Session 2 Applicability of criminal law based on time and place

Course: Criminal Law Criminal Law Department, Faculty of Law University of Indonesia 2011

Art 1 of KUHP
(1) No act shall be punished unless by virtue of a prior statutory penal provision (2) In case of alteration in the legislation after the date of commission of the act, the most favorable provisions for the accused shall apply

Principles derived from Art. 1:

Nullum delictum, nulla poena sine praevia lege poenali No crime, no punishment, unless previously prescribed by law that such conduct is a criminal offense, which entails criminal sanction

The Principle of Legality

1. No conduct shall be characterized as a criminal offense unless defined by law (i.e. written legal rules) 2. No conduct shall be punishable if it was committed before the promulgation of a criminal statute/ex post-facto law nulla poena sine lege 3. Criminal statutes must be strictly interpreted, and interpretation by analogy is strictly prohibited

Lex Scripta (written legal rules)

Statutes are legal rules promulgated as a product of consultation between the executive and the legislature, in accordance with the procedure as directed by the Constitution Includes: UU (statute) & Peraturan Daerah (regional/local regulation) The legal rules shall be clear and not multiinterpretable (lex certa) - how about adat law which is unwritten?

The Principle of Non-retroactivity

Legal rules shall not apply to the past offfenses Jan 1, 2011
Not allowed <------------allowed-------------

Hence the time of the commission of crime is very important tempus delicti

The theory of tempus delicti

De leer van de lichamelijke daad (physical deed theory) De leer van het instrument (instrument theory) De leer van het gevolg (result/consequence/ effect theory) De leer van de meervoudige tijd (plurality of time 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, previously prescribed in articles 45, 46 and 47 of KUHP)

Principle of non-retroactivity outside KUHP

National Art. 28 i of the Constitution non-derogable rights Art 18 of Law no. 39 of 1999 International : 1. Article 15 of the International Covenant on Civil and Political Rights/ICCPR (this Human Rights Instrument was ratified by Indonesia with Law no. 12 of 2005) 2. Art 22-24 of the International Criminal Court

Art 28 i
The right to life, right not to be subjected to torture, right to freedom of thought and conscience, right to religion, right to be recognized as a person before the law, and right of not to be subjected to prosecution based on retroactive law, are human rights which cannot be derogated in any conditions

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

(2) No one shall be prosecuted or punished, unless by virtue of prior statutory penal provision (3) In case of changes in the law (after the commission of a crime), the most favourable provision for the accused shall be applied

Law on Terrorism
Law no. 16 of 2003 which applied Law no. 15 of 2003 on Eradication of Terrorism to the Bali Bombing I case was brought before the Constitutional Court for judicial review, for it was an ex post-facto law The Constitutional Court ruling: Law no. 16 of 2003 shall be annulled for it is not in accordance with the stipulation in the Constitution 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 which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

With the exception .... Art 15 par (2) Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

International Criminal Court (ICC) or The Rome Statute

Art. 22: Nullum crimen sine lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. 2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

ICC...
Article 23 :Nulla poena sine lege A person convicted by the Court may be punished only in accordance with this Statute.

ICC...
Article 24 : Non-retroactivity ratione personae 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.

Interpretation in criminal law

Interpretation is the process of determining the true meaning of a written document. It is a judicial process, effected in accordance with a number of rules and presumptions. When it comes to the interpretation of criminal statutes, it matters greatly whether the basic rule of interpretation is designed to minimize or to maximize the thrust of legislative efforts to define and punish criminal behavior.

Type of interpretation accepted in Criminal Law

Authentic interpretation Systematic interpretation Grammatical interpretation Historical interpretation Sociological interpretation Teleological interpretation Extensive interpretation

Extensive interpretation
Hoge Raad (The Dutch Supreme Court) ruling of 23 may 1921 on theft of electricity in Gravenhage Rechtbank Leeuwarden ruling of 10 Dec 1919 on theft of cows

Interpretation and Analogy

Interpretations of law are allowed in criminal law due to the necessity to comprehend legal provisions which are not always clearly formulated Analogy is prohibited for it is in conflict with the principle of legality
Analogy is not an interpretation, instead it is a legal construction

Analogy & Extensive Interpretation

Paul Scholten: In essence there is no difference between Analogy & Extensive Interpretation, since in both cases the judge makes legal construction of the law, and tries to figure out a higher norm E.g. The meaning of taking is equal to performing an act intended to separate something from the owner

According to Scholten (as well as Utrech)

EXTENSIVE INTERPRETATION the judge enlarge the scope of a higher norm in order to cover certain case ANALOGY the judge take certain case which need to be settled into the scope of a higher norm

