INTRODUCTION
Nowadays, in the
era of society, there are several things that cannot be separated from the life
of an individual, one of which is information technology or known in English as
information technology. The general term is used for any technology that
assists humans in creating, modifying, storing, communicating, and/or
disseminating information.
In this era,
individuals who live in society are generally very dependent on information
technology in their daily lives, because you can see the development of social
media is getting faster and reaching all levels of society. This shows that
information technology has become a vital part of human life. The greater the
influence of information technology in human life, the greater the risk of
misuse of information technology (Karami, 2003).
In reality, many
bad things can happen through information technology. that many cases of ITE
crimes have been handled and have been decided by courts with prison sentences
throughout Indonesia and in the city of Ternate in particular. as an example of
the following data. Whereas, it can be seen from a number of cases and
decisions on cyber-crimes or crimes regarding information and electronic
transactions. In general, from 2017 to 2021-September, 1,109 ITE cases were
recorded in 524 District Courts in Indonesia and in the City of Ternate in 2017
to 2021-September, in particular, 10 ITE cases were recorded which had received
sanctions with prison sentences. That is, there are things that really need to
be considered in all online activities carried out on the internet. Don't let
what is done in online communication become a thing that conflicts with the law
in connection with the existence of Law no. 11 of 2008 Jo. Law Number 19 of
2016 Concerning Information and Electronic Transactions.
Cybercrime arises as a result of technological
advances. In addition to bringing benefits or positive values, technology also
contains content that is detrimental to the life of the nation (Wahid, 2005). In addition, the
development of technology and information has created a borderless world and
caused significant social change to take place so quickly. Information
technology, if analogous to today, is a double-edged sword, meaning that in
addition to contributing to increasing human welfare, progress and
civilization, it is also an effective means of acting against the law (Ramli, 2010).As the consideration weighs in Law no. 11 of 2008 Jo. Law
Number 19 of 2016 Concerning Information and Electronic Transactions, states
that the rapid development and progress of Information Technology has led to
changes in human life activities in various fields that directly affect the
birth of new forms of legal actions.
Efforts to create various new opportunities in
the activities of human life, information technology also at the same time give
birth to new forms of legal action or create new opportunities for crime. In
the virtual world or virtual world, people commit evil acts (crimes) that can
be done in the real world and there are things that cannot be done in the real
world. The crime was committed using a computer as a means of action.
Crime in the field of information technology is a
negative side of technological progress which has a very broad impact on all
areas of today's modern life. Several forms of mayantara crime that can be
committed in the real world and cannot be committed in the real world, as
stipulated inLaw
Number 11 of 2008 Jo. Law Number 19 of 2016 concerning Electronic Transactions
and Information, Chapter VII Prohibited Actions, among others: Violating decency;
Gambling; Insult and/or defamation; Extortion
and/or threats; Spreading fake news; Without the right to disseminate
information that causes hatred or hostility between individuals and/or groups;
Sending information that contains threats of
violence or intimidation directed personally; Use of someone else's credit
card; Banking transactions; Using someone else's secret code to withdraw cash
from an ATM; Electronic engagement or contracts; Use of another person's domain
that violates intellectual property rights; Create, provide, or transmit or
delete computer data that results in disruption of system functions Create,
provide, or send or delete electronic data that causes economic loss to others;
and Accessing computer networks with the intention of stealing data (hackers).
From
the classification of cybercrimes above, it can be concluded that the crimes
committed are known crimes such as the use of other people's property without
permission, forgery, theft, and crimes of decency, but the execution of crimes
is carried out using telecommunication services.
The
development of computer and internet technology has significant implications
for setting or establishing regulations in cyber space and cyber law as well as
for the development of crime in cyberspace (cybercrimes) (Sitompul,
2012).
In this regard, it is necessary to pay attention to security and legal
certainty in the use of information, media and communication technology so that
it can develop optimally.
Departing
from what was stated earlier, that the application of sanctions has not been
maximized and the threat of sanctions has not actually reached the law. Even
though the size of the punishment has accommodated the minimum sentence and the
maximum sentence. So the authors limit this research by examining the
application of prison sanctions to perpetrators of cybercrimes and reviewing
the purpose of imposing prison sentences on perpetrators of cybercrimes,
decision Number 30/Pid.Sus/2020/PN Tte concerning criminal acts of defamation,
that with the intention that the ITE Law in applying sanctions that have
accommodated minimum and maximum punishment can be maximized in achieving a
sense of justice and expediency. based on the description above, then the
writer narrates in the following problem formulation. Based on the background of the
problems above, this research formulates the problem as follow:
(1)
How is the application of criminal sanctions Law Number 11 of 2008 Jo. Law
Number 19 of 2016 in the criminal act of defamation or insult the decision Number
30/Pid.Sus/2020/PN Tte? And (2) What is the purpose of the threat of
imprisonment in the cybercrimes decision Number 30/Pid.Sus/2020/PN Tte
concerning defamation?
METHOD
Research Type
The method used in this study to achieve the
above objectives, namely the authors conducted research that is descriptive
analytical using normative legal research or normative juridical. Analytical
descriptive legal research is a method that functions to describe or give an
overview of the object under study through data or samples that have been
collected as they are without conducting analysis and making general
conclusions. In other words, analytical descriptive research takes problems or
focuses attention on problems as they were when the research was carried out,
the results of the research were then processed and analyzed to draw
conclusions.
Research Approach
The approach used in the
preparation of legal research used by the author is normative research where
according to Peter Mahmud Marzuki normative research has a link (Marzuki,
2016). Some of the approaches referred to above, used by the focused
authors in writing this law are normative juridical approaches. This approach
is based on the main legal material by examining the theories, concepts, legal
principles and regulations related to this research.
Data Types
and Sources
Types of
research
The type of research used is
normative legal research, namely legal research methods carried out by
examining literature or secondary data (Anshori,
2018). Normative legal research is also known as library research.
Normative research is a scientific research procedure to find the truth based
on the scientific logic of law from its normative side (Johnny,
2010).
Scientific logic in normative
legal research is built on scientific discipline and the workings of normative
legal science, namely the science of law whose object is law itself. That is,
the research methodology in the science of law has certain characteristics that
are considered as special identities that can be distinguished from other
sciences. In particular, a legal research can be distinguished according to the
type, nature, and purpose into two methods, namely normative legal research and
empirical legal research (Marzuki,
2016).
However, in the preparation of
this thesis, the authors use normative or juridical normative research, namely
research conducted to collect and analyze secondary data. As with other
normative legal research, most of it only uses secondary data sources, namely
books, diaries, statutory regulations, court decisions, legal theories and
opinions of leading legal scholars (Marzuki,
2016).
Data source
As stated above in this type of
research, the data used is secondary data. Secondary data is data obtained from
official documents, books related to the object of research, research results
in the form of reports, theses, theses, dissertations, and legal regulations (Ali,
2021). Secondary data materials can be divided into the following:
Primary Legal Materials
Primary legal material is legal
material that is authoritative, meaning it has authority. Primary legal
materials consist of statutes, official records or treatises on the making of
statutes and judges' decisions (Marzuki,
2016). The primary legal materials used in this research are:
1)
The 1945 Constitution of the Republic of Indonesia.
2)
Law Number 1 of 1946 concerning the Criminal Code (KUHP).
3)
Law Number 19 of 2016 concerning Amendments to Law No. 11 of 2008
concerning Information and Electronic Transactions.
4)
Constitutional Court Decision No. 2/PUU-VII/2009.
5)
Entire statutory regulations relating to the writing of this
thesis.
Secondary Legal Materials
Secondary legal material is legal
material that provides an explanation of primary legal material, namely the
work of legal experts in the form of books, opinions of scholars. The use of
secondary legal material is to provide researchers with a kind of clue as to
where the researcher is going (Marzuki,
2016).
