Andi Nurwiratma Akzanti , Mulyati Pawennei , Andi Cakra Cindrapole
Faculty of Law, Universitas Muslim Indonesia, Indonesia
ΩCorrespondent Email : andinurwiratmaputriakzanti@gmail.com
This study aims to determine and analyze whether the application of criminal law from the perpetrator of forced defense in decision no. 1 / Pid.Sus-Anak / 2020 / PN Kpn.This study uses a Normative research method, namely discussing the legal materials that have been obtained by referring to the existing theoretical basis.The results of this study indicate the results of the judge's decision that the legal fact was not revealed that the defendant committed his actions under duress to defend himself or others as regulated in Article 49 of the Criminal Code and the defendant was charged with Article 351 Paragraph 3 of the Criminal Code.The recommendation of this study refers to the consideration of the judge as a law enforcer, to pay more attention to everyone who carries out a forced defense, in the event of a criminal act, the perpetrator of the forced defense can bravely explain the actual incident to the person concerned, namely the police as law enforcer for the actions committed. Keywords: Forced Defense, Sexual Violence, Judge's Decision.
In Indonesia, the case violence sexual Keep going increase from year to year , with part the big victim is women and children [1] . In facing the threat violence sexual , someone Possible forced do deep action normal conditions are considered violate law For defend self . Concept defense forced or noodweer in law criminal become relevant in context This .
Violence sexuality in Indonesia is an urgent and complex problem , with data to show for it improvement case in a number of year last . [2] According to report from various institutions , including the Ministry of Women's Empowerment and Child Protection (KPPPA), violence sexual to women and children Keep going increased , with eye -catching numbers in context rape , harassment sexual , and violence in House stairs . Accurate and comprehensive data is essential For understand scale problem this and for formulate effective policies .
Defense forced ( noodweer ) is one reason eraser regulated criminal law in Article 49 paragraph (1) of the Criminal Code ( KUHP). The concept This allow somebody For no convicted on his actions If action the done in frame defend self or someone else from attack or threat counter attack law . However , the implementation noodweer in case violence sexual bring up various questions and challenges law [3]
Defense action forced to beyond the limit or known with term noodweer is issue complex laws , especially when involving victims of violence sexual . Defense action forced in Indonesian law is regulated in Article 49 of the Criminal Code . The rules the allow For to free somebody from punishment or make someone who do action criminal No punished . However , there are various interpretation related chapter said . Through approach study legal normative , research This aiming For analyze How law Indonesian criminal law views and regulates action said , especially in context protection law against victims of violence sexual [4]
Principles law criminal also commonly called principles base from the law that becomes reference in formation of norms or rules law like principle legality , principle there is nothing criminal without error , principle territorial , principle nationality active , basic nationality passive . [5]
As it is also said that law criminal That is ultimate ultimate . Remedy is term common law used and interpreted as implementation sanctions criminal offense which is sanctions ultimate or final in enforcement law . criminal law direct face to face with Human Rights Humans . Then it appears principle legality introduced by the scholar Anselmus von Feurbach whose language Latin " nullum" delictum nothing because of the law legion poenali ” ( no There is crime , no There is criminal without Constitution previously ) [6]
Criminal law load containing regulations must and prohibition to his threatened violation with law with torture that contains regulation about must at a time prohibition . purpose main held law criminal is protect interest interest public as a collectivity from actions that threaten him or even harm him Good That come from individual and also group of people. [7]
In Indonesia the source of criminal law This is in the Criminal Code and laws outside the Criminal Code which regulate about act criminal special , such as Constitution Number 31 of 1999 in conjunction with Law No. Number 20 of 2001 concerning Eradication Action Criminal Corruption , Law Number 15 of 2003 concerning Eradication Action Terrorism Crime , Law Number 8 of 2010 concerning Prevention and Eradication Action Criminal Money Laundering , Law Number 35 of 2009 concerning Narcotics . [8]
Criminal law general ( applicable) For throughout Indonesia, the Criminal Code and the Law spread outside the Criminal Code) Criminal Law local ( Regional Regulation) For areas certain )
Criminal law written , there are two forms . Criminal Law codified ; Criminal Code ( KUHP ) :
Criminal Law that does not codified ( act criminal specially regulated in Constitution alone such as the Criminal Procedure Act Economic Crime , Law Eradication Action Criminal Corruption , Law Action Criminal Prevention and Eradication Money Laundering , Law Domestic Violence , and so on ). Criminal Law No written ( Customary Criminal Law ) is applicable law only For communities certain . Legal basis its validity in the era Indies Dutch is Article 131 IS ( indische staatregeling ) or AB ( Alegemene Bepalingen van Wetgeving ). The Temporary Basic Law (UUDS) Era Article 32, 43 paragraph (4) Article 104 paragraph (1), Article 14, Article 13, Article 16 paragraph (2). Law Number 48 of 2009 concerning Power Justice in Article 5 paragraph (1), Law Emergency Number 1 of 1951 in Article 5 paragraph (3 sub b) [9]
According to Sudarto Criminal Law in a way general responded to as all regulations made by the authorities with objective organize life in society in the form of prohibition and nature force , where the fall criminal given to someone who violates it . According to him that law criminal load rules law that reminds to fulfilling actions condition certain the consequences in the form of criminal . In terms of prevention , namely that law criminal is law sanctions , a effort For can maintain sustainability life together with do prevention crime . In terms of retaliation , namely that law criminal at a time is also a determination law , is correction and reaction on something that is oppose law so that can it is said that criminal is protection to society and retaliation on action oppose law . Besides contain other things namely that criminal expected as something that will bring harmony and crime is an educational process For make people able accepted return in public [7]
The Quran mentions violence or abuse sexual , at least caution even forbid hard to violence and harassment sexual . Prohibition the there is in Surah Al-Isra verse 32
Meaning : "And do not You approaching adultery. Indeed (adultery) is is action fahisyah ( vile ) and the way worst ”.
