THE APPLICATION OF IMPRISONMENT TO KLEPTOMANIACS: A CASE STUDIES OF COURT DECISION

Abstrak . This study aims to examine and analyze the Judge’s application of imprisonment to kleptomaniacs based on Decision No. 574/Pid.B/2019/PN.Dps. This study uses a normative juridical research method. The data was collected using literature study techniques on primary, secondary, and tertiary legal materials. The collected legal material is then analyzed using qualitative data analysis methods with a statute approach and a case approach which will then conclude the object of the research. The results show that the Judge’s application of imprisonment to the accused is based on Decision No. 574/Pid.B/2019/PN.Dps was the right decision. In this case, the problem of kleptomania currently ongoing in court should be proven with a Psychiatric Visum et Repertum. While the Letter of Statement No. 01/II.MR/RSPI/2019 cannot be the basis for the implementation of eliminating punishment. To determine that a person has kleptomania must undergo a process of examination for a minimum of two weeks to three months. Therefore, it is recommended that investigators provide the opportunity or take the initiative to prove the suspect’s mental condition before being processed to the following legal proof stage. So no more accused who prove their status as kleptomaniacs using the letter of statement. The Judge is also recommended to decide by giving measures sanction to the accused if proven to have kleptomania to avoid the recurrence of the crime of theft in the future.


INTRODUCTION
In many cases, theft occurs when the perpetrator takes other people's property secretly, but the action is different from the crime of theft in general. In this case, the perpetrator is experiencing impulse disturbance. The crime of theft with this condition is known as kleptomania, and the perpetrator is known as a kleptomaniac. 1 A study states that the leading cause of kleptomania is a problem with the brain impulses of 1 the kleptomaniac. 2 Meanwhile, those who are stolen from kleptomaniacs are generally properties that have no value, such as pens, spoons, and other properties. The hallmark of a kleptomaniac is his inability to resist impulses to take on properties that are unimportant to him. In this case, the kleptomaniac does not use the property or sell it to solve his economic problems. 3 Kleptomania can occur in all economic classes of society. People with well-established economic strata can be kleptomaniacs. The main goal of a kleptomaniac is only to fulfil the desire to take property. 4 Many people think that kleptomania is not a serious thing. Meanwhile, kleptomaniacs who have committed theft crimes will assume that many people will understand because they are considered mental disorders. Kleptomania is a serious problem because the behavior of kleptomaniacs disturbs the peace and comfort of the people around them and the property owner. Therefore, the existence of kleptomaniacs should not be ignored, and they need severe treatment to heal their attitude and psychology. 5 On the other hand, not all perpetrators of crime must be held accountable for their actions. For example, people who have a mental illness, as based on Article 44 section (1) of Law of the Republic of Indonesia Number 1 of 1960 on Amendment of the Penal Code (hereinafter referred to as the Penal Code), which regulates that: "Not punishable shall be the person who commits an act for which by reason of the defective development or sickly disorder of his mental capacities, he is not liable." Although there are differences between the ordinary crime of theft and kleptomania, the perpetrator's actions both have an impact that is detrimental to specific individuals or groups. 6 In this case, the victim loses property due to the crime of theft and kleptomania. The crime of theft committed by a kleptomaniac does not yet have explicit legal provisions. In other words, no regulations specifically regulate kleptomania, especially in terms of accountability until the application of the law.
A pilot committing a theft crime in a shop at I Gusti Ngurah Rai Airport is an example of the abovementioned problem. In this case, the Decision of the watch. The kleptomaniac act caused a loss of IDR 4,950.000,00 for the victim. The accused has examined at Pondok Indah Hospital, resulting in the accused's being declared to have kleptomania. In this case, the Judge still decided and sentenced the accused to imprisonment for three months and fifteen days.
Several previous studies have a discussion theme similar to this research. Ramdhan, and Brawanti & Utari discuss legal liability for kleptomaniacs. Ramdhan emphasized that legal responsibility for kleptomaniacs can shift from the realm of criminal law to civil law as regulated in Article 1365 of the Penal Code. 7 Brawanti & Utari emphasized that kleptomaniacs cannot be punished because kleptomaniacs are considered as people whose souls are disabled or disturbed by disease. 8 In this case, as regulated in Article 44 section (1) of the Penal Code. Juwandana discussed the legal comparison between Islamic law and positive law in Indonesia. Juwandana stressed that kleptomaniacs could not be punished by cutting their hands under Islamic law because kleptomaniacs are considered to be mentally ill. Meanwhile, kleptomaniacs can be given punishment as regulated in Article 362 of the Penal Code. 9 From the description of the previous research, it can be seen that the description emphasizes legal responsibility. In contrast, this study emphasizes Judges' application of criminal law to kleptomaniacs.
Based on the description above, this study aims to examine and analyze the Judge's application of imprisonment to kleptomaniacs based on Decision No. 574/ Pid.B/2019/PN.Dps.

