Legal Literacy - In architecture criminal law, the principle of legality (nullum delictum nulla poena sine praevia lege poenali) stands as a main pillar that guarantees legal certainty. This principle carries the logical consequence of prohibiting retroactive effect (non-retroactive) of a criminal regulation. The goal is clear: to protect citizens from potential state arbitrariness that punishes actions based on rules that were made post-factum (after the fact).
However, the law is not a static entity. It moves dynamically in response to shifts in social, political, and societal values and justice. When changes occur in criminal legislation, tension arises between legal certainty and justice. This is where the principle of Lex Favor Reo comes in as a vital exception to the non-retroactive principle, serving as a bridge of justice in transitional law (hukum transitoir).
Basic Philosophy: Between Sword and Scales
Terminologically, Lex Favor Reo it means the enactment of a more lenient or favorable law for the defendant. This principle affirms that if there is a change in legislation after the act is committed but before the verdict has permanent legal force (inkracht), the judge is obliged to apply the provisions that are most favorable to the defendant.
The philosophy behind this principle is humanity. If the legal awareness of society (represented by the legislators) has changed and views an act as no longer as heinous as before—or the sanctions are considered too cruel—then it is not ethical for the state to continue to impose severe punishments based on outdated rules that have been abandoned.
Normative Foundation: Transformation from WvS to the National Criminal Code
The existence of the principle of Lex Favor Reo in Indonesia has strong roots and has experienced significant strengthening in the new criminal law regime.
1. The Old Criminal Code Regime (Wetboek van Strafrecht (Criminal Code))
In the colonial-era Criminal Code, this principle is regulated in Article 1 paragraph (2)Main Focus
"If there is a change in legislation after the act is committed, then the provision most favorable to the defendant shall be applied."
This article has been a guideline for decades, but it often sparks debate regarding the limits of "changes in legislation" and the parameters of "favorable".
2. New Criminal Code Regime (Law No. 1 of 2023)
Law Number 1 of 2023 concerning the Criminal Code (New Criminal Code) provides a more comprehensive and detailed regulation in Article 3.
Not only does it affirm the same principle, the New Criminal Code explicitly regulates the technical consequences in the event of decriminalization. Articles 3 paragraphs (2) to (4) stipulate that if an act is no longer considered a criminal offense under the new law, the legal process must be terminated, and if a verdict has been issued, the convicted person must be released. This provides far more rigid legal certainty compared to the previous regime.
Classic Debate: Formal vs. Material Theory
One of the most contentious academic discourses related to this principle is interpreting the phrase "changes in legislation." Criminal law experts are divided into several views:
- Formal Theory (Narrow): Figures such as van Geuns argue that the change should be interpreted literally as a change in the wording of the criminal law text itself. Changes to implementing regulations or factual situations do not trigger the application of Article 1 paragraph (2) of the Criminal Code.
- Material Theory (Broad): Adopted by Pompe and Jonkers, this view states that changes in legislation include changes in the sense of justice or legal convictions of society. If norms outside the Criminal Code change and affect the illegality of an act, then this principle must be applied.
- Limited Material Theory: A middle ground often referred to in modern practice (in line with H.R. Utrecht's view) is that changes outside the Criminal Code can be considered changes in legislation if the changes are based on changes in legal assessment (gewijzigd rechtsinzicht), not merely changes in factual situations.
Parameters for Determining "The Most Advantageous"
In judicial practice, judges are required to carefully make a comparison apple-to-apple between the old and new rules in concreto. The parameters used include:
- Decriminalization: This is the most advantageous form. If the new rule removes the offense, then the charges are dropped by law.
- Principal Criminal Threat: The judge compares the weight of the sanctions. The change from imprisonment to a fine, or a reduction in the maximum prison sentence, clearly benefits the defendant.
- Change in the Type of Offense: The change from an ordinary offense to a complaint offense (klacht delict) greatly benefits the defendant, because the prosecution becomes dependent on whether or not there is a complaint from the victim.
- Sentencing System: The New Criminal Code introduces social work and supervision as alternatives to short-term imprisonment. This option is certainly more beneficial than mere physical confinement.
Constitutional Dimension: The Role of the Constitutional Court
As the Guardian of the Constitution (The Guardian of Constitution), the Constitutional Court (MK) plays a central role. Article 28I paragraph (1) of the 1945 Constitution guarantees the right not to be prosecuted on the basis of retroactive law as a non-derogable human right (non-derogable rights).
However, the Constitutional Court, through its various decisions, has affirmed that the prohibition of retroactivity does not apply if the new rule actually benefits the defendant (retroaktif in mitius). The principle of Lex Favor Reo is seen as a derivative of the right to justice guaranteed by the constitution. When the Constitutional Court annuls a criminal norm in Judicial Review, the decision is essentially the most beneficial "change of law", so it must be immediately applied to those who are undergoing the judicial process.
Conclusion
The principle of Lex Favor Reo is proof that Indonesian criminal law does not turn a blind eye to changes in the value of justice. In the transition period of the full enactment of the National Criminal Code in 2026, a deep understanding of this principle is crucial for law enforcement officials, academics, and legal practitioners. It ensures that no citizen becomes a victim of the rigidity of legal transition, upholding the adage that law must serve justice, not the other way around.
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