Tertiary Legal Materials
Tertiary legal materials are legal
materials that support primary legal materials and secondary legal materials,
including:
1)
Big Indonesian Dictionary (KBBI);
2)
legal dictionary;
3)
News;
4)
Directory of court decisions;
5)
Legal encyclopedia.
Data
collection technique
The data collection technique used in this
thesis was obtained by means of library research. Bibliographical data obtained
through library research originating from legal regulations, books, official
documents, publications and research results (Marzuki,
2016).
Data
Analysis Techniques
The method of processing legal materials is
carried out deductively, meaning drawing conclusions from a general problem.
The analysis carried out in this study is a qualitative analysis, namely by
first collecting primary, secondary and tertiary legal materials. A qualitative
approach is an approach used to investigate, find, describe, and explain the
content or meaning of legal rules which are used as references in resolving
legal issues which are the object of study (Marzuki,
2016).
RESULTS
AND DISCUSSION
Arrangements for Criminal Defamation or
Defamation on Social Media
Genus delicti regarding
criminal acts of defamation or insult in the Criminal Code contains 12
articles. It can be seen and regulated in Article 310 to Article 321 Chapter
XVI Concerning Contempt, Book of the Criminal Code (KUHP), namely, the
following are the qualifications for mentioning the elements in the article,
not a quote, only a summary to simplify the meaning of the contents of the
article.
Meanwhile, the regulation regarding the
dissemination of information that causes defamation or insult is regulated in
Law Number 11 of 2008 Jo. Law Number 19 of 2016 concerning Information and
Electronic Transactions, Article 27 paragraph (3):
"Anyone who intentionally and without
rights distributes and/or transmits and/or makes accessible electronic
information and/or electronic documents containing insults and/or
defamation."
Analysis I
Then, the question regarding the application
of sanctions for criminal acts of defamation or insult in the ITE Law, can the
perpetrators be charged with Article 27 paragraph (3) of the ITE Law?
Ifreferring to the Genus delicti in the Criminal Code Articles 310 to 321
concerning Humiliation, to Article 27 paragraph (3) of the ITE Law concerning
Defamation or Humiliation.
The applicability and interpretation of
Article 27 paragraph (3) of the ITE Law cannot be separated from the main legal
norms in Article 310 and Article 311 of the Criminal Code. As one of the
considerations of the Constitutional Court in the decision on case No.
50/PUU-VI/2008 on the judicial review of Article 27 paragraph (3) of the ITE
Law against the 1945 Constitution. The Constitutional Court concluded that a
person's good name and honor should be protected by applicable law, so that
Article 27 paragraph (3) of the ITE Law does not violate the values -democratic
values, human rights, and the principles of the rule of law. Article 27
paragraph (3) of the ITE Law is Constitutional.
As opinion Moeljatno, the elements of a crime are; (a).
Deeds; (b). What is prohibited (by law); (c). Criminal threats (for those who
break the law (Lamintang
& Lamintang, 2022).If you look closely at the contents of
Article 27 paragraph (3) in conjunction with Article 45 paragraph (1) of the
ITE Law, it seems simple when compared to the more detailed insult articles in
the Criminal Code. Therefore, the interpretation of Article 27 paragraph (3) of
the ITE Law must refer to the defamation articles in the Criminal Code. For
example, in the ITE Law there is no definition of defamation. Referring to
Article 310 paragraph (1) of the Criminal Code, defamation is defined as an act
of attacking someone's honor or good name by accusing something with clear
intentions so that it becomes public knowledge. That is, all the elements in
the Article that are threatened, The perpetrator can be said to have committed
a criminal act of defamation or humiliation as was threatened and decidedin amarDecision
Number 30/Pid.Sus/2020/PN Tte.
Another
question is, can officials, professions, and symbols and groups be considered
objects of humiliation based on a juridical approach? The answer is, the
elements of criminal acts in general contained in the Criminal Code can be
broken down into two elements according to Lamintang's explanation, where the
two elements are objective elements and subjective elements (Lamintang
& Lamintang, 2022). The objective element has the meaning as the
elements that have a relationship with a situation such as the circumstances in
which an actor's action must be carried out. While the subjective elements are
elements that are attached to the perpetrator and something related to the
actor himself.
Thus, the scope of the criminal act of
defamation in terms of legal aspects, the criminal act of insult in both the
ITE Law and the Criminal Code, can simply be classified into 4 (four) forms,
that is, seen from the method of doing it, seen from the object being insulted,
seen from the content) the insult, and seen from the place (locus) it happened.
First, the form of
humiliation when viewed from the way it is done consists of two parts, namely:
it is done orally and it is done in writing. All types of insults in the
Criminal Code Articles 310 to 321 allow it to be done verbally, and it is also
possible to do it in writing.
Furthermore, in the ITE Law, the question
then; Does an insult made using electronic means always have to be in writing?
Of course not, because one of the elements in Article 27 paragraph (3) of the
ITE Law is, "without the right to distribute and/or transmit and/or make
electronic information and/or electronic documents accessible which contain
insults and/or defamation". That is, looking at these elements, someone
might record their voice, then share it on electronic media, for example on
Youtube, Facebook and so on, this could allow the insult to be carried out
verbally.
In certain cases, likeDecision
Number 30/Pid.Sus/2020/PN Tte, regarding Defamation or Humiliation, using
social media, such as Facebook actually allows humiliation of people (the
insulted person), you can do this by using a Facebook device, namely by using a
mobile phone (mobile phone), which is like recording (sound/image/photo/video).
Second, the form of humiliation when viewed from the object being humiliated
(the victim) consists of five parts, namely:
1)
Individual;
2)
Officials:
civil servants, President, heads of friendly countries, the general government
of the Republic of Indonesia;
3)
Profession:
religious officer;
4)
Symbols:
flags, national symbols, objects for religious purposes; And
5)
Group;
ethnicity, race, religion, and class.
Humiliation, which is the object of humiliating
individuals, is found in almost all of Chapter XVI of the Criminal Code
starting from Article 310 to. Article 319, minus Article 316, Article 320 to.
Article 321 insulting people who have died. Meanwhile, insults towards
officials are spread in the Criminal Code, civil servants (Article 316), the
President (Article 134, Article 136 bis, Article 137), heads of friendly
countries (Article 142), the Government of the Republic of Indonesia (Article
154, Article 155), general authority (Article 207 and Article 208). Contempt
for the profession is only in one form of the profession, namely religious
officials (Article 117 point 1). Then on the contempt of symbols: flags and
national symbols are found in Article 154 a of the Criminal Code, and Article 177
point 2 of the Criminal Code in objects for religious purposes. Finally,
insults against groups that are also not part of chapter XVI (humiliation),
namely ethnicity, race,
Based on the form of insult or classification
above, it can actually be narrowed down to only two items, contempt of
individuals and contempt of groups
Answer questions aboutcan
officials, professions, symbols and groups be considered objects of humiliation
based on a juridical approach? In essence, officials, professions, and symbols
as intended, the legal interests they protect are the public interest. In
contrast to humiliation of individuals, even though the pattern of criminal law
protects the public interest, the interests of the state in terms of insulting
groups are far greater than humiliation where the object of humiliation is an
individual.
The state's interest is not to intervene more
deeply, specifically in humiliating individuals, because this still concerns
the privacy of victims and criminals. That is why contempt in Chapter XVI of
the Criminal Code is dominantly qualified as a complaint offense, while insults
to other objects are qualified as ordinary offences.
Third, a form of insult
seen from its content, can be classified into 4 forms, namely:
1)
Humiliation
by being accused of committing acts, such as corruptors, prostitutes, thieves,
adulterers;
2)
Insult
with accusations in the form of terms, such as dog, crazy, bastard, etc.;
3)
What
is alleged is true;
4)
What
is alleged is not true.
