Session 2Applicability of criminal law

based on time and placebased on time and place

Course: Criminal Law

Criminal Law Department, Faculty of LawUniversity of Indonesia

2011

Art 1 of KUHP

(1) No act shall be punished unless by virtue of aprior statutory penal provision

(2) In case of alteration in the legislation after(2) In case of alteration in the legislation afterthe date of commission of the act, the mostfavorable provisions for the accused shallapply

Principles derived from Art. 1:

• Nullum delictum, nulla poena sine praevia legepoenali

• No crime, no punishment, unless previouslyprescribed by law that such conduct is aprescribed by law that such conduct is acriminal offense, which entails criminalsanction

The Principle of Legality

1. No conduct shall be characterized as a criminaloffense unless defined by law (i.e. written legalrules)

2. No conduct shall be punishable if it wascommitted before the promulgation of acommitted before the promulgation of acriminal statute/ex post-facto law nullapoena sine lege

3. Criminal statutes must be strictly interpreted,and interpretation by analogy is strictlyprohibited

Lex Scripta (written legal rules)

• Statutes are legal rules promulgated as a productof consultation between the executive and thelegislature, in accordance with the procedure asdirected by the Constitutiondirected by the Constitution

• Includes: UU (statute) & Peraturan Daerah(regional/local regulation)

• The legal rules shall be clear and not multi-interpretable (lex certa)

- how about adat law which is unwritten?

The Principle of Non-retroactivity

• Legal rules shall not apply to the pastofffenses

Jan 1, 2011Jan 1, 2011

Not allowed <------------- allowed-------------

Hence the time of the commission of crime isvery important tempus delicti

The theory of tempus delicti

• De leer van de lichamelijke daad (physicaldeed theory)

• De leer van het instrument (instrumenttheory)theory)

• De leer van het gevolg (result/consequence/effect theory)

• De leer van de meervoudige tijd (plurality oftime theory)

Significance of tempus delicti

• In conjunction with Art. 1

• Statute of limitation (verjaring)

• With regard to juvenile offenders (see Law no.3 of 1997 on Juvenile Court, previously3 of 1997 on Juvenile Court, previouslyprescribed in articles 45, 46 and 47 of KUHP)

Principle of non-retroactivityoutside KUHP

National

Art. 28 i of the Constitution – non-derogable rights

Art 18 of Law no. 39 of 1999

International :International :

1. Article 15 of the International Covenant on Civiland Political Rights/ICCPR (this Human RightsInstrument was ratified by Indonesia with Lawno. 12 of 2005)

2. Art 22-24 of the International Criminal Court

Art 28 i

• The right to life, right not to be subjected totorture, right to freedom of thought andconscience, right to religion, right to berecognized as a person before the law, andrecognized as a person before the law, andright of not to be subjected to prosecutionbased on retroactive law, are human rightswhich cannot be derogated in any conditions

Art 18 of Law no. 39 of 1999on Human Rights

(2) No one shall be prosecuted or punished,unless by virtue of prior statutory penalprovision

(3) In case of changes in the law (after thecommission of a crime), the most favourableprovision for the accused shall be applied

Law on Terrorism

• Law no. 16 of 2003 which applied Law no. 15of 2003 on Eradication of Terrorism to the BaliBombing I case was brought before theConstitutional Court for judicial review, for itwas an ex post-facto lawwas an ex post-facto law

The Constitutional Court ruling:

Law no. 16 of 2003 shall be annulled for it isnot in accordance with the stipulation in theConstitution which prohibits retroactive law

ICCPR

Art. 15(1 ) No one shall be held guilty of any criminal

offence on account of any act or omission whichdid not constitute a criminal offence, undernational or international law, at the time when itnational or international law, at the time when itwas committed. Nor shall a heavier penalty beimposed than the one that was applicable at thetime when the criminal offence was committed.If, subsequent to the commission of the offence,provision is made by law for the imposition of thelighter penalty, the offender shall benefit thereby.

With the exception ....

Art 15 par (2)

Nothing in this article shall prejudice the trialand punishment of any person for any act orand punishment of any person for any act oromission which, at the time when it wascommitted, was criminal according to thegeneral principles of law recognized by thecommunity of nations.

International Criminal Court (ICC) orThe Rome Statute

Art. 22: Nullum crimen sine lege

1. A person shall not be criminally responsible under thisStatute unless the conduct in question constitutes, atthe time it takes place, a crime within the jurisdiction ofthe Court.the Court.

