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“The principle of legality is a fundamental base in applying criminal law, known as a guideline and the heart of the criminal law.”

Many people use the principle of legality as a means to defend the criminal’s legal interest or to determine the criminal’s responsibility for the committed crimes.

It is important to understand the meaning of the principle of legality according to the legal experts in order to determine its appropriate meaning as intended in criminal law, so that we will be able to review whether or not an act is considered as a criminal offense according to the principle of legality.

It is also important to know that there is common view on the principle of legality among criminal that there is no crimes nor punishment without any base of a prior enactment of a Law.

According to the Criminal Code (Kitab Undang-Undang Hukum Pidana), the legality principle is defined as mentioned in Article 1 paragraph (1) of Criminal Code:

“No act can be punished unless based upon a prior enactment of criminal law.”

This is in accordance with the adage “non obligat lex nisi promulgate“, meaning “a law is not obligatory unless it is promulgated.”

Then, what does this principle mean according to the legal expert as a reference for the existing criminal law issues?

Here are some views of criminal law experts on the legality principle definition that are important to understand.

As stated by Enschede, there are only two meanings in legality principle. First, an act can be punished based on criminal code. Second, aforesaid criminal code shall not be retroactive. (See: Ch.J.Enschede, 2002, Berginselen van Strafrecht, Kluwer, Deventer, page 26).

Definition of the legality principle as stated by Enschede is in accordance with Wirjono Prodjodikoro’s statement in his book (Asas-Asas Hukum Pidana Di Indonesia, Refika Bandung:2003, page 42)that criminal sanction can only be determined by Law and shall not be retroactive.

Sudarto also stated the same two meanings in legality principle. First, a criminal act shall be regulated in the Law. Secondly, aforesaid Law shall be exist prior to the criminal act.
Sudarto added that there are two consequences: First, an act which can’t be deemed as a criminal offense by the Law can’t be punished, and prohibition to use analogy in order to make an act as a criminal offense as defined in the Law. Secondly, that the criminal law is not retroactive. (See also: Sudarto, Hukum Pidana I, Yayasan Sudarto, Fakultas Hukum Universitas Diponegoro, Semarang:1990, page 22-24).

Furthermore, according to Jan Rammelink, there are three meanings in the principle of legality. Those meanings are presented in his book (Hukum Pidana: Komentar atas Pasal-pasal terpenting dalam KUHP Belanda dan Padanannya dalam KUHP Indonesia, page 390):

First, the concept of the Law stated in Article 1. According to him, not only Laws in formal ways that provide provisions in criminal field, but also refer to all legislative product, including the understanding that criminal law will be legitimately enacted. It includes all regulations made by local governments, both province, district, or city.

Secondly, the Law is made in detail and meticulously or lex certa. This principle is also known as bestimmtheitgebot. Unclear or overly complicated criminal provisions will only create legal uncertainty and hinder the criminal prosecution because public will always defend themselves that  such provisions are useless as a code of conduct.

Thirdly, analogy. The principle of legality also prohibit the use of analogy in criminal sanctions, known as the adage “nullum crimen noela poena sine lege strica”.
Meanwhile, according to Groenhuijsen, as cited by Komariah Emong Sapardjaja in her book (Ajaran sifat melawan hukum materil dalam hukum pidana Indonesia (studi kasus tentang penerapan dan perkembangan dalam yurisprudensi) 2002, page 5-6) there are four meanings in the principle of legality: First, the legislator should not enact a criminal provision retroactively.

Secondly, all prohibited act shall be regulated as clearly as possible. Thirdly, the Judge is prohibited to deliver the verdict that the defendant is guilty for a criminal offense based upon unwritten law or customary law; and Fourthly, there is criminal law which prohibit the use of analogy.

According to her, two of the first are meant for the legislators and the other two serve as a guidelines for the judges.

From all legal experts opinion above, the understandings that can be taken of the legality principle are, among others:

  1. No act can be punished unless based on the Law;
  2. The use of analogy in applying criminal law is prohibited;
  3. No act can be punished if based upon customary law. Violation of customary law may not necessarily resulte in criminal offense;
  4. There shouls be no unclear provisions or lex carta principle;
  5. Criminal law is not retroactive. It is known as the principle of non-retroactively in criminal law;
  6. No other act deemed as a crime except as stated in the Law. It means that the judge shall not impose sanctions other than the specified in the law;
  7. Criminal prosecution is conducted only in the manner as stated by the Law;
  8. The use of analogy in applying criminal law is prohibited.

The principle of legality that we have known in criminal law is a fundamental base in applying criminal law, known as a guideline and the heart of the criminal law.
We hope this article is useful.

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Author :

Iskandar D.P, S.H./Bimo Prasetio, S.H.

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