Article 48 of the Criminal Code, concerning overmacht or force:
Whoever commits an act under the influence of force shall not be punished.
There is no definition of duress in the old Criminal Code. However, R. Sugandhi said in his book entitled “Kitab Undang-Undang Hukum Pidana Berikut Penjelasannya” that the phrase “due to the influence of coercion” must refer to the influence of mental, physical, spiritual, or physical coercion, to determine the scope of the validity of overmacht. Force that cannot be resisted is a greater power, which is a power that generally cannot be resisted.
In terms of this power, there are three types, namely:
- Absolute Power
People who have absolute power have no other choice. They experience events that are inevitable.
- Relative Power
The power or force that forces the person is not absolute. The person being forced can still choose. In absolute power, the person who coerces is the one who does what they want; in relative power, the person who is coerced is the one who does it because they are forced by the power.
- Power that is an Emergency
The coerced person alone chooses which criminal event he or she will commit in an emergency. Unlike relative power, the person does not choose because of the coercer.
Some postulates related to coercion are:
- Quod alias non fuit licitum necessitas licitum facit. This means that forceful circumstances allow what was previously prohibited by law.
- In casu extremae necessitates omnia sunt communia. This means that the situation is forced, the actions taken are considered necessary.
- Necessitas quod cogit defendit. This means that the state of necessity protects what must be done.
- Necessitas sub lege non non continetur, quia quod alias non est licitum necessitas facit licitum. This means that the state of necessity is not held back by the law, an act that is prohibited by law, but is carried out in a state of necessity, the act is considered valid.
As mentioned earlier, the reasons why a person cannot be convicted are divided into two categories: forgiving reasons and justifying reasons. Forgiving reasons are subjective and based on the individual’s inner thoughts before or during the commission of a criminal offense. The following can be categorized as forgiving reasons:
- Incapable of responsibility, for example when the perpetrator has an abnormal mental condition;
- Forced defense that exceeds the limit;
- Carrying out an unlawful official order but in good faith.
Meanwhile, justification is an objective trait that comes from external factors or outside of one’s inner mood. The following include justification reasons:
- Forced power;
- Forced defense;
- Carrying out a statutory order;
- Carrying out a lawful official order.
In essence, there is no unity of opinion among the authors on whether the coercion in Article 48 of the Criminal Code is an excuse or justification.
OVERMACHT PROVISIONS IN LAW 1/2023
Overmacht is regulated in Article 42 of Law 1/2023 on the new Criminal Code, which takes effect 3 years after its promulgation, i.e. in 2026:
- Forced by irresistible force; or
- Forced by the existence of threats, pressure, or unavoidable forces
In addition, Article 42 of Law 1/2023 divides coercion into absolute coercion and relative coercion. Due to the circumstances facing the perpetrator, it is impossible for him or her to refuse or choose to perform the act. This is known as “compelled by irresistible force” or absolute compulsion. However, relative coercion, or “coerced by the existence of threats, pressure, or unavoidable force”, is:
- The threat, pressure or force cannot reasonably be expected to produce resistance; and
- Where the interest sacrificed is equal to or slightly more than the interest saved.
The main factor is external mental stress. A person may experience mental distress due to objections originating from their own mind, not from an external source. Thus, forgiveness cannot erase the crime. Therefore, we can conclude that overmacht affects a person so that they have no other way to defend themselves. Overmacht can be decisive and be the basis for the nullification of criminal punishment, which makes it important.
DEFINITION OF ULTIMUM REMEDIUM
Ultimum remedium can also be interpreted as the last resort of law enforcement, if all efforts such as peace have been taken. This means that cases are prioritized to be resolved through family channels first. Therefore, the ultimum remedium principle in Indonesian criminal law states that criminal law must be used as the last resort of law enforcement. This principle states that if there are other avenues (family, negotiation, mediation, civil, or administrative) to resolve a problem, those other avenues must be used first.
Legal Basis:
- Criminal Code;
- Law Number 1 Year 2023 on the Criminal Code.
Reference:
Hukumonline.com