LEGAL CONSULTATION: I Was Forced to Kill in Self Defense

Question:

I have a family now arrested for being the perpetrators of the murder case. This happened because the perpetrator intended to defend himself when the victim came to his residence and attacked the perpetrator with a machete. The victim was upset because the perpetrator previously reported him to the police with a threatening case. This was the result of a dispute between the victim and the perpetrator's parents regarding the issue of family inheritance. When attacked, the perpetrator fought back with a machete, resulting in the death of the victim. My question is whether the perpetrator who intends to defend himself should be punished?

Arni

Answer:
Thank you for your question brother. The substance of the question is "emergency defense" or often called noodweer, which is used to refer to the defense that needs to be done against attacks that are immediate and against the law, which in the field of criminal law science is also known by a number of terms such as Notwehr, Legitim Defense, or Rechtverdediging.

The term noodweer can be found in the provisions of Article 49 paragraph (1) of the Criminal Code (KUHP) which reads:

"Whoever commits an act, which he is compelled to do to defend himself or another person, to defend his honor or property or property of another person, rather than an attack against his right and immediately threatens at the same time, should not be punished"

The purpose of the provisions of Article 49 paragraph (1) of the Criminal Code above, basically explains that in a state of emergency defense, the perpetrator who commits a criminal act may not be punished. However, it should be noted that a criminal act committed by a person with the intention of defending himself does not automatically become an emergency defense or noodweer. R. Soesilo stated that there are three kinds of conditions that must be met in noodweer as follows:

The act committed must be forced to defend (defense). It must be absolutely necessary, so to speak there is no other way.
The defense or defense must be carried out only against the interests of the body, honor and oneself or others.
There must be attacks against rights and threats suddenly or at a moment's notice.
Based on these conditions, we assume that in order to classify your family's actions in the noodweer category, conditions must be met, in the form of the fact that the attack is against the law (wederrechtelijk). According to Pompe, the word against the law (wederrechtelijke) in Article 49 (1) of the Criminal Code must be interpreted as "contrary to the law" which has a broader meaning than simply "contrary to the law". So in addition to legislation, it also includes the meaning of unwritten regulations.

Second, conditions must also be met, in the form of the fact that an attack must bring a direct threat to the body (lijf), honor (eerbaarheid) or property (goed). These conditions include one's own body or another's body, self-respect or the honor of others, and one's own property or property belonging to others. In Article 49 (1) of the Criminal Code, the intended honor relates to the honor of decency, namely "the genitals according to sex". While property is a tangible object.

Third, the condition must also be met, in the form of the fact that the attack is instantaneous. In Memorie van Toelichting's explanation that noodweer is justified because of a sudden attack and protection from the state apparatus (police) cannot be expected, which according to van Hattum (Lamintang, 1984:446), a noodweer is not against the law. However, it can be equated with "acts of vigilantism legalized by law". The act had to be legalized because the state was unable to fulfill its obligation to guarantee the safety of its citizens in the event of a (sudden) attack.

However, Kartanegara (tt: 467) says noodweer if there is no other possible way to avoid an attack. This means that if there is still the possibility to do other things to avoid an attack, it cannot be qualified as forced (noodzakeljke). In principle, through judicial means, it will be proven whether the forced defense made by your family meets the requirements or not according to criminal law.

This is our answer.

Moh. Maulana, SH., MH/ Mulya Sarmono, SH

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