First, we shall understand the meaning of legal subjects. Legal subject is :

1. Holders or bearers of rights and obligations (Mochtar Kusumaatmadja and B. Arief Sidharta).
2. Rights supporters (E. Utrecht and Moh. Saleh Djindang).
3. Everything that can obtain rights and obligations (Sudikno Mertokusumo).

In relation to the obligations of legal subjects , the obligation intended is to be criminally responsible in the event that the legal subject in question commits a criminal act. Criminal liability is an act that is disgraceful to society and must be held accountable to the perpetrator for the act committed.

Then what about ODGJ?

Criminal law recognizes the existence of criminal abolition reasons, namely justifying and forgiving reasons. The reasons for forgiveness are contained in Article 44 of the Criminal Code long ago and is still valid in Indonesia until now. The text of Article 44 in the old Criminal Code was as follows:

1. Whoever commits an act that cannot be held accountable because his soul is disabled in development or is disturbed by disease , shall not be punished .
2. If it turns out that the perpetrator cannot be held responsible for the act because his mental development is defective or disturbed due to illness, then the judge can order that the person be put in a mental hospital , a maximum of one year as a probationary period.
3. The provisions in paragraph 2 only apply to the Supreme Court, High Court and District Court.

Apart from the content of the article above, there is an explanation by R. Soesilo regarding the reasons why the defendant cannot be punished because the actions cannot be held accountable to them, namely:

1. Less Perfect Reasons are people who have deficiencies in thinking like normal humans in general, for example (sorry): idiots, immobile, deaf-blind and mute starting to be born, these kinds of people are not actually sick, but because of defects they have had since birth. , then his mind remains as a child.
2. People who change their minds are crazy, hysteria (a type of nervous disease, especially in women), epilepsy, and various other mental illnesses.

Meanwhile, in Law Number 1 of 2023 concerning the new Criminal Code , criminal liability by people with mental disabilities is regulated in Article 38 and Article 39, as follows:

Article 38

Any person who at the time of committing a crime has a mental disability and/or intellectual disability may have their sentence reduced and/or be subject to action.

Article 39

Any person who, at the time of committing a crime, has a mental disability which is in a state of acute relapse and is accompanied by psychotic features and/or a moderate or severe degree of intellectual disability cannot be punished, but can be subject to action.

So it can be explained from this article that what is meant by ” mental disability ” is disruption of thought, emotion and behavior functions , including:

• Psychosocial, including schizophrenia, bipolar, depression, anxiety, and personality disorders; And
• Developmental disabilities that affect social interaction abilities include autism and hyperactivity.

Meanwhile, what is meant by ” intellectual disability” is disruption of thinking function due to a below average level of intelligence , including, among other things, slow learning, mental disabilities, and down syndrome .

So that perpetrators of criminal acts who have mental disabilities and/or intellectual disabilities are considered less able to realize the unlawful nature of the acts they have committed or to act based on their conscience which can be punished.

And for people with mental disabilities who are in a state of acute relapse and are accompanied by psychotic features and/or people with moderate or severe intellectual disabilities, their incapacity for responsibility needs to be proven by an explanation of their incapacity from a medical perspective by an expert.

Legal basis :

1. Criminal Code;
2. Law Number 1 of 2023 concerning the Criminal Code.

References:

1. E. Utrecht and Moh. Saleh Djindang. Introduction to Indonesian Law. Jakarta: Sinar Harapan Publishers, 1989;
2. Mochtar Kusumaatmadja and B. Arief Sidharta. Introduction to Legal Science: A First Introduction to the Scope of Application of Legal Science . Bandung: Alumni Publishers, 2000;
3. R. Soesilo. The Criminal Code (KUHP) and its complete comments, article by article . Bogor: Politeia, 1991;
4. Sudikno Mertokusumo. Getting to Know the Law: An Introduction . Yogyakarta: Liberty Publishers, 1999.
5. Hukumonline.com.