METHOD
This study uses a normative juridical research method with a statute approach and a case approach. 10 The approach analyzes legal problems by referring to and originating from legal norms. 11 In this case, laws and regulations are positive law and court decisions with permanent legal force. The types of data used are legal materials, including: 1. Primary legal materials include the Penal Code, Decision No. 574/Pid.B/2019/ PN.Dps, and other laws and regulations; 2. Secondary legal materials that explain primary legal include books, articles, and online materials that discuss the crime of theft and kleptomania; and 3. Tertiary legal materials are legal materials that provide instructions and explanations for primary and secondary legal materials. The tertiary legal material used by the author is the Big Indonesian Dictionary and related legal dictionaries.
The data was collected using literature study techniques on primary, secondary, and tertiary legal materials. The collected legal material is then analyzed using qualitative data analysis methods with a statute approach and a case approach will then conclude the object of the research. 12

RESULTS AND DISCUSSION
Legal certainty or lex certa is essential in criminal law and has been marked by the principle of legality based on Article 1 section (1) of the Penal Code, which explains that "no act shall be punished unless by virtue of a prior statutory penal provision." On the other hand, two reasons serve as the basis for eliminating punishment in criminal law theory: reasons for justification and excuse. The reason for justification or rechtvaardigingsgrond is seen from the side of his actions. In this case, it eliminates the nature of the unlawful act. At the same time, the reason for the excuse or schulduitsluitingsgrond is seen from the perpetrator's or the person's side. In this case, it eliminates the perpetrator's guilt of the unlawful act. The two reasons have also been regulated in the Penal Code, including: 1. Article 44 concerning act cannot be held responsible; 2. Article 48 concerning acts committed in force majeure; 3. Article 49 concerning actions carried out due to necessary defense; 4. Article 50 concerning act for the execution of a statutory provision; and 5. Article 51 concerning the act for executing an official order issued by the competent authority.
From the above provisions, it can be understood that the act initially prohibited can be justified so that the perpetrator cannot be punished. So the judge must free the kleptomaniac accused from all types of punishment. In contrast, Judge in Decision No. 574/Pid.B/2019/PN.Dps still decided and sentenced to kleptomaniac as accused to imprisonment for three months and fifteen days. Therefore, the decision becomes interesting to analyze if it relates to the reasons for eliminating punishment in criminal law theory.

A. Types of Application of Sanction
Criminal law theory's Sanctions are divided into punishment and measures sanction. 13 Punishment is suffering or misery deliberately given by the state to a person or persons as a legal consequence (sanction) for their actions that have violated the prohibition of criminal law. The application of punishment is divided into two categories based on Article 10 of the Penal Code, which regulates the punishments are: a. Basic punishments: 1. capital punishment; 2. imprisonment; 3. light imprisonment; 4. fine. b. Additional punishments: 1. deprivation of certain rights; 2. forfeiture of specific property; 3. publication of judicial verdict.
Meanwhile, measures sanction is a form of sanction in criminal law. Not all Laws and Regulations include measures sanction in their content, but only include punishments. 14 A person who is proven to be incompetent or cannot be held responsible for his actions, as based on Article 44 section (2) of the Penal Code, regulates that: "If it is evident that he is not liable for the committed act by reason of the defective development or sickly disorder of his mental capacities, the judge may give an order that he is placed in a lunatic asylum during a probation time not exceeding the term of one year." Measures sanctions are divided into two categories, including punishments and without punishments. 15 The sanctions have been included in Article 103 section (1) and section (2) of the Bill of the Penal Code of 2019, which regulates that: (

