Prosecutors Cannot Appeal Delpedro’s Acquittal, Legal Expert Bivitri Susanti

By Amelia Rahima Sari for Tempo.co, April 9, 2026

Senior law professor at Jentera Indonesian Law College, Ms. Bivitri Susanti, believes public prosecutors should not be able to appeal the acquittal of Delpedro Marhaen and his co-defendants. The Executive Director of the Lokataru Foundation, along with Syahdan Husein, Muzaffar Salim, and Khariq Anhar, was charged with inciting nationwide demonstrations in August 2025 and was acquitted on March 6, 2026.

“According to Article 299, paragraph (2), letter (a) of Indonesia’s Criminal Procedure Code, an appeal cannot be filed against an acquittal. This is very clear,” Bivitri told Tempo.co on Wednesday, April 8, 2026.

Article 299, paragraph (2), letter (a) of Law No. 20/2025 concerning the Criminal Procedure Code states: “A superior court (cassation) appeal, as referred to in paragraph (1), cannot be filed against: (a.) an acquittal…”

Bivitri explained that the acquittal for Delpedro and his co-defendants was handed down after Indonesia’s new Criminal Procedure Code came into force. Therefore, post-verdict proceedings must refer to the new provisions in accordance with the transitional clauses.

She also cited Article 361, letter (d) of the new Criminal Procedure Code, which states: “In the matter of a criminal case that has been transferred to the court but the examination of the defendant has not yet commenced, the case shall be examined, tried, and decided in accordance with the provisions of this Law.”

“In my opinion, the prosecutor’s legal efforts should be viewed as actions initiated after the district court’s decision was made, not as starting from the time Delpedro and his co-defendants were indicted at the District Court,” Bivitri stated.

She deemed the comments made by Coordinating Minister for Law, Human Rights, Immigration, and Corrections Yusril Ihza Mahendra—who expressed respect for the prosecutor’s appeal—as inappropriate. This is because Article 361, letter (d) of the new Criminal Procedure Code must be interpreted as a legal action that commenced only when the prosecutor files its appeal.

“Even though these cases share the same principle, interpretations of criminal law should not be applied; however, when differing interpretations arise, interpretation is allowed under the legal principle exceptio firmat regulam,” Bivitri stated. This means that criminal law may be interpreted in a manner that benefits the accused or the convicted.

According to Bivitri, the Supreme Court should throw out the prosecutor’s appeal against the acquittal of Delpedro Marhaen and his associates. She hopes the Supreme Court employs reasoning that applies the principle exceptio firmat regulam.

“The Supreme Court has the best understanding of procedural law and its principles, along with the formal authority to resolve differences of interpretation,” she remarked.

Coordinating Minister Yusril’s Statement

Coordinating Minister Yusril Ihza Mahendra said that he respected the public prosecutor’s decision to appeal. Although the Prosecutor’s Office is part of the government, he claimed that prosecutors remain independent in fulfilling their duties and exercising their authority as law enforcement officials.

“From the beginning, I have stated that court decisions must be respected out of deference for judicial independence,” Yusril said in a written statement on Tuesday, April 7, 2026.

He argued that in the case of Delpedro Marhaen and his fellow defendants, the investigation, inquiry, prosecution, and trial processes have all been governed by the old Criminal Procedure Code. Conversely, the verdict was delivered after January 2, 2026, when Indonesia’s new code came into effect.

Based on the transitional provisions of the new Criminal Procedure Code, Yusril said all trial proceedings and subsequent processes continue under the old Criminal Procedure Code. However, if the legal principles related to changes in the law are followed, the law most favorable to the defendant will be applied.

The new Criminal Procedure Code indicates that in cases of acquittal, the verdict is final and the prosecutor cannot appeal. According to Yusril, whether the prosecutor can appeal remains an academic debate since the case commenced under the old Criminal Procedure Code.

“So, in my opinion, if the prosecutor does file an appeal, the Supreme Court will decide on the permissibly of the appeal,” Yusril said. “Delpedro and his lawyers can assert the argument related to legal change in their counter-motion to the Supreme Court.”

The Supreme Court could declare the prosecutor’s appeal inadmissible (NO or niet ontvankelijke verklaard), thereby excluding the case material from consideration. Alternatively, the Supreme Court might still hear the appeal (cassation) application, and the decision will rest with the panel of justices hearing the matter.

“Since the prosecutor has filed an appeal, we will simply await the Supreme Court’s decision. The government will respect any decision made by the Supreme Court as the highest judicial authority in our country,” Yusril stated.

He stressed that moving forward, if the investigation and trial processes utilize the new Criminal Procedure Code, the prosecutor will no longer be able to file further legal proceedings. This will ensure legal certainty as stipulated by Article 299 of the Criminal Procedure Code. According to Yusril, legal certainty is an integral aspect of justice that must be upheld.

Amelia Rahima Sari is an anthropology graduate from Airlangga University and began her journalism career at Tempo.co in 2021.

This post is based on https://www.tempo.co/hukum/bivitri-jaksa-tidak-bisa-kasasi-putusan-bebas-delpedro-2127631. Featured image credit: The defendants accused of incitement of demonstrations, Delpedro Marhaen (left), Muzaffar Salim (second left), Syahdan Husein (second right), and Khariq Anhar (right) prepare to hear verdicts at Central Jakarta District Court, Jakarta, Friday, March 6, 2026. The panel of judges handed down acquittals for all four defendants, Lokataru Executive Director Delpedro Marhaen, Lokataru Foundation staff member Muzaffar Salim, admin @gejayanmemanggil Syahdan Husein, and Riau University student Khariq Anhar. ANTARA FOTO/Bayu Pratama S/tom https://www.antaranews.com/berita/5515660/kejagung-ajukan-kasasi-atas-vonis-bebas-delpedro-dan-kawan-kawan.

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