2. The definition of a crime shall be strictly construed andshall not be extended by analogy. In case of ambiguity,the definition shall be interpreted in favour of theperson being investigated, prosecuted or convicted.

3. This article shall not affect the characterization of anyconduct as criminal under international lawindependently of this Statute.

ICC...

Article 23 :Nulla poena sine lege

• A person convicted by the Court may bepunished only in accordance with this Statute.punished only in accordance with this Statute.

ICC...

Article 24 : Non-retroactivity ratione personae

1. No person shall be criminally responsible underthis Statute for conduct prior to the entry intothis Statute for conduct prior to the entry intoforce of the Statute.

2. In the event of a change in the law applicable to agiven case prior to a final judgement, the lawmore favourable to the person being investigated,prosecuted or convicted shall apply.

Interpretation in criminal law

• Interpretation is the process of determining thetrue meaning of a written document. It is ajudicial process, effected in accordance with anumber of rules and presumptions.number of rules and presumptions.

• When it comes to the interpretation of criminalstatutes, it matters greatly whether the basic ruleof interpretation is designed to minimize or tomaximize the thrust of legislative efforts to defineand punish criminal behavior.

Type of interpretation accepted inCriminal Law

• Authentic interpretation

• Systematic interpretation

• Grammatical interpretation

• Historical interpretation• Historical interpretation

• Sociological interpretation

• Teleological interpretation

• Extensive interpretation

Extensive interpretation

• Hoge Raad (The Dutch Supreme Court) rulingof 23 may 1921 on theft of electricity inGravenhage

• Rechtbank Leeuwarden ruling of 10 Dec 1919• Rechtbank Leeuwarden ruling of 10 Dec 1919on theft of cows

Interpretation and Analogy

• Interpretations of law are allowed in criminallaw due to the necessity to comprehend legalprovisions which are not always clearlyformulatedformulated

• Analogy is prohibited for it is in conflict withthe principle of legality

– Analogy is not an interpretation, instead it is alegal construction

Analogy & Extensive Interpretation

• Paul Scholten:

• In essence there is no difference betweenAnalogy & Extensive Interpretation, since inboth cases the judge makes legal constructionboth cases the judge makes legal constructionof the law, and tries to figure out a highernorm

• E.g. The meaning of ‘taking’ is equal toperforming an act intended to separatesomething from the owner

According to Scholten(as well as Utrech)

• EXTENSIVEINTERPRETATION

the judge enlarge the

• ANALOGY

the judge take certaincase which need to bethe judge enlarge the

scope of a higher normin order to cover certaincase

case which need to besettled into the scope ofa higher norm

Article 1 (2) of the Penal Code

1. In certain case, it is possible that the law isretroactive

2. Three conditions to apply law retroactively:

a. There is alteration/ amandement ofa. There is alteration/ amandement of

legislation

b. The alteration is taking place after the

offence is commited

c. The alteration is in favour of the accused

3. Called as “a transitoir law”

Article 1 (2) the PenalCode

---------------+-----------+---------------+---------->Law commision of an offence alternation of

law• what is alteration of law ?• what is alteration of law ?Theories : (1) formil theory (2) limited materiiltheory (3) un-limited materiil theory

•What is “most favourable” for the accuse/defendant?

“most favourable” for the accuse/ thedefendant

• This can not determined in general (in abstracto),instead this can only determined for every singlecase (in concreto).

What is more favourable to the accused/ theWhat is more favourable to the accused/ thedefendant?- The lighter punishment, the classification of criminaloffence is altered from general crime to klachdelict(complaint crime), the elements of crime are increased(Utrecht p.228)

The alteration of law as described byArticle 1(2) of the Indonesian Penal Code

• Formil Theory: there is an alteration of law when the redaction of the criminalstatute is altered/ changed (Simons) this mening was rejected by HR decision of 3 Des 1906 , the case wasrelated to Article 295 sub 2 of the Indonesian Penal Code, the limit ofadolesence age in the Burgerlijk wetboek (the Civil coe) changed from 23 to21 years old21 years old

• Limited materiil theory : every alteration/ change according to legalconsience/ belief of the law maker (so this not include the lateration due totime concern/ such as the prevailing of what so called temporaly regulation )

• Unlimited materiil theory : every alteration/ change either related to legalbelief of the lawmaker or related to alteration due to time condition – can beaccepted as the alteration of law as describe d by Article 1 (2) of the PenalCode according to HR 5 Des 1921

The change of legal consience/ belief

• A conduct become not punishable anymore

• A conduct become punishable

• The punishment of a conduct become moresevere or less severesevere or less severe

