National Army and Police Officer to the Separatist Group in Papua) UNDERGRADUATE THESIS
This undergraduate thesis is submitted as one of the requirements to obtain the Bachelor degree of Law at Faculty of Law
Universitas Muhammadiyah Yogyakarta
FACULTY OF LAW
UNIVERSITAS MUHAMMADIYAH YOGYAKARTA 2017
Name : Muhammad Safrullah Duwila
Student Number : 20110610096
Faculty : Law
I hereby declare that the thesis under title “THE CONCEPT OF COMPLICITY (DEELNEMING) IN THE CRIMINAL ACT OF TREASON ACCORDING TO INDONESIAN CRIMINAL LAW”, its content is truly my own work and I did not do plagiarism or quotation in ways that are inconsistent
with the prevailing ethic in the scientific community. On this statement, I am
ready to face the risk with any sanctions imposed to me in accordance with
prevailing regulation, if in the future found a violation of scientific ethics, I am
willing to accept the sanctions.
Yogyakarta, January 5th, 2017
Written by
Name : Muhammad Safrullah Duwila
Student Number : 20110610096
Faculty : Law
Major : International Program for Law and Shariah University : Universitas Muhammadiyah Yogyakarta
Yogyakarta, January 5th, 2017
The best revenge is by improving yourself.
(Ali bin AbiThalib RA)
Keep yourShalat, when you lose it, then you will lose the other.
(Umar bin Khattab)
I will find the knowledge just because of Allah, and I will not find it if
besides for Allah.
supports me with everything they had. My beloved mother, Hairiah D. Hanafi,
who always patiently remind me to finished my thesis immediately. Also my
greatest father, M. Muchlis Duwila, who always tried to fulfill all the needs that I
need during my college processed until this thesis completed.
Also I dedicate this thesis for my three beloved sisters, Balqis Safa Chairunnisa
Duwila, Jasmine Dara Safitri Duwila, and the littlest sister, Qory Shadiqa
Qhaisarah Duwila. They are my motivation, and their smiles are my best spirit to
the world and everything in it. As the God who bless and gave His mercy to the
author to complete this thesis by the title “The Concept of Complicity
(Deelneming) in The Criminal Act of Treason according to Indonesian Criminal Law”. This thesis is completed and submitted to fulfill one of the requirements to
achieve the academic degree of Faculty of Law, International Program for Law
and Syariah, Universitas Muhammadiyah Yogyakarta.
In the finishing process of this thesis, I sincerely give my regards and big
thanks for everyone who has given the advice, guidance, aid, and also support.
Firstly, I give my biggest regards to my parents, M. Muchlis Duwila and Hairiah
D. Hanafi, who always supports me in any conditions, and never stop to pray for
my college, especially in motivate me to finish this thesis.
I also give my biggest regards and big thanks to my both great advisor, Mr.
Dr. TrisnoRaharjo, S.H., M.Hum, and Mr.M. EndrioSusila, S.H., MCL, who has
given their best advices and guidance to help me in order to accomplish this
thesis.
And also I do not forget to give the biggest thanks for IPOLS family, the
Director of IPOLS, Mr. Nasrullah, H., S.H., S.Ag., MCL., Mr. EndrioSusila, S.H.,
MCL., Mr. Iwan Satriawan, S.H., MCL., Ph.D., Mr. Yordan Gunawan, S.H.,
Int.MBA., and the other IPOLS lecturer, also big thanks to IPOLS student,
Finally, the author recognized that in the process of finishing this thesis,
certainly there are contents which are not perfect, and enable some errors
occurred. Therefore, the author hopes the readers can give suggestions or advices
to improve its content in order to make this thesis as one of good thesis example.
Yogyakarta, January 5th, 2017
APPROVAL PAGE... ii
CHAPTER II LITERATURE REVIEW... 8
A.Overview of Deelneming...
2. Forms of Treason in Indonesian Penal Code... 36
CHAPTER III RESEARCH METHOD... 41
A.Type of Research………. 41
B.Sources of Data……… 41
Organisasi Papua Merdeka... 44
B. Separatist Movement of OPM as the form of Treason Act that threaten The State integrity... 1. OPM as the Separatist Group... 2. Separatist movement as a form of Criminal Act of Treason………. 46 46 50 C.The relation between “Ammunition selling act by TNI-POLRI personal officer to the separatist group (Organisasi Papua Merdeka)” with “The concept of complicity in a criminal offense” according to Indonesian Penal Code………. 52
D.The suspect's position as the State Apparatus with “The threat of Aggravating Sentence”according to Indonesian Criminal Law……... 57
CHAPTER V CLOSING... 59
A.Conclusion……….. 59
B. Suggestion... 60
them (OPM) in case of orginized their actions to be out from NKRI, especially to
Indonesian Army and Police, also to “non-Papuan” who living in Papua. The main problem in this case is how their (OPM) ammunition needs was always completed. It was proven that one of main problem why their ammunitions were completed is because there are some personal officers of Indonesian Army and Police who were sell the ammunition. At the end of year 2014, Indonesian Police doing arresting towards some personal officers of Indonesian Army and Police who were doing the transaction of ammunition selling directly to the separatist group. Those facts creates some questions about the legal position of ammunition selling act to the separatist group according to Indonesian Criminal Law, and the legal consequences toward the suspects who also as the State Apparatus. The methodology used in this research is normative research and using conceptual approach for legal research analysis.This research aims to give more understanding about the legal concequencesupon the act of ammunition selling to the separatist group. Also to be a lesson and special concern for Indonesian State Apparatus including Indonesian Army and Police officer to donot using state’s facilities arbitrarily. The result of this reseach is has two conclusions were conclude that, firstly,the act of ammunition selling committed by personal officer of Indonesian Army and Police is qualified as a form of “Complicity in a Criminal
Act”, and secondly, the suspects whose are also state apparatus can be imposed additional sentence; that is Aggravating Sentence. From this case, thegovernmentshould investigate deeply about the practice of ammunition trading committed by personal officers of Indonesian Army and Police,and processing the law enforcement immediately and completely in accordance with the Criminal Law that applicable in Indonesia.
