by Dharma Na Gara

Criminal Law, denpasarMay 31, 20220 comments 0 Likes

Forced defense and forced defense beyond the limit

Forced defense

Forced defense or noodweer in the Indonesia’s Criminal Code (KUHP) is regulated in Article 49 paragraph (1) which states, “Whoever is forced to take action for defense, because there is an attack or threat of an immediate attack which is against the law, against himself or others, against honor, decency or the property of themselves or others, are not punished. Even though in Memorie van Toelichting the term “forced defense” is not found, the provisions of Article 49 paragraph (1) implicitly provide conditions for forced defense.

In the beginning, forced defense was unrecognized because it was based on the postulate in ancient times which stated, vim vi repellere licet. Which means, violence should not be returned with violence[1]. In its development that statement has been abandoned in order to enforce public order. Likewise, the moral principle in the criminal process (non scripta sed nata lex)[2], it is not appropriate for the person who does the forced defense to be punished. The essence of a forced defense is that the perpetrator takes action to avoid a greater crime or avoid a threatening danger[3]. Forced defense is a justification that eliminates the element against the law of the act. Necessitas excusat aut extenuate delictum in capitalibus, quod non operator idem in civilibus. This means that the forced defense freed someone from punishment but unlikely in civil case.

Based on the provisions of Article 49 paragraph (1) of the Indonesian Criminal Code, there are several requirements for forced defense. First, there is an instant attack. Second, the attack is against the law. Third, defense is a must. Fourth, the way of defense is appropriate[4]. The fourth requirement is not mentioned in the article. Regarding the first and second requirements, ongeblikkelijke wederrechtelijke aanranding or unlawful instant attacks, there are at least three questions that must be sorted out. What is meant by an attack? What is meant by instantaneous? And what does it mean by against the law?

The definition of attack in the article is a real attack that continues, whether against body, dignity or decency and property[5]. Meanwhile, the understanding of instantaneous, namely between the time of seeing an attack and the time of doing a defense there must not be a long interval of time. Strictly speaking, as soon as an attack occurs, there is an immediate defense[6]. Meanwhile, the definition of against the law is an attack that is contrary to or violates the law[7].

Pay attention to the following illustration: A hits B with all his might and in just one hit to B in the face so that B falls, A then turns and leaves B. When A turns, B then stands up and hits A. B’s actions are not included in forced defense. The argument: First, A has stopped the attack. Which means, the attack did not continue. Second, there is no immediate defense from B when A hits him.

Another example: X is waiting for Y who is in the class room. X’s intention was to molest Y while out of the class room. Y was told by Z, that if he left the class room, X intended to molest him. When Y left the classroom, Y immediately hit X. Y’s action is not categorized as forced defense because X waiting outside for Y to be molested was not a real attack.

Compare it with the following example: C is angry with D. While walking on a deserted street, C then points at D with a gun. Instantly D kicks C’s hand which was holding the gun until it fell. D’s action is classified as forced defense because C pointed a gun at D, which was a threat of attack.

Regarding the attack Vos provides the following statements and illustrations:

“…. De aanranding kan nog voortduren en verdediging nog toelaatbaar zijn, ook als is het delict, waarin de aanranding bestaat, reeds voltooid. Men kan zeggen, dat de aanranding voortduurt, zolang de aanrander nog binnen het bereik van de aangevallene is, mits natuurlijk verdere benadeling dreight en er du snog iets te verdedigen valt. Voorbeeld: iemand ziet een dief met het gestolen goed weglopen, maar ziet kans hem het voorwerp met geweld te ontrukken, voordat hij buiten zijn bereik is gekomen; er is dan een voltooid delict van diefstal maar verdediging is nog teogelaten”[8].

(The attack is not limited to the completion of the act that constitutes the attack. The attack is a criminal act so the attack is not limited to the completion of the criminal act. The attack continues as long as there is a possibility that the attacker can continue to do harm to the attacked person. As long as this possibility exists, then there is still requirement to do self-defense. For instance: someone steals things in the house. As long as the thief is still in the house, then there is still a chance for those who own the goods to grab back the goods. As long as the thief is still in the house, then there is still an attack).

The following are the third requirements of the forced defense, namely that the defense is mandatory. This means that there is no other way to avoid the attack. For instance, in a closed room, S who intends to kill T, suddenly enters and locks the door then S with a drawn knife approach to T to stab him. T then do a defense on S’s actions by using the martial arts he mastered. T’s action is included in the forced defense because there is an immediate attack which against the law and the defense is a must. Compare if S intends to kill T, then with a drawn knife S approaches T but both are in the open field. Here, T can still avoid S by running away.

Furthermore, related to the fourth requirement that the method of defense is appropriate. The fourth requirement, as well as the third requirement above, is very closely related to the principles in the abolition of sentence in general, including forced defense. First, the principle of subsidiary. Means, there is no better possibility or other way so that the defense must be carried out. Strictly speaking, defense is not a must as long as you can avoid it[9].

Second, the principle of proportionality. This means that there must be a balance between the interests that are protected and the interests that are violated[10]. In the context of forced defense, criminal act committed for self-defense must be balanced with the attack that faced. Mr. Moeljatno gave an example of the Hoge Raad Decision in 1934. There is a case: an owner of a fish trap uses a rope to connect the trap to the trigger of the gun, if a thief tries to take the fish in the fish trap, the rope will move and shoot. When a thief touches the trap, the rope automatically moves and shoots the thief in the eye, causing blindness. Hoge Raad rejected the forced defense of the owner of the traps on the basis of Article 49 paragraph (1) of the Criminal Code due to it did not meet the principle of proportionality[11].

