Legal Literacy - This article discusses the concept of accountability in criminal law, including justifications, excuses, duress, forced defense, and excessive forced defense.

The Concept of Accountability in Criminal Law

Criminal law as a social engineering instrument stipulates that anyone who commits a crime must be held accountable. This is an implementation of the dualism stream. However, it must still be considered whether the perpetrator can be held criminally responsible or what is known as accountability.

Criminal accountability is the mental condition of a normal and healthy person to be able to determine intent before committing an act, to know whether the act is good or not, and to know whether the act is proper or not according to society. The factors for determining whether a person is responsible are reason and will. Reason means being able to distinguish between good and bad deeds, while will is the suitability between what the perpetrator's reason considers good and bad and his behavior.

In some cases, even though the aspect of actus reus is fulfilled, the perpetrator cannot be held accountable because they are incapable. Article 44 of the Criminal Code Criminal Code (hereinafter referred to as “KUHP”) regulates the conditions under which someone is incapable of being held accountable, including having a defective mind (mental retardation) and a disturbed mind due to illness. Furthermore, senility is also included in the scope of Article 44 of the Criminal Code. This condition will be determined by the judge with the help of experts so that the nature of the decision is descriptive-normative.

Reasons for Eliminating Criminal Liability

Criminal incapacity is always closely related to reasons for eliminating criminal liability, which are divided into justifications and excuses. On the other hand, there is also a reason for eliminating prosecution which is the basis for the Public Prosecutor to stop the prosecution process. The reason for eliminating prosecution is related to the principle of utility and dominis litis owned by the prosecutor's office.

Justification or fait justificatief is a reason that eliminates the unlawful nature of a crime, including in Article 44 paragraph (1), Article 50, and Article 51 paragraph (1) of the Criminal Code. On the other hand, an excuse or fait d’excuse is a reason that eliminates the element of error, for example in Articles 44 and 48 of the Criminal Code. These two reasons will be examined and become the basis for the judge in making a decision.

Duress

In addition to the reasons above, duress or is also known overmacht which is regulated in Article 48 of the Criminal Code. Duress is any force, coercion or pressure that cannot be resisted. Duress is divided into two, namely vis absoluta and vis compulsiva. Vis absoluta is physical pressure that the victim cannot resist, such as an employee being held at gunpoint to take money from the cashier.

On the other hand, vis compulsiva or relative duress is physical pressure that can still be avoided, but psychologically cannot resist. The pressure in question can be in the form of a threat to oneself or to those around. Based on the source of coercion, vis compulsiva it is divided into two, namely relative duress in the narrow sense originating from other people and relative duress in the narrow sense originating from an emergency.

Regarding the type of emergency referred to above, it is further divided into three, including:

An example is the sinking of a ship. Ship XYZ sank in the middle of the sea and the hull was destroyed. A finds a floating wooden board and uses it. On the other hand, B tries to grab the wooden board even though it can only be used by one person. In this condition, if A chooses to seize the wooden board in order to prioritize his legal interests, namely survival, then he cannot be prosecuted.

An example is the presence of someone as a witness. A is a witness in the murder case of B which is being tried at the Surabaya District Court. On the other hand, A is also a witness in the case of theft of car C which is being tried at the Medan District Court. According to Article 224 paragraph (1) of the Criminal Code, someone must be present as a witness. In this condition, if A chooses to appear in one of the courts to fulfill his legal obligations, then he cannot be prosecuted.

An example is the shift change in a shop. A is a shop employee who has to work the morning shift, while B will work the night shift. One time, when A was about to go home, B contacted A to replace him because B had to take his wife to give birth. If it is related to existing legal obligations, then A can just go home. However, because there is B's legal interest, A violates this legal obligation and helps B.

Based on the description above, the pressure on coercion must come from outside the perpetrator. This is in accordance with the Hoge Raad Decision of June 26, 1916 which reads:

“… a pressure that comes from one's own heart that has driven oneself to do something, which is solely based on one's own opinion regarding the values ​​of propriety and community of institutions and regulations, according to the law, is not a overmacht.”

According to Prof Moeljatno, Prof Roeslan Saleh, and Van Hattum, coercion is an excuse. On the other hand, Jonkers assesses that coercion in Article 48 of the Criminal Code is a justification. Simons, from a point of view that puts forward both, argues that coercion is an excuse, while a state of emergency is a justification.

Forced Defense

Apart from coercion, there is also forced defense or noodweer which is regulated in Article 49 paragraph (1) of the Criminal Code. A person who takes forced defense action because there is an attack or threat of attack against himself or other people, whether body, honor, morality, or property, is not subject to criminal penalties. Some of the requirements to be classified as noodweer, among others:

  1. There is an attack or threat of attack that is instantaneous, directly threatening, against the law, is ongoing, and against the body, honor, morality or property of oneself or other people.
  2. There is no other way to ward off the attack or threat of attack, and
  3. The defense carried out must be balanced and necessary.

Thus, Article 49 paragraph (1) of the Criminal Code does not apply if the attack has not yet started, one of the above conditions is not met, or even the attack has been completed. This is in line with Prof Moeljatno's opinion that the defense begins from the start of the threat of attack until the attack is completed. The differences between forced defense and a state of emergency are as follows.

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Forced Defense that Exceeds the Limits

Apart from forced defense, there is also forced defense that exceeds the limits or noodweer excess stipulated in Article 49 paragraph (2) of the Criminal Code. If excessive defense is carried out due to severe mental shock as a result of the attack, no punishment shall be imposed. Noodweer excess is an excusable defense.

Excessive forced defense occurs when a counterattack is continued even when the initial attack has ended, there is no balance in the defense, and there is no balance between the interests initially protected and the interests of the opponent who is attacked again. The conditions for a noodweer excess not to be penalized, namely that the excess is a form of defense that is necessary, a direct result of severe mental shock, and there is a causal relationship between the attack and the mental shock caused.

Besides noodweer excess, there is also putative forced defense, which is a person's assumption that there will be an attack or thinking that the attack is against the law when it is not. In short, the attack only exists in his imagination.

In addition to the types of reasons for removal crimes contained in the Criminal Code, it is also known that there are three other reasons for removing crimes outside the law, including:

Tuchtrecht

The right to supervise and educate that is inherent for teachers, parents or guardians. For example, when a mother pinches the leg of a fifteen-year-old child who does not carry out worship, it is not considered abuse because it is still within reasonable limits to educate her child.

Beroepsrecht

The right of office of doctors/medical personnel in carrying out medical actions. For example, when a doctor injects a patient, it is not considered abuse because it aims to cure and there is already informed consent to the patient.

Toestemming

The right to do something that is prohibited by law. For example, when there is a wrestling match. Apart from the aspect of hitting each other not being a criminal act, but after the match is over, the fighters may not bring the existing injuries as a basis for criminal investigation and a basis for compensation in law civil law. Another example is the inapplicability of Article 406 of the Criminal Code regarding the destruction of other people's property in an attempt to perform 'ketok magic'.