KEYWORD: Ammunition Selling Act, Ammunition Trading, Concept of
CHAPTER I INTRODUCTION
A. Background
Today, the situation in Papua is getting scary for everyone living there,
especially for the outsiders who reside and work in Papua. In the period of
last eight years the shootings often occurred in the areas which are rich in
natural resources, especially in the mountainous areas such as at the district of
Lanny Jaya and Puncak Jaya.
The actions of armed separatist group have occurred since August 2008.
As we know that those cases included flag rising, armed attack on the police
post and ambushed a police patrol. Since the beginning of January 2009, there
have been seven cases of attacks allegedly committed by the papua separatist
group known as Organisasi Papua Merdeka (OPM)1 in Tingginambut region, Puncak Jaya, against the police station, as well as the military post. The last
incident is a blocking action against the head of Brimob2 corps group when they were supervises that area. In that incident, two officers of Brimob corps were dead. Then, in July 2009, for example, the media reported that there
OPM is the name of separatist group in Papua.
2
Brimob is the name of special corps in Indonesian Police.
3Fathoni Hakim, “Perjanjian keamanan”,
people were killed consisting of two employees of PT. Freeport and a Police
becoming the part of Indonesia. Lambert action was successful, until he was
pulling down the flag and runaway into the forest.4
The movement of armed groups that was suspected as OPM also
extended to Serui areas, and also Yapen Waropen, the areas which were
considered as the basis of NKRI supporters. Today it is estimated that there
are armed groups that take action in Serui region with enough weapons. They
have mortars and grenades. OPM in Serui area has power equal to Serui
Police Patrol. In a moment, the police confiscate several evidences from this
group, like four long barreled weapons, one pistol, eight rounds of SS1
weapon ammunition, three rounds of LE ammunition, three rounds of moser
ammunition, and two rounds of revolver ammunition.5
Also the shooting on January 28th, 2011, that killed Sukarno, an officer of Brimob corps of Papua Local Police (Kepolisian Daerah Papua), and the offender robbed the arsenal weapon from the victim. And then, the shooting
on October 24th, 2011 which killed two Brimob corps officers of POLRI and a
4
Ibid
5
Brimob corps officer of Papua Local Police, and then an attack to the Police Station in Pirime District on January 28th 2012 which killed three officers of Pirime Police Sector, also confiscation of guns on March 8th 2012 which killed Laode Alwi as a personnel of TNI 753/Avt Pos Ilu.6
In 2014, several attacks occurred including an attack against patrol
police in Nugume Village at Pirime District on July 28th 2014 which caused eight police officers were shot and two of them died and also eight guns
seized. Then on August 1st 2014, there was an attack to an officer of Battalion 756, Rois, at the corner of airport in Pirime district, and also other cases such
as an attack against the group of Lanny Jaya Regency Secretary, Christian
Sohilait, in Wuringgame village, Jiwili district, which resulted an officer
Brimob Corps who are doing escort, Sukardi got a bullet splinters.7
Almost every month, there are shooting cases which are committed by
this Papua separatist group, or Indonesian Police called as Armed Criminal
Group (Kelompok Kriminal Bersenjata), and often people die because of them.
The latest case which hit the security forces occurred on January 1st 2015 at Utikini village at Mimika District, Papua Province. Armed Criminal
Group (KKB) led by Ayub Waker killed two Brimob Corps officers, namely Riyan Hariansyah (22) and M Adpriadi (22). They were killed and died after
6Liputan6, “Duo Rambo Penembak Polisi di Papua ditangkap”,
http://news.liputan6.com/read/2124824/duo-rambo-penembak-polisi-di-papua-ditangkap, accessed on 4th April, 2015 at 8.25 pm.
7Regional Kompas, “Polda Papua Tangkap 2 Pelaku Penembak Aparat di Lanny Jaya”,
being shot. At that time, a security official of PT. Freeport Indonesia, Suko Miartono (34) also died horribly because of gunshot and jab wounds on his
body.8
Shooting cases until the victim were killed was not disappear yet from
the people memories, now more shootings committed by armed criminal
groups (KKB) appear. The offender shot two civilians in Popome District,
Lanny Jaya regency, Papua Province, Thursday (29/1) at around 07.30 am,
until they had to get the intensive treatment at Tiom Hospital, and they were
referred to the Hospital in Wamena, Papua. The head of Papua Police Region
spokesman, Patrige Renwarin said, besides shooting the two civilians, that
armed group also burned the excavator. The second victim of shooting is
Gurik Murip (25). He suffered a gunshot in the right arm. Other victim is
Markus (26), an employee of PT. Nirvana.9
It has widely been recognized that OPM is responsible for all attacks.
Free Papua Organization was established in 1965 aiming of help and carrying
out the overthrow of the current government stands in the provinces of Papua
and West Papua, formerly called Irian Jaya, to be free and removed from
Indonesia, and rejecting economic development and modernity.10
8
Antara News, “Oknum TNI Jual Amunisi”, https://antaranews.com/2015/01/29/oknum-tni-jual-amunisi-nyawa-semakin-mudah-melayang, accessed on April 10th, 2015 10.10 pm.
9 Ibid.
10
Gunawan, “OPM Sebuah Pemberontakan”, published on July 3rd, 2014,
The Free Papua Organization group often made attacks to the security
forces (Indonesian Army and Police) and civil societies who support
Indonesia Government.
Regardless of any reasons that underlying their actions, the OPM’s
actions are openly against the government and also disrupt the government in
the regencies/cities in Papua. Therefore, the acts which committed by that
group can be categorized as a form of separatism or rebellion that exactly
violates the Indonesian Penal Code. But, there are some things that should be
questioned about the existence of that group (OPM) who until today always
create discomfort situations in the community with the attacks that they were
committed to the security forces, government officials, and civil society. The
shootings that occurred every month makes us wonder, where they get the
weapon and ammunition they use in running their attacks from, and why the
availability of their ammunition is abundant during armed conflict with
Indonesian Army or Police.
B. Problem Statement
From the explanations above, the problem has been formulated as
follows:
1. What is the legal position of ammunition selling act to the separatist
group according to Indonesian Criminal Law?
2. Can the punishment be aggravated upon the ammunition selling act
C. Objective of Research
The intents and purposes of this research are:
1. To clarify the legal position and legal consequences upon the act of
ammunition selling to the separatist group.
2. To be a lesson and special concern for Indonesian State Apparatus
including Indonesian Army and Police officer to do not using state’s
facility arbitrarily.
