By : Febry Indra Gunawan Sitorus

In criminal law, there is a principle known as the Legality Principle which is regulated in Article 1 paragraph (1) of the Criminal Code (KUHP) which reads:

“An act cannot be punished, except based on the strength of the provisions of the existing criminal legislation”.

The full legality principle reads “nullum crimen (delictum), nulla poena sine paevia lege poenali, originating from the Bavarian code in Germany in 1813. This principle was written and incorporated into the Bavarian Code by Paul Johann Anselm Ritter von Feuerbach. This principle underlines that no one can be convicted without a law that first regulates it. This principle which is characteristic of Continental Europe is the opposite of the retroactive principle, which means that punishment is retroactive to crimes that have not been regulated by law at the time they were committed.

In Ancient Rome, the term criminal extra ordinaria was known, which means crimes that are not stated in the law. When ancient Roman law was accepted by the kings of Western Europe, the term criminal extra ordinaria was accepted as well. This condition then allows the ruling kings to act arbitrarily against acts that are said to be evil, but have not been regulated in law. The birth of the Magna Charta Libertatum in England (1215) was a form of reaction to the arbitrariness of the king at that time. This is the first phase when humans begin to think about and fight for their rights as human beings.

The principle of legality known in modern criminal law emerged from the sociological scope of the Enlightenment which glorified the doctrine of protecting the people from the arbitrary treatment of power. Before the Enlightenment came, power could punish people even without rules. At that time, it was the taste of power that had the most right to determine whether an act could be punished or not. To protect individual rights, there is the principle of legality which is an important instrument of protecting individual independence when dealing with the state. Thus, what is called a punishable act becomes a regulatory authority, not a power.

The protection of the rights of many people was initially carried out through a struggle with political principles, namely by confronting the interests of the people vis a vis the absolute power of the king. The origin of the idea of ​​the principle of legality comes from the provisions of Article 39 of the Magna Charta (1215) in England, which guarantees the protection of the people from arrest, detention, confiscation, disposal, and expulsion of a person from legal protection / legislation, unless there is a valid judicial decision. This provision was followed by the Habeas Corpus Act (1679) in England which required a person who was arrested to be investigated for a short period of time. After the birth of the Magna Charta and the Habeas Corpus Act, the guarantee of the rights and obligations of the people then turned into legal principles. These legal principles are formulated in written law, in order to have guaranteed legal certainty (rechtszekerheid). The pioneer of political and legal struggle in England was John Locke (1760).

The struggle of the British people then spread to France, as a form of resistance to the arbitrariness of King Louis XIV, with the symbol of the Bastille Prison as a symbol of the despotic king’s power. The struggle of the French people was influenced by two of the most prominent philosophers of the Enlightenment, Charles Montesquieu (1689-1755) and Jean Jacques Rousseau (1712-1778). Montesquieu through his book L’esprit des Lois (1748) and his book Rousseau Dus Contrat Social, ou principes du droit politique (1762) introduced the idea of ​​the principle of legality, as a form of resistance to the concept of Let’s ces moi, which was echoed by King Louis. Besides being influenced by the two philosophers, the development of the principle of legality in France was also influenced by the Marquis de Lafayette, a friend of George Washington, who brought the idea of ​​the principle of legality from America to France.

In America, the provisions of the principle of legality have been included in the Declaration of Independence 1776, where it is stated that no one may be prosecuted or arrested other than with, and because of actions regulated in, statutory regulations. The idea of ​​the principle of legality was then implemented as a law in Article 8 of the Declaration des droits de L’homme et du citoyen (1789). This principle was later included in Article 4 of the French Penal Code during the reign of Napoleon Bonaparte (1801). The text of this provision is that “Nothing can be punished other than because of a wet that is stipulated in the law and legally promulgated”. Beccaria, in Dei delitti e drllee pene (Over misdaden en straffen 1764) also states that individuals must be protected from arbitrary acts. Therefore, it is necessary to make a law before the offense occurs. The law must regulate clearly and firmly, so that it can provide guidance in carrying out criminal justice.