Article 1 (2) of the Penal Code

1. In certain case, it is possible that the law is retroactive 2. Three conditions to apply law retroactively: a. 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 Penal Code

---------------+-----------+---------------+----------> Law commision of an offence alternation of law what is alteration of law ? Theories : (1) formil theory (2) limited materiil theory (3) un-limited materiil theory

What is most favourable for the accuse/ defendant?

most favourable for the accuse/ the defendant

This can not determined in general (in abstracto), instead this can only determined for every single case (in concreto). What is more favourable to the accused/ the defendant? - The lighter punishment, the classification of criminal offence is altered from general crime to klachdelict (complaint crime), the elements of crime are increased (Utrecht p.228)

The alteration of law as described by Article 1(2) of the Indonesian Penal Code
Formil Theory: there is an alteration of law when the redaction of the criminal statute is altered/ changed (Simons) this mening was rejected by HR decision of 3 Des 1906 , the case was related to Article 295 sub 2 of the Indonesian Penal Code, the limit of adolesence age in the Burgerlijk wetboek (the Civil coe) changed from 23 to 21 years old Limited materiil theory : every alteration/ change according to legal consience/ belief of the law maker (so this not include the lateration due to time concern/ such as the prevailing of what so called temporaly regulation ) Unlimited materiil theory : every alteration/ change either related to legal belief of the lawmaker or related to alteration due to time condition can be accepted as the alteration of law as describe d by Article 1 (2) of the Penal Code 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 more severe or less severe
(See also Lamintangs Book on Supreme Court decision, particularly in section the Extent of operation of the statutory penal provisions related to time )

The alteration/ change of the Law taken place after the commission of the Act
Important to taken into account: 1. The time of the committed crime (tempus delictie) 2. Tempus delicti theories

Extent of operation of the statutory penal provisions related to place

Extent of operation of the statutory penal provisions related to place

It is important to figure out which criminal law will be applied in particular case: Indonesian criminal law or criminal law of other jurisdiction

Principles related to the Extent of operation of the statutory penal provisions related to place
According to the Indonesian Criminal Code, Indonesia hold several principles as 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.31/1999 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 the statutory penal provisions related to place
1. Territoriality Principle The application of the criminal law according to the place of the committed crime Article 2 and 3 of the Indonesian penal Code Indonesian criminal law The crime committed in Indonesia The offender can be Indonesian nationality or foreigner The locus delicti theory is applied

2. Active-Nationality Principle / Personality Principle Article 5 6 (extention of article 5) and article 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/ protection principle Article 4 and 8 of the Indonesian Penal Code
The Indonesian Criminal Law The crime commited outside Indonesia The offender is either Indonesian nationality or foreigners The Provision is to protect / defend national interests

4. Universality principle
Article 4 :2 , rticle 4 sub 4 of the Indonesian Penal Code, Article 1 of the Law No. 4/ 1976 Commited crime related to currency< state girl and bank giral. To protect/ defend the world/ interntionl interests

Tempus Delicti Theories

1.Physical deed theory (de leer van de lichamelijke daad) 2. Instrument Theory (de leer van het instrument) 3. Result Theory (de leer van het gevolg) 4. Plural of time Theory (de leer van de meervoudige tijd)

Locus delicti is important when we deal with the questions :

Which criminal law should be applied? - Indonesian criminal law or criminal law of other jurisdictions? Relative Compentency of particular court - eg. South of Jakarta District Court or Bogor District Court to be applied in certain case?

Which theory should be applied ?

According to Van Hamel and Simons : It depending on the nature and characteristic of the particular case to be handled According to Hazewinkel-Suringa, Zevenbergen, and Noyon-Langemejer : Should apply 3 theories by teleologis manner
Periksa buku Utrecht hal 239

Surabaya Semarang Cirebon ---- the food poisoned --> ----the food eaten by the victim ---> the victim died the ilustration of meervoudige locus delicti

According to Plural of time Theory (Meervoudige locus delicti) The judge is independent to apply one of the three locus delicti theories

The exception of the principles of the criminal law application

Article 9 of the Indonesian penal code : Public international law provide limitations of the application of articles 2,3,4,5, 7, and 8 of the Indonesian penal code These parties are granted imunity right of criminal law by virtue of Wina convension 18/4/1961 : 1) head os states & their families ( official visit, non in transit or incognito) 2) ambasadors and their families --> with regard to consul is depend on the prevailing inter-state tractat (agreement) 3) Army personnel in military ship or flight 4) Army personnel of foreign countries which accepted by state