Scope of Application

 

• Applicability Based on Time
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Law No. 1/2023 is fundamentally based on the affirmation of the Principle of Legality in Article 1. Here, Indonesian Criminal Law upholds the principle that no act can be punished unless there is a legal provision that regulates it beforehand. Law No. 1/2023 also explicitly prohibits the use of analogy in determining criminal acts, in order to guarantee strict legal certainty (lex stricta). 
 

Law No. 1/2023 stipulates that criminal law does not apply retroactively. However, if there is a change in regulation after an act has been committed, the new regulation shall apply. Nevertheless, if the previous regulation is more favorable to the offender, then the previous regulation shall prevail. This demonstrates that Indonesian criminal law also prioritizes humanity and fairness for the accused. Furthermore, if an act is no longer considered a criminal offense under the new regulation, then all legal proceedings or enforcement of punishment must be immediately terminated. 
 

• Applicability Based on Location
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Law No. 1/2023 regulates the applicability of Indonesian criminal law based on place (locus delicti) through various sources of enforcement, namely:
 

• Territorial Principle

Anyone whether an Indonesian citizen or a foreigner who commits a criminal act within Indonesian territory, on a ship, or on an aircraft bearing the Indonesian flag, is subject to our law. Even cybercrimes whose impact is felt in Indonesia are now explicitly included under this jurisdiction.

 

• Passive Nationality Principle

Indonesian law can pursue perpetrators of crimes committed abroad if such acts threaten national interests (such as state security or currency).

 

• Active Nationality Principle
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Indonesian criminal law also applies to offenders who are Indonesian citizens (WNI) committing crimes in another country, provided that the act is also considered a crime in that country.

 

• Universal Principle
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Indonesia is committed to prosecuting international crimes that violate humanity, in line with international treaties that have been ratified.

 

Criminal Acts and Criminal Liability

 

Law No. 1/2023 defines a criminal offense as an act either an omission or commission that is prohibited by law and subject to criminal penalties and/or measures. The fundamental characteristic of a criminal offense is its unlawfulness (wederrechtelijkheid). An act is deemed inherently unlawful unless there is a "justification" (rechtvaardigingsgrond) that negates its illegal nature.

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The scope of criminal liability extends across various stages of commission:

1. Conspiracy: Occurs when two or more persons agree to commit a crime. It is punishable only if stipulated by law, with a maximum penalty reduction of one-third of the principal sentence.

2. Preparation: Involves obtaining means, gathering information, or devising plans to facilitate a crime. Preparation is only punishable for serious crimes as determined by law.

3. Attempt: Recognized when there is an inception of execution driven by intent, but the act is not completed due to circumstances independent of the perpetrator’s will.

4. Participation/Complicity: This covers principals (those who commit the act), intellectual perpetrators (those who order the act), co-perpetrators, and those who incite the act through threats, promises, or abuse of authority.

5. Recidivism: Occurs when an individual repeats a criminal offense within five years of serving a prior sentence, typically serving as a ground for increased penalties.

 

Under Law No. 1/2023, criminal liability is predicated on the principle of culpability (mens rea). Articles 36 and 37 establish that liability arises from intent (dolus) or negligence (culpa), though the law permits "strict liability" or "vicarious liability" in specific statutory cases.

 

The Code provides comprehensive Excusatory Reasons (verschoninggronden) that preclude or mitigate liability:

 

1. Mental Capacity: Perpetrators with mental or intellectual disabilities may have their sentences reduced or be subject to "measures" (medical treatment) rather than punishment. In cases of acute psychotic episodes, the individual cannot be held criminally liable.

2. Age of Responsibility: Children under the age of 12 years are deemed incapable of criminal liability and are instead returned to parents or placed in social rehabilitation.

3. Duress/Overmacht: Liability is excluded if the act was committed under an irresistible external force or pressure.

4. Excessive Self-Defense/Noodweer Exces: An individual is not liable if they exceed the limits of necessary defense due to severe mental agitation caused by an immediate attack.

5. Unauthorized Official Orders: A subordinate is excused if they executed an order from an unauthorized superior in good faith, believing the order was legitimate and within their professional scope.

 

Criminal Sentence

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Law No. 1/2023 divides criminal sentence into: (a) principal sentence, (b) additional sentence, and (c) special sentence for certain crimes stipulated under the law.

