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:

  1. Written in nature (lex scripta) so that its existence can be proven in reality;
  2. Has clear provisions (lex certa) so that its substance cannot give rise to ambiguous understanding;
  3. Contains strict provisions (lex stricta) so that its substance cannot give rise to multiple interpretations; and
  4. 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.

Finally, regulations need to apply non-retroactively or not retroactively. This means that a person cannot be punished for his actions in the past based on regulations that exist in the future. This nature needs to be fulfilled because retroactive regulations violate one of human rights.

To answer the second question, legal experts agree that no act can be punished by future regulations. This is related to the previous discussion regarding the non-retroactive nature of regulations. However, in practice, this idea occurs.

One form of criminal regulation that applies the principle of retroactivity is Law Number 15 of 2003 concerning the Stipulation of Government Regulations in Lieu of Law Number 1 of 2002 concerning the Eradication of Terrorism Crimes ("UU 15/2003"). This regulation punishes acts of terrorism after many cases of terrorism occurred in Indonesia. For example, this regulation was used to indict Amrozi Cs. who was the mastermind of the Bali Bomb I case in 2002.

Implementation of the Legality Principle

The principle of legality was born from the thinking of von Feuerbach, a legal scholar in Germany who lived from 1775 to 1833. Feuerbach initiated this principle by referring to the practice in ancient Roman times which punished every act criminal extra ordinaria.

Criminal extra ordinaria is a term for any act that the ruler considers a crime. Criminal extra ordinaria is not regulated by law, but depends entirely on the interpretation of the ruler. Consequently, the ruler can be arbitrary in subjectively determining a form of act as a crime.

The authoritarian attitude of the ruler in determining criminal extra ordinaria eventually sparked a movement against the ruler's absolutism. At this point, the idea of the principle of legality emerged. This principle became a guideline for the formation of regulations that impose criminal sanctions on perpetrators of crimes.

Feuerbach connects the principle of legality with the theory of vom psychologischen zwang. Integratively, he advocated that, in determining prohibited acts in regulations, there must be regulations regarding the type of act and the type of crime that can be imposed. That way, people who are going to commit prohibited acts will first know the legal consequences they will face before they commit a crime.

Feuerbach also asserted that this principle is not only related to legal certainty, but also to legal justice. Therefore, he emphasized that everyone must be presumed innocent until proven otherwise, and the court must guarantee the protection of individual rights listed in law.

Feuerbach's ideas can be found in several thoughts of French revolutionaries, such as Montesquieu in his book L'esprit des Lois (1748) and Rousseau in his book Dus Contract Social (1762). During the French government by Napoleoon Bonaparte, the principle of legality was included in Article 4 Code Penal and then adopted by the Netherlands through Wetboek v. Strafrecht Nederland 1881.

Due to the principle of concordance during the Dutch colonial period, Indonesia also used the principle of legality adopted through the Criminal Code. The existence of the principle of legality guarantees that the implementation process criminal law in Indonesia guarantees respect for individual rights, while preventing the intervention of authoritarian rulers that could endanger the lives of Indonesian citizens.