The form of insult above can also be an
element in all types of insult contained in the Criminal Code. That is why
sometimes insults such as insults to religion (Article 156 a), class (Article
156), always refer to Article 310 of the Criminal Code and Article 315 of the
Criminal Code,
The question is then, is the accusation by the
perpetrator in the content accusing by deed, or accusing in terms, as in the
criminal case Decision Number 30/Pid.Sus/2020/PN Tte, is Defamation or
Humiliation? In the Criminal Code, even though the content is in the form of
insult in the case, it must be realized that it is not clearly explained in
Articles 310 to Article 321 of the Criminal Code, but only the interpretation
of criminal law experts (Chazawi,
2022; Marpaung, 1997; Prodjodikoro, 2012; Samosir & Lamintang, 1983;
Soesilo, 1995).
Fourthor The classification
of the last form of defamation, which is seen from the location of the
incident, is only divided into two, namely: (1) in a real place, conventional
insult; (2) on the spot or in cyberspace (cyber), humiliation through ITE.
Based on the criminal case Decision Number 30/Pid.Sus/2020/PN Tte, the terms of
the elements of the offense have been met.
Defamation offenses based on the locus of
events actually initiated the birth of insult crimes regulated in the ITE Law.
The insult provisions in the ITE Law are intended to complement the insult
provisions in the Criminal Code which basically only regulate conventional
insults. Nevertheless, it should be realized that all types of insults
contained in the Criminal Code, may occur through ITE.
Apart from the classification of insult
offenses that have been put forward, there are also other classifications, as
stated by previous criminal law experts, namely Leden Marpaung and Adami
Chazawi. Leden Marpaung classifies the types of humiliation in two major parts (Marpaung,
1997):
1)
Crimes
against honor: defamation, slander, minor humiliation, slander by complaint,
slander by deed, blasphemy against a deceased person;
2)
Crimes
against special honor (special insult): insulting the president/vice president,
insulting heads of friendly countries, insulting the Indonesian government,
insulting groups, insulting public power.
It is only natural then, that the
classification put forward by Leden Marpaung has not accommodated the insults
contained in the ITE Law, because his writings in the book "Crimes Against
Honor" were published in 1997, long before the birth of the ITE Law. The
only actual reference to contempt criminal law today can only be seen from
Adami Chazawi's work “Positive Criminal Law of Contempt.”
Adami Chazawi further classifies the forms of humiliation
as follows (Chazawi,
2022):
1)
Public
humiliation: defamation, written defamation, slander, minor insults, slander
complaints, making false assumptions, insulting people who have died;
2)
Specific
insult:
In KHUP: insulting the president/vice president, insulting
heads of friendly countries and representatives of foreign countries in
Indonesia, insulting the national flag and symbol of the Republic of Indonesia,
insulting the national flag of a friendly country, insulting the Indonesian
government, insulting certain groups of Indonesian residents , insulting things
related to religion, insulting authorities or public bodies;
Outside the Criminal Code: insult through ITE which is
regulated under Law Number 11 of 2008 concerning Information and Electronic
Transactions.
In conclusion, the validity of the interpretation of
Article 27 paragraph (3) of Law Number 11 of 2008 Jo. Law Number 19 of 2016
concerning Information and Electronic Transactions. It cannot be separated from
the main legal norms in Chapter XVI of the Criminal Code concerning
Humiliation. Because in the criminal case Decision Number 30/Pid.Sus/2020/PN
Tte. If you look closely at the contents of Article 27 paragraph (3) of the ITE
Law in conjunction with Article 45 paragraph (1) of the ITE Lawlooks
simple when compared to the more detailed insult articles in the Criminal Code.
Therefore, the interpretation of Article 27 paragraph (3)
of the ITE Law must refer to the defamation articles in the Criminal Code. For
example, in the ITE Law there is no definition of defamation. Referring to
Article 310 paragraph (1) of the Criminal Code, defamation is defined as an act
of attacking someone's honor or good name by accusing something with clear
intentions so that it becomes public knowledge.
Accountability for Criminal Sanctions for Defamation or
Contempt of the ITE Law
The application of criminal sanctions to the
ITE Law, it is necessary to understand the understanding of the criminal act of
electronic transactions in Law Number 11 of 2008 Jo. Law Number 19 of 2016 concerning
Information and Electronic Transactions. The idea of the ITE Law is of course
one of the options in realizing an appropriate legal system in accordance with
the principles of the rule of law. This is what should be created in the
principle of every statutory regulation. However, what must be guided by if the
legal regulations are valid, then there is no need for public rejection.
Laws and regulations must be obeyed by every
layer of society in its efforts to guarantee legal certainty that is just. The
option is if there is no agreement then through the constitutional route.
However, having a thorough understanding will make every legal product
acceptable. The problem of applying the law that is applied is of course a
different problem from the side of law enforcement.
This is in line with the doctrine that
criminal law is part of the rule of law which is coercive and binding, so the
consequences of its implementation arise in the form of criminal sanctions and
action sanctions (maatregel).
The system of applying criminal sanctions
adopted is a double track system, in which this system has a different
conception of sentencing because there is a need for a separation between the
different stages of sentencing. For example, regarding criminal threats in
laws, prosecution processes, judicial processes, and in the implementation of
crimes, there must be certain principles that are prioritized at each stage. In
cases of serious crimes, the elements of retaliation and general deterrence can
be prioritized, while light crimes are more focused on personal behavior and
providing opportunities for perpetrators to be resocialized.
So that it can be concluded that the combined
theory prioritizes the differential treatment between one criminal and another,
including differentiating the nature of the offense committed. This is used as
a basis for consideration in applying elements of retaliation and elements of
prevention in order to achieve an orderly and peaceful society.
In criminal law, a criminal sanction is a type
of sanction of a disgraceful nature that is threatened or imposed on an act or
perpetrator of a criminal act or a criminal act that can disturb or endanger
the public interest.
Referring
to the Parent of Punishment canseen in the Criminal Code, the types of
criminal sanctions have been regulated in Article 10 of the Criminal Code
(KUHP), namely punishment consisting of: Main crime (Death Penalty;
Imprisonment; Criminal Cage; Criminal Fines) and additional penalties (Revocation
of certain rights and Confiscation of certain goods)
If you look at Article 10, it regulates the
system of criminal sanctions from the heaviest sanctions to the lightest
sanctions. So, in imposing criminal sanctions, the perpetrator must be proven
guilty by being proven guilty. In this case the error in question is about
defamation or insult.
While the criminal sanctions regulated in the
ITE Law are the Main Criminal Sanctions, namely Imprisonment and Fines. As in
the criminal case Decision Number 30/Pid.Sus/2020/PN Tte. The criminal
sanctions that are threatened are regulated in Law Number 11 of 2008 Jo. Law
Number 19 of 2016 concerning Information and Electronic Transactions,in
Article 45 to Article 52 which determines the penalty of the nine (9) delict
articles previously mentioned in the Chapter above.
Sanctions in formulaThe formulation of
Article 27 paragraph (3) in conjunction with Article 45 paragraph (1) of the
ITE Law which looks simple when examined is inversely proportional to the
criminal sanctions and fines which are heavier than the criminal sanctions and
fines in the insulting articles of the Criminal Code.
As the article reads:
Article 45 UU ITE
(1)
Everyone
who fulfills the elements referred to in Article 27 paragraph (1), paragraph
(2), paragraph (3), or paragraph (4) shall be punished with imprisonment for a
maximum of 6 (six) years and/or a fine of up to Rp. 1,000,000 000.00 (one
billion rupiah).