 

The principal sentence shall be determined by the severity of the crime committed. The principal sentence consists of: (a) imprisonment, (b) custody, (c) criminal supervision, (d) criminal fines, and (e) community services.

 

Additional sentence may be imposed if the imposition of the principal sentence is not sufficient to achieve the purpose of sentencing. Additional sentence consists of: (a) revocation of certain rights, (b) confiscation of certain goods and/or invoices, (c) announcement of the judge’s decision, (d) payment of compensation, (e) revocation of certain licenses and (f) fulfillment of local customary obligations.

 

Special sentence is the capital punishment which is always threatened as an alternative sentence.

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Corporate Criminal Acts

 

One of the most significant reforms in Law No. 1/2023 is the comprehensive codification of corporations as subjects of criminal law. Previously, regulations on corporations were scattered across various special laws, but Art. 46 to 50 now provides a strong general foundation on how a business entity can be held accountable before the law.

 

Law No. 1/2023 affirms that a corporation is a legitimate subject of criminal acts. Its scope is very broad, covering legal entities (such as limited liability companies, foundations, cooperatives) as well as non-legal entities (such as partnerships or limited partnerships). A corporate crime is defined as an act committed by an executive with a functional position, or by a person working under an employment relationship or other relationship, acting for and on behalf of the corporation.

 

Law No. 1/2023 introduces an important breakthrough: A corporation can be held liable even if the physical perpetrator (individual) who committed the act is not identified, not prosecuted, or not convicted. This breaks the dependency of corporate liability on individual criminal liability, which has long been an obstacle in law enforcement for cases such as corruption or money laundering.

 

Through Law No. 1/2023 adopts a more modern doctrine in determining who “represents” the mind of the corporation. Criminal liability can be imposed on:

1. The corporation itself;

2. Executives with functional positions; and/or

3. Corporate controllers (Beneficial Owner/Effective Controller), namely those who, although not formally listed as executives, have actual power to direct policies or exercise control over the corporation.

 

Law No. 1/2023 sets the parameters for when an individual’s act is “attributed” as a corporate act. A criminal act is deemed a corporate crime if:

1. It falls within the scope of the corporation’s business or activities.

2. It provides unlawful benefit to the corporation.

3. It is accepted as corporate policy.

 

Additionally, if the corporation fails to take preventive measures, does not mitigate greater impacts, or does not ensure compliance with applicable laws.

 

Law No. 1/2023 provides an “exit door” or justification for corporations. A corporation will not be punished if it can prove that it has taken adequate preventive measures (due diligence) to prevent the occurrence of a criminal act. This encourages every company in Indonesia to immediately develop and implement compliance standard operating procedures (SOPs), internal audits, and strong codes of ethics. Without a real compliance system, corporations will be highly vulnerable to criminal charges for negligence or illegal acts committed by their employees.

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Summary

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Overall, the fundamental difference between WvS and Law No. 1/2023 is the underlying philosophy. WvS is based on the thought of the Classical School developed in the 18th Century which focused its attention on criminal law on the action or Crime. This Law based itself on the neo-classical school of thoughts that maintain the balance between objective factors (action/external) and subjective factors (person/internal/inner attitude). This school is developed in the 19th century which focused its attention not only on the action or Crime that occurred, but also on the individual aspects of the offenders of the Crime. Another fundamental thought which influenced the drafting of this Law is the development of science on felony Victim (victimology) which was developed after World War II, and which pays great attention to the fair treatment of Victims of felony and abuse of power. The daad-dader strafrecht and victimology philosophies will affect the formulation of 3 (three) main issues in criminal law, namely the formulation of unlawful acts, liability on crime and fault, and punishments (punishment and actions) that can be imposed along with the underlying criminal law principles.

 

This more humane character of daad-dader strafrecht systemically characterizes Law No. 1/2023, among others, is also expressed and implied by the existence of various arrangements that attempt to maintain a balance between objective elements or factors and subjective elements or factors. This, among others, is reflected in various arrangements on the purpose of sentencing, sentencing requirements, pairing of sanctions in the form of criminal sentence and actions, development of alternatives to the criminal sentence of short-term deprivation of independence, sentencing guidelines or rules, capital punishment which is a special crime and always have imprisonment for life or a maximum of 20 (twenty) years used as its alternative, as well as setting the minimum age for criminal liability, criminal sentence, and action for a Chil.