A Brief Review of the Principles of Criminal Law in the Criminal Code
In legal theory, there are three interconnected levels: legal principles, legal rules, and legal regulations. Legal principles are the basic concepts from which a series of legal rules or norms will be derived. After that, legal regulations of a technical, definitive, and operational nature are formed. In the Criminal Code Penal Code (hereinafter referred to as “KUHPâ€), several principles underlying several articles are known, with the following descriptions.
The Principle of Legality in Criminal Law
Principle of Legality is a general principle that began to be initiated since the ancient Roman government due to the emergence of malicious acts in society. The formulation of the principle of legality was made by Paul Johann Anselm von Feurbach in his book Lehrbuch des Pinlichen Rechts (1801) with the theory of mental pressure psychologische zwang theori. However, long before there was such a formulation, an English philosopher named Francis Bacon had introduced the adage moneat lex, priusquaum feriat (the law must give a warning before realizing the threat contained within it).
The formulation of the principle of legality according to Van Feurbach, among others nulla poena sine lege, nulla poena sine crime, and nullum crimen sine poena legali. As for the formulation known today is nullum delictum nulla poena sine previa lege poenali. Several important aspects related to the principle of legality are lex scripta (the law must have written rules), lex certa (the law must be made clear), non-retroactive principle, there should be no use of analogy interpretation, and so on.
Regarding the content lex certa in principle of legality, an act can only be referred to as a criminal act if it fulfills the elements of a crime contained in the law (or in the hierarchy of laws and regulations in Indonesia also including Regional Regulations), the act must be against the law, and the act must be reprehensible. These conditions are cumulative, making it not easy to classify an act as a criminal act.
Laws and regulations in Indonesia have clarified the position of the principle of legality as stated in legal rules, including:
Article 1 paragraph (1) of the Criminal Code
no act can be punished except by the power of criminal rules in legislation that existed before the act was committed.
Article 6 paragraph (1) of Law Number 24 of 2004 concerning Judicial Power (hereinafter referred to as “Law on Judicial Powerâ€)
no one may be brought before a court other than as determined by law.
Article 14 paragraph (2) of the Provisional Constitution
no one may be prosecuted for punishment or sentenced, except for a rule of law that already exists and applies to him.
The three articles above use different benchmarks for criminalization. Meanwhile, ratio legis the term ‘legislation’ is so that it can reach Regional Regulations as a tool for criminalizing. This is in line with the provisions of Article 15 of Law Number 12 of 2011 concerning the Establishment of Legislation (hereinafter referred to as “Law on P3Uâ€) which provides space for Level I and II Regional Regulations to provide criminal threats, but with the limitation of only a maximum imprisonment of six months and a maximum fine of five million so that it is qualified as a violation.
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