B. Judge's Consideration in Decision No. 574/Pid.B/2019/PN.Dps
Decision No. 574/Pid.B/2019/PN.Dps has permanent legal force because the accused did not take legal remedies to a higher judicial level. The accused was charged with one charge, namely Article 362 of the Penal Code, concerning the crime of theft.
The Public Prosecutor was right in indicting with one charge on the crime of theft committed by the accused. The legal facts ensure that the accused has been proven to have committed an ordinary crime of theft based on Article 362, which regulates that: "Any person who takes property, wholly or partially belonging to another, with intent to appropriate it unlawfully, shall be guilty of theft, with maximum imprisonment of five years or a maximum fine of nine hundred rupiahs punished." However, based on the above provisions, the Public Prosecutor is less precise in providing imprisonment charges to the accused because the charge is too light. In this case, the Public Prosecutor only provides a charge of imprisonment for five months minus the prison term. Meanwhile, the legal facts ensure that the accused's actions have fulfilled all the elements of the theft crime. In addition, the property stolen by the accused is a property with a nominal or an expensive price, namely a watch for IDR 4,950,000.00. In contrast, Judge considers that the charge of imprisonment by the Public Prosecutor to the accused is too heavy.
The following is a description of the Judge's considerations in deciding and sentencing imprisonment of three months and fifteen days against the accused. In this case, both juridical and non-juridical considerations in Decision No. 574/ Pid.B/2019/PN.Dps.

Juridical Considerations
In making a decision, some of the Judge's juridical considerations are based on the charge of the public prosecutor, testimony, the accused's statement, and the provisions of laws and regulations related to this decision. Therefore, the following describes the Judge's juridical considerations in this case.

a. Public Prosecutor's Charge
The Public Prosecutor indicted the accused with one charge, namely Article 362 of the Penal Code, concerning the crime of theft. The following is the Judge's consideration based on all the elements of theft crime in Article 362 of the Penal Code.

1) Element of Any Person
What is meant by any person is a legal subject who must be held accountable for their actions. The legal facts ensure that the accused justifies the charge from the Public Prosecutor and confirms the testimony of the witness during the trial. The accused also justifies the act so as not to file an exception. Therefore, the element of any person has been fulfilled in this case.

2) Element of Taking Property
What is meant by taking property is any act that moves or takes to make the property move to another place. The legal facts ensure that the accused took a black SEIKO brand watch from a display table at the IDP shop and then put the watch in his trouser pocket. Therefore, the element of taking property has been fulfilled in this case.

3) Element of Wholly or Partially Belonging to Another
What is meant by wholly or partially belonging to another is that the accused does not have any rights to the property. The legal facts ensure that a black SEIKO brand watch is an IDP shop property that will be sold to potential consumers. Therefore, the element of wholly or partially belonging to another has been fulfilled in this case.

4) Unsur with Intent to Appropriate
What is meant by intent to appropriate is an action of each person to acquire and control the property. The legal facts ensure that the accused admitted at trial that he aimed to take the watch into possession and use it. Therefore, the element of intent to appropriate has been fulfilled in this case.

5) Element of Unlawfully
What is meant by unlawfully is an act of depriving people of their rights and or harming others, owning property in an invalid way, and contrary to the applicable laws and regulations. The legal facts ensure that the accused left the IDP shop with a watch without making a payment transaction at the cashier. The accused's actions caused a loss of IDR 4,950.000,00 for the IDP shop owner. Therefore, the element of unlawfully has been fulfilled in this case.

b. Testimony
Testimony is one of the variables that cause the facts regarding this case to be revealed in the trial. Testimony can be divided into two categories: mitigating testimony and aggravating testimony. The accused's parents delivered mitigating testimony in the trial of the accused. In this case, they are explaining that the accused suffers from kleptomania. In contrast, the aggravating testimony in the trial was delivered by the head of the domestic departure security team at the airport and one of the IDP shop employees.
In this case, they explain that the accused brought and kept the watch in his trouser pocket.

c. The Accused's Statement
The accused justifies all testimonies from witnesses. The Judge then asked the accused for an explanation regarding the reasons for committing the theft crime. Accused stated that when he saw the watch, he felt a surge of adrenaline and a massive urge to pick it up the watch. After successfully taking and carrying the watch, the accused stated that he felt happy and felt his satisfaction. However, from feeling happy and satisfied, it is also accompanied by feelings of regret. So the accused stated that he wanted to return the watch to the IDP shop. However, the accused said that he was afraid when he tried to return the watch. During the trial, the Judge considered that no legal facts became the basis for applying to eliminate punishment to the accused.