D. Benefit of Research
1. Theoretically
This research will give at least a clear description and also be a
reference to everyone especially for the law students who want to
know the legal position and the legal consequences upon the similar
cases with the ammunition selling case toward the separatist group.
2. Practically
This research will give an insight/understanding to the officer of
Indonesian National Army and Police in order to know clearly about
the sentence consequences if they abused the equipment/facility
belonging to the state, which of course Indonesian National Army and
Police officer may use weapons facilities provided by the state to carry
out its duties and functions as well as possible in accordance with what
has mandated by the 1945 Indonesian Constitution, and the other
so that society can also indirectly play a role in overseeing or supervise
the works of Indonesian Army and Police officer who served in the
CHAPTER II LITERATURE REVIEW
A. OVERVIEW OF DEELNEMING
1. Deelneming Terminology
Translation of the term "deelneming" according to scholars’ views
shows that there is no conformity in using deelneming terminology. Satochid Kertanegara for example, uses the term deelneming as "participating", Schravendijk as "complicity", Tresna: "involving", Karni: "taking part", Utrecht "participate", Wirjono Prodjodikoro: "participant", while Moeljatno: "complicity". The absence of similar view to the use of the term "deelneming" is a consequence of the absence of official translation by the maker of Indonesian Penal Code. Similarly,
Indonesian Penal Code does not formulate a definition of "deelneming or
complicity”.11
In this deelneming studies, it is determined about the conditions set forth in the Indonesian Penal Code, which must be fulfilled so that the
accomplice of the criminal or the participants of the criminal can be
imprisoned. If in a criminal case, few people are considered to be
involved, the responsibility of each criminal participant will not be the
same, but will vary, depending on the relation of the criminal case. For
example, there is a criminal act committed by several people together, so
that the relationship between them and the events are the same, but there
11
are also cases where a person committed a crime, while others only help,
or there is someone who plan to commit a criminal act simply by asking
someone else to do it, or etc. Thus it is understandable that every
relationship in criminal act is not always the same. Therefore, the
criminal liability of each participant of criminal act is not always the
same in determining the liability of each person who is a participant in a
criminal act committed. In other words, the rules on deelneming will only be used if there is more than one person who committing the crime.12
In doctrine, deelneming can be divided into two groups, namely:13 a. Stand independently (zelfstandige deelneming) in which each
participant was asked to be responsible for their own action
b. Those who does not stand independently (onzelfstandig deelneming or accessoire deelneming), where the responsibility of the participants are depend on the other participants.
In the past, the deelneming studies was not so important, because criminal law at the time did not question who should be convicted, what
is important for the society is the "compensation" or "punishment" itself.
Roman penal law was the first to pay attention. It can be seen from the
term "minister" besides "actor", each of which can be imprisoned.14
12
Ibid
13
Ibid, page. 119
14
Furthermore, deelneming studies originally an idea of Von Veurbach. He divides the "participants" in two parts:15
a. Those who immediately tried to commit crime which is referred as
"Auctores" or "Urheber".
b. Those who only help the act of crime mentioned in point (1) above
and referred as "Gehilfe".
2. Definition of Deelneming
Incident or criminal act, or better known a criminal offence in certain
things can be done by everyone and at the same time or other times can
also be done by several people simultaneously. In other words, a criminal
action can be done by several persons involved in the commission of that
act of crime. Some people who commit this criminal act, commonly
known as complicity or deelneming.16
Deelneming is an important issue in criminal law, particularly regarding to the severity of the criminal liability of each person against a
criminal act. The position of each person involved in a criminal offense is
not always the same, so that the severity of criminal liability is not the
same either. In deelneming case, maybe there is only one or more persons who shall be burdened full criminal liability, while other people are only
partially burdened by the criminal liability.17
15
Ibid
16
Rasyid Ariman, Fahmi Raghib, 2015, Op.Cit., page. 117.
17
This deelneming issue is essentially to determine the criminal liability of each person against a criminal act, so it must be able to prove
the relationship of each person involved in the criminal act in, as
follows:18
a. Some people jointly commit a criminal offence;
b. Perhaps only one man who has the will and plan the criminal
offence, but the action is not done alone, yet he uses other people to
carry out such crime;
c. It can also occur when there is only one person who committed the
crime, while the others assist the person in carrying out the crime.
Deelneming by its nature, the science of criminal law or doctrine distinguishes kinds of deelneming which are divided into two groups, as follows:19
a. Deelneming which stand independently, namely the responsibility of each participant valued separately;
b. Deelneming that does not stand independently (acceeoire deelneming), namely the liability of participants those are hung on the actions of other participants. It means, if other participants
performed a deed that punishable, the other participants can also be
punished.
18
Ibid
19
To get an idea of what is meant by deelneming and its relationship to the Indonesian Penal Code today, it is necessary to look at the provisions
set out in Section 55 and 56 of the Indonesian Penal Code as follows:20 a. Section 55 of the Indonesian Penal Code state:
1) Sentenced as the offender of criminal offence:
a) Those who perpetrate, cause others to perpetrate, or take a
direct part in the execution of the act.
b) Those who intentionally provoke the execution of the act by
gifts, promises, abuse of power or of respect, force, threat or
deception or by providing an opportunity, means or
information.
2) In respect to the provoker only those acts which have been
deliberately provoked and their consequences shall be
considered.
b. Section 56 of the Indonesian Penal Code state:
1) As an accomplices to a crime shall be punished:
a) Those who intentionally gave assistance at the time the
crime was committed;
b) Those who intentionally provide the opportunity, means or
information to commit a crime.
Under the provisions outlined in Section 55 and Section 56 of the
Indonesian Penal Code, what is called criminal liability in Section 56 of
20
the Indonesian Penal Code, what is known as the person who is liable for
the act of crime is detailed into five types, as follows:21 a. People who commit (pleger or dader);
b. People who told to commit (doenpleger); c. People who participate to commit (medepleger); d. People who advise others to commit (uitlokker); e. The people who assist to commit (medeplichters).
Thus, the provisions elaborated in section 55 and section 56 of the
Indonesian Penal Code does not differentiate deelneming according to its nature, but only holds details on two things, as follows:22
a. Offenders (dader or pleger);
b. Participations or complicity (deelneming), which consists of four types of offender, namely: doenpleger, medepleger, and uitlokker.
