IN INDONESIA 1
II. RESULTS AND ANALYSIS
2.1. Qualification of Abuses, Errors and Criminal System against Death Penalty in the perspective of positive law in
Indonesia
Simon Nahak, writes that criminal law regulates legal norms containing orders, prohibitions, licenses, justifications, forgiveness, legal sanctions between any person and his State government that is formulated in the Criminal Code or outside Law on:
1. Acts (systematic, spontaneous and necessarily) are prohibited and threatened with criminal sanctions for being convicted of a crime (deliberate act) and offense (acts of intentional deeds). Actions are system i.e.; Acts committed intentionally or unintentionally in a structured manner, oganized by perpetrators both individually, legal entities (government and private) as well as groups of examples of
7 G.J. Wiarda, DrieTypen van Rechtsvinding, Zwolle: TjeenkWillink, 1980.
8 JurgenHubermas, Between Facts and Norms, Great Britain, Polity Press, 1996.
9 Valerine J.L. Kriekhoff, PenelitianHukumNormatifDalamHukumPidana: Metodedan- Aplikasinya, dalambuku Demi KeadilanAntologiHukumPidanadanSistemPeradilan- Pidana 6 DasawarsaHarkristutiHarkrisnowo, Jakarta :PustakaKemang, 2016, hal. 527- 529
premeditated murder, Corruption, Narcotics, Terrorism etc.
Spontaneous acts, i.e. acts committed either intentionally or unintentionally spontaneously by the perpetrators of crimes, acts committed because in a state of necessity. The act of necessity that is, the act of necessity to something by the offender.
2. Criminal liability; Criminal liability both individuals, groups and legal entities.
3. Formulation of criminal sanctions and punishment Criminal and punishment in the form of sanction and punishment system through the criminal justice system for the process of imposing criminal sanctions by the Judiciary.10
The draft of the Criminal Code (abbreviated RKUHP) until 2016 uses the term Criminal Acts rather than Criminal Acts. Article 12 paragraph (1) determines “Crime is an act of doing or not doing something, which by law is punishable by a criminal”.
The description of the provisions stipulates that the definition of the subject of criminal acts includes two matters, namely who commits a criminal act (perpetrator of criminal acts), and who can be accounted for. This depends on the manner or system of accountability made by the legislator.
Based on the description, there are several criminal acts committed by system and various death penalty namely in Article 340 of the Criminal Code (Penal Code) determines:
“Whoever deliberately and deliberately disposes of another person’s life, is punished for murder by a moord, by death or life imprisonment or a temporary prison for twenty years”.
In addition to the provisions in the Criminal Code, the arrangement outside the Criminal Code related to the death penalty is also regulated in the Law of the Republic of Indonesia Number
10 Simon Nahak, Bahan AjarMateriKuliahHukumPidana, untukkalangansendiri (Maha- siswa S1), FakultasHukum, UniversitasWarmadewa, Denpasar, 2014, hal. 7.
35 Year 2009 on Narcotics, Law no. 31 of 1999 Yuncto Law no. 20 of 2001 on the Eradication of Corruption and Article 6 of Law no. 15 of 2003 on Stipulation of Government Regulation in Lieu of Law no. 1 of 2002 on the Eradication of the Criminal Act of Terrorism into Law of Jo Rule In lieu of Law No. RI. 1 of 2002 on Combating Terrorism Crime. In the formulation of the act / crime, special criminal act does not even get a remission in the form of visible reduction of punishment in violation of human rights.
Furthermore, criminal / criminal responsibility is a criminal responsibility by a criminal both with negligence (culpa) and intentionally (dolus). Responsible for a criminal offense means that the person concerned can be criminally charged as the action he has committed is wrong as it is proved unlawfully to have violated the applicable regulations. A penalty may be lawfully imposed, if for such action there has been a regulation in a law, and the law applies to the action which it has done.
Based on the description then it is known that the legal act is a series of actions that cause the legal consequences. The legal system adopted in Indonesia is the written law system (civil law system) not the common law system so that the regulation of criminal sanction formulation must be written and regulated as in the provisions of Article 340 of the Criminal Code Formulation of criminal sanctions (strafsoort). While viewed from the formulation of duration of criminal sanction (strafmaat) adopt indefinite sentence system or maximum penal system. It turns out this form of culprit criminal imposition is rigid, less flexible and relatively unlikely to give the judge a chance to impose a criminal that is considered relatively more just.
Therefore, the reform of formulative policies on the formulation of criminal sanctions (strafsoort) of the Criminal Code should be changed into the formulation of alternative or mixed sanctions.
The provisions of Article 340 of the Criminal Code and almost all other Articles If examined from the Theory of Legal Certainty then the system formulation is still blurred because in the dimension of sanctions Criminal (strafsoort) is not found the
threat of minimum punishment but maximum. Meanwhile, when observed from the Theory of Justice is not fair as well when against a person who is proven to commit a criminal act deliberately and with a planned first remove the soul of another person as heavy as a man who embezzled money or documents that are only nominal below Rp. 10.000.000, - (ten million rupiah) but the duration of the criminal sanction (strafmaat) is only 3 (three) months same as the perpetrator of premeditated murder because there is no minimum punishment but only maximum penalty.