Regarding the criminal law provisions in the
ITE Law, it has been revised through Law Number 19 of 2016 concerning
amendments to Law Number 11 of 2008 concerning Information and Electronic
Transactions. However, what is striking about the changes is only the
provisions related to criminal responsibility, as emphasized in Article 45
paragraph (3):
"Anyone who intentionally and without
rights distributes and/or transmits and/or makes accessible electronic
information and/or electronic documents that contain insults and/or defamation
as stipulated in Article 27 paragraph 3 shall be punished with imprisonment for
a maximum of 4 (four) years and/or a maximum fine of Rp. 750,000,000 (seven
hundred and fifty million rupiah).”
Still in the same article, namely in Article
45 paragraph 5 it is also emphasized that "the provisions referred to in
paragraph 3 constitute a complaint offense." In several cases, as research
data (Table 1) often insults that occur through ITE facilities, in the elements
of distributing, transmitting, and making accessible, the panel of court judges
who are trying such cases, it is difficult to define these three elements. In
fact, usually there is no unity of opinion among judges when handling cases of
insult that occur through ITE.
Even so, the provisions on insult in the ITE
Law have been amended several times, both due to judicial review by the
Constitutional Court and through limited revisions by the DPR.
The meaning contained in the elements of the
crime is still unclear, in fact there is one element that has a double meaning.
Likewise, in terms of the nature of the offense, namely the complaint offense
is not based solely on the essence of insult contained in the Criminal Code, in
which there is also a classification of insult categorized as an ordinary
offense. This also includes criminal responsibility, regardless of the
philosophy of punishment, punish someone according to their actions (culpae
poena paresto). There are many types of defamation offenses in the Criminal
Code with different criminal responsibilities, but if it occurs through the
means of ITE the criminal responsibility is equated as a whole.
As is known, that in Article 27 paragraph 3
does not mention the distribution of types of insults, as contained in the
Criminal Code. If you only refer to Law Number 19 of 2016, it seems that
insults can be charged through its provisions, namely only insults that qualify
as blasphemy and slander.
Article 27 paragraph 3 junto Article 45
paragraph 3 UU ITE is very much different from all types of insults in the
Criminal Code which pays close attention to the philosophy of punishment,
between guilt and the responsibility of the offender. This can be observed in
the types of insults contained in Chapter XVI, as follows:
1)
Oral
defamation is punishable by imprisonment for a maximum of 9 months or a fine of
Rp. 4500;
2)
Written
blasphemy is punishable by imprisonment for 1 year and 4 months or a fine of up
to Rp. 4500;
3)
Defamation
is punishable by imprisonment for 4 years and revocation of rights;
4)
Minor
blasphemy is punishable by imprisonment of 4 months and 2 weeks or a fine of
Rp. 4500;
5)
Insulting
a civil servant is punishable by an additional one-third of the criminal
penalty for the category of insult (oral defamation, written defamation, and
mild defamation);
6)
Defamation
by complaint is punishable by 4 years imprisonment and revocation of rights;
7)
Defamation
by deed (false suspicion) is punishable by 4 years imprisonment and revocation
of rights;
8)
Insulting
a person who has died by means of defamation through a letter is punishable by
imprisonment of 4 months and 2 weeks;
9)
Humiliating
a person who has died by broadcasting, showing, posting writing, is punishable
by 1 month and 2 weeks imprisonment.
Analysis II
The question that arises later in this study
is whether the implementationDecision Number 30/Pid.Sus/2020/PN Tte is in
accordance with the criminal law doctrine? As according to Moeljatno, he stated
that criminal law is part of the overall law that applies in a country which
provides the foundations and rules for:
1)
Determine
which actions may not be carried out, which are prohibited accompanied by
threats or sanctions in the form of certain penalties for anyone who violates
the prohibition;
2)
Determine
when and in what cases those who have violated these prohibitions can be
imposed or sentenced to punishment as has been threatened; And
3)
Determine
in what way the imposition of the penalty can be carried out if there are
people who are suspected of having violated the prohibition.
In line with Moeljatno's opinion, that judges
have carried out what has been regulated by the state, regarding determining
actions that are prohibited or disgraceful by law; and about determining when
judges impose sanctions on subjects who have violated the law or what is
regulated by law; as well as about how the imposition of criminal sanctions.
That is, that the implementation of the duties
of a judge is in line with what is also meant, with what was conveyed by Roeslan
Saleh, regarding the meaning of the crime, namely as a reaction to the offense
and this is in the form of a misery that the state intentionally inflicts on
the perpetrator of the offense (Muladi
& Arief, 2005).
Furthermore, the following
question, in applying sanctions, we need to see whether the person who
committed the act was subsequently also punished, as was threatened? This is
because accountability in criminal law is known as the principle of "no
crime without fault" (Gren straf zonder schuld). In other words, error in
terms of criminal law means the ability of a person to be responsible for the
actions he has committed.
In the doctrine of criminal law,
criminal responsibility is essentially a mechanism built by criminal law to
react to violations of a criminal act (Huda,
2004).
That is, a criminal act or criminal act only indicates the prohibition and
threat of an act or action which by social and legal values is a disgraceful
act with a crime or sanction/misery.
In other words, if someone commits an offense,
the offense committed can be accounted for and there is no basis for abolishing
the crime, then the perpetrator will be subject to sanctions in the form of a
crime and this is in line with Decision Number 30/Pid.Sus/2020/PN. That there
is no basis for criminal elimination of the perpetrator because of what he did.
So, the actions or offenses committed by Sipelaku can be held accountable and
subject to criminal sanctions.
Analysis III
Furthermore, in the second analysis, there is
the most fundamental question, namely whether the application of criminal
sanctions to Law number 11 of 2008 jo. Law number 19 of 2016 concerning ITE, in
Decision Number 30/Pid.Sus/2020/PN Tte, is it appropriate as the offense
committed by Sipelaku?
Analysis study of Decision Number
30/Pid.Sus/2020/PN Tte. Against the perpetrators of ITE crimes. Annotation of
the Ternate District Court Judge's Decision on the ITE criminal case with the
defendant SuDamrin Tomangoko alias Damrin alias Dam, we can read and examine in
the case position below, namely:
Position Case
1)
Decision
of the Ternate District Court Number 30/Pid.Sus/2020/PN Tte which was
pronounced in a hearing open to the public on Monday April 27 2020 in a case
with the defendant SuDamrin Tomangoko alias Damrin alias Dam for alleged acts
of violating decency and insulting or defaming his name Good.
2)
That
initially the Defendant Sudamrin M. Tomangoko alias Damrin knew the victim
Nurul Aini Hi. M. Nur alias Nurul alias NU in November 2019 when he joined the
LMND-DN Organization (National Democracy Student League–National Council), then
started a dating relationship;
3)
That
initially the victim Nurul Aini Hi. M. Nur alias Nurul alias NU did not want to
date, he only wanted to be friends, but because the Defendant was always
chasing him, the victim was Nurul Aini Hi. M. Nur alias Nurul alias NU accepted
the Defendant as his girlfriend;
4)
That
the defendant was in a dating relationship with the victim Nurul Aini Hi. M.
