Legal Literacy - This article discusses the concept of complicity in Indonesian Criminal Law. How does it continue? Keep reading until the end!
Criminal law stipulates that a perpetrator who is proven to have committed a criminal act and can be held criminally responsible can be punished. However, confusion arises in law enforcement when a criminal act is committed by more than one person. Therefore, the Criminal Code Criminal Law (hereinafter referred to as “KUHP”) accommodates this through the concept of complicity or deelneming.
Complicity in health in criminal law is an extension of the qualification of the perpetrator of a criminal act when the criminal act is committed by more than one person. Deelneming can be used when several people commit a crime, but each of them takes part in the occurrence of the offense so that they must all be punished. Another term for deelneming, including complicity, participation, complicity, participation, and others. In the Criminal Code, participation in criminal law is regulated in Articles 55 to 57.
The qualifications of participation in criminal law (Criminal Code) are divided into two, namely the perpetrator or dader and the accomplice or medeplichtigheid. The perpetrators regulated in Article 55 of the Criminal Code are further divided into four, including those who commit (pleger), those who order to commit (doenpleger), those who participate (medepleger), and those who incite to commit (uitlokker). On the other hand, assistance regulated in Articles 56 and 57 of the Criminal Code is divided into assistance before and during the commission of the crime.
Participation in Criminal Law: The perpetrator (pleger)
What is meant is a person who commits an act that fulfills all elements of the offense by themselves.
Participation in Criminal Law: The person who orders the commission (doenpleger)
Ordering the commission is a person who intends to commit an offense but uses another person as a tool. The parties in the concept doenpleger are divided into two, namely the direct perpetrator and the indirect perpetrator.
Direct perpetrator or the person ordered (onmiddelijke dader; actor physicus; manus ministra) is the tool used doenpleger to fulfill the offense, while the indirect perpetrator or the person ordering (middelijke dader; actor intelectualis; manus domina) is the doenpleger itself.
Requirements to be categorized as manus ministra, among others:
- The instrument used is a human being,
- The instrument acts,
- The will does not reside within itself, but rather within the manus domina,
- The instrument only executes the will of manus domina, and
- The instrument cannot be held criminally liable.
Manus ministra cannot be held criminally liable is regulated in Article 44, Article 48, and Article 51 paragraph (2) of the Criminal Code as well as putative offenses. This also stems from the principle of afwezigheid van alle materiele wederrechttelijkeheid. The non-criminalization of such individuals is due to two conditions, namely either not committing a criminal act at all or committing a criminal act, but there is a reason for the elimination of criminal liability.
For individuals who do not commit a criminal act or commit an act that is not qualified as a criminal act, then by law, that person cannot be criminalized. An example is a nurse who is asked to inject a liquid by a doctor, but it turns out that the liquid is poison, or for example, A asks B to cash a deposit, but it turns out that the deposit is fake. Regarding the nurse and B, their actions are not criminal acts.
On the other hand, even if manus ministra a criminal act is committed, there is a reason for the elimination of criminal liability, thus nullifying the obligation to be held responsible. An example is a mentally ill person who is ordered to stab a kyai. Insanity becomes one of the reasons for the elimination of criminal liability for manus ministra. As for other conditions for the elimination of criminal liability, there is duress or the execution of an unlawful official order, but manus ministra the aforementioned has good faith that it is lawful.
Complicity in Criminal Law: Those who participate (medepleger)
Participation refers to a person who deliberately participates in committing or carrying out something prohibited by law, whether it is a specific act or consequence. The conditions referred to as participation include all of them fulfilling the offense, one of them fulfilling the offense, or each of them fulfilling a portion of the offense formulation.
Furthermore, the requirements for being called participation are conscious cooperation, physical execution, and the existence of a common goal. In participation, there is no need for an agreement to cooperate, but only the intention to cooperate.
Regarding the awareness of a criminal act in cooperation, it can arise during the act. The execution referred to is the act of execution, while physically it is interpreted that all perpetrators have a role and move towards the completion of the offense.
Regarding the above elements, Hoge Raad Arrest on 17-10-1981 stated that physical presence is no longer required as long as the person concerned has a joint initiative to realize the offense. In addition, the Supreme Court Decision Number 525 K/Pid/1990 provides rules regarding the conditions for participation, including at least two perpetrators, namely pleger and medepleger, all of whom commit the act of execution, and all of whom take actions that are included in the elements of the offense.
Sentencing on medepleger is that each perpetrator is threatened with the same punishment, but if there is a participant who exceeds the intention, then the actions and sanctions become his own responsibility. Participation in official offenses is divided into two opinions, namely the classical opinion which states that medepleger must meet the required qualities, while the modern opinion does not require this.
Participation in Criminal Law: Those who encourage doing (uitlokker)
An instigator is a person who persuades or encourages another person to commit a criminal act using means that are limitatively determined by law. The requirements to be called uitlokker, include:
- There is an intention to persuade another person to commit a criminal act,
- Persuasion efforts as referred to in Article 55 paragraph (1) point 2 of the Criminal Code, namely giving something, promising something, abusing power/dignity, providing certain information, violence, threats or deception, providing certain opportunities, or providing certain means,
- The direct perpetrator's will arises directly from the instigation, and
- The direct perpetrator performs the action desired by the instigator.
The instigator can be held criminally liable for their actions, but only to the extent of the instigated act and its consequences. If, in committing the crime, the direct perpetrator takes actions exceeding the instigation,, then regarding uitlokker the instigator cannot be held liable for it. The consequence referred to is the objective consequence arising from the act.
Regarding the occurrence of the consequence, the instigator is also not required to know other consequences that may arise from the act. If the act objectively causes other unforeseen consequences, then uitlokker the instigator can still be held responsible (form of intent dolus eventualis).
Accessoryship (medeplichtigheid)
Accessoryship also falls within the scope of complicity, which must be done intentionally. According to Article 56 of the Criminal Code, accessoryship is divided into two, namely before and during the commission of the crime. Meanwhile, accessoryship after the crime is committed is contained in Articles 221, 223, 480, 481, 482, and 483 of the Criminal Code.
The criminal threat for the accessory is one-third of the principal criminal threat, although in some laws outside the Criminal Code, accessoryship is threatened with the same penalty. Accessoryship is accesoir because there must be someone being assisted. The accessory can only be held liable for the act that was intentionally facilitated and the resulting consequences, whether predicted or not.
Differences Between Types of Complicity
In practice, confusion is often found between one type of complicity and another that has a similar concept. The following describes the differences between each similar type of complicity.
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