Study This classified as as study normative , namely research conducted with method researching material library or secondary data . [10] Research This focus on legal norms which are contained in regulation legislation and decisions court as well as existing legal norms in public .
Defense self ( forced ) is reason remove the nature of Fait Justificatief violate law ( legality) or Legality ), then reason remove characteristic act criminal law ( Strafuitsluitings-Grond ) is also said reason justify or to justify actions that are generally is act criminal ( Rechtvaardigings-Grond ). [7] Night weather in a way literally interpreted with defense in a way emergency . Noodweer is the defense provided because it is very urgent to sudden attack as well as threaten and fight law [11] Equality defense forced with defense that goes beyond the limits, among others , namely , in both must There is attack or threat counter attack laws aimed at three interest law ( body , honor) morality and wealth objects ) , both done in forced circumstances ( Noodweer ) in business maintain and protect a interests the law is under threat danger by attack or threat counter attack law . Both of them shown For maintain and protect interest law ( rechsbelang ) self Alone or interests of others [12] the act of committing as form defense forced must balanced action with danger or threat attack and not allowed beyond from what is needed in defense . [3]
In the Night contain principle subsidiaries that is must existence balance between interests defended , methods used and interests sacrificed and principles propositional that is No all tool can used , [13] only those who enter reason just Because there is the defense made must in accordance with attacks of a nature oppose law , whereas defense self must due to forced Because No There is another way . Existing reasons for forgiveness in the Criminal Code is Article 44 ( no capable responsible answer ) , article 49 paragraph (2) ( noodweer-exces ), article 51 paragraph ( 2) ( with faith Good carry out order the position that No valid ). as for about Article 48 ( power) force ) there are two possibilities , can is reason justification and can also be a reason eraser criminal ( general ) in the Criminal Code. [14]
The judge's decision is results end from a trial criminal , here become clear status and steps to be taken taken by the defendant whether accept decision the or No accept it with method make appeals, cassation and guarantees .
Weigh that child has charged by the prosecutor general with indictment combination that is indictment subsidiaries and dakwan alternative so that the Judge with notice the facts law the will take into consideration indictment subsidiarity moreover first ; Considering , that the Judge first formerly consider primary charges as set up inm Article 340 of the Criminal Code, the elements of which are as following : [15]
Element goods who
Element with intentionally with plan too much first eliminate other people's lives
Considering , that goods Who in matter the meaning is an individual or corporation that becomes subject law or perpetrator from act the crime charged by the Public Prosecutor for proven the truth in case This is a child named MOCHAMAD ZAINUL AFANDIK who is based on information witness witnesses and children Alone that to explain identity as in investigator 's report and also letter indictment . Considering , that child submitted in case Child criminal law , and based on statement of the child and parents from the Child, as well as Report Study Community Number 164/BKA/POL-PN/IX//2019 dated September 20, 2019 by the Supervisor Community named Drs . Indung . Considering , can known at the time he did act criminal as charged by the Public Prosecutor above , was carried out by the Child before aged 18 ( eight) twelve ) years , and at the time submitted to the court Court , Child not yet aged 21 (twenty ) one year so that based on Article 20 of the Law Number 11 of 2012 concerning System Justice Child Criminal Procedure , then Already appropriate when the child is submitted to hearing child .
Considering , that with thus this 1st element has fulfilled on Child Ad.2 Elements with intentionally and with plan moreover formerly remove other people's lives . Considering that the sub- elements with intentionally and with plan moreover formerly is a characteristic sub element cumulative . Because it is cumulative so both sub elements the must fulfilled . If one No fulfilled so element second No fulfilled . Definition with on purpose according to memory of the reflection is the perpetrator must to want and know consequence from his actions . Definition with plan moreover is the perpetrator must own range quite a long time between prepare actions that he knows and desires That with time implementation action Considering , that on the day Sunday September 8 , 2019 around at 19.30 WIB at the sugar cane field road Attack on Gondanglegi Kulon Village , District Gondanglegi Malang Regency , the motorbike ridden by the Child and the Witness Child was approached by the motorbike of the Victim MISNAN and Witness MAMAT then the Victim MISNAN asked for... for Kids stop driving The child's motorbike was forced follow it Because No can do besides to stop his motorbike Because will fall If still step on the gas, that the MISNAN victim asked for the cellphone that the child and the witness' child had brought , but the child only give the child 's cellphone only and the MISNAN victim remains asking for the cellphone belonging to the Witness' Child.
