ANALYSIS OF NOTARY HONORARY COUNCIL CONSENT AS GROUNDS OF IMPUNITY ( STRAFUITSLAUTINGSGRONDEN ) AGAINST REVELATION OF SECRETS

Article 66 paragraph (1) Law Number 2 of 2014 essentially regulates the consent of the Notary Honorary Council in the criminal justice process. The provisions in the a quo article have been still being applied and become a positive law in Indonesia. One of the criminal justice process in the notarial field relates to the criminal Law of revelation of secrets as regulated in Article number 322 paragraph (1) of the Criminal Code. The consent given by the Notary Honorary Council as outlined above can certainly be viewed in the context of criminal law. The research is a normative legal research using secondary data of both primary legal materials and secondary legal materials. The data collecting technique used is documentary study with written materials as the data collection tool to be analyzed qualitatively using content analysis. The research result showed that in the context of criminal law, basically a notary who provides a copy of the deed and/or documents attached to the minuta deed or notarial protocol in the notarial archives for the purpose of the investigator, the public prosecutor or the judge has committed a criminal Law of revelation of secrets as stipulated in Article number 322 paragraph (1) of the Criminal Code. However, the notary is not necessarily criminally liable considering the consent of the Notary Honorary Council as the grounds of impunity.


A. INTRODUCTION
In the notarial field, the current legal regulation in Indonesia is Law Based on the provisions of Article 1 sub-authentic deed is a deed which, in the form prescribed by the Law, is made by or in the presence of the public officials in the place where the deed is made" (R. Subekti and R. Tjitrosudibio, 2014:475).Meaning that: 1.A notarial deed must comply with the provisions of a deed as provided in Article 38 of the Law Number 2 of 2014, so as to comply with the clause of "a deed in the form prescribed by the Law"; 2. A Notarial Deed consists of two types, namely a deed made by (door) a notary called relaas deed (official record deed) and a deed made before (ten overstaan) a notary (Habib Adjie, 2013:57) called partij deed (deed of the parties).Relaas deed (official record deed) is a letter of evidence made by a notary on what he or she sees, knows or notices, and the occurrence of the Law is witnessed directly (Salim H.S., 2016:90), while partij deed (deed of the parties) is a deed made by a notary based on the will of the parties or constituents, or the constituents who come to the notary to make a deed.In an partij deed, a notary is limited to writing down the will of the parties (Mulyoto, 2010:46).Based on the explanation, the clause "made by or before the public officials who has the authority over it" have been fulfilled; and 3. A notarial deed must be made within the territory of his office covering the whole of the province of his place of residence (see Article 18 paragraph (2) of the Law Number 30 of 2004), so as to satisfy the clause "in the place where the deed is made".In executing notarial procedures in making a notarial deed, the notary may be sued in civil or criminal liabilities.It is stated in the Law Number 30 of 2004 that if the notary is involved in the criminal justice process, the Regional Supervisory Board has an important role in giving a consent as referred to in Article 66 paragraph (1) of Law Number 30 of 2004 which states: For the purposes of the judicial process, the investigator, the public prosecutor, or the judge with the consent of the Regional Supervisory Board is authorized to: a. take a copy of minuta deed and/or documents attached to meaning minuta deed or notarial protocol in the notary's archieves; and b. invoke notary to be present in the examination relating to the deed of which he has made or the notarial protocol which is in the notary's archieves.
However, the judicial review of the Constitutional Court regarding the authority of the Regional Supervisory Board in the a quo article is as stipulated in Article 66 so as to read as follows: (1) For the purposes of the judicial process, the investigator, the public prosecutor, or the judge with the consent of the Notary Honorary Council is authorized to: a. take a copy of minuta deed and/or documents attached to minuta deed or notarial protocol in the notary archieves; and b. invoke notary to be present in the examination relating to the deed of which he has made or the notarial protocol which is in the notary archieves.
(2) The taking of the copy of minuta deed or documents as referred to in paragraph (1) letter a, the submission of official report shall be made.
(  (Moeljatno, 2011:117).The consent given by the Notary Honorary Council as described above may be viewed in the context of criminal law against the criminal Law of revelation of secrets as stipulated in Article 322 paragraph (1) of the Criminal Code.