d. Provisions of Laws and Regulations
The public prosecutor charged the accused with one charge, namely Article 362 of the Penal Code, concerning the crime of theft. However, if the decision is further analyzed, it can be understood that the accused has mitigating considerations. In this case, Letter of Statement No. 01/II.MR/ RSPI/2019 stated that the accused had kleptomania. In addition, the accused's parents delivered mitigating testimony that the accused suffers from kleptomania. In other words, it can be understood that the people around him have long known that the accused has kleptomania behavior.

Non-Juridical Considerations
To determine that a person has kleptomania must undergo a process of examination for a minimum of two weeks to three months. In this case, the kleptomaniac will undergo a series of examinations by a psychiatrist or psychologist who will monitor all activities. The accused's parents gave testimony that they had brought the accused to the hospital to undergo treatment for kleptomania. The therapy was carried out because previously, the accused had committed the crime of theft. The accused took his friend's book, but the problem was resolved amicably. Meanwhile, regarding the Letter of Statement No. 01/II.MR/RSPI/2019 analysis is needed considering that the letter was published relatively quickly.
From the analysis of the Letter of Statement No. 01/II.MR/RSPI/2019, it can be judged that the letter is invalid to be used to assess the accused's mental condition. Even though the accused has a history of therapy, it cannot be judged that the accused was still experiencing kleptomania at that time. In this case, when the crime of theft took place at the IDP shop, the accused was not in a condition as the kleptomaniac. Therefore, the Letter of Statement No. 01/II.MR/RSPI/2019 cannot be the basis for the implementation of eliminating punishment.
As for the problem of kleptomania which is currently ongoing in court, it should be proven with a Psychiatric Visum et Repertum. Investigators should provide the opportunity or take the initiative to prove the suspect's mental condition before being processed to the following legal proof stage. In this case, each suspect must undergo a process of observation and examination for a minimum of two weeks to three months. So that there are no more accused who prove in court by using the Letter of Statement No. 01/II.MR/RSPI/2019.
In giving consideration, the Judge always looks at and examines the case files and explores the legal facts of the case at trial. With the legal facts at trial, the Judge can decide based on the principles of justice, benefits, and legal certainty. However, in handling cases of crime of theft carried out by the kleptomaniac, there are several considerations by the Judge in deciding the case. For example, is the accused proven to have kleptomania or not? Therefore, there is a great need for expert testimony in the field of psychiatrists to determine whether the accused is a kleptomaniac. In addition, the Judge must also provide an opportunity for the accused to undergo the examination process until the authorities issue of Psychiatric Visum et Repertum.
If the accused is not proven to have kleptomania or the accused has recovered from the disorder. In this case, the Judge deciding and sentencing the accused to imprisonment was the right decision. In contrast, if the accused is proven to have kleptomania, the kleptomaniac will still take the property belonging to another convicted person. If the accused decides to eliminate punishment, then the kleptomaniac will still take the property of the people around him. Therefore, the Judge should decide by giving measures sanctions to the accused. 16 In this case, the kleptomaniac must undergo healing therapy in the hospital to avoid the recurrence of the crime of theft in the future. 17

CONCLUSIONS AND SUGGESTIONS
Based on the results and discussion above, it can be concluded that the Judge's application of imprisonment to the accused is based on Decision No. 574/Pid.B/2019/ PN.Dps was the right decision. In this case, the problem of kleptomania currently ongoing in court should be proven with a Psychiatric Visum et Repertum. While the Letter of Statement No. 01/II.MR/RSPI/2019 cannot be the basis for the implementation of eliminating punishment. To determine that a person has kleptomania must undergo a process of examination for a minimum of two weeks to three months. Based on the description of these conclusions, it is recommended that investigators provide the opportunity or take the initiative to prove the suspect's mental condition before being processed to the following legal proof stage. So no more accused who prove their status as kleptomaniacs using the letter of statement. The Judge is also recommended to decide by giving measures sanction to the accused if proven to have kleptomania to avoid the recurrence of the crime of theft in the future.