Criminal Law

A.    Understanding Criminal Law

Understanding criminal law in the opinion of the experts is as follows:

1.      Simons, criminal law is a whole prohibitions and imperatives associated with the violations against the agony (offense / punishment) by the state, the overall rules on requirements, how to bring down and run the offense.

2.      MOELJATNO, criminal law is a rule that determines:

·         The act must not be done, is prohibited, and the threat of sanctions for those who violate

·         When and in what way the offender can be sentenced

·         How the imposition of the offenders was conducted

3.      Wirjono Prodjodikoro, criminal law is the law regarding criminal. The word "criminal" means being "criminalized" by the relevant authority  delegated to a person as a thing he felt unwell and also things that are not delegated day-to-day.

4.      WLG. Lemaire, criminal law consists of norms that contains imperatives and prohibitions (the former Act) has been associated with a sanction of punishment that is an affliction that is special. Thus it can be said that criminal law is a system of norms that specify the actions which (it do something or not do something where there is a necessity to do something) and in the circumstances of how the sentence could be imposed and the penalty how that can be imposed for such acts.

5.      WFC. Hattum, criminal law (positive) is the whole of the principles and rules followed by the state or other public law of a society, where they were as a custodian of the rule of law has generally prohibits acts that are against the law and have associate violations of its rules to a particular form of suffering is punishment.

6.      WPJ. POMPE, criminal law is that criminal law as well as constitutional law, civil law and other parts of the law, usually defined as a set of rules more or less general abstrahir of circumstances is concrete.

7.      Kansil, criminal law is the law governing the violations and crimes against the public interest, which is punishable by a deed which is a suffering or torture.

8.      Adami CHAZAWI, seen from the outline, by relying on the codification as the main source or sources of basic criminal law, criminal law is part of public law which contains/contain provisions concerning:

·         The rules of criminal law and (associated/related) prohibition deeds (active/positive) or (passive/negative) particular with the threat of criminal sanction (straf) for violating the ban.

·         Certain requirements (when will) that must be met / must exist for the offender to criminal sanctions threatened in violation of deed restrictions.

·         Actions and measures that may or must be done through the instrumentality of the equipment (eg police, prosecutors, judges), against the alleged offender and was charged as a criminal law of the state in order to determine, impose and implement criminal sanctions against him, as well as the actions and measures that can and should be done by the suspect / accused law offenders in an effort to protect and defend the rights of state action in state efforts to enforce the criminal law.

B.     Principles of criminal law

Applicability of criminal law by time:

1.      Principle of Legality

The criminal law must be based on the law, that conviction must be based on the law. Legality principle contained in article 1, paragraph 1 of the Criminal Code. In chapter contains two things:

1.      A crime / offense should be defined in legislation. This implies that the act of someone who is not listed in the law can‘t be termed as an offense and can‘t be punished, so the appropriate principles, the unwritten law can‘t be applied, but there are exceptions to the unwritten criminal code, which still must be Law noted. 1 / DRT / 1951.

2.      Rule of law must exist before a crime / offense occurred. This means, that a person can only be convicted if the offense had been there / have been mentioned in the Criminal Code. So menurut pasal 1, paragraph 1 if the person accused of doing something evil, but later proved that she was not included in the Criminal Code, then the accused was acquitted of the charge, and He did not convicted. It is by Anselm von Feuerbach formulated as follows: "Nulla poena sine lege, Nulla poena sine crimine, Nullumcrimen poena sine legali" no penalty if there is no law, there is no penalty if there is no crime, no crime if there is no punishment under the law. So in article 1, paragraph 1 several conclusions that can be drawn:

a.       The criminal law is to prevent the arbitrary imposition by the court (judge)

b.      Legal certainty can be achieved

c.       The criminal law is rooted in the written law

2.      Principle does not apply retroactively

This principle is defined in article 1, paragraph 2 of the Criminal Code (Article 1KUHP exceptions). The provisions of criminal law should not be applied retroactively (strafrecht heeftgeen terugwerkende kracht). If someone committed a new crime against future similar actions shall be subject to, the offender can’t be convicted of the new provisions. This is to ensure citizens from arbitrary actions of the authorities.
This principle is a fundamental principle of the rule of law, although not included in the constitution, so that the legislators did not rashly deviate from these principles. Regulations contained in article 1, paragraph 1 of the Criminal Code are excluded by Article 1 paragraph 2 of the Criminal Code which reads "if there is a change of legislation after the deed was done, then the rules should be used for the light suspects".

