Standar Ganda Penyidik Dalam Menerapkan Diskresi Bagi Pelaku Tindak Pidana Pornografi Melalui Internet

Abstract

Article 21 Paragraph (4) letter A of Law No. 8/1981 concerning Criminal Procedure Law (KUHAP) regulates that detention can be applied only to a suspect or defendant who has committed a criminal act and/or has attempted as well as given aid in a said criminal act in case that criminal act is liable to a prison term of five years or more. However, based on the investigator's authority, the investigator usually decides beyond the provisions of the prevailing laws and regulations, especially in the case of cyber pornography. The authority that leads to differences in handling similar cases is known as Discretion. Regard on that condition, understanding the rationale behind the investigator's decision needs to be carefully examined from the beginning of the decision-making process in using the discretionary authority. To understand the investigator's decision-making process, research paradigms attempt to elaborate in more detail, refine, and clearly. Research paradigms will reveal the differences in the discretion that are affected by the rationale of the investigator through the level of ontology, epistemology, and methodology. This research uses qualitative research tradition with normative research methods and a comparative legal approach. The findings will explain the investigator's understanding of discretion and the paradigm that overshadows their rationale.