Third, the principle of culpa in causa. Means, a person who because of his own actions was attacked by another person against the law, cannot defend himself due to forced defense[12]. For instance, A verbally insulted B, because of the insult, B approached A and was about to slap him. When B was about to slap A, A immediately hit B, causing him to fall. A’s action cannot be said to be a forced defense because of A’s own actions which resulted in B slapping him.

Furthermore, it is related to what interests may be attacked so that the forced defense is allowed. Article a quo explicitly states that the attack/aggression is either against oneself or another person, against honor and property. Aggression against oneself means an attack on life and or physical. While the aggression on honor means honor in relation to decency. While aggression on property include civil rights[13]. However, Fletcher limits the forced defense to only one’s life or limb[14].

The author (Prof. Eddy O.S. Hiariej) disagree with Fletcher on the basis of the following arguments: First, Article 49 paragraph (1) explicitly stipulates the object of the attack for which a forced defense can be carried out. Not only just for life and body, but also honor and property. Second, it refers to the function of protecting from criminal law, that the interests of individuals who are protected are life, honor in the sense of decency and property.

The forced defense beyond the limit

If the forced defense is classified as justification, then the forced defense that beyond the limit is a forgiving reason. It means, the element that can be blamed for the perpetrator is removed. A forced defense that beyond the limit or noodweerexces is contained in Article 49 paragraph (2) of the Indonesian Criminal Code (KUHP) which said “A forced defense that beyond the limit, which is directly caused by great mental shock due to the attack or threat of attack, is not punished”.

Forced defense that beyond the limit can take two forms. First, the person facing an attack have experienced such a great mental shock that then turns self-defense into an attack[15]. The author’s (Prof. Eddy O.S. Hiariej) illustration is as follows: a woman in a closed room is about to be raped by a man. The man has managed to catch the woman’s body, but with all her power the woman kicked the man’s genital until he fell. It didn’t stop there, the woman hit him with objects around her until the man was helpless. In such a context theoretically, the woman made two defenses. The first defense is noodweer by kicking the man’s genital, while the second defense is noodweerexces, when the woman beat objects around her to the man until he was helpless.

Secondly, the person who did the forced defense experienced a very severe mental shock by immediately using excessive self-defense efforts or at least using drastic efforts to defend him/herself[16]. The illustration: a policeman when he got home saw his wife being raped by two robbers. Immediately, the police took the gun he was carrying and immediately shot at the perpetrator, causing him to die. In this situation what arises is actually a noodweer, but the policeman makes an unbalanced defense. This means that the principle of proportionality in the forced defense had been violated so that the actions of the police who shot the perpetrator became a forced defense that went beyond the limit.

There are two conditions to be able to declare someone to have a forced defense that exceeds/beyond the limit. First, there must be a situation that caused a forced defense as discussed above (Article 49 paragraph (1) of the Indonesian Criminal Code/KUHP). Second, there must be a great mental shock as a result of the attack causing a forced defense that goes beyond the limits. According to Hazewinkel Suringa, severe mental shock is not only the asthenische affecten in the form of anxiety, fear, or helplessness, but also the sthenische affecten such as anger, rage or offended.

According to Mr. Sudarto, there are three conditions in the forced defense that go beyond the limits. First, the excess of the required limit. Second, the defense was carried out as a direct result of severe mental/soul shock. Third, the great mental/soul shock was caused by an attack. This means that there is a causal relationship between mental shock and the attack. The reason for not sentencing to a person who makes a forced defense that exceeds the limit is not because there is no fault, but the legislators consider that it’s fair if the perpetrators who face such attacks should not be punished. This is based on the adage non tam ira, quam causa irae excusat, meaning that the act of a provocative attack is condoned.

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Source:

Prof. Dr. Eddy O.S. Hiariej, S.H.,M.Hum., 2014, Prinsip-prinsip Hukum Pidana, Cahaya Atma Pustaka, Yogyakarta.

[1] Hazewinkel Suringa, Inside Eddy O.S. Hiariej, 2014.

[2] G.A. van Hamel, Inside Eddy O.S. Hiariej, 2014.

[3] Routhledge, Inside Eddy O.S. Hiariej, 2014.

[4] D. Schaffmeister, N. Keijzer, E. PH. Sutorius, Diterjemahkan oleh J.E. Sahetapy, Inside Eddy O.S. Hiariej, 2014.

[5] Jan Remmelink, Inside Eddy O.S. Hiariej, 2014.

[6] Moeljatno, Inside Eddy O.S. Hiariej, 2014.

[7] Hazewinkel Suringa, Inside Eddy O.S. Hiariej, 2014.

[8] H.B. Vos, Inside Eddy O.S. Hiariej, 2014.

[9] J.E. Jonkers, Inside Eddy O.S. Hiariej, 2014.

[10] D. Schaffmeister, N. Keijzer, E. PH. Sutorius, Inside Eddy O.S. Hiariej, 2014.

[11] Moeljatno, Inside Eddy O.S. Hiariej, 2014.

[12] D. Schaffmeister, N. Keijzer, E. PH. Sutorius, Inside Eddy O.S. Hiariej, 2014.

[13] D. Simons, Inside Eddy O.S. Hiariej, 2014.

[14] George P. Fletcher, Inside Eddy O.S. Hiariej, 2014.

[15] Jan Remmelink, Inside Eddy O.S. Hiariej, 2014.

[16] Loc. Cit.