3.      Principle of prohibition of the use

Prohibition of the use of analogy, namely to create works that are not listed explicitly in the legislation but there the resemblance, be/is considered as a crime/offense. The analogy usually occurs in cases when there is something making a legal rule that something new is unthinkable / impossible recognized by lawmakers today. For example, theft of electricity. Electricity analogy as goods. The analogy is closely related to problems of interpretation/interpellation. This analogy based on the fact that a law written and static still need to be interpreted in its enforcement, especially by the judge at the time of applying. Interpret objective is to find the true meaning of the will of the ruling legislatures who poured into the formulas written in the law.

Applicability of criminal law according to the place or region:

1.      Principle of territorial

This principle is set out in the Criminal Code in Article 2 of the Criminal Code which states that the criminal provisions in the laws of Indonesia applicable to any person who commits a crime in Indonesia. The term everyone in section 2 of the Criminal Code contains a sense of both Indonesian and foreign people. So anyone who committed a criminal act, whether it was an Indonesian citizen or stranger, as long as the offense was carried out in the territory / territories of Indonesia, it must abide by the rules / provisions in criminal legislation Indonesia. Perluasan of Territorial principle set out in article 3 of the Criminal Code which states that the criminal provisions of Indonesian law applies to any person outside the territory of Indonesia crime in vessels or aircraft in Indonesia.

2.      Personal principle or principles of the National Active

Is a principle which enforces the Criminal Code against Indonesian citizens who commit a criminal act outside the territory of the Republic of Indonesia. These principles start with the people who commit crime. Applicability of the Criminal Code is based on citizenship or nationality someone who commits an act. Criminal Law only applies to nationals, where actions do not matter

according to Article 1 of the Criminal Code, but if only in villages remote areas in Indonesia, there are the remains of the penal law is based on the rules and customs that are concrete, so maybe this is influential in interpreting the provisions of the Criminal Code. Guided by Article 5, paragraph 3 of Law No. Bundang. 1 DRT In 1951, the road was still open to impose customs offense, albeit in a limited sense. Examples are: Poso District Court decision dated June 10, 1971, No. 14/Pid/1971 about crime in luar kawin custom Intercourse. Sitting on the outline case is that the defendants in the years 1969-1970 in the village town of Poso district Lawanga successively have sexual intercourse outside of mating with Grandmother eventually cause E is pregnant and bear children. The accused has been found guilty of moral offense under article 5, paragraph 3 of Law No. b. DRT 1 Article 284 of the Criminal Code of 1951.
Thus the criminal justice system in Indonesia recognize the written criminal law as mandated in Article 1 of the Criminal Code, but does not rule out the well-known principle of legality of criminal law is not written as a result of the recognition of the law are still living in a society that is a form of customary law.

7. General criminal law (Algemeen strafrecht) and local criminal laws (plaatselijk strafrecht)

General criminal law or the ordinary criminal law is also referred to as the national criminal law. General criminal law is criminal law established by the Central Government of the State law that applies to the subject is doing violates the prohibition law and criminal law throughout the country. While local criminal law is criminal law made by the Government of law applicable to the subject who acts prohibited by criminal law within the jurisdiction of the local government. Local criminal law can be found in the local regulation both at provincial, district and municipal government. Sentencing as threatened against any offenders in local legislation that absolutely must be done by the court. In conducting the detention, examination and seizure of local government following power tools tied to the conditions set forth in Law no. 8 of 1981 on Criminal Proceedings. Moreover on the basis of territory statute, criminal law is also able to distinguish between national criminal law and international criminal law (hukumpidana supranational). International criminal law is that criminal law is made, recognized and enforced by many or all countries in the world that is based on an international convention, apply and become law of nations which must be recognized and enforced by the nations of the world, such as:

a.       International criminal law that originated in London Agreement (8-8-1945), which became the basis for the International Military Tribunal at Neurenberg to prosecute German war criminals in World War II

b.      Red Cross Convention 1949 which contains, among others yangluka war casualties and sick on land and at sea, prisoners of war, civilians in war.

