Criminal Law (with Perspective of Indonesian Law)

Oleh: Veronica Anggie Sekarsari, S.H.

How should we decide what behavior should be criminal or what should not? A common answer is that should be behaviour which is immoral and harmful. However, failry obviously, there are many things which are immoral or harmful, which are not crimes such as commiting adultery, spreading malicious gossip about someone, lying to your family/friends. One indication is whether criminalising behaviour is seen as something undesirable, which requires a strong justification or whether criminalising behaviour is not in itself necessary bad. If criminalisation is seen as something that requires a very strong justification then we would need to be persuaded both that:

1. The conduct caused serious harm
2. There was no other way of preventing the harm

 

The second point is that even we identify harmful behaviour we should prefer to use other means of tackling behaviour. So why might someone take the view that criminalisation should be regarded as a ‘last resort’? One of the popular reason is that we prize autonomy, that is the freedom to lives as we wish The government should restrict what we do only if there is a very good reason for doing so. The criminal law with its risk of imprisonment and its condemnatory message is a particularly serious intervention in our freedom and should be used only if absolutely necessary. A slightly different reason is that it is better for people to work out for themselves what behaviour they should or should not do. The criminal law in ordering people how to behave discourages people from thingking issues through from themselves.

The point indicates that when considering whether behaviour should be criminalised, we should consider not only the harm caused by the behaviour but the extent to which criminalising behaviour would interfere with a person’s rights. This point also relevant as we shall see, in that it means that offences should be narrowly drafted. So that if a person’s right have to interfered with, it should be the minimum extent necessary.

The human rights of victims are, of course, crucial in crafting the criminal law. Behaviour which severely infringes the human rights of another person will often be a criminal offence. Indeed, one way of deciding how to determine which crimes are worse than others is to consider to what extent they interfere with the rights of victims.

Indonesia as one of the law country in the world had a spesific code which written to punish the criminals. The Indonesian penal code is motivated by the history of dutch colonialism in Indonesia. In the past, the Netherlands imposed by its country’s Criminal Code on its colonial countries, including Indonesia (formerly known as the Dutch East Indies). As a legacy of colonialism whose implementation was forced on Indonesia the Criminal Code is currently felt to be incompatible with  the spirit of the Indonesian nations and needs to be reformed. Various reforms to the maximum amount of fines in the criminal code have been carried out several times, but this has not made fines free from criticism.

The maximum limit for the determination purpose of reforming fines is unclear and does not have a clear philosophical basis and guidelines. In addition to the main punishment, the criminal code also recognizes additional punishments, namely crimes that add to the principal sentence imposed. The condition of the Indonesia criminal justice system which has not yet achieved a sense of community justice which made a pro and contra opinion from the society. Indonesia has made the law enforcement system seen by the public no longer as a place for seekers of complete justice. 

Principles of Criminal Liability

In criminal theory, a criminal offense is built on two important elements :

1. Actus reus

These are the objective/physical elements of criminal theory. Crimes involve proof that the defendant did something. This is known as the actus reus (guilty act)  of the offence. This term refers to the part of the definition of the offence which relates to the actions of the defendant and their consequences. As we noticed, most crimes involve proof that the defendant caused a harm.

   2. Mens rea

These are the mental elements of criminal theory. The intention to hurt that distinguishes the shove from the accidental knock. This is known as the mens rea (guilty mind)  of the offence So most criminal offence require that the defendant intended or foresaw some kind of harm when they acted. However the principle of mens rea (guilty mind) is not absolute principle there are some crimes which require proof of no mental state. These are known as offences of strict liability. They are usually minor or concern the regulation of businesses. For nearly all serious criminal offences, a mental state must be proved. For such crimes it is necessary to prove only that the defendant acted in a particular way.

Types of Crimes: Covers offenses such as murder, theft, assault, and fraud.