B. PROBLEM STATEMENT
Based on the introduction above, the problem formulation in this study is "how is the Notary Honorary Council consent viewed from the context of criminal law against revelation of secrets as stipulated in Article 322 paragraph (1) of the Criminal Code?".For the purposes of the judicial process, the investigator, the public prosecutor, or the judge with the consent of the Notary Honorary Council is authorized to: a. take a copy of minuta deed and/or documents attached to minute deed or notarial protocol in the notary's archives; and b. invoke notary to be present in the examination relating to the deed of which he has made or the notarial protocol which is in the notary's archieves.

C. RESEARCH METHODS
The "We distinguish between characteristics of the act (wrongful, criminal) and characteristics of the actor (insane, infant).Indeed, the Model Penal Code builds on this distinction by defining insanity as a state of non responbility involving, in part, the absence of "substantial capacity to appreciate the wrongfulness of the criminal Law.This definition would not be coherent unless the isssue of responbility were separable from the issues of wrongfulness; if non-responsible acts were not wrongful, it would not make sense to say that insane actor did not appreciate the wrongfulness of his act" (Eddy O. S. Hiariej, 2016:153-154).According to Hamdan (M. Hamdan, 2014:38-39, 86, 99, and 111-112) and Hamzah (Andi Hamzah, 2017:140 and 167), the grounds of impunity viewed from the perspective of its source, is divided into two groups namely the grounds of impunity regulated by the law and unwritten.They also state that this can still be subdivided into a general grounds of impunity and a special grounds of impunity based on the science or doctrine of criminal laws (compare with Eddy O. S. Hiariej, 2016:254 and 288).The general grounds of impunity is the reason applicable to all criminal Law, while the special grounds of impunity is the reason applicable to certain criminal act (Andi Hamzah, 2017:140 and 167; M. Hamdan, 2014:38-39, 86, 99, and 111-112;Sudarto, 1990:138).
Additionally, the grounds of impunity according to the science or doctrine of criminal law is distinguished into fait justification  Hiariej, 2016:279).This principle of proportionality requires a balance between the objectives to be achieved by means of the implementation (J.Remmelink, 2014:307).Another thing to consider in running the provisions of the law according to Fletcher in Hiariej is the character of the perpetrator whether the perpetrator always performing duties in good faith or not (Eddy O. S. Hiariej, 2016:279).
In (5) If the time period referred to in paragraph ( 4) is exceeded, it shall be deemed that the Regional Notary Honorary Council receive the consent request.
and Article 24 states that: (1) In conducting the examination, the examining board has the authority to call the notary on the basis of the request from the investigator, the public prosecutor or the judge.
(2) The summon to the notary as referred to in paragraph (1) shall be conducted through a document signed by the regional Notary Honorary Council.
(3) In urgent circumstances the summon may be invoked by facsimile and or electronic mail immediately followed by a summon document.
(4) The summon shall be made within 5 (five) days prior to the examination.
(5) Notary must be present to meet the appeals of the panel of examiners and may not be represented.

E.2. SUGGESTION
The Notary concerned in the criminal proceedings should not be afraid of the criminal penalties contained in Article 322 paragraph (1) Criminal Code in giving the copies of minuta deed and/or documents attached to minuta deed or notarial protocol in the notarial archives for the purpose of the investigator, the public prosecutor, or the judge as long as it has been consented by the Notary Honorary Council.

