By: Dion Pardede

Preliminary

Presumably this article does not seem too important to be used as a discourse. This view is very understandable, especially for those who have discussed the provisions of poging/attempting to commit a crime in criminal law courses and advanced criminal law.

However, the author feels it is still important to discuss the basics related to the provisions of poging and its punishment. The author sees that this is rarely discussed because the discussion about poging in classes focuses on normative matters or maybe its development is done by visualizing it in examples.

But then, why can a person be punished while his own actions have not been completed, or in material offenses, there have not even been any consequences at all? for the author is an interesting thing. And in this article, it is these questions that we will try to answer.

First, we need to know what is the definition of the principle of “no crime without error” as well as the provisions of poging itself.

Actus non facit reum nisi mens sit rea is a commonly recognized principle in criminal law. This principle requires that no act can cause a person to be guilty if it cannot be proven that his bad intentions can be proven.

With this principle, we find a proving procedure, where before the proof of malicious intent (mens rea) is carried out, a concrete act (actus reus) must be completed.

Meanwhile, Poging (attempting to commit a crime), which is regulated in Article 53 paragraph (1) of the Criminal Code which reads: “Attempting to commit a crime will be punished, if the intention for that has been proven and there is a start to the implementation, and the implementation is not completed, is not solely because of his own will”. It can be seen that this provision allows a person to be sentenced without completing the act. Or in other words, proving the element of guilt is done without proving actus reus.

This is what if it is related to the possibility of being convicted of an attempt to commit a crime (poging) raises the question: “Doesn’t this provision – the punishment for poging – contradict the principle of no crime without guilt?” However, before we get to an attempt to explain the relationship between poging and this principle, it is necessary to present 3 (three) theories to explain why poging needs to be threatened with criminality.

The first theory, namely subjective theory. In short, this theory views that an attempt to commit a crime needs to be punished by a criminal because there is a dangerous mental attitude in the experimenter. This mental sika is seen as dangerous despite the fact that the deed is not finished.

The second theory is objective theory. This theory imagines the danger of an action if it is completed. So it is deemed necessary to threaten an attempt to commit a crime to be punished. Regarding this theory, views are also divided regarding the emphasis on the importance of poging being threatened with crime. That is a formal objective view that considers that an attempt to commit a crime is a threat to the rule of law, as explained by Professor Zevenbergen. And a material objective view that emphasizes that an attempt to commit a crime is dangerous or threatens the legal interests of the wider community and certain individuals.

The last one is a mixed theory which views that an attempt to commit a crime needs to be punished by a criminal because of the dangerous mental attitude of the perpetrator either subjectively or dangerously or by threatening the act that he has done objectively. The three theories above need to be explained in order to support the conclusion regarding the relationship between the provisions of poging and the principle of “no crime without error”.

Two Views on poging

It should also be noted that there are two views on poging. This is to bring us to the author’s perspective in explaining the relationship between the two.

The first is the view that the provision for poging (Article 53 paragraph (1) of the Criminal Code) is a reason to widen the conviction of a person, not expand the formulation of the offense. This is consistent with the view of Hazewinkel-Suringa. With this view, at the same time it is also known that the poging provision is not a perfect offense that stands alone.

Second, the view that the provision of poging is a reason to expand the criminality of the act. Thus, the provisions for poging are considered as a perfect offense in a special/special form.

From the two views above, what can be used to explain the relationship between the provisions of poging and the principle of “no crime without guilt” is the first view, which views that poging is an imperfect and perfect offense and is the reason people can be punished, not acts. Because if you use the second view, it is clear that the provision of poging which is considered a perfect offense in a special form is contrary to the principle of “no crime without fault”, because every perfect crime offense absolutely must meet the objective element in the form of the completion of an actus reus or actual/concrete act.

The relationship between poging and “No Crime without Fault”

So by using the first view of poging, the relationship between poging and the principle of “no crime without error” can be explained in the following 2 (two) points:

  1. Whereas the provision for poging is in Book I of the general rules of the Criminal Code so that it can only be used as a counter or must be in conjunction with other criminal acts;
  2. That forms of crime which ultimately do not require the completion of the actus reus before proving the element of guilt cannot be punished as a crime itself, but must be accompanied by Article 53 paragraph (1) of the Criminal Code which regulates Poging. Example: attempted murder (not murder), attempted theft (not theft).

If it is not combined with Article 53 paragraph (1), then the principle of “There is no crime without guilt” which then requires the completion of an act is absolute in every offense in the crime chapter.

From the description above, it is clear that poging is not a provision that is contrary to the principle of no crime without error. Its nature is not a perfect offense and does not stand alone and can only be used as a counterpart or in conjunction with other offenses, so that it is an exception to the principle of “no crime without fault”.

It is not contradictory because it is not a stand-alone criminal act and the evidence is different from a stand-alone criminal act. This exception is necessary given the danger or threat of an attempt to commit a crime, as explained by the theories that have been described at the beginning of this article.