Crime is considered as a problem, which mostly affects the quality of life not only of individuals but also of the wider circle where we live. With the development of human society, various forms of criminality have also developed, and in particular, the emergence and rapid development of crime as a fairly widespread form into an advanced way of doing crime with the help of technology. These are some kinds criminal that most happen in Indonesia in 10 years with the regulations based on Indonesian Penal Code:

1. Murder

Murder is a criminal offense regulated in the Indonesian Penal Code under the category of crimes against life. In the Indonesian Penal Code, the crime of murder can be categorized into several articles. Article 338 deals with ordinary murder, which someone intentionally takes the life of another person. Article 339 discusses murder with aggravating circumstances, indicating an element of cruelty or extra violence in the commission of murder. Article 340 regulates premediated murder, where the crime is carefully planned and advance. Article 341 and 342 are related to the murder of a newborn by its own mother, with Article 342 emphasizing premeditated murder. Article 344 adresses murder at the request of the person involved. Article 345 categorizes actions of persuading, inciting or assisting others in commiting suicide. Articles 346 to 348 disscuss abortion, whether with the mother’s consent or withour, and whether the action results in the death of the mother. Article 349 targets doctors, midwives, or pharmacists who assist in abortion based on the provisions in Article 346,47, and 348.

    2. Theft

Seeing the current state of society it is very possible for people to find shortcuts by stealing. From the mass media and electronic media. It is shown that the frequent occurrence of theft crimes of various types motivated by the need for life that is not fulfilled. With the development of the crime of the theft, other forms with violence, The reason behind the criminal act of theft with violence are economic factors, low levels of education, increasing unemployment, lack of legal awareness loosening of family and social ties to society. The crime of theft is regulated in the Indonesian Penal Code book II chapter XXII Articles 362 to 367.

As a state of law, Indonesia adheres to one important principle, namely the presumption of innocence. Such a principle is not only found in Law Number 8 of 1981 KUHAP, It is also can be observed in Law number 48 of 2009 concerning Judicial Power. It is stated that every person who is suspected, arrested, detained, prosecuted and/or brought before a court hearing, must be presumed innocent until a court decision declares his guilt and obtains permanent legal force.

      3. Assault

The prevalence of violent acts  that pose a threat to someone’s body, physical well being, or even their life, whether intentional or unintentional, can fall under the category of crimes against the person and life. Crimes against the person and life are essentially stipulated in the Indonesian Penal Code regulated in Book II Chapter XX Article 351 to Article 358 of the Criminal Code. The term “penganiayaan” reffered to in Article 351 of the Criminal Code is defined as it follows:

1. Persecution is punishable by imprisonment for up to two years and eight months or a fine of up to four million five hundred thousand rupiahs
2. If the act results in severe injuries, the offender is punishable by imprisonment for up to five years
3. If it leads to death, the offender is punishable by imprisonment for up to seven years
4. Intentionally causing harm equated with persecution
5. An attempt to commit this crime is also considered a criminal act

 

     4. Fraud

Fraud is an act as regulated in Argticle 378 of the Indonesian Penal Code in Chapter XXV concerning Fraudulent Acts. Based on  the formulation of the Article, the elements in the act of fraud are:

1. To benefit oneself by breaking the Law
2. Moving people to hand over something or to give a debt or write off receivables
3. Using any of attempts or means of deception (fake names, fake dignity, tricks and series of lies)

 

Defenses

Self-defense or noodweer is “derived from the word ‘nood’ it means emergency, while the word ‘weer’ means defense, until literally the word noodweer can be interpreted as a defense carried out in an emergency.” Based on Indonesian law there are two kinds of defense which are namely noodweer (forced defense) and noodweer-excess (emergency defense that exceeds the limit). the definition of selfdefense is actually illustrated by the arrangements in the Indonesian Penal Code which includes several articles, including Article 48, Article 49 paragraph (1), and Article 49 paragraph (2) of the Indonesian Penal Code. There are differences in terms between the three formulations of the article. Article 48 is better known as coercion or Overmaacht, Article 49 paragraph (1) is referred to as self-defense or Noodweer, while Article 49 paragraph (2) is known as overreaching self-defense or referred to as Noodweer excesses. The overmacht itself explain the strength of forced condition became the power of justification reasons. Based on the article the elements of noodweer are:

1. Defenses itself are forced
2. The person who is being defended are oneself, another person, moral honor, or one’s own or another person’s property
3. There is an immediate attack at the time
4. The attack is unlawful.

 

In the other side written in Indonesian Penal Code Article 44 paragraph (1) whoever do an act which can be responsible for it because a mental defect or disease, can not be prisoned.