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

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.

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.