Nur alias Nurul alias NU arrived in December 2019, so we were dating for about
1 month;
5)
That
within 1 month of having a courtship relationship with the victim, the
Defendant and the victim often met 7 (seven) times and during these 7 (seven)
meetings, they had intercourse like husband and wife 3 (three) times in a
boarding house No. 3 in Army Mes at Ex. Akehuda Kec. North Ternate Ternate
City;
6)
That
after the Defendant and the victim had intercourse like husband and wife for
the second time, the Defendant then took a photo of the victim who was still in
the boarding house 2 (two) times, at that time the victim only wore a
long-sleeved top and wore hijab and only use underwear;
7)
Whereas
when the Defendant took a photo of the victim, the victim did not know and the
Defendant did not inform the victim, after the Defendant took the photo the
Defendant showed the photo to the victim and the victim asked the Defendant to
delete the photo but the Defendant did not delete the photo;
8)
That
the Defendant did/took a photo of the victim while not wearing clothes that
covered the victim's lower body with the intention that the victim would follow
the Defendant's wishes;
9)
That
after the Defendant took a photo of the victim who was only wearing a top and
only wearing underwear, the Defendant borrowed the victim's mobile phone and
opened a Facebook account "Nurul Him Nur" and the Defendant opened an
account on the Defendant's cellphone and automatically entered the Defendant's
cell phone, then The defendant opened a chat/chat contact belonging to the
victim's older brother named "Zaeynudin" then the defendant sent 2
(two) photos of the victim accompanied by a message that read "See kk see
nni p ade p ade p tte tte thu eee he went to college as long as he did this thu
(see that my brother and sister have characteristics/behavior in Ternate, they
don't go to college, but this is their nature);
10)
That
the Defendant sent the photo to the massenger account belonging to the victim's
brother, without the knowledge of the victim and the Defendant did not notify
the victim;
11)
That
the Defendant sent the victim's photo to the victim's sister because the victim
did not want to follow the Defendant's wishes;
12)
Whereas
when having intimate intercourse like husband and wife between the Defendant
and the victim there was no coercion from the Defendant but it was consensual;
13)
Whereas
initially the victim refused but in the end the victim also wanted to have this
sexual relationship;
14)
Whereas
apart from the victim not wanting to follow the Defendant's will, the Defendant
was also jealous because the victim was close to other men on campus;
15)
Whereas
the Defendant only sent photos of the victim to the victim's sister through the
victim's sister's messenger account, the Defendant never sent these photos
through other social media applications;
16)
That
the Defendant knew what the Defendant had done was wrong and the Defendant had
apologized from the victim's brother;
17)
That
as a result of the actions of the Defendant, the victim Nurul Aini Hi. M. Nur
alias Nurul alias NU and his family were embarrassed;
18)
That
the Defendant regretted his actions and promised not to repeat them again;
19)
That
the Witnesses and the Defendant confirmed the evidence shown at trial;
Analysis IV
Based on the above legal facts, the Defendant
alias Damrin can be declared to have committed a crime. The defendant alias
Damrin in this case took photos of the victim who was still in the boarding
house 2 (two) times, at which time the victim only wore a long-sleeved top and
wore a headscarf and only wore underwear. The Defendant took a photo of the
victim, the victim did not know and the Defendant did not notify the victim,
after the Defendant took the photo the Defendant showed the photo to the victim
and the victim asked the Defendant to delete the photo but the Defendant did
not delete the photo. Taking a photo of the victim with the intention that all
of the Defendant alias Damrin's requests would be followed by the victim or the
Defendant's wishes would be followed.
The actions of the Defendant alias Damrin are
suspected of having immoral content and insults or defamation. As well as the
tools used are Xiaomi brand cellphones via internet media with a Facebook
social media account. So that this action falls within the scope of the ITE
Law. This means that the legal provisions or the ITE Law in conjunction with
the Amendments to the ITE Law or the Articles of Contempt in the Criminal Code
are used for this alleged act. Related to the use of the article on humiliation
or defamation in the Criminal Code, according to the researcher, it is not
possible considering the principle of lex specialis deorogate legi generali,
the Criminal Code is a general law that has received special regulations
regarding acts of insult or defamation by using internet media in the ITE Law.
The problem now is which of these two laws is the most appropriate to be
imposed on the actions of the defendant alias Damrin. Remmelink as quoted by
Eddy OS Hiariej explained that in a situation like this it is necessary to use
the systematic lex specialis principle, which is based on objects that are
regulated more fully than the applicable legal provisions. When compared to the
two (ITE and Criminal Code) laws, the Criminal Code does not explain the crime
or delict committed by the defendant alias Damrin using internet media, but in
the ITE Law in the narrative of the article that the object used is internet
media. This means that the ITE Law explains more in detail the elements of the
actions of the accused alias Damrin through the electronic system.
Regarding the actions of the accused alias
Damrin, it can actually be reviewed for the upload with the intention that was
carried out. Upload with the intention, First; "The defendant alias Damrin
took a photo of the victim without the victim's permission, which at that time
the victim was only wearing a hijab and not wearing her pants. Second;
"The defendant alias Damrin with the photo intends that all the wishes of
the defendant be obeyed if the photo is not to be disseminated. Third; the
defendant sent the photo to the victim's brother or sister via the internet
(FB) by saying (in essence, saying all the actions that were done by his sister
and brother were like this while in college). At first glance, the actions of
the defendant alias Damrin are not included in defamation or insult in the ITE
Law and the Criminal Code.
Based on the actions committed by the
defendant alias Damrin uploaded on social media with the intention of
embarrassing the victim. Then the elements of Article 27 paragraph (3) joArticle 45
paragraph (1) of the ITE Law.Explicitly in Article 27 paragraph (3) in
conjunction with Article 45 paragraph (3) of the ITE Law. Elements of criminal
acts or offenses in Article 27 paragraph (3) in conjunction with Article 45
paragraph (3) of the ITE Law are as follows:
1)
Subjective
Elements:
Deliberately; The element of error required
in this legal provision is intentional. This means that the actions of the
accused in the form of intention can be implemented (intentional as intention,
intentional as certainty and intentional as or possibility). The perpetrator
must want his actions to be carried out in order to realize the goals he wants.
The perpetrator wanted to take a photo of the victim with the intentionthe
victim complied with all of the defendant's requests, if not the photo of the
defendant would be shared so that the victim would be embarrassed.
2)
Objective
Elements:
a)
Without
rights: elements without rights here are juxtaposed with subjective elements
(intentionally). This means that both must be proven by the public prosecutor
in court. The meaning of 'without rights' can be understood as there is no
basis for rights or authority to do that act. The perpetrator did this
precisely to attack the rights of other people for the purpose of achieving
hatred, shame or embarrassment or degrading honor on the basis of defaming the
name of another person (the victim).
b)
Disseminating
information is intended to create a sense of humiliating the victim's honor,
this act refers to the ITE Law using an electronic system or internet network
connectivity. The condition required is the dissemination of the information.
The question arises, when did the information become widespread? When
perpetrators upload electronic information that is prohibited, the information
has actually been widely disseminated. Regarding how many people have witnessed
or seen or read this information, it really doesn't matter. The measure of
demeaning people's honor should be placed when the perpetrator makes
information easily accessible to anyone.
c)
The
target or object of the actions of Article 28 paragraph (2) of the ITE Law can
actually be anyone, he is a certain person and/or community group.
d)
The
Panel of Judges in their decision is in accordance with what the Public
Prosecutor demands. The Panel of Judges in their decision against the defendant
Damrin is sentenced to imprisonment for 5 (five) years and 6 (six) months and a
fine of Rp. 100,000,000.00 (one hundred million rupiah) if the fine cannot be
paid by the Defendant, then it is replaced by imprisonment for 3 (three) three
months. However, the Panel of Judges in its Consideration stated that the
defendant alias Damrin was legally and convincingly guilty of also committing
an act that had a charge that violated decency.
Based on the table and analysis above, it can
be seen that the application of immoral criminal sanctions containing
defamation or insults on social media is in Decision Number 30/Pid.Sus/2020/PN
Tte. In line with Article 27 paragraph (3) in conjunction with Article 45
paragraph (3) of the ITE Law.
Purpose of Threatening Imprisonment in Mayantara Crime or
Cyber Crime Decision Number 30/Pid.Sus/2020/PN Tte Regarding Defamation.