Considering , that because the child does not Want to handing over the cellphone belonging to the child of the witness, the victim MISNAN and the witness MAMAT wanted to have sex with Child Witness as instead but the child does not Want to accept MISNAN Victim requests and offers For give just some money as instead that the victim Misnan and witness MAMAT refused Child offer and threaten will raping the witness's child ; . Considering , that because the child was afraid that the victim MISNAN and the witness MAMAT would rape Child witness Child take knife from in seat his motorbike Where knife the brought by the child because used For eye lesson crafts at school ; Considering , that because the MISNAN victim refused Child's offer , then the Child then stab the knife he was carrying appropriate to MISNAN victim's chest then to pull out knife the Then pointing the knife to direction of Witness MAMAT while shouting : “ Jancuk , don't patent kon ” which made Victim MISNAN and Witness MAMAT run away self to different directions ;. Considering , that the Child did matter the Because afraid that MISNAN Victims and MAMAT Witnesses will rape Child witness and things the carried out so that MISNAN Victims and MAMAT Witnesses would leave and they did not disturbing the witness's child . Considering , that based on description facts - facts the can withdrawn conclusion that the Child did stabbing against the victim only For made victims and witnesses Mamat afraid with objective so that the victim and Witness Mamat leave and don't blackmailing children and No disturbing Friend his woman . Considering , that objective child do stabbing against the victim only For made victims and witnesses Mamat afraid with objective so that the victim and Witness Mamat leave and don't blackmailing children and No disturbing Friend his woman so can concluded that child No have intention or want death of the victim;
Considering , that the Child does not have intention or want the death of the victim then element with on purpose No fulfilled .
Considering , that the sub elements in in element second shaped cumulative so if one of the sub elements No fulfilled so element second No fulfilled ; Considering , that one of the element in indictment first primary No fulfilled so indictment first No fulfilled . Considering , that because of that indictment primary No proven , then the Judge stated that the Child was released from indictment primary Considering , that because of indictment primary No proven , then Next the Judge will consider indictment subsidiary , as set up in Article 338 of the Criminal Code , the elements the elements is as following : 1. Elements goods who ; 2. Elements with on purpose remove the lives of others; Considering , that elements indictment first primary have similarity with indictment first suvsidair in element goods who and elements with on purpose remove other people's lives . Considering , that element with on purpose remove other people's lives are not fulfilled in indictment first primary so with by itself element with on purpose remove other people's lives in indictment first subsidiary No fulfilled .
Considering , that one of the indictment first subsidiary No fulfilled so indictment first subsidiary No Fulfilled . Considering , that because of indictment first subsidiary No proven , then the Judge stated that the Child was released from indictment first subsidiary No fulfilled . then Next the Judge will consider indictment first more subsidiary , as set up in Article 351 Paragraph (3) of the Criminal Code, the elements of which are is as following : 1. Elements goods who ; 2. Elements resulting abuse dead . Considering , that because of all element from Article 351 Paragraph 3 The Criminal Code has fulfilled , then the child must be stated has proven in a way valid and convincing do act criminal as charged in indictment more subsidiary Public Prosecutor. Considering , that the Child and Counsel The law has submit defense ( plea ) which in principle begging to The Panel of Judges shall declare The child's actions are not is act criminal and declare the child free from all demands law ( law of law) (volving ).
Actions crime committed by a person or other people in condition threatened so that do defense self or defense forced , appropriate with provisions of Article 49 of the Criminal Code , the perpetrator act persecution that resulted in dead who did defense forced to the decision Number 1/ Pid.Sus -Anak/2020/PN Kpn and that it turns out No proven Defendant find element defense forced and charged with Article 351 paragraph (3) and Considerations Judge's law in decision Number 1/ Pid.Sus -Anak/2020/PN Kpn who was charged Article 351 paragraph (3) and not proven existence element defender forced to " noodweer ". Based on results research , there is some suggestions needed delivered to a number of parties , namely To the Judge as enforcer law , for more notice everyone who does defense forced , especially the Judge must consider in decide punishment for the creation justice social furthermore to communities experiencing act criminal crime to himself must brave in maintain self with method do defense self For protect the rights that are needed maintained And for to perpetrator defense forced in happen act criminal perpetrator defense forced with brave can explain the actual event happen to the person concerned that is police as enforcer law on the act of committing as has been committed by the defendant in the verdict Number 1/ Pid.Sus -Anak/2020/PN Kpn
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