BIBLIOGRAPHY:
Books: Adjie, Habib, 2008, Hukum Notaris Indonesia (Tafsir Tematik Terhadap UU No. 30 Tahun 2004 Number 30 of 2004 on Notary Public Official jo.Law Number 2 of 2014 on Amendment to Law Number 30 of 2004 on Notary Public Official.Law Number 2 of 2014 has amended some of the articles in the Law Number 30 of 2004 because they are no longer appropriate for the development of law and the needs of the society (see General Elucidation of the Law Number 2 of 2014).
Associated with the notarial deed, the notary has the obligation to make a deed in the form of minuta deed (original of the deed) and keep it as part of notarial protocol (see Article 16 paragraph (1) letter b of the Law Number 2 of 2014).The meaning of minuta deed is "original deed which includes the signatures of the witnesses and notaries which are kept as part of notarial protocol" (see Article 1 sub-article 8 of the Law Number 2 of 2014).While a notarial protocol is defined as "a collection of documents that is the state archives that should be kept and maintained by a notary in accordance with the provisions of legislation" (see Article 1 sub-article 13 of the Law Number 2 of 2014).
provisions concerning the Notary Honorary Council are further stipulated in the Regulation of the Minister of Justice and Human Rights Number 7 of 2016 on the Notary Honorary Council.Based on the regulation a quo, the Notary Honorary Council is divided into Central Notary Honorary Council and Regional Notary Honorary Council (see Article 2 paragraph (1) the Regulation of the Minister of Justice and Human Rights Number 7 of 2016).The Regional Notary Honorary Council has the tasks: a. to examine the petition filed by the investigator, prosecutor, and judge; and b. to grant consent or rejection of a request for consent of the invitation to the notary to be present in the investigation, prosecution, and judicial proceedings (see Article 18 paragraph (1) the Regulation of the Minister of Justice and Human Rights Number 7 of 2016).and has the authority, namely: The authority of the Regional Notary Honorary Council based on the decision of the meeting which includes: a. the examination of the notary that requests an consent to the Regional Notary Honorary Council of by investigators, prosecutors or judges; b. the consent or rejection of the request for consent of taking the copy of minuta deed and/or documents attached to the minuta deed or notarial protocol in the notary archives; and c. the consent or rejection of the request for consent of an invitation to notary the to be present in the investigation, prosecution and judicial proceeding related to the notarial deed or protocol in the notary 578 Yustisia Vol. 6 No. 3 (September -December 2017) Analysis Of Notary .... archives (see Article 20 the Regulation of the Minister of Justice and Human Rights Number 7 of 2016).Furthermore, in carrying out their duties and authorities, the Regional Notary Honorary Council consent the request of the investigator, public prosecutor or judge, the notary shall: a. provide copies of the deed and/or documents necessary to the investigator, public prosecutor or judge; and b. submit the copies of minuta deed and/or documents as referred to in document a with an official submission report signed by the notary and the investigator, public prosecutor or judge witnessed by 2 (two) witnesses (see Article 25 paragraph (3) the Regulation of the Minister of Justice and Human Rights Number 7 of 2016).In the context of criminal law, the notary giving a copy of the deed and/or documents attached to the minuta deed or notarial protocol in the notary archives for the purpose of the investigator, the public prosecutor or the judge has committed a criminal Law of revelation of secrets as stipulated in Article 322 paragraph (1) of Criminal Code.However, the notary is not necessarily criminally liable.Discussed about criminal liability, means discussed about a person committing a criminal Law, in which in this case the notary as a criminal offender revelation of secrets as stipulated in Article 322 paragraph (1) of the Criminal Code.The Criminal Law separates the charLawer of the Laws that are criminalized and the character of the person performing it.Fletcher in Hiariej, completely states: relation to the principle of subsidiarity, Article 66 paragraph (1) Act Number 2 of 2014 jo.Article 25 paragraph (3) of the Regulation of the Minister of Justice and Human Rights Number 7 of 2016 strictly and explicitly requires the notary to provide the copies of the deed and/or documents attached to the minuta deed or notarial protocol in the notarial arcives for the purpose of the investigator, public prosecutor or judge.Subsequently, in relation to the principle of proportionality, the preferred legal obligation is the obligation to grant the copies of minuta deed and/or the documents attached to the minuta deed or notarial protocol in the notarial archives for the purposes of the investigator, public prosecutor or judge considering this relating to the criminal justice process.Certaintly, not only the way in which the implementation should be done in a good faith, but also the objectives to be achieved in carrying out the provisions of the law must refer to the parameters in Article 26 Regulation of the Minister of Justice and Human Rights Number 7 of 2016 stating that: The withdrawal of minuta deed and or notary protocol in the notarial archives as referred to in Article number 25 shall be made in the case of: a. allegations of criminal offenses relating to the minuta deed and/or the documents attached to minuta deed or notarial protocol in the notarial archives b. the claim rights have not failed under the provisions of expiration in the laws and regulations of criminal law; c. a denial of the signature of one or more parties; d. any suspicion of reduction or addition to the minuta deed; or Analysis Of Notary .... b.The office address of the notary c.The number of the deeds and/or documents attached to a minuta deed or notarial protocol in the notarial archives; and d.There is allegation of the addition or reduction of minuta deed.(4)The Chairman of the Notary Honorary Council shall give an answer of consent or rejection of the application as referred to in paragraph (1) within a maximum period of 30 (thirty) working days from the receipt date of the application.