Related to the purpose of imposing a sentence in the
perspective of criminal law, there are various opinions by experts regarding
the purpose of imposing a sentence itself. Some of the opinions of experts
regarding the purpose of criminal imposition are as follows:
1) According
to JE Sahetapy: Whereas punishment aimed at exonerating criminals must be able
to free the perpetrator from the wrong way or path he has taken. The meaning of
liberating requires that the doer must not only be freed from wrong evil
thoughts, but he must also be freed from the social reality in which he is
shackled.
2) According
to van Bemmelen: That the purpose of imposing this sentence is not to increase
suffering, but solely for the protection of society and treatment, improvement
and education for perpetrators of law violations (Ekaputra
& Kahir, 2010).
3)
Various
paradigms regarding the purpose of imposing a sentence are certainly influenced
by social developments at a time. In this context the dynamics of society are
always developing in a better and more civilized direction. Therefore, criminal
law as a norm that applies in society also experiences development in
accordance with the development of that society.
In order to better understand the shift in the sentencing
paradigm, it is necessary to understand the various streams in criminal law
which are the background to the shift, namely:
1)
Classical
Flow
This flow developed around the 18th century.
This flow is a stream that is very thick with the nuances of legism because
this flow develops when the flow of legism becomes a paradigm in society. This
flow is also a response to the arbitrariness of the authorities. This flow
requires that everyone obtain legal certainty, especially in criminal law. In
accordance with the underlying paradigm, namely the legal school, the classical
school requires a balanced punishment. Punishment must be imposed according to
the crime committed. In the context of sentencing, a certain formula is also
applied. In the classical school of criminal law which is formulated in a definite
sentence. Punishment must be in accordance with what is formulated in the law (Purwadiyanto,
2015).
This means that the weight of the crime has
been determined in the law and the judge does not have the authority to impose
other penalties other than those specified in the law. This flow requires a
criminal law that is systematically arranged and focuses on actions and not on
people who commit crimes. By being oriented towards the actions committed by
the defendant in Decision Number 30/Pid.Sus/2020/PN Tte. This flow requires
that the sentence imposed is balanced with the act. In an extreme way, it can
be said that the classical school in the provision of punishment is more
backward-looking, namely only oriented towards the actions that have been
committed by the perpetrator. Because of this, criminal law that is developing
at this time is often known as criminal law which is only oriented towards the
perpetrator (daderstrafrecht).
2)
Modern
Flow
It turns out that the journey of the classical
school in the criminal law discourse has received responses from various
figures who are not in line with the paradigm of the classical school. This
school arose in the 19th century with the view that criminal imposition was
only oriented towards the problem of actions that were considered unable to
provide justice. In this context adherents of the modern school expressed their
opinion, so that the sentence is not based on the perpetrator of the crime
(daderstrafrecht). Sentence must be based on the characteristics and personal
circumstances of the offender. Compare this with the classical school of
thought which requires criminal imposition to be based on deed (daadstrafrecht)
which is often said to be only backward looking (Purwadiyanto,
2015).
The modern school is also called a positive
school, because in searching for the causes of crime it is based on natural
science. In addition, this flow intends to approach the perpetrators of crime
in a positive way, meaning to influence the perpetrators of crime in a more
positive direction as long as it is still possible (Rasjidi,
2012).
With such a paradigm, this flow is often
regarded as a forward-looking stream. The modern school also rejects the view
that punishment must be imposed according to the crime committed. This
rejection is based on the modern understanding that humans do not have free
will. Thus, criminal responsibility based on the subjective guilt of the
perpetrators must be replaced by the dangerous nature of the perpetrators of
crimes. Even if the term criminal is used, the sentence imposed must be based
on and oriented towards the characteristics of the offender himself.
3)
Neo-classical
flow
Neo-classical flow is a flow that emerged as a
reaction to the classical flow. As a reaction to the classical school, this
school basically also comes from the classical school. Like the classical
school, the neo-classical school also departs from the notion of free will or
the view of indeternism. Even so, this school seeks to provide corrections to
the classical school which is considered less humane (Sianturi
& Panggabean, 1996). Criticism of the neo-classical school, seen
in his view of the punishment imposed by the classical school. According to the
neo-classical school, the punishment imposed/produced by the classical school
is very heavy. In an effort to overcome the existing penal system, the
neo-classical school tries to offer a more humane penal system. For this need,
the neo-classical school formulates punishment with a minimum and maximum
criminal system. In addition to the existence of a minimum and maximum system
in sentencing, this school also recognizes the principle of extenuating
circumstances (Purwadiyanto,
2015).
Thus, it appears here that the neo-classical
school begins to consider things that are individual in relation to criminal
imposition. This means that punishment is not only imposed based on the act,
but also based on the individual considerations of the offender. One thing that
is very visible from the shift in views, among others, the classical school and
the neo-classical school, in this case, is the abandonment of the definite
sentence formulation system. Instead put forward a criminal system that is
formulated indefinitely. By the definite sentence system, we mean a criminal
system that has been formulated with certainty. In this system, a judge cannot
impose a sentence on someone who is charged with committing a crime outside of
what has (definitely) been formulated in the Criminal Code. The judge may not
impose another sentence, both its type and severity. Meanwhile, in the criminal
indefinite sentence system, what is formulated in law is only the minimum and
maximum limits. The judge has the freedom to impose a sentence on a defendant
within the minimum and maximum limits. In this case, it appears that the role
of the judge has begun in resolving cases that occur in society. Judges are not
only mouthpieces for laws, but have the authority to interpret laws.
Then, with regard to the purpose of imposing a
prison sentence, it is inseparable from the theory of the purpose of
punishment. In a criminal case, such as the case in this study, the question
arises; "why a crime or violation or disgraceful act or delict or
defamation or insultDecision Number 30/Pid.Sus/2020/PN Tte in this thesis
research, subject to a crime?
The development of thinking about the nature
of the purpose of sentencing has developed from time to time trying to justify
the actions of the state. To answer this question the author tries to analyze
using sentencing theories that develop in criminal law are Retribution Theory
and Relative Theory
Analysis I
Imprisonment as Recompense for Disgraceful
Acts
The view is that the purpose of imposing
imprisonment on violations by perpetrators of ITE crimes or mayantara crimes is
as recompense for disgraceful acts.
The retributive theory in terms of sentencing
is based on the reason that punishment is "morally justified" because
the perpetrators of crimes can be said to be worthy of receiving it for their
crimes. An important assumption about the justification for punishing as a
response to a crime because the perpetrator of a crime has violated certain moral
norms that underlie the rule of law which he did intentionally and consciously
and this is a form of moral responsibility and legal guilt of the perpetrator (Prakoso,
2019).
The retributive theory legitimizes punishment
as a means of retaliation for crimes that have been committed by someone. Crime
is seen as an immoral and immoral act in society, therefore the perpetrators of
crime must be repaid by imposing a sentence. The purpose of punishment is
released from any purpose, so that punishment has only one goal, namely
retaliation (Eddy
& Hiarriej, 2016). This retributive theory is then
divided into 5 parts (Andrisman,
2009):
1)
Absolute retaliation from ethical demands, meaning that punishment
in the form of imprisonment is an absolute demand from ethics against an
offender who harms others.
2)
Retaliation in return; This theory was put forward by Hegel who
stated that law is an embodiment of freedom while crime is a challenge to law
and justice. That is, to maintain the law which is the embodiment of freedom
and justice, crimes absolutely must be eliminated by giving punishment to
criminals.
3)
Retaliation for beauty and satisfaction; The purpose of this
theory is that retaliation is an absolute demand from the feelings of community
dissatisfaction, as a result of a crime, to punish criminals, so that community
dissatisfaction is restored.