4.      Sources of Criminal Law

According to sources Sudarto Indonesian criminal law are as follows:
The main source of the Indonesian criminal law is the law is written, namely the Penal Code. Parent positive criminal law is the Criminal Code, whose real name is Wetboek van voor Strafrecht Netherlands Indies (WvS). Penal Code was a codification of the criminal law and applies to all classes of the population, such that the field of criminal law there has been unification.

Sources of criminal law are written other criminal regulations set out the Criminal Code, the criminal laws are not codified, the spread in legislation other criminal laws. Regulations offenses outside the Penal Code, for example, is the Anti-Corruption Act, anti-trafficking law, child protection law, anti-terrorism law, etc..
But in certain areas and for certain people that are not written criminal law can also be a source of criminal law. Customary law which is still live as traditional offense is still possible to be a source of criminal law, it is based on the Emergency Law No.. 1 Year 1951 (L.N.1951-9) Article 5, paragraph 3, sub b. With the entry into force of the criminal law is customary (though for the people and the regions only) then in fact the criminal law is still a duality. However it should be realized that the criminal law continues to have a role in writing the main source of law. This is consistent with the principle of legality set forth in Article 1 of the Criminal Code.

A.    Understanding International Law

Understanding of international law according to the experts:
Mochtar Kusumaatmadja

·         International Law is the overall rules and principles governing the relationship or issues that cross the boundaries of states between the State of the State; Countries with the subject of other non-state law or state law is not subject to one another.

·         J.G. Strke: Internasonal law defines as a set of laws  (Body of Law), which consists mainly of the principles and therefore usually adhered to in relation to countries with each other.

·         Ivan A. Shearer: International law is a set of laws that governs most of the principles and rules that must be obeyed by the States (subject of international law) and the relationship with each other include:

a.       Legal rules relating to the functions of institutions or organizations, the relationship between institutions and organizations, as well as the relationship between institutions and organizations with the State and individuals.

b.      Certain rules of law relating to individuals of concern to the international community than Negara Maka identity can be concluded that international law is the law governing the legal relationship between the State and the State, the State and the State is not subject other law, or the law of non-State Subjects from each other.

B.     Principles of international law

1.      The principle of territorial territorial principle is principle based on the power of the State over the region. According to this principle the state carrying out the law for all people and goods in the region apply international law.

2.      The principle is the principle of nationality Kebangsaan Asas didasarkan the power of the State to its citizens. According to this principle every citizen, wherever he was still treated the Law of the country.

3.      General interest principle is principle based on the authority of the State to protect and regulate the interests of community life. Countries can adapt to circumstances and events relating to the public interest. So, the law is not bound by the limits of the territory of a State.

4.      Principle of Equal Derajat Adalah relations among nations should be based on the principle that the state is related to a sovereign state. Formally indeed countries in the world have long degree, but it still happens Factual and Substance inequalities degrees, especially in the economic field.

5.      The principle of openness in relations among nations based on international law diperlukan adanya their willingness to provide information in an honest and dilandasi rasa justice. So that each party clearly know the benefits, rights, establishing serta kewajiban in International Relations.

6.      Ne Bis In Idem The purpose of these principles are:

a.       No one can be judged in relation to the criminal offenses for which the money question had been found guilty or acquitted

b.      Not  one shall be tried by another court for a crime where the person has been convicted or acquitted by the International criminal court.

7.      Pacta Sunt Servanda

It is a principle known in International treaties. This principle is the force of Law and Morals for all States that entered into the agreement International.

8.      Juice Cogents

 In International treaties also known principle of Jus Congenst. The point is that the International perjajian be null and void if the formation counter to a basic principle of general international law (Article 53Konvensi Vienna 1969).

