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Legality Principle in Criminal Law

Adam Ilyas

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04 Mar 2023 · 03:00 04 March 2023 03:00 WIB 5 minutes reading time: 5 minutes 5 read

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This article discusses the principle of legality in criminal law.

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Table of Contents

The Essence of the Principle of Legality
Implementation of the Legality Principle

Legal Literacy - This article explains the essence and implementation of the principle of legality in criminal law.

The Essence of the Principle of Legality

The principle of legality is one of the most important legal principles. In criminal law, this principle is the basis for imposing criminal sanctions on someone who commits a criminal act.

The principle of legality is known as nullum delictum nulla poena sine praevia lege poenali. This means no crime without law. Specifically, this principle states that a person's actions cannot be subject to criminal sanctions if there is no regulation that determines that the act deserves criminal sanctions.

In Indonesia, the principle of legality of criminal law is contained in Article 1 paragraph (1) of the Criminal Code ("KUHP") which reads as follows:

No act may be subject to criminal sanctions and/or actions, except by virtue of criminal regulations in statutory regulations that existed before the act was committed.

From these provisions, there are 2 ideas in the principle of legality. First, regulations are the basis for punishing actions. Second, regulations precede actions.

These ideas raise many questions. For example, for the first idea, what are the indicators of regulations that can be used to punish actions? Then, for the second idea, is it possible for an act to be punished by regulations that exist in the future?

To answer the first question, legal experts proposed 4 benchmarks which then became the principles of formation of regulations that punish an act. The four benchmarks are as follows:

Written in nature (lex scripta) so that its existence can be proven in reality;
Has clear provisions (lex certa) so that its substance cannot give rise to ambiguous understanding;
Contains strict provisions (lex stricta) so that its substance cannot give rise to multiple interpretations; and
Applies non-retroactively (lex praevia) so that the human rights of the perpetrators are respected.

Regulations that punish an act need to be made in writing to ensure a control mechanism for the rule makers. At the same time, the written nature of the regulations makes the public able to understand the impact of the regulations concretely on their lives.

It's just that the written nature of a regulation is not enough. The regulation must also have clear and strict provisions. With a clear nature, we can understand the regulation as it is. With a strict nature, we can understand the extent of the regulation's reach.