3. Forms of Deelneming
The forms of deelneming or participation (complicity) existing under
the criminal provisions of Section 55 and 56 of the Indonesian Penal
Code are:
a. Doen Plegen (Telling to Commit)
Doenplegen is a form of deelneming the first under section 55 of the Indonesian Penal Code, the person who orders others to commit
criminal acts. In this case, it is required that there are minimum two
21
Ibid, page. 250.
22
persons, namely those who ordered (manusi domina) and others who are told to commit (manusi ministra). So, doenpleger is criminally liable of a crime, but the person does not commit the criminal act
himself but rather use the mediation of others.23
In the criminal jurisprudence, the issue of doenpleger is called as middelijke daderschap doctrine, which is a criminal act that uses the mediation or indirect criminal acts. In this case pleger or dader,
who has the will but not the main perpetrator, because he himself
However, to determine a person as doenpleger, it must meet the conditions so that he can be sentenced, that is, those who are told to
commit a criminal act should be people who could not be criminally
liable, therefore could not be sentenced. If the person who is told to
some circumstances so that he is considered to be unable to
criminally liable, it can be explained as follows:25
1) A person who is asked to commit a crime has a state of the soul
as determined in section 44 of the Indonesian Penal Code,
namely the growth of mental disability or impaired due to
illness.
2) A person who is asked to commit a crime does not mean to
commit or it is caused by a force, and the person has no power
to avoid (overmatch), as it is referred in section 48 of the
Indonesian Penal Code, namely a person who acts under the
influence of forced power, and it is not convicted.
3) A person who is asked to commit a crime has no place or quality
(hoedeningheid en qualitet) as required in section 50 of the Indonesian Penal Code.
4) A person who runs an invalid state command, position, or task
(onbevoegd gegeven ambtelijk bevel) as required in section 51 paragraph (2) of the Indonesian Penal Code, as follows:
a) The order is executed in good faith (ter goeder trouw) and assumes that the order was a lawful command that must be
implemented;
b) Unauthorized commands must be implemented within the
working or power circles.
25
5) A person who is asked to commit a criminal act that could not
be blamed for misunderstandings or errors of one of the
elements of the crime.
6) A person who is asked to commit a criminal act could not be
blamed for not having the element of intent (oogmerk)..
It is noteworthy, for the existence of doenpleger, it does not have that a dader send or give orders directly to the people who are told to commit a criminal action or materiel dader (main perpetrator), but the order can also be granted through the
intercession of others.26
Departing from the above description, it should be reiterated that
when a crime is doenplegen within the meaning of Section 55 paragraph (1) of the Indonesian Penal Code where several things are
required, as follows:27
1) The person who commands (manus domina) or middelijke dader, namely someone who has the will to a criminal act, but to carry out his will he ordered others to commit the crime (manus ministra). In other words, a person who committed the crime does not have to commit the crime himself, but he can use the
mediation of others (manus ministra) or other means of
26
Ibid, page. 257.
27
mediation. Therefore, he is as the one who take the criminal
liability of a crime which is committed.
2) Manus ministra or people who are told to commit a criminal act are required to be a person who could not be criminally
accountable; therefore he is not sentenced or could not be
criminally liable.
b. Medeplegen (Participating)
Medeplegen, a form of deelneming, where there is someone or more people who participate to commit a criminal act committed by
the perpetrator. If someone wants a criminal act and to manifest his
will, he sent someone else to commit it, then the people who tell
others to commit a criminal act is referred as doenpleger. While a criminal offense in a state of medeplegen, each person is directly involved as participants of criminal act, so that each person is seen as
mededader of other participants or those who participate commit a crime.28
This medeplegen form is to show that each participant has the same position or the same degree. According to Van Hattum, it
means looking the action and degree as the same. According to Van
Hattum looking at the deeds in section 55 of the Indonesian Penal
Code should be interpreted as an opzettelijk medeplegen or intentional action for participating in a criminal offense committed
28
by another person. It means that intentionality to deliberately
participating in a culpoos delict can be punished, and the other way around, unintentionally for participating in a culpoos delict can’t be
punished.29
If it is observed, the formulation of section 55 of the Indonesian
Penal Code is not clear what is actually called medepleger. Even in practice, the element of intent is not enough to call that in a criminal
offense is medeplegen. Therefore, in the science of criminal law determines the conditions in which a criminal offense is medeplegen
or not.
The terms in which a criminal offense is medeplegen as determined by the science of criminal law, as follows:30
1) The existence of a few or more people who jointly committed a
criminal act with the power of his own body;
2) The presence of consciousness to cooperate among the
participants to commit a crime.
What is meant by consciousness in medepleger is usually when some of the participants before committing a crime in advance
previously discuss the agreement to commit a crime. The words "in
quite aware or "realized to work together" when committing a
crime.31
c. Uitlokking
A deelneming is called uitlokking if a criminal action committed by perpetrators who deliberately driven or persuaded by others.
People who deliberately drive the others in case of deelneming called
uitlokker, and the perpetrators are required to be someone who could be accounted for. Someone uitlokker in case deelneming includes people who can be criminally liable on persuasion or advise others to
commit a crime.32
The involvement of other people as the perpetrators in the case
of uitlokking have in common with other people involvement in the case of doenplegen (tell others to commit a crime). So, between
uitlokking with doenplegen equally involving other people as perpetrators or serve as the mediation to achieve an act of crime,
while the uitlokker and the doenpleger does not commit itself to an act of crime that is desired. Another similarity, both the uitlokker and the doenpleger can be equally burdened criminal liability of a crime committed by the perpetrators.33
The difference, others who were persuaded to commit a criminal
action in uitlokking should be someone who can be held as liable for
his actions (toerekenbaar). While others who committed a crime in
doenplegen should be someone who can’t be accounted for his action (niettorekenbaar). In addition, methods used between
uitlokking and doenplegen are also different, which means that case used in uitlokking has been determined in a limited way, specified in the legislation, while in the case of doenplegen is not determined by law.34
In practice, there are many terms used to describe people who
persuade others to commit an act of crime of which, namely: an agent provocateur, de uitlokker, auctor intelectualis or int-uitlokking, it is necessary to distinguish between persuading and agitating to commiting a crime.35
Where a criminal offense is the uitlokking (persuading) as defined in Section 55 paragraph (1) point 2 must meet the following
requirements:36
1) There must be a person who deliberately persuades (motivates)
another person to commit a crime;
2) Intentionality to motivate others has to be done with the efforts
that have been determined in a limited manner in section 55
paragraph (1) 2nd Indonesian Penal Code;
3) The efforts of persuading must consist of other people who are
4) People who are persuaded must have committed a crime as
desired by the persuader.