9.      Inviolability and Immunity

In the Diplomatic and Consular Law Inviolability known principle and Immunity. In order Diplomatic and Prootokoler guidelines, inviolability of a translation of the meaning of a term Inviolable diplomatic officials can’t be arrested or detained by the equipment of the receiving State and otherwise the beneficiary states are obliged to take measures to prevent attacks on his honor and personal immunity of a diplomatic officials concerned.

3.      Scope of international law

The scope of international law is as follows:

a.       Subjects of international law

b.      legal relations between subjects of international law:

·         The relationship between the State

·         State relations with non-state (international organization)

·         Relations with the non-state non-State

4.      Sources of international law

Mochtar Kusumaatmaja in International Humanitarian Law (1980), Sources of International Law divided the sources of law in the sense Formal and Sources of Law in the material sense. Formal sources of international law set out in the UN Charter. While the Material Law Resources Law discusses the basic force in a State

·         Matrial Law Resources Consists of two streams, namely:

1.      Naturalis flow, flow rests on rights or natural rights are derived from God's law so occupies a higher position than the National Law (Grotius)

2.      Positivism Flow, Flow International law enactment is based on the mutual agreement of the countries coupled with the principle of pacta Sunt servada (Hans Kelsen)

·         Formal Law Resources

Sources of International Law in the sense of formal sources of international law are the President and has the highest authority and authentic that can be used by the international court in deciding an international dispute as stated in Article 38 paragraph 1 of the Statute of the International Court, as follows:

1.      International Treaty (Treaty)

The law is a bond that occurs based on an agreement between the countries members of the Organization of the nations with the purpose of carrying out specific laws that have caused certain laws. Conventions or International treaties are the main source of international law. The convention can take the form of bilateral or multilateral. International conventions which are the main source of law is the convention in the form of International Law Making treaties is International treaties containing the principles and provisions of the applicable General, as follows:

a.       Hague Conventions of 1899 and 1907 on the laws of war and the peaceful settlement sangketa

b.      General treaty for the renunciation of war, 27 August 1928

c.       Nations Charter union

d.      Vienna Conventions on Diplomatic Relations and Consular Relations 1963 1961

e.       UN Convention on the Law of the Sea, 1982

The principles in the treaty are:

a.       Pacta Sunt Servada, that any agreement binding upon the parties and must be executed in good faith (wina Convention 1969, article 26)

b.      Pacta Tertiis Nocent Nec Nec Prosunt, an agreement does not bind third parties without your consent (konvemsi wina 1969, article 34)

2.      International customary law

Customary law derived from the practice of States through attitude and action taken against an issue. The establishment of a law based on the customs of the same practice, Constant run without the opposing party and followed by many countries.

3.      General Principles of Law

According to Sri Setianigsih Suwardi, SH, Function dariprinsip common law principles consist of the following three things, namely:

1.      As a complement to customary and treaty law International

2.      As for the interpretation of International treaties and customary law

3.      As a deterrent to International treaties and customary law

4.      Decisions of courts

The decisions of the judiciary plays an important role in helping the formation of new norms of international law. Common Sources of International Law Sources of international law can be categorized into five forms as follows:

a. International Habit

b. Treaty (Treaty): International Agreements

c. General principles of law recognized for civilized countries

d. Doctrine (Doctrine of the leading experts)

e. Jurisprudence (previous verdict which then serve as the basis Law Judge Decisions)

5.      The causes of the end of an international treaty  The cause of the end of the treaty are as follows:

1.      There are agreements between the parties with the procedures set

2.      Purpose of the agreement has been reached

3.      There are fundamental changes that affect the execution of the agreement

4.      One party does not perform or violate the terms of the agreement

5.      Termination of the agreement in accordance with the provisions of the agreement

6.      The validity period of the agreement have been exhausted

7.      The consent of the parties to terminate the agreement

8.      One the one hand, the agreement disappears or object loss agreement

9.      The existence of a new agreement between the parties which then negates the earlier agreement

10.  The terms of the termination of the agreement in accordance with the terms of the agreement have been met

11.  Agreement unilaterally terminated by either party and the termination was received by the other party

Under the Vienna Convention of 1969, due to various reasons the International treaties can be invalidated. The cause of the cancellation or revocation of the treaty are as follows:

