Injunctions in idem NEBIS State vs Miranda

This short (meascure provisional) is an important decision for the judge issued a court hears both civil and criminal cases. In this case, the authors are limited to the preliminary determination in criminal proceedings. Practical examination in criminal cases, usually brief imposed following the exclusion of the defendant or his counsel. The lawyer for the defendants, except usually plays an important role in the imposition of the preliminary determination by the examiner of the court.

Exception to the defendant or the judge must inform the law provides for "provisional decision" to accept or reject the request. The form and nature of the decisions of courts in exceptional cases that the defendant or the defendant is composed of three types:. The determination, a preliminary injunction and final decision-making over the objection can be formulated in terms of design, the Court held that the Court refers is not entitled to be informed and to delegate to another judge. While others may take the form of a trial, which means that among the verdict was announced before the imposition of a final decision. It is a short form and nature of the final decision, which means that the treatment is stopped the same thing. The consequences of this decision shall enter into force in idem principle NEBIS. (See: Letter No. 3 Ederan MARI 2002 January 30, 2002 NEBIS in idem).

Consequences and legal implications of each of these forms of short certainly different. In short, the determination of the form, then the attorney / defend his case directly to the court hearing. Although this form of decision of the Decision contains a rejection of the exception to the judge continued the case to the Attorney / Prosecutor immediately filed a series of test instruments. However, if the preliminary determination in the form of a final decision, efforts can be made by the Attorney / Prosecutor is the resistance, or the final resort, given the substance of its decision. That the preliminary decision meruapakan a mechanism in the judicial process in our country which has confirmed the existence and function.

The author believes that the preliminary decision is a means to monitor the performance of the Attorney General / Attorney, which means they were in no hurry to make the prosecution, the presentation of a valid application datau an investigation. In practice, this is a preliminary determination that the prosecution by attorney Attorney / can not be accepted because the charge is based on studies that are not valid or does not conform to the edicts of the law, including criminal investigation punishable death, 15 years imprisonment or a fine of 5 years imprisonment or more for those who can not afford, where suspects in the investigation process is not accompanied by a lawyer (attorney), because the employee concerned has not complied with his court-appointed duty of the suspect / accused, then the results of investigations in this case must be reversed, even if the researcher has obtained a declaration that the defendant is not prepared to recommend its use.

So if a researcher has, in fact, Article 56, paragraph (1) of the Code of Criminal Procedure and the results of the study (BAP) in this case violated if an exception is the attorney / attorneys, judges have the courage to selanya declare the verdict, the results of the study (BAP) to cancel the same suspicion. The case against the lawyer / prosecutor may not directly cause the new rates and then to the Court, but legal action against these cases, the prosecutor can appeal and the appeal is not a resistance to the legislation. There is also a preliminary decision is a final judgment of the case shall be final. This can happen if you do not, except in the areas of competence requires acceptance of the fall, and all claims, since it is a civil dispute.

In this case, if the latter case, again by the NEBIS Attorney / Prosecutor applied in idem. Among the scholars who say the conditions to be met NEBIS part in idem is a suspect is convicted on the basis of the contents of your case, the main form of belief, free or free from any claim, is not completely wrong or no, because in fact, there are exceptions that are not yet involved the main proceedings and the decision is final and the decision NEBIS in idem applies, among other exceptions to the authority "of the court" (incompetence Exseption) in both absolute and relative terms than is the "requiring authority, the fall", namely: 1) except Judas category (Article 76 of the Criminal Code) 2), an exception tempores (Article 78 of the Criminal Code), and 3). matrices defendant (Article 77 of the Criminal Code).