Batas Berlakunya Hukum Pidana dari Segi Tempat_Part. 2

Summary

This video discusses key principles in Indonesian criminal law, focusing on the 'Active Nationality Principle' (Asas Nasionalitas Aktif) and the 'Passive Nationality Principle' (Asas Nasionalitas Pasif). The Active Nationality Principle asserts that Indonesian law applies to crimes committed by Indonesian citizens abroad, particularly those affecting national security, and requires double criminality. The Passive Nationality Principle, however, allows prosecution for crimes that threaten Indonesia’s national interests, regardless of the perpetrator's nationality or the crime’s status in the foreign country. Both principles aim to protect national security but differ in their application and requirements.

Takeaways

• 😀 **Territorial Jurisdiction**: Indonesian criminal law applies to crimes committed within the territorial boundaries of Indonesia, as per the principle of territoriality.
• 😀 **Locus Delicti**: The location where a crime occurs (locus delicti) is crucial in determining legal jurisdiction, with multiple theories to consider on the matter.
• 😀 **Active Nationality Principle**: Indonesian criminal law applies to Indonesian citizens (WNI) who commit crimes abroad, as long as the crime involves national security or specific offenses such as sedition or treason.
• 😀 **Scope of Active Nationality**: The application of the Active Nationality Principle is limited to crimes listed in specific parts of the Indonesian Criminal Code (KUHP) and requires the crime to also be a crime in the country where it occurred (double criminality).
• 😀 **Double Criminality**: For the Active Nationality Principle to apply, the crime must be punishable both in Indonesia and in the country where the act occurred.
• 😀 **Extraterritorial Prosecution**: Indonesian law can prosecute foreign nationals who commit crimes abroad if those crimes affect Indonesia’s national interests, under the Passive Nationality Principle.
• 😀 **Passive Nationality Principle**: This principle protects Indonesia’s national interests, regardless of the nationality of the perpetrator. It can apply to both Indonesian citizens and foreigners committing crimes outside Indonesia.
• 😀 **No Double Criminality for Passive Nationality**: Unlike the Active Nationality Principle, the Passive Nationality Principle does not require double criminality, meaning the act doesn't have to be a crime in the foreign country for Indonesian law to apply.
• 😀 **National Interests Protection**: The Passive Nationality Principle is focused on protecting Indonesia’s national interests, such as cases of counterfeiting national currency or attacking national security, even if the act isn't considered illegal in the foreign country.
• 😀 **Territoriality vs. Nationality**: The main difference between the two principles lies in the focus of jurisdiction—territoriality focuses on location, while nationality focuses on the person committing the crime (active or passive).

Q & A

What is the primary focus of the principle of *Asas Teritorial* (territoriality) in criminal law?

The primary focus of the principle of *Asas Teritorial* is that criminal law applies to crimes committed within a country's territory. In the case of Indonesia, it means that Indonesian criminal law applies to offenses committed within Indonesian territory.

What does the *Asas Nasionalitas Aktif* (Active Nationality Principle) focus on?

The *Asas Nasionalitas Aktif* focuses on the nationality of the offender. It applies to Indonesian citizens who commit crimes outside Indonesia, provided the crime affects Indonesia's national interests.

What is a key limitation of the *Asas Nasionalitas Aktif*?

A key limitation is that it only applies to specific crimes defined by Indonesian law, such as terrorism or sedition, and requires that the offense is also a crime in the foreign country where it was committed (double criminality).

Can the *Asas Nasionalitas Aktif* be applied to crimes that are not illegal in the country where they were committed?

No, the *Asas Nasionalitas Aktif* requires double criminality, meaning the act must be a crime both in Indonesia and in the country where it was committed.

How does *Asas Nasionalitas Aktif* apply if the perpetrator becomes an Indonesian citizen after committing the crime?

If a foreigner becomes an Indonesian citizen after committing a crime abroad, they can still be prosecuted under Indonesian law, as long as the crime affects Indonesia's national interests and meets the requirements of the principle.

What is the purpose of *Asas Nasionalitas Pasif* (Passive Nationality Principle)?

The purpose of *Asas Nasionalitas Pasif* is to protect Indonesia’s national interests by applying Indonesian criminal law to crimes committed abroad, regardless of whether the offender is an Indonesian citizen or a foreign national.

How does the *Asas Nasionalitas Pasif* differ from the *Asas Nasionalitas Aktif* in terms of nationality of the perpetrator?

Unlike *Asas Nasionalitas Aktif*, which applies only to Indonesian citizens, *Asas Nasionalitas Pasif* applies to both Indonesian citizens and foreign nationals (WNA) who commit crimes abroad that harm Indonesia’s national interests.

Does the *Asas Nasionalitas Pasif* require double criminality?

No, the *Asas Nasionalitas Pasif* does not require double criminality. It allows Indonesian law to apply to crimes that threaten Indonesia’s national interests, even if they are not considered crimes in the country where the offense occurred.

What type of crimes are typically covered under *Asas Nasionalitas Pasif*?

Crimes such as terrorism, counterfeiting Indonesian currency, piracy, and attacks on aircraft or ships are typically covered under *Asas Nasionalitas Pasif* because they pose a threat to Indonesia’s national interests, even when committed abroad.

What is the core idea behind the application of both *Asas Nasionalitas Aktif* and *Asas Nasionalitas Pasif*?

Both principles aim to protect Indonesia’s national interests from crimes committed abroad. They ensure that Indonesia's laws can be applied outside its borders to safeguard its sovereignty and security.