The provisions governing a person may be subject to criminal sanctions shall be based on 3 (dimensions) exposing the crime namely; The perpetrator, the victim and the proof as stipulated in Article 184 of KUHAP determines the evidence is: “Statement of Witness, Expert Statement, Letter, Guidance, Defendant’s Description”, or proof in the form of Email (letter / email, Article 1 paragraph (1) Republic of Indonesia Number 11 Year 2008 on Information and Electronic Transactions determines:
“one or a set of electronic data, including but not limited to writing, sound, drawing, maps, design, electronic photo data interchange (EDI), electronic mail, telegram , Telex, telecopy or the like, letters, numbers, access codes, perforated symbols or perforations that have meaning or can be understood by people who are able to understand it”.
Based on the legal basis of the evidence then each is subject to the death penalty as stipulated in Article 10 Book The Criminal Code (Penal Code) determines:
“Punishments are: Principal Sentence: Death penalty, imprisonment, sentence brackets The penalties, the additional penalties: the imposition of certain rights, the appropriation of certain goods, the announcement of the judge’s decision”.
The author looks at various sources about the reasons for the pros and cons of capital punishment in Indonesia, among others:
Pro-favored reasons: Deterrent to the perpetrator so that the other
perpetrators do not commit the same crime, Gives a sense of justice for the victim because the perpetrator commits extraordinary crime (extra ordinary crime), Control prison is still weak because in prisons there are luxury beds, TV, AC, Who is sentenced to life, does not cause vigilante for the family, friends of the victim, Reason for counter / refusal; There is no perfect judgment in the world, Death Penalty Is Not Solution, Not everyone is afraid of the death penalty, It gives a deterrent effect but its execution is closed, the maximum verdict is dropped, Ineffective reduce crime, Man lives more worthy than corpses, Criminals can repent, anger can Passed, The problem of prison control is still weak, aggravate the image of the State Image, Contrary to the Constitution.11
There are several theories used to analyze the following:
Theory of Justice as the spirit of any new drafting plan including the renewal of criminal law to overcome the Crime of Murder, Narcotics Crime, the Crime of Terrorism, the Non-Crime of Corruption In relation to “Justice”. St. Augustine said “Without Justice, the state is nothing but a gang of organized robbers”.12
John Rawls states the following: Justice is closely related to the distribution of rights and obligations. In other words, social decisions that have consequences for all citizens should be made on a rights-based basis rather than on a basis of benefit (good based Weight).13
In addition to the theory of justice is also used Certainty has the meaning of “provisions, provisions”, whereas if the word certainty combined with the word law into legal certainty, has a legal meaning of a state that is able to guarantee the rights and obligations of every citizen.14
11 Simon Nahak, Pro dan Kontra Hukuman Mati dar iberbagai sumber
12 Karen Leback, Teori-Teori Keadilan Six Theories of Justice Suplemen: Konsep Keadi- lan dalam Kristen, oleh Hans Kelsen, Penerjemah Yudi Santoso, (Bandung: Penerbit Nusa Media, 2010), hlm. Depan dalam cover Buku.
13 John Rawls, 1995, A Theory of Justice(TeoriKeadilan), Jakarta: PustakaPelajar, hal. 6 14 Anton M, Moelionodkk, 2008, Kamus Besar Bahasa Indonesia, Balai Pustaka, Jakarta,
hal.1028.
Van Kan In theory Legal certainty states that the law is in charge of ensuring the legal certainty in human relationships.15 Van Kan further states: Legal certainty is a legal instrument of a country that is able to guarantee the rights and obligations of every citizen. The legal certainty is divided into two types: 1) certainty due to law, that is, the law ensures certainty between one party to another; it means consistency of law application to all people indiscriminately, and 2) certainty in or from law, Means that legal certainty is achieved if the law is in the maximum number of laws, there are no contradictory provisions (laws based on logical and definite systems), made in the reality of law (rechtswerkelijkheid) and in it there is no term that can be interpreted differently (closed).16
Furthermore as a knife analysis in this paper is using The theory of punishment system in the form of Combined Theory i.e.; There is an opinion other than the two theories above, that the punishment also intends to correct the person who has committed a crime, called the Theory of fixing (verbeteringstheorie), but there is also the opinion that the basis of the sentence is retaliation but the other (Preventing, fearing, maintaining the order of life together, improving people who have done, should not be ignored, this theory is called Combined theory.17
The authors agree with the justice, certainty and theory of the criminal punishment system because the essence of criminal law is ultimumremedium, Aims to protect the public that is to protect public order and the criminal must be adjusted with the legal consciousness of members of society, generally a criminal must satisfy the community, then the criminal law should be arranged in such a way as a fair criminal law, legal beriantian with the idea of retaliation is not Ak may be neglected negatively or positively.
15 E. Utrecht, Op.Cit. hal.93.
16 E. Fernando M. Manullang, Op.Cit, hal 92.
17 Soesilo R.,1996, Kitab Undang-Undang Hukum Pidana (KUHP) Serta Komentar- Komentarnya Lengkap Pasal Demi Pasal, Bogor: Politeia, hlm. 35-36
2.2. Protection of Criminal Law against Criminal Actors and