The terms described above in accordance with Section 55
paragraph (1) 2, which explains that:
"Those who give or promise anything to the abuse of power or dignity, by force, threat, or deception, or by providing the opportunity, means, or information, intentionally counts the opportunity, means or information, intentionally encourages
others to do the deed”.37
Ways to persuade are determined in a limitatief way. According to the Dutch Minister of Justice, Moldderman, the nature of limitatief
is for legal certainty. Thus it can be avoided if there is a person who
is easily claimed to be persuaded by other people. But the other way
around, it brings loss, namely several cunning ways which do not
exist in the list of Section 55 to persuade as mocking or pretending to
give advice, and so on, are not valid.38
The kinds of efforts are:39
1) Gift (giften)
This is not only money, but goods, or facilities as well.
2) Promise (beloften)
37
Indonesian Penal Code, section 55 article (1).
38
Rasyid Ariman, Fahmi Raghib, Op.Cit., page. 134.
39
Promise encompasses all things that generate confidence in
those who are induced and will benefit him, even if the belief
was not based on strong reasons and convincing. Promise can be
in a form of money, goods, work, rank, and so on.
3) Misuse of authority (misbruik van gezag)
Power (gezag) must have someone towards another person.
Gezag includes: power of parents toward their children, employers toward their workers, or teachers toward students.
Misuse of power means the use of power in the wrong way or
exceeded the limit.
4) Misuse of glory, dignity, or honor (misbruik van aanzien), in German: (Misbrauch des Assehens).
This kind of effort is not included in the Dutch Penal Code. This
is specifically feudalistic Indonesia. Examples: Kyai-kyai
(chaplain), chiefs of the tribes, chiefs of the village, and so on, is
very influential in Indonesian because they are considered noble.
5) Violence (geweld)
Violence can be done by using human power or with tools. Only
violence should not be so severe that cause overmacht. 6) Intimidation (bedreiging)
If power is a form of physical coercion, threat can be said as
that can raise dangerous feelings above someone. Concerning
the terms, it is the same with the terms of powers (gewel) above. 7) Deception (misleiding)
Giving wrong description of a situation that raises the person is
who persuaded the motive for committing crime.
8) Provide opportunities (gelegenheid), tools (middelen) or information (inlichtingen), for example:
a) Provide opportunities, for example, a maid who did not lock
the door of the master's house at night, so that other people
can get into the house;
b) Provide mediation, for example, lending a gun to someone
else who wants to kill his friend;
c) Provide information, for example, a bank employee
provides the secret code to open the safe-deposit box to a
thief.
Those are 8 ways to persuade. Those ways are called limitatief
in the Indonesian Penal Code, which means can’t be added.
d. Medeplichtigheid
as medeschuldig or liable, while the people who help or who serve as aide of a criminal offense are called as medeplichters.40
What is a medeplichtigheid? To know the sense
medeplichtigheid, note Simons opinion, as follows:41
"Medeplichtigheid is a onzelfstandige deelneming (a participation) that does not stand alone, that is to say whether or not medeplictig is sentenced depends on the fact whether the dader has committed a criminal act or not."
According to the definition of medeplichtigheid which Simons has given above, it means that in medeplichtigheid one can be blamed and punished who do not stand independently but rather
depends on the fact to the act of crime committed by the perpetrator.
Thus, whether a person can be blamed and punished or not, will
depend on the fact whether the main perpetrator committed a
criminal act or not. Basically, the role of the medeplichters in
medeplichtigheid is to facilitate the realization of a criminal offense committed by the perpetrator either before or at the time the criminal
act was committed.42
When observed, the formulation of section 56 of the Indonesian
Penal Code, what is called as accomplice of criminal acts can be
divided into two types, it can be seen as follows:43
1) Someone who intentionally provide assistance when the
criminal act are committed;
2) Someone who intentionally provide the opportunity, means or
information to commit a crime.
The requirements that must be met if a person can be considered
to give assistance or help at the time the act of crime are committed,
is elaborated as follows:44
1) Someone must have the element of intent (opzet), which means the person help the act of crime intentionally.
2) The assistance which is given must be done at the time the
criminal act is committed by another person;
3) Forms of assistance can be given in any condition that is both
material and morality.
The requirements that must be met if a person can be considered
to give opportunity, means or information at the time the act of crime
are committed, is elaborated as follows:45
1) Someone must have the element of intent (opzet), which means the person help the act of crime intentionally.
2) The assistance which is given must be done before the criminal
act is committed by another person;
3) Forms of assistance provided in the form of: opportunity
(gelegenheid), means (middelen) or information (inlichtingen).
44
Ibid, page. 272.
45
From the requirement that must be met by each type of the
accomplice of criminal acts mentioned above, it can be seen also
differences, as follows:46
1) The criminal accomplice at the time the crime is committed, as
follows;
a) Assistance is provided at the time the crime was committed;
b) Forms of assistance provided are not determined in limited
manner prescribed by the Indonesian Penal Code and the
assistance which is provided can be anything, both material
and moral assistance.
2) A person who intentionally provides the opportunity, means or
information to commit a crime.
a) Assistance which is provided before the crime is
committed;
b) Forms of assistance provided in a limited manner prescribed
by the Indonesian Penal Code in the form: opportunity
(gelegenheid), means (middelen) or information (inlictingen).
It should be noted, that a criminal act in a state of
medeplichtigheid intended section 56 of the Indonesian Penal Code required the element opzettelijk. However, there is another view which states that a medeplichtigheid criminal act is not covered by
46
opzettelijk element. To get an idea of whether or not there is
opzettelijk element, the following provisions of section 86 of the Indonesian Penal Code is cited below, as it stated:47
"If a crime, both in terms of crime in general and in terms of a particular crime, include assistance and attempt, unless being specified otherwise by the rule."
