as well as all the information given by the appearers and the Notary a secret, so that the Notary is

obliged to keep it secret because he is bound by the oath/secret of office in Article 4 UUJN.



However, if the deed made by or before a Notary has indications of a crime in which the Notary must

release or ignore the obligation to keep secrets related to the contents of the deed because it is in the public or State interest and assists the legal process, then Article 16 paragraph (1) letter f and Article

54 UUJN then Secretarial positions can be set aside if there are higher interests that require the

Notary to provide testimony or information so that the Notary is released from his oath of office in accordance with the applicable laws and regulations.

2. The judge's consideration in the case decision number 1003 K/PID/2015 in connection with the

limitation of the use of the right of denial in maintaining the confidentiality of the position of a notary

according to UUJN that the Defendant NENI SANITRA, SH, M.Kn, based on the expert's statement, explained that if the change after signing the deed was invalid, and this can be sued for compensation

to the Notary. The illegitimacy of the Criminal Law causes the loss of the other party. Notary should

change in front of both parties in accordance with the agreement of both, or as the procedure should be. Therefore, the Authentic Deed becomes invalid or can no longer be used as an Authentic deed

that has binding power.

3. The legal consequences of using a notary's right of denial in case number 1003/K/PID/2015, namely

because the notary is proven to have falsified an authentic letter, it is used as the basis for imposing a witness to the notary concerned to impose administrative sanctions on the notary. On the other hand,

such limitations are imposed criminally or used as the basis for criminalizing a notary, on the basis

that the notary has falsified an authentic letter with qualifications as a crime committed by a notary, the notary is legally responsible for an act of counterfeiting an authentic letter and he bears

responsibility for a sanction in the case of an act that is contrary to the law".

References

1. Book

Abdul Ghofur Anshori, Indonesian Notary Institution, UII Press, Yogyakarta, 2009. Abdul Wahid, Mariyadi, Sunardi, Enforcement of the Notary Professional Code of Ethics, Nirmana

Media, Tangerang South, Third Printing, 2017.

Habib Adjie, Civil and Administrative Sanctions Against Notaries as Public Officials. Refika Aditama, Bandung, 2009.

Ismantoro Dwi Yuwono, Understanding Various Professional and Occupational Ethics, Yustisia

Library, Yogyakarta, 2011. Laden Marpaung, Principles-Theory-Practice of Criminal Law, Sinar Graphic Offset, Jakarta, 2008.

Sidharta, Morality of the Legal Profession, An Offering Framework, Refika, Bandung, 2006.

Sjaifurrachman and Habib Adjie, Aspects of Notary Accountability in Making Deeds, CV. Mandar

Maju, Surabaya, 2011. Soerjono Soekanto, Introduction to Legal Research, UI Press, Jarkarta, 2012.

2. Journal

Ghansham Anand and Agus Yudha Hernoko, “Efforts to Claim Rights That Can Be Done by Interested Parties to Notary Deeds with Juridical Defects”, Legal Perspective,, Vol. 16 No. 2,

November 2016.

Hilda Sophia Wiradireja, “The Notary's Criminal Liability in Making the Deed Based on False

Information Linked to UUJN”, Journal of Legal Insights, Vol. 32, No.1, February 2015.

Copyrights Copyright for this article is retained by the author(s), with first publication rights granted to the journal. This is an open access article distributed under the terms and conditions of the Creative Commons Attribution license.

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