Closing the Injustice Gap: Reconstructing Pre-trial Proceedings as an Effective Remedy for Victims of Terminated Preliminary Inquiries

Abstrak

This article analyses the constitutional and procedural implications of the absence of pre-trial authority to review decisions to terminate preliminary inquiries (penghentian penyelidikan) in Indonesia’s criminal justice system. While suspects are afforded robust due process guarantees through pre-trial mechanisms, victims lack a commensurate judicial forum to contest unilateral police decisions to terminate proceedings at the preliminary inquiry stage. This procedural asymmetry engenders a structural lacuna, conceptualised herein as an “injustice gap.” Employing a normative legal research method, the study analyses the 1981 Criminal Procedure Code (KUHAP 1981), the newly approved 2025 Criminal Procedure Code (KUHAP 2025), relevant Constitutional Court decisions, and related judicial practices through the theoretical frameworks of John Rawls’s theory of justice and Lon L. Fuller’s concept of the internal morality of law. The analysis demonstrates that the current asymmetrical distribution of protections between suspects and victims is incompatible with the constitutional principles of equality before the law, legal certainty, and the right to an effective remedy. Accordingly, the article proposes three reform pathways: explicit regulation of Inquiry terminations as an object of pre-trial review, constitutional reinterpretation by the Constitutional Court, or the establishment of a Preliminary Examining Judge (Hakim Pemeriksa Pendahuluan, HPP) to reconstruct pre-trial proceedings as an effective remedy for victims.