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Get to know the 5 Principles of Criminal Law in the New Criminal Code

Adam Ilyas
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Get to know the 5 Principles of Criminal Law in the New Criminal Code

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Principles of Criminal Law
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Legal LiteracyLearn the significance of legal principles and their role in the legal system. This course also includes a detailed analysis of the Principles of Criminal Law, including the principles of legality, territory, protection, universality, and active nationality, with a special focus on the new Criminal Code.

Understanding Legal Principles

Legal principles are the basic rules or abstract ideas that form the foundation for various regulations within a legal system. According to the Great Dictionary of the Indonesian Language (KBBI), “principle” is a base, foundation, or guideline akin to a sturdy stone foundation for a house. Legal principles can also be understood as truths that serve as the basis or core for thinking, opining, etc. G. W. Paton defines a principle as a broadly formulated idea that is the basis for legal rules or norms. Legal principles are generally not set out in concrete regulations or articles; instead, they underpin and give context to specific regulations and are generally broad or abstract. Therefore, legal principles are crucial in determining the foundation and principles that govern a legal system.

The Role of Legal Principles in the Legal System

Legal principles play a crucial role in the legal system because they are the basic rules or abstract principles that form the foundation for various regulations within the system. They create the framework for law-making, interpretation, and application. Legal principles also help ensure justice, legal certainty, and consistency in legal decision-making. They influence the development of the law and guide the creation of new legal norms. Additionally, legal principles are used to resolve conflicts within the legal system and address discrepancies between legal norms.

Principles of Criminal Law in the New Criminal Code

In her book on the Fundamentals of Criminal Law in Indonesia, Fitri Wahyuni explains that criminal law principles can be categorized into two main groups. First, there are criminal law principles established based on time, and the legality principle is one of them. Second, criminal law principles are based on place and time, including territorial, protective, universal, and personal principles. Here is a further explanation of these principles:

1. Legality Principle

The legality principle, also known as the principle of legality, asserts that a criminal act must be regulated by law or a legal rule before an individual commits an offense or engages in such conduct. According to Amir Ilyas in his work “Principles of Criminal Law, Understanding Criminal Acts and Criminal Responsibility as Conditions for Punishment,” the concept of the legality principle includes three important aspects:

  • No action can be penalized unless it is regulated beforehand by a rule.
  • The determination of a criminal offense must not be based on analogy.
  • Criminal law regulations cannot be applied retroactively.

Further, according to Muladi (as cited in Ilyas, 2012:13), the legality principle as a basis for criminal law clearly aims to achieve several things:

  • Strengthen legal certainty.
  • Establish justice and fairness for the accused.
  • Optimize the preventive function of criminal punishment.
  • Prevent abuse of power.
  • Reinforce the application of the rule of law principle.

In the context of the New Criminal Code or Law No. 1/2023, the principle of legality is affirmed in Article 1 paragraph (1) of Law 1/2023, which asserts that an act cannot be considered criminal unless based on the provisions of criminal legislation existing before the act was committed.

2. Territorial Principle

This principle of criminal law is rooted in the sovereignty of a state. A sovereign state is responsible for maintaining legal order within its territory, thus it has the right to enforce criminal penalties on anyone who commits an offense within its boundaries. This territorial principle is reflected in Article 4 of Law Number 1 of 2023, which states that criminal law applies to anyone who commits a criminal act:

  • In the territory of the Republic of Indonesia;
  • On an Indonesian ship or aircraft; or
  • In the field of information technology or other crimes that have an impact in the territory of the Republic of Indonesia, on Indonesian ships, and aircraft.

3. Protective Principle or Passive National Principle

According to this principle of criminal law, the applicability of criminal law depends on a violation of a country’s legal interests by someone abroad, regardless of their nationality status; whether the perpetrator is a citizen or a foreigner.

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Simply put, the protective principle emphasizes protecting national elements against anyone, anywhere. This principle is detailed in Article 5 of Law 1/2023, which states that criminal law applies to anyone outside the territory of the Republic of Indonesia who commits a criminal act related to the interests of the Republic of Indonesia, such as national security, the dignity of the President, Vice President, Indonesian officials abroad, currency, state seals, stamps, government-issued securities, or credit cards issued by Indonesian banks, the economy, trade, Indonesian banking, maritime and aviation safety, the safety of buildings, equipment, and national or state assets of Indonesia, as well as the safety of electronic communication systems.

4. Universal Principle

The principle of equality, also known as the universal principle, is a principle that prioritizes the interests of international law as a whole. This principle generally refers to the concept that criminal law is not limited to a specific geographical location or individual subject but applies anywhere and to anyone.

According to Eddy Hiariej in his work titled Principles of Criminal Law, the significant meaning of the universal principle is to prevent international criminals from evading legal accountability. To prevent fugitives, each country has the right to arrest, prosecute, and punish those who commit international crimes. Furthermore, if an international criminal has been tried and punished by one country, other countries cannot prosecute and punish them for the same case. The universal principle applies to offenses considered international crimes, not transnational crimes.

This principle is reflected in Law 1/2023, particularly in:

  • Article 6 of Law 1/2023 states that the criminal provisions of the law apply to every individual outside the territory of the Republic of Indonesia who commits a criminal act according to international law that has been regulated as a criminal offense under the law.
  • Article 7 of Law 1/2023 states that the criminal provisions of the law apply to every individual who commits a criminal act outside the territory of the Republic of Indonesia. The prosecution of this crime is taken over by the Government of Indonesia based on an international agreement that grants the Government of Indonesia authority to prosecute the crime.

5. Active National Principle

Simply put, the active national principle emphasizes that legal subjects, as citizens, are subject to the laws of their country regardless of where they are physically located. In other words, the principle of personality or active nationality states that criminal law applies to all criminal acts citizens commit, even if the act occurs abroad.

This principle is reflected in Article 8 of Law 1/2023, which states that Indonesian criminal law applies to Indonesian citizens who commit a criminal offense outside the territory of Indonesia, provided that the act is also a legal violation in the country where the crime occurred. However, an exception applies to offenses that are only punishable by a category III fine.

Such offenses can be prosecuted even if the suspect has become an Indonesian citizen after committing the offense, as long as the act is a legal violation in the country where the crime occurred. In addition, Indonesian citizens who commit a criminal offense abroad cannot be sentenced to death if the law of the country where the crime occurred does not threaten with the death penalty.

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