4)
Revenge according to God's teachings; as stated by Stahl that
crime is a violation of God's justice and must be abolished. Therefore, it is
absolutely necessary to give suffering to criminals in order to maintain God's
justice. The way to defend God's justice is through the power given by God to
the rulers of the State.
5)
Vengeance as a human will; it means that this theory bases
punishment also as a manifestation of human will. According to this teaching,
it is a natural requirement that anyone who does evil will receive something
evil.
Against the theory of retaliation
mentioned above, it is also emphasized with criticism that this theory does not
show practical goals, which, among other things, have no intention to correct
criminals. This can be seen when a problem occurs, in this case a crime of
mayantara or other issues that grab the public's attention, often when
journalists interview family, friends or people who sympathize with the
incident, expressing their hopes in this case by saying "hopefully he (the
suspect) punished as severely as possible by the judge” without thinking about
rehabilitation or the goals of today's modern punishment. Then, the judges
still consider that with careful consideration, imprisonment can still be used
as an adequate means of overcoming crime. Prison sentences were imposed because
they were threatened in criminal law. Prison sentences were imposed because
they were reliable in dealing with crime in Indonesia.
Imprisonment as a form of handling criminal
acts to protect the public
The view is that the purpose of
imposing imprisonment on violations by perpetrators of ITE crimes or mayantara
crimes is as a form of overcoming criminal acts to protect society. This view
is heavily influenced by deterrence theory, especially special prevention
theory. Cessare Beccaria emphasized that the purpose of punishment is to
prevent someone from committing a crime, and not as a means of revenge for
society (Prakoso,
2019).
Furthermore,
the purpose of punishment as a deterrence effect is divided into two, namely
general deterrence and special deterrence. The purpose of punishment for
general prevention is expected to give a warning to the public so they don't
commit crimes. This general prevention according to van Veen has three
functions, namely enforcing government authority, enforcing norms and forming
norms. Special prevention means that with the punishment imposed, it gives a
deterrence effect to the perpetrator so that he does not repeat his actions
again. Meanwhile, the function of protection for the community allows that with
the punishment of revocation of freedom for some time, the community will avoid
crimes that might be committed by the perpetrators (Prakoso,
2019).
In line with this, in order to
carry out its function as social control law as social control, the law can
serve 3 (three) sectors, namely (Kusumaatmadja,
2006):
1)
Law as an instrument of order (ordering); Within the framework of
this order, law can create a framework for decision-making and resolution of
problems/disputes that may arise through a good procedural law. It can also lay
the legal basis (legitimacy) for the use of power.
2)
Law as a means of maintaining balance (balancing); The function of
law is to maintain balance and harmony between state interests/public interests
and individual interests.
3)
Law as a catalyst; As a legal catalyst, it can help to facilitate
the process of change through law reform with the help of staff in the legal
profession.
If it is associated with the imposition of
criminal offenses against perpetrators of criminal acts of defamation through
electronic media, the goal to be achieved based on this theory is to deal with
victims of crime by placing ITE criminals or perpetrators of mayantara crimes
in prisons/prisons so that perpetrators cannot to act in the public interest in
general. In other words, by imposing a prison sentence on the perpetrator of
the mayantara crime for a while the perpetrator will not commit the same crime
or other crimes. In accordance with this deterrence theory which states that
retaliation has no value, but only as a means to protect the interests of
society.
Imprisonment to Provide a Deterrent Effect on
Offenders
The aim of imposing imprisonment
on perpetrators of criminal acts of defamation is to give a deterrent effect to
perpetrators. In the development of finding the basis for justification for a
crime, it is known as the concept of deterrence maker or the theory of
deterring people, which aims to deter all citizens from committing crimes.
This is in line with the opinion
of Stahl who said that with a punishment can achieve three things, namely to
protect the rule of law, to prevent people from committing crimes, and to make
people deterred from committing crimes (Lamintang
& Lamintang, 2022).
That is, the threat of punishment
must be able to prevent people's intentions to commit crimes, in the sense that
people realize that committing a crime will definitely be punished, for that
they will abandon the intention to commit a crime. So, according to this
objective, a prison sentence is imposed so that the perpetrator does not want
to do the act again.
Description
of the Threat of Imprisonment at the Case Level Through Electronic Media
The development of social media is getting
faster and reaching all levels of society. Social media combines elements of
information and communication through several features for the needs of its
users. Some information through status uploads, sharing news links,
communication via chat, audio/visual communication and others are the superior
features of social media. Use of internet-based social media that is not
wise, as data on criminal cases or world cases, including:
Table 1. List of Cases in The World of Cybercrimes
|
Search Results in the Ruling Directory of the Supreme Court
of the Republic of Indonesia
|
|
Year
|
National at First Level Process
|
Note
|
Local
Ternate City District Court
|
Note
|
|
2021- Sept.
|
191 registered ITE cases, at the first level of the
process.
109 District Courts spread across the Indonesian Territory.
|
Ammar: 191
Others: 191
|
2 registered cases of ITE, at the first level of the
process.
|
Ammar: 2
Others: 2
|
|
2020
|
383 registered ITE cases, at the first level of the
process.
149 District Courts scattered in Indonesian Territory.
|
Ammar: 383
Others: 383
|
3 registered ITE cases, at the first level of the process.
|
Ammar: 3
Others: 3
|
|
2019
|
287 registered ITE cases, at the first level of the
process.
116 District Courts spread across the Indonesian Territory.
|
Ammar: 287
Others: 285
Free: 1
Release: 1
|
1 registered ITE case, at first level process.
|
Ammar: 1
Others: 1
|
|
2018
|
179 registered cases of ITE, at the first level of the
process.
104 District Courts scattered in Indonesian Territory.
|
Ammar: 179
Others: 177
Free: 2
|
2 registered cases of ITE, at the first level of the
process.
|
Ammar: 2
Others: 2
|
|
2017
|
69 registered ITE cases, at the first level of the process.
46 District Courts spread across the Indonesian Territory.
|
Ammar: 69
Others: 67
Free: 1
Release: 1
|
2 registered cases of ITE, at the first level of the
process.
|
Ammar: 2
Others: 2
|
|
|
Number of Courts in Indonesia Handling and Deciding ITE
Cases with Imprisonment
|
|
Amount
|
2017 to 2021-Sept : 1,109 ITE Cases. in 524 District Courts
in Indonesia.
|
2017 to
2021-Sept: 1,103 (sanctions)
|
2017 to 2021-Sept: 10 ITE cases
|
2017 to
2021-Sept: 10 cases that received sanctions (ITE)
|
Source: Directory
of Decisions of the Supreme Court of the Republic of Indonesia
Then, the data found by researchers, that
Indonesian Facebook users are ranked 4th after the USA, Brazil and India. There
are around 65 million active Facebook users and as many as 33 million active
users per day but "April 2017 data shows a significant increase in the
number of active Facebook users in Indonesia, namely as many as 111 million
users.
Legal cases that have been rife lately as
shown in the data and table 5 above are related to technology, namely the
Internet and social media, including cases of defamation through internet
social media. It can even be said that almost every day similar cases actually
occur, which is due to the increasing freedom of the public in expressing their
opinions via the internet, in this case social media. One case that very often
occurs is a case of insult or defamation through internet social media.
The large number of Facebook users are used by
a number of parties to commit various criminal acts in the form of fraud,
falsification, showing pornography, including the intentional act of causing
insult/defamation. As defamation via Facebook in Decision Number
30/Pid.Sus/2020/PN Tte.
Based on the judge's considerations with
regard to the public prosecutor's indictments, the judge stated that the public
prosecutor's indictments were fulfilled. However, the subsidiary indictment of
Article 45 paragraph (3) of the ITE Law was not proven to have been committed
by the perpetrator so that he was sentenced to a decency crime. In this case
the ITE Law has a new perspective in the formulation of criminal offenses
compared to the views in the Criminal Code (KUHP) which tend to be seen as
conventional.
