- One significant issue concerning Law No. 1 of 2023 on the Criminal Code ("New Criminal Code") is the new principle established under Articles 15 and 16 on preparations for criminal offenses. According to Yoshito Siburian, a judge at the Lubuk Basung District Court, this principle can be applied in line with any of the following three activities: 1) Acquisition of tools; 2) Gathering of information; or 3) Creation of conditions conducive to the committing of a crime. These criteria are classified as alternatives, meaning that the fulfillment of any single one of them is deemed sufficient in terms of preparations for a criminal offense.
- However, to prevent their misuse, Mr. Siburian has suggested that this principle should be limited in its application to various specific crimes that are explicitly stated in law. In this regard, Mr. Siburian believes, this principle should only apply to serious crimes that affect the public interest, such as treason (Article 196), sabotage or war (Article 216), treason against a friendly nation (Article 223) and the causing of fires, explosions or floods (Article 309). The penalty for such preparations is up to half of the maximum main sentence for the relevant associated crime, or up to ten years for crimes that are punishable by death or life imprisonment.
- Focus Group Discussion participant, Judge Bagus Sujatmiko, also voiced his concern regarding the potential for misuse, citing the case of “Pegi Setiawan,” which resulted in such preparations leading to assumptions being made by law enforcement officers. Another participant, Catur Alfath, emphasized the importance of distinguishing between conspiracies and preparations and called for a more scientific approach to be applied to investigations of preparation cases.
- Mr. Siburian also highlighted the need for clear guidelines to be introduced, as well as for their careful application by judges in order to ensure justice, suggesting that a scale that measures degrees of preparation be formulated in order to avoid bias and baseless accusations.
- For more on this story, see Hukumonline: “Asas Persiapan Tindak Pidana dalam KUHP Baru, Antara Ancaman dan Potensi Terobosan”.
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