( 6 )
In the event that the notary is absent after being summoned legally in 2 (two) consecutive times, the panel of examiners may decide on the request of the investigator or the judge.586Yustisia Vol. 6 No. 3 (September -December 2017) Analysis Of Notary .... discussion, it can be deduced that in the context of criminal law, basically a notary who provides a copy of the deed and/or documents attached to the minuta deed or notarial protocol in the notarial archives for the purpose of the investigator, the public prosecutor or the judge has committed a criminal act of revelation of secrets as stipulated in Article number 322 paragraph (1) of the Criminal Code.However, the notary is not necessarily criminally liable considering the consent of the Notary Honorary Council as the grounds of impunity.Subsequently, the Notary Honorary Council consent not only relates to the general grounds of impunity regulated by the law in enacting the execution of a statutory provision (wettelijk voorschrift) as regulated in Article 50 Criminal Code, but also relates to special unwritten grounds of impunity in the form of permission or allowance (toestemming).
the principal of the petition of the petitioner has not been considered by the Constitutional Court (see Decision of Constitutional Court Decision Number 72/PUU-XI/2014, page 58).Apart from the consideration of the Constitutional Court Decision Number 49/PUU-X/2012 (see Consideration of Constitutional Court Decision Number 49/PUU-X/2012, page 44-48), the provisions in article a quo is still valid and become the positive law in Indonesia.
Constitutional Court Decision Number 72/PUU-XI/2014 states that the request cannot be accepted because the applicant has no legal standing so 574 Yustisia Vol. 6 No. 3 (September -December 2017) Analysis Of Notary .... that One of the criminal justice process of notary is related to the criminal Law of revelation of secrets as stipulated in Article 322 paragraph (1) of the Criminal Code written "any person who with deliberate intent reveals a secret that he by reason of either his present or earlier office or profession is obliged to keep secret shall be punished with a maximum imprisonment of nine months or a maximum fine of six hundred rupiahs" To keep every information about the deed and all the information obtained for the deed making in accordance with the official oath, unless the Law specifies otherwise.Article 54 paragraph (1) Law Number 2 of 2014 states that:A notary may only grant, display, or notify the contents of the deed, the Grosse deed, the official duplicate copy of the deed or extrLaw of the deed to the person directly associated with the deed, heir, or person obtaining the rights, unless otherwise provided by Law.The obligation of professional secrecy can be used with limitations when the notary is summoned for questioning by any agency seeking to ask a statement from the notary relating to a deed that has been or ever made by or in the presence of the notary(Habib Adjie, 2008: 89).The This research is a normative legal research because it involves library materials or secondary data (Maria S.W.Sumardjono, 2014:17)as the research materials.Secondary data are the data already available (Maria S.W.Sumardjono, 2014:16)or obtained from library materials(Soerjono Soekanto, 1986: 51).The study uses both primary legal materials that include legislation in the field of notarial and the Criminal 575 Yustisia Vol. 6 No. 3 (September -December 2017) Analysis Of Notary ....D. DISCUSSION AND RESEARCH RESULTIn carrying out his position in making a notarial deed, the notary has the obligation of professional secrecy, namely the obligation to conceal the contents of the deed and the information obtained in the notarial deed, unless ordered by the law that the notary is not required to keep confidential and provides necessary information related to the deed.The obligations are regulated in several articles of Law Number 30 of 2004 jo.Law Number 2 of 2014 as follows: Article 4 paragraph (2) of the Law Number 30 of 2004 states that: The oath as referred to in paragraph (1) shall read as follows: "I pledge: that I will be obedient and loyal to the Republic of Indonesia, Pancasila and the 1945 Constitution of the Republic of Indonesia, the Law on the position of notary and other Laws and regulations.that I will carry out my office with trustworthy, honest, thorough, provision concerning the obligation to conceal everything dealing with deeds and other documents is to protect the interests of all parties related to the deed (see Elucidation of Article 16 paragraph (1) letter f of the Law Number 2 of 2014).To the breach of such obligations, the UUJN determines that the notary may be subject to verbal warning sanctions, written warning sanctions, temporary dismissal, dismissal with respect, or disrespectful dismissal (see Article 85 of the Law Number 30 of 2004).In addition, the Criminal Code also determines that the breach of such confidential can be threatened with a criminal Law as stipulated in Article 322 paragraph (1) of the Criminal Code which states "any person who with deliberate intent reveals a secret that he by reason of either his present or earlier office or profession is obliged to keep secret shall be punished with a maximum imprisonment of nine months or a maximum fine of six hundred rupiahs" (Moeljatno, 2011:117).577 Yustisia Vol. 6 No. 3 (September -December 2017) Analysis Of Notary ....