The applicability and interpretation of
Article 27 paragraph (3) of the ITE Law cannot be separated from the main legal
norms in Article 310 and Article 311 of the Criminal Code. That was one of the
considerations of the Constitutional Court in the decision on case No.
50/PUU-VI/2008 on the judicial review of Article 27 paragraph (3) of the ITE
Law against the 1945 Constitution. The Constitutional Court concluded that a
person's good name and honor should be protected by applicable law, so that
Article 27 paragraph (3) of the ITE Law does not violate the values -democratic
values, human rights, and the principles of the rule of law. Article 27
paragraph (3) of the ITE Law is Constitutional.
If you look closely at the contents of Article
27 paragraph (3) in conjunction with Article 45 paragraph (1) of the ITE Law,
it seems simple when compared to the more detailed insult articles in the
Criminal Code. Therefore, in interpreting Article 27 paragraph (3) of the ITE
Law, judges must refer to the defamation articles in the Criminal Code. For
example, in the ITE Law there is no definition of defamation. Referring to
Article 310 paragraph (1) of the Criminal Code, defamation is defined as an act
of attacking someone's honor or good name by accusing something with clear
intentions so that it becomes public knowledge.
Then from another point of view, among the
goodness contained in the law, there is one article that is a bit worrying, not
only for the accused in this case but also for all of us, namely article 27
paragraph (3). This article is a threat to someone who deliberately insults
and/or defames another person by using access to electronic information or
electronic documents.
So if analyzed based on Article 310 paragraph
(2) of the Criminal Code regarding defamation or humiliation. If this is done
in writing or with a picture that is broadcast, shown or posted in public, then
the threat due to written defamation is punishable by imprisonment for a
maximum of one year and four months or a maximum fine of four thousand five
hundred rupiahs (Saleh,
2013).
Because the panel of judges held the view that
based on the facts revealed in court about the crime committed by the Defendant
alias Damrin legally against the law, guilty and punished. Which is then in
line with the objective of sentencing that the imposition of a sentence is not
solely as retaliation for the actions of the Defendant but aims to achieve
peace in society and also to foster and educate so that the Defendant realizes
his mistakes so that he becomes a good member of society in the future, then
based on considerations According to the Panel of Judges, it is proper and fair
for the Defendant to apply probation as stipulated in Article 14 (a) of the
Criminal Code.
In line with the above, the focus is on
sentencing; The emphasis is not on the feelings of the victim, but on the
actions of the perpetrator which were carried out intentionally (dolus) with
the intention of distributing or transmitting or making accessible information
whose contents attack someone's honor by accusing something of making it
public.
Based
on the explanation above it can be concluded that defamation was carried out through
social media based on Decision Number 30/Pid.Sus/2020/PN Tte. becomes an
illustration that criminal acts of defamation or insult do not only exist in
the Criminal Code but are also regulated in Law number 11 of 2008 jo. Law
number 19 of 2016 concerning ITE. Then, be wiser in using social media.
CONCLUSION
Application of criminal sanctions by the Panel of Judges
for the criminal act of mayantara Decision Number 30/Pid.Sus/2020/PN Tte.
regarding Defamation or insult on social media refers to Article 27 paragraph
(3) in conjunction with Article 45 paragraph (3) of Law Number 11 of 2008 jo.
Law number 19 of 2016 concerning ITE with the threat of imprisonment for 5
(five) years and 6 (six) months and a fine of Rp. 100,000,000.00 (one hundred
million rupiah) if the fine cannot be paid by the Defendant, it is replaced by
imprisonment for 3 (three) months. However, the Panel of Judges in its
Consideration stated that the defendant alias Damrin was legally and
convincingly guilty of also committing an act that had a charge that violated
decency.
The aim of imposing imprisonment on perpetrators of
criminal defamation through electronic media is as retaliation for disgraceful
acts, as a form of overcoming criminal acts to protect society and to create a deterrent
effect on perpetrators. This goal is heavily influenced by criminal
philosophies in criminal law.
REFERENCES
Ali,
Zainuddin. (2021). Metode penelitian hukum. Sinar Grafika.
Andrisman, Tri.
(2009). Hukum Pidana: asas-asas dan dasar aturan umum hukum pidana Indonesia.
Penerbit Universitas Lampung.
Anshori, Abdul Ghofur.
(2018). Filsafat hukum. Ugm Press.
Chazawi, Adami.
(2022). Hukum Pidana Positif Penghinaan. Media Nusa Creative (MNC
Publishing).
Eddy, O. S. Hiariej,
& Hiarriej, S. (2016). Prinsip-prinsip hukum pidana. Yogyakarta: Cahaya
Atma Pustaka.
Ekaputra, Muhammad,
& Kahir, Abdul. (2010). Sistem Pidana di dalam KUHP dan pengaturannya
menurut Konsep KUHP Baru. USUpress.
Huda, Chairul. (2004).
Kesalahan dan Pertanggungjawaban Pidana. Jakarta: Program Pascasarjana
UI.
Jhonny, Ibrahim.
(2010). Teori dan Metodologi Penelitian Hukum Normatif, Malang: PT. Bayu
Media Publishing.
Karami, M. R. (2003).
Pour’s suitable training with information age. The Growth of Educational
Technology, (20.45).
Kusumaatmadja,
Mochtar. (2006). Hukum, masyarakat, dan pembangunan. Bandung: Binacipta.
Lamintang, P. A. F.,
& Lamintang, Franciscus Theojunior. (2022). Dasar-dasar hukum pidana di
Indonesia. Sinar Grafika.
Marpaung, Leden.
(1997). Tindak pidana terhadap kehormatan: pengertian dan penerapannya:
dilengkapi dengan putusan-putusan Mahkamah Agung RI. RajaGrafindo Persada.
Marzuki, Peter Mahmud.
(2016). Penelitian Hukum, Edisi Revisi, Cetakan Ke-12. Jakarta: Kencana.
Muladi, Bassiouni,
& Arief, Barda Nawawi. (2005). Teori-teori dan kebijakan Pidana. Alumni,
Bandung: Hlm, 90.
Prakoso, Abintoro.
(2019). Hukum penitensier.
Prodjodikoro, Wirjono.
(2012). Tindak-tindak Pidana Tertentu di Indonesia, ed. 3 cet. 4. Refika
Aditama, Bandung, 1.
Purwadiyanto, Taufan.
(2015). Analisis Pidana Kerja Sosial Dalam Hukum Positif Di Indonesia. Lex
Administratum, 3(8).
Ramli, Ahmad M.
(2010). Cyber law dan haki: dalam sistem hukum Indonesia.
Rasjidi, H. Lili.
(2012). Pengantar filsafat hukum.
Saleh, Roeslan.
(2013). Pikiran-Pikiran tentang Pertanggung Jawaban Pidana. Cetak an
Pertama, Jakarta: Ghalia Indonesia.
Samosir, C. Djisman,
& Lamintang, P. A. F. (1983). Hukum Pidana Indonesia. Bandung: Sinar
Baru.
Sianturi, S. R., &
Panggabean, Mompang L. (1996). Hukum Penitensia di Indonesia. Cetakan
Pertama, Alumni Ahaem-Petehaem, Jakarta.
Sitompul, Josua.
(2012). Cyberspace, cybercrimes, cyberlaw: tinjauan aspek hukum pidana. PT
Tatanusa.
Soesilo, Raden.
(1995). Kitab Undang-Undang Hukum Pidana (KUHP): Serta Komentar-Komentarnya
Lengkap Pasal Demi Pasal.
Wahid, Abdul. (2005). Kejahatan
Mayantara (cyber crime).