• (See also Lamintang’s Book on Supreme Court decision,particularly in section the Extent of operation of the statutorypenal provisions related to time )

The alteration/ change of the Law takenplace after the commission of the Act

Important to taken into account:

1. The time of the committed crime (tempusdelictie)delictie)

2. Tempus delicti theories

Extent of operation of thestatutory penal provisions

related to placerelated to place

Extent of operation of the statutory penalprovisions related to place

It is important to figure out whichcriminal law will be applied in particularcriminal law will be applied in particularcase: Indonesian criminal law or criminallaw of other jurisdiction

Principles related to the Extent of operation of thestatutory penal provisions related to placeAccording to the Indonesian Criminal Code, Indonesia hold several principlesas follows:

• Territoriality principle:

article 2 , Article 3 , Article 95 KUHP , and see also Law No 4/1976

• Passive-Nasionality principle/ protection principle: Article 4 :1,2 dan 4,Article 8 KUHP , see also Law No. 4/1976 , Artcile 3 of the Law No. 7/ drt/1955 , see also Article 16 of the Law No.31/19991955 , see also Article 16 of the Law No.31/1999

• Personality principle/ Active-nationality principle :

Article 5 KUHP, Article 7 KUHP and see also Article 92 KUHP

• Universality principle :

Article 4 :2 , Article 4 sub 4 , Article 1 of the Law No. 4/ 1976

“Committing crime related to currency, state gral and bank giral”

Principles of the Extent of operation of thestatutory penal provisions related to place

1. Territoriality Principle

The application of the criminal law according to theplace of the committed crime

Article 2 and 3 of the Indonesian penal CodeArticle 2 and 3 of the Indonesian penal Code

– Indonesian criminal law

– The crime committed in Indonesia

– The offender can be Indonesian nationality orforeigner

– The locus delicti theory is applied

2. Active-Nationality Principle / PersonalityPrinciple

Article 5 – 6 (extention of article 5) andArticle 5 – 6 (extention of article 5) andarticle 7 of the Indonesian Penal Code

– The crime is commited outside Indonesia

– The offender is Indonesian nationality

– Applied for certain criminal offences

3. Passive-Nasionality principle/ protectionprinciple

Article 4 and 8 of the Indonesian PenalCodeCode

– The Indonesian Criminal Law

– The crime commited outside Indonesia

– The offender is either Indonesian nationalityor foreigners

– The Provision is to protect / defend nationalinterests

4. Universality principle

• Article 4 :2 , rticle 4 sub 4 of the IndonesianPenal Code, Article 1 of the Law No. 4/ 1976

“Commited crime related to currency< stategirl and bank giral.”girl and bank giral.”

• To protect/ defend the world/ interntionlinterests

Tempus Delicti Theories

1.Physical deed theory (de leer van delichamelijke daad)

2. Instrument Theory (de leer van hetinstrument)instrument)

3. Result Theory (de leer van het gevolg)

4. Plural of time Theory (de leer van demeervoudige tijd)

Locus delicti is important when wedeal with the questions :

• Which criminal law should be applied?

- Indonesian criminal law or criminal law ofother jurisdictions?other jurisdictions?

• Relative Compentency of particular court

- eg. South of Jakarta District Court or BogorDistrict Court to be applied in certain case?

Which theory should be applied ?

• According to Van Hamel and Simons :

It depending on the nature and characteristicof the particular case to be handled

According to Hazewinkel-Suringa,• According to Hazewinkel-Suringa,Zevenbergen, and Noyon-Langemejer :

Should apply 3 theories by teleologismanner

• Periksa buku Utrecht hal 239

Surabaya Semarang Cirebon---- the food poisoned --> ----the food eaten by the victim ---> the victim

diedthe ilustration of meervoudige locus delicti

• According to Plural of time Theory(Meervoudige locus delicti)(Meervoudige locus delicti)

• The judge is independent to apply one of thethree locus delicti theories

The exception of the principles of the criminal law application

• Article 9 of the Indonesian penal code : Publicinternational law provide limitations of theapplication of articles 2,3,4,5, 7, and 8 of theIndonesian penal code

• These parties are granted imunity right of criminallaw by virtue of Wina convension 18/4/1961 :

1) head os states & their families ( official visit, nonin transit or incognito)in transit or incognito)

2) ambasadors and their families --> with regard toconsul is depend on the prevailing inter-statetractat (agreement)

3) Army personnel in military ship or flight

4) Army personnel of foreign countries whichaccepted by state