The next step, Von Feuerbach, a German scholar, argues that it is an important principle for giving threats of punishment in criminal law, namely that every sentence imposed by a judge must be a legal consequence of a provision according to law, namely with the aim of guaranteeing rights -rights that belong to everyone. Thus, the law must provide a threat of punishment in the form of suffering to everyone who commits a violation of the law. Von Feuebach put forward three provisions, namely:

  1. Nulla Poena Sine Lege, which means that every sentencing must be based on a criminal law;
  2. Nulla Poena Sine Crimine, which means that a sentence can only be carried out, if the act in question has been threatened with a punishment by law;
  3. Nullum Crimen Sine Poena Legali, which means that an act that has been threatened with punishment by the law if it is violated can result in the imposition of a penalty as threatened by the law for the violation;

Von Feuerbach then formulated the adage “Nullum delictum, nulla poena sine praevia lege poenali.” That there is no offense, no crime without prior regulations. This adage is contained in his book Lehrbuch des peinlichen Rechts (1801).

The principle of legality proposed by Feuerbach contains three meanings:

  1. No act can be punished, if it has not been regulated by law.
  2. In determining the existence of a criminal act, analogies should not be used.
  3. The rules of criminal law are not retroactive.

The provisions of the principle of legality were first recognized by the United States constitution in 1783, included in Article I Section 9 which reads: “No bill of attainder or ex post pacto law shall be passed”. Then followed by France in the Declaration des droits de L’homme et du citoyen 1789. Furthermore, this provision was followed by countries that adhere to the Continental European legal system, legal certainty is upheld. The objectives to be achieved from the principle of legality itself are to strengthen legal certainty, create justice and honesty for defendants, streamline the function of deterrence in criminal sanctions, prevent abuse of power, and strengthen the rule of law.

On the one hand, this principle is indeed considered very effective in protecting the rights of the people from the arbitrariness of the authorities. However, the effect of the implementation of the provisions on the principle of legality is that the law is less able to keep up with the rapid development of crime. This is a fundamental weakness of the application of the principle of legality. E Utrecht said that the principle of legality does not protect collective interests (collectieve belangen), because it allows the release of perpetrators of acts that are actually crimes but are not listed in the legislation. Thus, the paradigm adopted by this principle is the concept of mala in prohibita (an act is considered a crime because of regulations), not mala in se (an act is considered a crime because it is disgraceful).

In Indonesia, the principle of legality is formulated in Article 1 paragraph 1 of the Criminal Code which reads “Geen feit is strafbaar and uit kracht van eene daaraan voorafgegane wettelijke strafbepaling” which means that there is no act that can be punished, except based on criminal provisions according to the existing law, first of all. before the act itself.

The criminal provisions that have been regulated in Article 1 paragraph 1 of the Criminal Code contain three very important principles, namely:

  1. that the criminal law applicable in that State is a written law;
  2. that the criminal law in force in that State cannot be applied retroactively;
  3. that the analogical interpretation should not be used in interpreting the criminal law.

The provisions in Article 1 paragraph 1 of the Criminal Code also state that the applicable criminal law cannot be applied retroactively. If the criminal law cannot be applied retroactively, then this is actually something natural. Because the criminal law that applies in our country, both as a criminal law in a material sense, is still a law. As a law, it is only natural that it is bound by the provisions governing the legislation in Indonesia.

The provisions governing statutory issues can be regulated in the Algemene Bepalingen van Wetgeving voor Indonesia which was promulgated in the Staatsblad of 1847 Number 23 on April 23, 1847, which in the Dutch literature is usually abbreviated as A.B. Algemene Bepalingen van Wetgeving voor Indonesia means general provisions concerning Indonesian legislation.

Article 2 of Algemene Bepalingen van Wetgeving stipulates that: De wet verbindt alleen voor het toekomende en heft gene terugwerkende kracht means that the law only deals with future matters and does not have the power to apply retroactively. From these provisions it is explained that a criminal law can only be applied to someone who has committed an act prohibited by the criminal law after the relevant criminal law is declared to be enforced.