1.      State or authorized representatives have violated the law its National

2.      Any element of fault error when the agreement was made

3.      The existence of fraud of some participating countries against other participating countries, at the time of contract formation

4.      There is abuse or cheating (Corruption) by cunning or bribery

5.      Any element of coercion against the representative of a participating country, forcing it either to the threat and use of force

A.    Understanding of constitutional law

According to the terms, state constitutional law is derived from the Staatsrecht (Dutch language). Staats means "country", while recht means "law". Definition of experts on constitutional law terms are:

·         According to Van Vollenhoven, constitutional law law society regulate all superiors and subordinates in the legal community and the level of each of the subjects that define regions and ultimately determine the agencies and their respective functions in power within the legal community, as well as determine the composition and authority of these bodies.

·         According to Scholten, constitutional law is the law governing the organization of the state.

·         According to van der pot, constitutional law are the rules that determine the necessary agencies and authorities, respectively, related to each other and their relationship with these individuals.

·         According J.H.A. Logemann as cited Usep Ranawijaya that "constitutional law is a set of legal rules of private law office or collection of positions in the state and the environmental effect (gebied) the law of a country."

B.     The first principles of constitutional law

1.      The principle of Pancasila

·         Pancasila is a source of substantive law, and therefore laws must not be contrary to Pancasila. Every act of the people of Indonesia and the country must comply with the defined Pancasila as the state. Pancasila as the principle of Constitutional Law can be found in the Preamble to the Constitution of 1945.

2.      The principle of the rule of law

·         That state that stands above the law to ensure justice to its citizens. The principle of rule of law (rechtsstaat) characteristics, namely the Constitution or the constitution of the load on the relationship between the rulers and the people, and the division of powers, recognized and protected the rights of freedom of the people. The elements / characteristics rather than a State law or Rechstaat are:

1.      The recognition and protection of human rights that contain equality in political, economic, social, cultural and educational.

2.      The existence of an independent judiciary and impartial, not influenced by any power or any other power.

3.      The legality in the sense of the law in all its forms.

4.      The existence of the Basic Law which contains a provision written about the relationship between the rulers and the people.

3.      The principle of popular sovereignty and democracy

·         Form of government in which the power of government comes from the people, either directly (direct democracy) or through representatives (indirect democracy). The principle of democracy requires that everyone should have an equal opportunity to influence government action. This principle is realized through the system of representation (perwakilan rakyat) that have a role in the formation of law and control of the government. The principle of sovereignty requires that every action of the government must be based on the will of the people and in the end the government must be accountable to the people through their representatives in accordance with the law.

4.      The principle of the unitary state

·         State is a state entity organized under a central government. Characteristics of a unitary state constitution was organized division of power between central and local governments by the central authority of the central government. The term "divided up" (not "made up") under the provisions of article 18, paragraph 1 of the 1945 Constitution is not a term used kebetulan. Istilah was immediately clear that Indonesia is a unitary state in which the sovereignty of the country was in the hands of the center.

5.      The principle of separation of powers and checks and balances

·         Separation of power is the horizontal separation of powers in the sense of power is separated into functions that are reflected in state institutions equal and mutually offset (check and balances). In the principle of separation of power implemented a strict separation of powers both organ and function between the branches of the legislative, executive, and judicial branches of government embodied in the institutionalization of state organs are equal to each other as well as to control and compensate for each other (checks and balances).
Montesquieu argued that each country there are three types of power are Trias Politica:

1. Executive

2. Legislative

3. Judiciary

C.    The scope of constitutional law

The scope of Constitutional Law is the general structure of the state as an organization, namely:

1.      State Form (Unity or Federation)

2.      Form of Government (Empire or Republic)

3.      Governance System (Presidential, Parliamentary, absolute monarchy)

4.      Shades of Government (Practical Dictator, Nationalists, Liberals, Democracy)

5.      Delegation of Power System State (Decentralisation, include the number, the base, the way and the relationship between central and local)

According to Huda Ni'matul in his book Constitutional Law of Indonesia, the scope of state constitutional law Indonesia:

1.      The general structure of the state as an organization

2.      The agencies have the authority and power in penyelenggaraan negara

3.      Setting the political life of the people

4.      Constitutional history