All About Criminal Law Part 8: Attempt in Indonesian Criminal Law

Legal Literacy - Basically, laws and regulations do not provide a standard definition of attempt in criminal law. However, according to the Great Indonesian Dictionary (hereinafter referred to as “KBBI”), an attempt is an effort to try something; an effort to do or do something. Attempt in criminal law or poging can be classified as inchoate crime, namely an unfinished act.

In Criminal Code (hereinafter referred to as “KUHP”), attempt in criminal law is regulated in Article 53 and Article 54 of the KUHP. The essence of the norms in each article is as follows.

Several criminal acts are exempt from the above provisions, including Article 351 paragraph (5) of the Criminal Code, Article 352 paragraph (2) of the Criminal Code, Article 302 paragraph (2) of the Criminal Code, and Article 184 paragraph (5) of the Criminal Code.

Attempt in Criminal Law as a Crime

Theoretically, a question arises regarding the attempt in law criminal law, namely whether it is a perfect crime or not. According to Mr. Pompe and Prof. Moeljatno, the attempt in criminal law is a complete and complete unit. Criminal attempt is also a peculiarity of a crime so it is called a crime that stands alone or in law delictum sui generis. On the other hand, Ny Hezeringkel Suringa and Prof. Oemar Seno Adji argue that attempt in criminal law is an element of criminal responsibility so it is not a crime that stands alone, but an imperfect crime. Di lain sisi, Ny Hezeringkel Suringa dan Prof Oemar Seno Adji berpendapat bahwa percobaan dalam hukum pidana merupakan unsur pertanggungjawaban pidana sehingga bukan merupakan delik yang berdiri sendiri, melainkan delik tidak sempurna.

Prof. Moeljatno classifies attempts in criminal law as a completed offense because a person cannot be held criminally liable if they do not commit a criminal act. This logic, when attached to attempts in criminal law where the perpetrator is held criminally liable, means that the perpetrator must have committed a criminal act, so the attempt itself is indirectly a completed offense. In addition, in several other articles on attempts, the attempt is a separate offense (vide Articles 104, 106, and 107 of the Criminal Code).

Thus, it can be concluded that according to the opinion that states it as a non-independent/completed/perfect offense, an attempt is a reason to expand the criminal liability of people, while the opinion that states it as an independent offense, an attempt in criminal law is a reason to expand the criminal liability of an act.

Basically, there are three basic theories in criminalizing attempts, including:

1. Subjective Theory, namely that the punishability of an attempt is based on the existence of the perpetrator's intention/will/inner attitude to commit an act or cause a consequence prohibited by law.
2. Objective Theory, namely that the punishability of an attempt is based on the act committed endangering the public interest protected by law.
3. Integration/Mixed Theory, namely that the punishability of an attempt is based on the perpetrator's dangerous inner attitude and the dangerous nature of the act committed.

Elements of Attempt

According to the provisions of Article 53 paragraph (1) of the Criminal Code, an attempt in criminal law consists of intent, commencement of execution, and non-completion of the act not due to one's own will. The scope and differences of opinion among legal scholars regarding these three elements will be described below.

Existence of intent

Intention or voornemen is defined by Van Hammel and Simons as intent, while according to Vos, intent is specifically defined as deliberate with intent (dolus directus). On the other hand, Hoge Raad in Arrest-he seemed inclined to define intent as general intent. This is evident in two decisions with the following case positions.

A boards a train. In the middle of the journey, the train officer checks each passenger's ticket, but A refuses and kicks the officer. If the officer had not held onto the pole, he would have fallen and died. Thus, Hoge Raad decided that A had committed attempted murder with a possible intent (Hoge Raad Arrest 12-3-1943).

In addition to the above case, there is also Hoge Raad Arrest about the very famous poisoned tart. In that case, the perpetrator understood that A's intention to kill B by sending a poisoned tart to his house might kill B's other family members because they lived in the same house and ate the tart. Against A, if B does not die, he can be charged with attempted murder with the following description.

According to Vos, A can be charged with attempted premeditated murder because the perpetrator's intention is to kill B by sending a poisoned tart, but it is not carried out. The nature of the intent in this crime is dolus directus.

On the other hand, according to Van Hammel and Simons, in addition to attempted premeditated murder against B, A also committed attempted murder against B's other family members. This opinion is based on the argument that B's family members who live in the same house as B might eat the poisoned tart. The nature of the intent in the second crime is dolus eventualis.

In contrast to the two opinions above, Prof Moeljatno expressed an alternative opinion, namely that Van Hammel and Simons' opinion regarding the existence of two attempts should be considered. This is because the consequence prohibited by law is the death of a person, in which A's intent, both dolus directus maupun dolus eventualis becomes the causative factor.

However, intent cannot be equated with intent because there needs to be an act necessary to commit a crime before there is intent. If not, then the intent is only a state of mind or mens rea so that in relation to the attempted murder of a member of family B, it is necessary to further elaborate explicitly and separately whether A's actions fulfill the elements of ordinary murder with intent dolus eventualis.