According to the provisions of section 86 of the Indonesian
Penal Code mentioned above, it seems that the provision of what is
meant by crime is including assistance (medeplichtigheid) and attempt (poging), unless being specified otherwise by the rule. Therefore, it is necessary to know in advance what is intended in the
formulation of Section 86 of the Indonesian Penal Code. According
to Satochid Kartanegara, that what is meant by section 86 of the
Indonesian Penal Code are all of the conditions which is prescribed
by the Indonesian Penal Code for the crime, also are applied to
"assistance" and "poging/attempt" for evil deeds. However, it is not the intention of the Indonesian Penal Code to consider
medeplichtigheid and poging as similar matter in case of crime
(misdrijf), but only the conditions prescribed for the types of certain act of crime; it shall also apply to both forms.48
medeplichetrs act can’t be separated from the main perpetrator acts
or dader. So, according to section 56 of the Indonesian Penal Code
and is connected with the provisions of section 86 of the Indonesian
Penal Code, then the medeplichters with its dader, it is required to have the element of opzettelijk.49
What is meant by the conditions to the existence of the
opzettelijk element for medeplichters and its dader, can be elaborated as follows:50
1) The element of opzet for the criminal accomplice (medeplichters), is an intentionality which is done by someone to provide assistance to others who committed a crime, whether
the aid was given at the time of a criminal act is committed or
before a criminal act is committed. If the aid was merely a
coincidence and the fact that the accomplice did not know that
he has given an aid, means, or information to others to commit a
crime, then he is not punishable. Forms of assistance should be
done at the time of a criminal act was committed, or before a
criminal act is committed, because if assistance was granted
after the completion of a criminal act, it will have the different
meaning and purpose, for example, that person is called to abet
(Section 221 of the Indonesian Penal Code) or as buyer (Section
2) The element of opzet for a person, who committed a crime, means that the opzettelijk elements which are required must come from a dader or a person who committed a crime. If
opzettelijk element comes from a medeplichters, then that person is not as medepplicters, but as uitlokker or persuader towards others to commit a crime. As it has been explained above, that
element of opzettelijk for medeplichters is intented to assist the existence of a criminal act committed by the dader.
The burden of a criminal threat that should be charged to
medeplichters has been outlined in section 57 of the Indonesian Penal Code, which stated:51
1) In terms of assistance, the maximum of principal punishment of
the crime will be reduced one-third.
2) If a crime is punishable by death or lifetime imprisonment, it is
imposed a maximum imprisonment of fifteen years.
3) Additional penalty for the assistance is the same as the crime
itself.
4) In determining the punishment for the accomplice, who
accounted for the acts which is intentionally made easy by it,
along with its consequences.
As it is well known that medeplichtigheid is a form of
deelneming that does not stand independently. It means the action of
51
a medeplichters is associated with deeds committed by the culprit. The definition of medeplichtigheid is meant as the act of a person who gives assistance or help with the effort defined in section 56 of
the Indonesian Penal Code, so the person who helped
(medeplichters) has contributed to be criminally liable. This criminal threats is not heavy as the criminal penalty that imposed to the main
perpetrators (dader), as it has been outlined in section 57 of the Indonesian Penal Code mentioned above.52
The criminal responsibility by a medeplichters basically the same as the criminal responsibility by a uitlokker, which is not only limited to his actions, but also the consequences of the acts
committed by the culprit. The difference lies in the magnitude of
criminal threats between medeplichters with uitlokker. So in medeplichtigheid, there are provisions that restrict and expand
criminal liability as defined in section 57 paragraph (4) of the
Indonesian Penal Code.53
As what is meant as the criminal liability is restricted and
expanded as it is explained in the following elaboration:54
endeavor as determined in a limited manner in section 56 of the
Indonesian Penal Code. The initiative has been accepted by the
culprit and used to commit a crime.
2) The criminal liability for medeplichters is not only in the action to provide assistance to perpetrators of criminal acts, but
medeplichters is also accountable for the consequences arising due to such assistance.
e. The Relation of Deelneming to Section 58 of the Indonesian Penal
Code.
Some people involved in the case of deelnemingcan’t always be subject to criminal liability due to personal circumstances
(persoonilijk omstamdigheden), both personal circumstances inside a
medeplichters and personal circumstances of a culprit (dader). Personal circumstances meant here are the circumstances within a
medeplichters and a dader as a reason that can remove, reduce, or aggravate the criminal punishment.55 The issue about personal circumstances that may remove, reduce, or burdensome penalty as
outlined in section 58 of the Indonesian Penal Code, which stated:56
Under the provisions outlined in section 58 of the Indonesian
Penal Code mentioned above, in deelneming three types of personal circumstances are known, it is elaborated as follows:57
1) Personal Circumstances which Deleting A Sentence
General provisions in the Indonesian Penal Code Chapter I
provide several reasons why a person who is accused of being a
perpetrator of a crime, can’t be imposed the sentence as
follows:58
a) Insanity/incapability (Section 44 of the Indonesian Penal
Code);
b) Minority (Section 45 of the Indonesian Penal Code);
c) Overmatch (Section 48 of the Indonesian Penal Code); d) Noodweer excess (Section 49 of the Indonesian Penal
Code);
e) Law Commands (Section 50 of the Indonesian Penal Code);
and
f) Authority Commands (Section 51 of the Indonesian Penal
Code).
2) Personal Circumstances which Decreasing A Sentence
57
Ibid
58
Personal circumstances that allow criminal punishment
threats to be reduced, such as criminal act which is outlined in
Section 308 of the Penal Code, which stated:59
"If a mother because of fearing the birth of her baby to be known about, shortly after giving birth, she places her child to be discovered or leave the baby with the intention to break away from the baby, then the maximum punishment under section 305 and 306 cut in a half."
Personal circumstances as stipulated in Section 308 of the
Indonesian Penal Code above are reasons that can reduce the
threat of criminal punishment, where the maximum punishment
that threatened to Section 305 and 306 of the Penal Code is
a) Recidivate or repetition of criminal acts (Section 486 of the
c) Persecution towards father or mother, husband or wife, or
children (Section 356 of the Penal Code).
