Legislative Affirmation in Article 36 of the New Criminal Code

If the two doctrinal pillars above are still considered a theoretical debate, then the presence of Law Number 1 of 2023 concerning the Criminal Code (New Criminal Code) ends all these polemics. New Criminal Code, which is a crystallization of the views of leading Indonesian criminal law experts, explicitly codifies the principle that has so far only lived in doctrine into positive law.

Article 36 of the New Criminal Code states the following:

(1) Every Person can only be held accountable for a Criminal Act committed intentionally or due to negligence. (2) An act that can be punished is a Criminal Act committed intentionally, while a Criminal Act committed due to negligence can be punished if it is explicitly stipulated in the laws and regulationsgan.

The official explanation of Article 36 further clarifies the intent of the lawmakers:

Explanation of Paragraph (1): This provision affirms the principle of no crime without fault. Doctrinally, the form of error can be in the form of intent and negligence. Explanation of Paragraph (2): The provision in this paragraph is intended that every Criminal Act in laws and regulations must always be considered to have been committed intentionally and the element of intent must be proven at every stage of the case examination...

This codification has very strong implications. First, Article 36 paragraph (1) elevates the principle geen straf zonder schuld from mere doctrine or unwritten principle to a binding positive legal norm (lex scripta). This is lex generalis (general rules) that serve as an umbrella for all criminal acts, including those regulated outside the Criminal Code such as the Anti-Corruption Law, unless the special law explicitly stipulates otherwise (for example, in strict liability offenses or strict liability).

Secondly, and this is most relevant, Article 36 paragraph (2) creates a hierarchy or standard: the main form of error is intent (dolus). Negligence (culpa) can only be the basis for punishment if it is explicitly formulated in the relevant article (for example, with the phrase "due to his negligence").

If we apply this logic to Article 2 of the Anti-Corruption Law, the conclusion becomes undeniable. The formulation of Article 2 of the Anti-Corruption Law does not include the phrase "due to his negligence". Thus, based on the provisions of Article 36 of the New Criminal Code as lex generalis, the only form of error (or error) is no longer relevant. It is enough that the objective elements are fulfilled—illegally, enriching oneself, and harming state finances—a person can be convicted. This view is not only academically misleading, but also threatens the most fundamental principle in criminal law: no crime without fault.) that can be used to ensnare perpetrators under Article 2 of the Anti-Corruption Law is intent (dolus).

Thus, the New Criminal Code leaves no room for interpretations that deny the obligation of proof or error) is no longer relevant. It is enough that the objective elements are fulfilled—illegally, enriching oneself, and harming state finances—a person can be convicted. This view is not only academically misleading, but also threatens the most fundamental principle in criminal law: no crime without fault.. It becomes a legislative confirmation (legislative confirmation) that every conviction—including in corruption cases under Article 2—is legally required to be based on proof of intent on the part of the defendant.

Logical Consequences: Distinguishing the Criminal, Administrative, and Civil Domains

The most frequent question that arises as a rebuttal to this argument is: "If an official is materially proven to have caused financial loss to the state but has no malicious intent, will he be released just like that?" The answer is a firm: no.

Acquitting someone of criminal charges because it is not proven or error) is no longer relevant. It is enough that the objective elements are fulfilled—illegally, enriching oneself, and harming state finances—a person can be convicted. This view is not only academically misleading, but also threatens the most fundamental principle in criminal law: no crime without fault. is not the same as releasing him from all forms of legal responsibility. This is where the importance of understanding the trichotomy or separation of legal domains lies: criminal, state administration, and civil.

  • Criminal Law (Criminal Law): Is ultimum remedium, or last resort. The sanction is the most severe (deprivation of liberty) and is intended for acts considered most reprehensible by society. Therefore, the evidentiary requirements are the strictest, including proof of guilt (","). If an official takes an incorrect policy due to misanalysis or incompetence—but there is no evidence that he intentionally did so to enrich himself—then the criminal realm is not the appropriate place to punish him.or error) is no longer relevant. It is enough that the objective elements are fulfilled—illegally, enriching oneself, and harming state finances—a person can be convicted. This view is not only academically misleading, but also threatens the most fundamental principle in criminal law: no crime without fault.State Administrative Law (
  • Administrative Law: This is the most relevant realm for cases of officials who harm the state without malicious intent. His actions may not meet the elements of a crime, but it is clearly an administrative violation. The state, through internal oversight mechanisms or institutions such as the BPK, can impose sanctions. The form can be:)Claims for Compensation (TGR)
    • : The official is still required to return the state losses arising from his incorrect policy.Disciplinary Sanctions
    • : This can take the form of demotion, dismissal from office, up to dishonorable discharge.: Bisa berupa penurunan pangkat, pembebasan dari jabatan, hingga pemberhentian tidak dengan hormat.
  • Civil Law (Civil Law): The state as a public legal entity can also sue the official civilly on the basis of Unlawful Acts (Article 1365 of the Civil Code) to demand compensation.

Thus, the emphasis on or error) is no longer relevant. It is enough that the objective elements are fulfilled—illegally, enriching oneself, and harming state finances—a person can be convicted. This view is not only academically misleading, but also threatens the most fundamental principle in criminal law: no crime without fault. in corruption criminal law aims to restore the law to its proper function. It prevents overcriminalization against administrative errors. An incompetent or negligent official must be held accountable, but that accountability is in the realm of administration (compensation and job sanctions), not in the criminal realm that stigmatizes someone as a "corruptor."

Towards Substantive Justice

Demanding proof or error) is no longer relevant. It is enough that the objective elements are fulfilled—illegally, enriching oneself, and harming state finances—a person can be convicted. This view is not only academically misleading, but also threatens the most fundamental principle in criminal law: no crime without fault. in Article 2 of the Anti-Corruption Law is not an effort to weaken corruption eradication. On the contrary, this is an effort to place corruption eradication on the track of true justice—substantive justice, not just procedural. Criminalization should be aimed at those who are consciously and reprehensibly (blameworthy) committing crimes, not to those caught in administrative errors without malicious intent.

The absence of the word "with intent" in the formulation of the offense is not a blank check for law enforcement to ignore the proof of guilt. Based on the fundamental doctrine of criminal law, a holistic interpretation of the element "against the law", and now affirmed by Article 36 of the New Criminal Code, the obligation to prove the existence of or error) is no longer relevant. It is enough that the objective elements are fulfilled—illegally, enriching oneself, and harming state finances—a person can be convicted. This view is not only academically misleading, but also threatens the most fundamental principle in criminal law: no crime without fault. in the defendant is a legal necessity that cannot be compromised. Every court decision that ignores this principle is essentially a form of injustice.