The existence of the beginning of execution

Beginning of execution or begin van uitvoering is one of the elements in the experiment. Basically, this element is proven by the actions taken by the perpetrator. However, the problem that arises is determining the difference between determining preparatory acts and implementing acts. This distinction is necessary because when the implementing act has been carried out, the offense is considered complete. The following will describe several legal scholars' opinions regarding the beginning of execution.

According to Van Hammel, the act of execution can be viewed from the certainty of intent to commit a crime. In that opinion, the benchmark is the evil inner attitude of the perpetrator to commit the offense. This opinion departs with the foundation of subjective theory.

The second opinion comes from Simons who divides the act of execution into two, namely for formal offenses and material offenses. For formal offenses, the act of execution occurs when the act as intended in the offense has begun, while for material offenses the act of execution occurs when the act begins which by its nature can directly cause consequences prohibited by law.

On the other hand, Duynstee argues that the act of execution is if an act committed includes one act which is a series of acts as prohibited in the formulation of the offense. According to Duynstee, what is prohibited is not only the end of the offense, but the entirety of the offense. Thus, if one of the series of offenses has been committed, there has been a violation of the law even though the prohibited consequence has not appeared.

The fourth opinion is the opinion of Prof. Moeljatno who states that an act of execution must meet three conditions, namely containing the potential to realize the offense, the intention is indeed aimed at the realization of the offense, and the act is against the law. Regarding the four opinions above, it can be used as a touchstone in the case position as follows.

A wants to burn down B's house. A's action is to enter B's house and prepare clothes and cloth that have been doused with gasoline in each room and all of them are interconnected. It turned out that the series was also connected to a gas stove that would explode when shot.

Not only that, A also pointed a gun at the gas stove and tied the trigger puller from outside the house in the hope that someone would trip over it so that the house could catch fire. However, A's hopes were dashed because the pungent smell of gasoline and A's movements encouraged local residents to report so that A was finally arrested.

The first level court decision stated that A's actions were acts of execution so that the completed offense was imposed. On this ruling, A filed a cassation. Hoge Raad Arrest decided that the act was a preparatory act so that A was declared onslag van rechtvervolging.

If the two decisions are linked to the four opinions above, then Hoge Raad Arrest in line with Simons' opinion. This is because Hoge Raad assessed that there was evil intent in the series of actions, but the prohibited consequences have not arisen. On the other hand, the first level decision is in line with the opinions of Van Hammel and Duynstee. Regarding Prof. Moejatno's opinion, it can be reviewed by matching the existing legal facts with the conditions of an act of execution.

For the first condition, of course it has been fulfilled because A's actions directed a gun at the gas stove and tied the trigger puller from outside the house in the hope that someone would trip over it causing the destruction of the house (vide Article 200 of the Criminal Code). Regarding the second condition, it has also been fulfilled because A really intends to burn down B's house. Furthermore, the third condition has also been fulfilled because the house to be burned down does not belong to A so the act is against the law. Thus, Prof. Moeljatno's opinion is linear with the first level decision.

The execution is not finished because of one's own will

This element is divided into three aspects, including the existence of a physical barrier, the potential for a physical barrier, or the presence of a barrier in the form of specific factors. However, if the perpetrator voluntarily withdraws or takes actions of remorse, they will not be penalized for poging.

In addition to the description of the elements above, there is also a division of attempts in criminal law into two, namely capable attempts and incapable attempts. A capable attempt is any type of attempt as described above. According to Simons, a capable attempt is an act that uses a tool that can endanger a person or an object.

In addition, Van Hattum argues that a capable attempt is when there is an adequate causal relationship between the attempted act and the consequences prohibited by law. On the other hand, in line with the impression theory, Prof. Moeljatno argues that a capable attempt is when the act is close to the completion of the intended crime.

Another type is an incapable attempt, which is an attempt that has been carried out by the perpetrator, but the intended crime is not completed or the prohibited consequence does not occur. An incapable attempt is divided into two, including the inability of the object and the inability of the tool.

Regarding the inability of the object, for example, A kills B who has died or a mother who tries to abort a pregnancy that has turned out to be dead before. According to Memorie van Toelichting, an incapable attempt due to the inability of the object is impossible because an attempt requires a tool.

On the other hand, the inability of the tool can be exemplified as A's attempt to poison B with a liquid that is thought to be poison, but it turns out to be ordinary sugar water. By Memorie van Toelichting, the inability of the tool is further divided into two, namely absolute inability and relative inability.

Regarding absolute inability, it is the use of sugar water as described previously, while relative inability is that through the tool, no consequences arise because there is something specific when the act is carried out. For example, A wants to kill B using soda water with a high sugar content because A thinks B has diabetes, but it turns out not to be the case.

Regarding relative inability, Memorie van Toelichting again divides it into two aspects, namely viewed from the specific circumstances of the tool or the specific circumstances of the person being targeted. For specific circumstances of the tool, it is seen as a separate type or its concrete circumstances. For example, sugar can be a deadly tool for certain people.

However, for the specific circumstances of the person being targeted, it is viewed abstractly for the average person or viewed from their concrete circumstances. For example, a person with diabetes can be killed with sugar.