B. OVERVIEW ABOUT THE CRIME OF TREASON (MAKAR)
1. Definition of Treason (Makar)
Treason is derived from the word "aanslag" (Dutch), which means an attack or "aanval" meaning an attack with the bad intention
(Misdadige Aanranding). According to Indonesian Dictionary (KBBI) and Andi Hamzah Law Dictionary, treason is: deception, deceit, actions
(effort) with the intention to attack/kill people, or act/effort to overthrow
the legitimate government.62
The act of treason is regulated in Section 104 to Section 129 of
Indonesian Penal Code. In other definition, it can also be classified as
crime against the president and vice president, against the legitimate
government or government agencies, to spy for the enemy, resistance to
government employees, rebellion, and other acts that harm the interests
of the state. The act of treason is also often interpreted as an attack
directed at the government (head of state and his deputy). The main
motive is to make the subject is not competent to rule, deprive
independency, overthrow the government, change the system of
government in a way that is not legitimate, undermine the country's
62
Velanti Anggunsuri, “Pemerintahan yang Sah”,
sovereignty to conquer or to separate some of the countries to be
submitted to other government or used as a liberate state.63 So it can be concluded that the rebellion under the Indonesian Penal Code means
"Crimes against State Security”.
What is called as “the act of treason" absolutely needs a beginning of
the action implementation, as referred to Section 53 of Indonesian Penal
Code. In the act of treason, the penal itself is an act of execution as it was
intended in Section 53 paragraph (1) of the Indonesian Penal Code, it is
unlikely that there is an attempt to commit an assault. Required necessity
about the beginning of the implementation of the criminal act of treason,
as it is not enough of an offender, it is not only the preparatory acts thus
it must be embodied in an onset of an execution action.64
The emergence of the act of treason in Indonesia can’t be separated
from any contradictions or social upheavals, law, and even politics in the
country. The reason why someone would do the act of treason could be
caused of many factors, but generally there is a sense of dissatisfaction
with the ongoing power.65
63
Aldp Papua, “68 Tahun Indonesia Merdeka”, http://www.aldp-papua.com/68-tahun-indonesia-merdeka-makar-masih-ada-di-papua, accessed on October 2nd, 2015 at 8.10 pm.
64Law Community, “Delik
-delik Khusus”, https://wonkdermayu.wordpress.com/kuliah-hukum/delik-delik-khusus, accessed on October 1st, 2015 at 9.40 pm.
65
2. Forms of Treason in the Indonesian Penal Code.
The kinds of treason in the Indonesian Penal Code can be grouped
into 3 forms, namely:
government in appropriate way. The punishment is maximum twenty
years imprisonment. The penalty was increased to the death penalty
or imprisonment for life or for twenty years, referred to the president
determination No. 5 of 1959.66
Section 104 Indonesian Penal Code has the following elements:67 1) Subjective elements: met het oogmerk or with intention 2) Objective elements:
a) Aanslag or treason
b) Ondernemen or which is done
c) Om van het leven te beroven or to take the life
d) Om te van de vrijheid beroven or for seizing independence e) Om te maken ongeschikt regeren tot or not able to rule
66
Wirjono Prodjodikoro. 2003, “Tindak-tindak Pidana Tertentu di Indonesia”, Bandung, PT. Refika Aditama.
67
f) Den President or President
g) Den Vice President or Vice President.
b. Treason against Territory of State (Section 106 Indonesian Penal
Code).
Criminal acts of treason committed with intent to bring the part
or the whole country under foreign rules or to separate parts of the
country, by the legislators, have been set in section 106 Indonesian
Penal Code.68 The criminal threat is lifetime imprisonment or temporary imprisonment for the maximum of twenty years.
In this case (the article), what will be protected is the territorial
integrity of the country. No qualification (name) for this criminal
case. But it can be called "rebellion carried out with the intention of
all or part of the country falling into the hands of the enemy or to
separate regions of the country.”69
From the formulation of Section 106 in Indonesian Penal Code,
people can know that the elements of the crime of treason regulated
in Section 106 Indonesian Penal Code are as follows:70 1) Subjective Elements: met het oogmerk or with intention 2) Objective Elements:
Andi Hamzah, 2015, “Delik-Delik Tertentu Di Dalam KUHP”, Jakarta, Sinar Grafika, page. 218.
70
c) Onder vreemde heerschappij brengen or bring down foreign rule
d) Grondgebied Het staat van den or territory e) Geheel of gedeeltelijk wholly or partly f) Afscheiden or separate
g) Een deel daarvan or part of the country.
The word "treason" or aanslag does not always have to be interpreted as an act of violence, because what is meant by the word
treason in the formulation of criminal action under Section 106
Indonesian Penal Code actually is action taken to harm the interests
of the law of the country in the form of the territorial integrity of the
country.71
c. Treason to Overthrow Government (Section 107 Indonesian Penal
Code).
Criminal acts of treason committed with the intention to bring
down the government by the legislators have been set in section 107
Indonesian Penal Code, and it was formulated as follows:72
1) Treason conducted with the intention to knock down the
government, shall be punished with imprisonment for at least
fifteen years.
71
Ibid, page. 42.
72
2) Leaders and planners of treason as referred to in paragraph (1)
shall be punished with imprisonment for life or with temporary
imprisonment for at least twenty years.
Section 107 Indonesian Penal Code has the following elements:73 1) Subjective element: met het oogmerk or with intention 2) Objective element:
a) Aanslag or treason
b) Onder Omen or conducted
c) Omwenteling teweg brengen or to knock down the government
If the criminal provisions set out in Section107 Indonesian Penal
Code we associate with the authentic interpretation of the legislators
about the word omwenteling in Section 88 in Indonesian Penal Code above, it can be known or understood that which is prohibited under
Section 107 paragraph (1) Indonesian Penal Code actually is treason
conducted with intent to cause:74
1) Destruction or alteration of the form of government under the
Constitution in a way that is unauthorized by law;
2) The destruction or changes in the procedures for the replacement
of the throne according to the Constitution in a way that is
unauthorized by law; and
73
Ibid
74
3) Undermined or transformed the procedures in the form of the
Indonesian government under the Constitution in a way that is
CHAPTER III RESEARCH METHOD
A. Type of Research
This type of research is a normative legal research, it means that this
research stems from look at the fact of problem occurred in the field, and then
connect it with criminal laws that are applied, that is by doing literature study.
B. Sources of Data
Data sources that were used by writer were secondary data. Secondary
data were obtained from the literature study. Secondary data include:
1. Primary legal material
The rules of law relating to the concept of complicity in a criminal
offence, such as the Indonesian Penal Code, the Indonesian Constitution
1945, and Law Number 34 years 2004 about "Indonesian National
Army".
