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.