2. Secondary legal material
Legal materials studied were primary legal materials, such as books of
literature, mass media or newspaper, online media or online news sites,
and Papers.
3. Tertiary legal material
The legal materials include scientific materials that support or give the
secondary legal materials, such as Laws Dictionary, English Dictionary,
and Indonesian Language Dictionary.
C. Technique of Collecting Data
The method of collecting data in this research was done through library
research and literature learning upon the legal materials such as primary legal
materials, secondary legal material, tertiary legal material, or non-legal
material. The searching of those legal materials would be done by reading,
analysing, listening, and trying to make conclusion from related documents
such as the legislation, books, literatures, papers, mass media, internet, and
others which related to the main problem as the object of this research.
D. Data Analysis
Data analysis was conducted in descriptive analyze, it means that the
researcher gave a description or elaboration upon the subject and object of the
research as like as the result of this research.75 This research also used Conceptual Approach that means a concept in jurisprudence (legal science)
was used as an approach for legal research analysis. This conceptual approach
begins from opinions and doctrines in jurisprudence. By learning these
doctrines, the researcher found the ideas that create legal definitions, legal
concepts, and legal principles that were relevant with the problems
75
researched, and with this conceptual approach, the researcher also made legal
argumentation to answer the legal issues raised.76
76
CHAPTER IV
FINDINGS AND ANALYSIS
A. Ammunition selling by personal officer of TNI and POLRI to Organisasi Papua Merdeka (OPM).
In the last five years, an issue of ammunition and gun selling has been
spread in the society, especially in Papua society. The issue that spread is
ammunition and gun selling was committed by personal officer of Indonesian
Army and Police in Papua.
Benny Giai, as the Papua Activist, stated that it was correct that
ammunition and gun selling were committed by Indonesian Army and Police
officer. Benny added that it has been occurred around August to November.
In last year, the personal officer of Indonesian Army and Police sell the
ammunitions and guns out almost every week.77
Ex-chief of Papua Police, Tito Karnavian allegedly justifies that the cases
are correct. Tito states that the suspects sell the ammunitions and guns on
behalf of personal officer, not an institution. He definitely states that some
personal of police officer have been arrested and even imprisoned. Tito says,
the case has been processed. Those personal officer consist of some TNI
officers and some POLRI officers. The Major of Indonesian Army, Fuad
Basya, states that TNI personal officers neither sell the ammunitions and
77
CNN Indonesia, “Konflik di Papua Tak Selalu Berbau Politik”,
firearm gun in Papua. However, he states that there may be a possibility of
have been allegedly established as one of causes of gun conflict in Papua.
At the end of year 2014, the society was shocked on the arrest of
Tanggam Jikwa, a police officer. He was arrested while in transaction of
bullet selling to the members of OPM in a hotel in Wamena regency in
October 26, 2014. He was suspected as an ammunition supplier who sells the
bullets to OPM.79 He was arrested when he wanted to sell 29 ammunitions, a series of 7,62 mm caliber priced by 3 million rupiahs and there were found
231 bullets with 5,56mm caliber and 12 items of 38mm caliber believed to be
ready-stocks to be sold in his house.80
From the investigation process, the involvements of him and a retired of
Indonesian Army and two officers of Military District Command (Kodim)
1702 of Wamena have been processed upon the ammunition selling.
78
Ibid
79Liputan6, “Diduga Pasok Amunisi Kelompok Bersenjata Papua”,
http://m.liputan6.com/news/read/2125403/diduga-pasok-amunisi-kelompok-bersenjata-papua, accessed on April 8th, 2015 at 9.50 pm.
80
Ammunition selling by TNI personal officer did not only happen in the
remote areas, but also happened in the whole regencies and cities in Papua.81 It was proved by the arrest of six officers of Indonesian Police by the
Special Team of Papua Local Police. They are firearm and ammunition
selling networks in Manokwari region, West Papua. Moreover, five of TNI
officers have been arrested after selling 500 ammunitions to Kelompok Kriminal Bersenjata (KKB). The arrest of five TNI officers are ensued based on the information from three member of KKB who sold 500 ammunitions in a car before. The three member of KKB clarified that they bought the
OPM is a separatist movement founded in 1965 aiming to constitute
authority of Papua liberation, especially west territory of Papua from
Indonesian Government. Before the reformation era, the provinces
consist of Papua and West Papua which is now called Irian Jaya.83
81Liputan6, “5 TNI di Papua Jual Amunisi ke Kelompok Bersenjata”,
http://m.liputan6.com/news/read/2168408/5-tni-di-papua-jual-amunisi-ke-kelompok-bersenjata, accessed on March 28th, 2015 at 10.15 pm.
82
Ibid
83Komnas TPNPB, “Sejarah OPM”,
The name of Free Papua Organization or OPM is assigned by
Indonesian Government for every organization or every faction either in
Papua or foreign country led by Papuan who actively moves on
subversively under political system to construct their force to fight
against Indonesian Government, political or armed movements to liberate
Papua from Negara Kesatuan Republik Indonesia (NKRI).84
OPM claims that they have no history relation with Indonesia
countries or other Asian countries. Unification of this territory into NKRI
since year 1969 is the result of the agreement between Netherland and
Indonesia, and Netherland gave that territory (Papua) to Indonesia. In
OPM’s perspective, the agreement is another resignation from old
colonizer to new colonizer.85
In July 1st, 1971, Nicholas Jouwe and two commanders of OPM, Seth Jafeth Raemkorem and Jacob Hendrik Prai rose Bintang Fajar flag up and proclaimed the revolt of West Papua Republic. However, this
republic had no longer survived because they were crushed by
Indonesian military under regime of Soeharto (new orde regime). In
1982, A Revolutionist Council of OPM was founded which aimed to
sustain international advocacy for supporting the region, West Papua.
They intensified their alliances to United Nations, Non-Aligned
Movement, South Pacific Forum and ASEAN supports.86
84Fathoni Hakim, “Perjanjian Keamanan”,
http://lib.ui.ac.id, accessed on August 1st, 2015 at 10 pm.
85Komnas TPNPB, “Sejarah OPM”,
http://www.komnas-tpnpb.net, Loc. Cit.
86
