Jurisdiction 14-10-2008

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JurisdictionJurisdiction

1.A government¶s general power to exercise1.A government¶s general power to exerciseauthority over all persons and things within itsauthority over all persons and things within its

territory; esp., a state¶s power to createterritory; esp., a state¶s power to create

interests that will be recognized under interests that will be recognized under

commoncommon--law principles as valid in other law principles as valid in other

states.states.

2.A court¶s power to decide a case or issues a2.A court¶s power to decide a case or issues adecree <the constitutional grant of federaldecree <the constitutional grant of federal--

question jurisdiction>.question jurisdiction>.

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3. A geographic area within which political or judicial3. A geographic area within which political or judicial

authority may be exercised <the accused fled toauthority may be exercised <the accused fled to

another jurisdiction>.another jurisdiction>.

4. A political or judicial subdivision within such an4. A political or judicial subdivision within such an

area <other jurisdiction have decided the issuearea <other jurisdiction have decided the issuedifferently>differently>

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JuJu--risris--dicdic--tiontion\\jjr r--ss--¶dik¶dik--shshnn\\n [Latinn [Latin jurisdictio,jurisdictio,fromfrom jurisjuris, genitive of jus law + dictio act of saying,, genitive of jus law + dictio act of saying,

from dicere to say] 1: the power, right, or authorityfrom dicere to say] 1: the power, right, or authorityto interpret, apply, and declare the law (as byto interpret, apply, and declare the law (as byrendering a decision) [to be removed to the Staterendering a decision) [to be removed to the Statehaving~of the crimehaving~of the crime ±± U.S. Constitution art. IV] [aU.S. Constitution art. IV] [acourt of competent~].court of competent~].

Jurisdiction determines which court system shouldJurisdiction determines which court system shouldproperly adjudicate a case. Questions of properly adjudicate a case. Questions of jurisdiction also arise regarding quasiÝ judicialjurisdiction also arise regarding quasiÝ judicialbodies (as administrative agencies) in their bodies (as administrative agencies) in their decisiondecision--making capacities.making capacities.

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JurisdictionJurisdiction The scope of the court¶s power toThe scope of the court¶s power to

examine and determine the facts, interpret andexamine and determine the facts, interpret and

apply the law, make orders and declare judgment.apply the law, make orders and declare judgment.Jurisdiction may be limited by geographic area, theJurisdiction may be limited by geographic area, the

type of parties who appear, the type of relief that cantype of parties who appear, the type of relief that can

be sought, and the point to be decided. The powersbe sought, and the point to be decided. The powers

of courts of limited jurisdiction are generally definedof courts of limited jurisdiction are generally definedby statute. Where jurisdiction is questioned,by statute. Where jurisdiction is questioned,

jurisdiction connotes the statutory limits imposedjurisdiction connotes the statutory limits imposed

upon the court to hear and determine issuesupon the court to hear and determine issues

together with general principles requiring a clear together with general principles requiring a clear case to be made out:case to be made out: Walker v Hussmann Austr al i a Walker v Hussmann Austr al i a

Pty Ltd Pty Ltd (1991) 24 NSWLR 451; 381 IR 180. See(1991) 24 NSWLR 451; 381 IR 180. See

alsoalso Federal systemFederal system..

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Jurisdiction/Locus DelictJurisdiction/Locus Delict

Jurisdiction is Locus of OffenceJurisdiction is Locus of Offence

Federal jurisdiction and state jurisdictionFederal jurisdiction and state jurisdiction National jurisdiction and local jurisdictionNational jurisdiction and local jurisdiction

Legal Basic: Article 2Legal Basic: Article 2 ±± 9 KUHP9 KUHP

Main PrincipleMain Principle :: Territory PrincipleTerritory Principle

Article 2 :Article 2 : Do Offence In IndonesiaDo Offence In Indonesia

Article 3Article 3 :: Do Offence in Indonesian¶sDo Offence in Indonesian¶s

Ship and Aircraft.Ship and Aircraft.

Article 4Article 4 :: Every person outside IndonesiaEvery person outside Indonesiado crime against state securitydo crime against state security(Article 104, 106, 107, 108, 11(Article 104, 106, 107, 108, 11bis kebis ke--1 KUHP)1 KUHP)

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Principle :Principle : National Active Protection For InterestNational Active Protection For Interest

Article 5 : Every Indonesian citizen OutsideArticle 5 : Every Indonesian citizen Outside

Indonesia do:Indonesia do:

(1)(1) Provocation some one do Offence (Article 160 Provocation some one do Offence (Article 160

And 161 KUHPAnd 161 KUHP

(2)(2) Do Offence which include serious crimeDo Offence which include serious crime

Principle :Principle : Personal PrinciplePersonal Principle

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Absolute competency: what kind of court

should adjudicate a violation of law?

- general court (private and criminal case)- administerative court (

- religion court

- military court

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Relative competency: Which area of court

should handle the case occurred in a special

area.

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The Use of Tempus of Offence and Locus of Offence.The Use of Tempus of Offence and Locus of Offence.

The use of tempus of offenceThe use of tempus of offence

1.1. Article 1 KUHPArticle 1 KUHP



4.4. Pasal 78 KUHPPasal 78 KUHP

The Use of Locus of OffenceThe Use of Locus of Offence1.1. Determine Indonesian Substantive Criminal LawDetermine Indonesian Substantive Criminal Law

2.2. Determine Relative Competency.Determine Relative Competency.

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JUSTIFICATION AND EXCUSEJUSTIFICATION AND EXCUSE

JustificationJustification isis aa reasonreason abolishingabolishing illegalityillegality naturenature of of anan offenceoffence

-- TheThe conductconduct isis notnot anan offenceoffence

ExcuseExcuse isis aa reasonreason abolishingabolishing thethe guiltyguilty of of anan

offender offender..

-- TheThe conductconduct isis stillstill categorizedcategorized asas anan offenceoffence..

LegalLegal implicationimplication of of justificationjustification andand excuseexcuse isis thethe

same,same, thatthat isis nono legallegal proceedingproceeding..

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Justification and Excuse in Indonesian SubstantiveJustification and Excuse in Indonesian Substantive

Criminal LawCriminal Law

1.1. ForcedForced self self defencedefence ArticleArticle 4949 ((11)) KUHPKUHP

2.2. DoDo statutestatute order order

3.3. ArticleArticle 5050 KUHPKUHP

4.4. DoDo Higher Higher OfficialOfficial order order ArticleArticle 5151 ((11)) KUHPKUHP

5.5. DuresDures ArticleArticle 4848 KUHPKUHP

6.6. ExceedExceed Self Self DefenceDefence ArticleArticle 4949 ((22)) KUHPKUHP7.7. DoDo UnauthorizedUnauthorized Order Order ArticleArticle 5151 ((22)) KUHPKUHP

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Forced Self DefenceForced Self Defence

Article 49 (1) KUHPArticle 49 (1) KUHP

³Every one committing an action due to self ³Every one committing an action due to self

defence, because there is suddenly illegality attackdefence, because there is suddenly illegality attack

or threating attack to oneself, or others, moralor threating attack to oneself, or others, moral

dignity, or oneself property or other¶s property´,dignity, or oneself property or other¶s property´,

unpunishable.unpunishable.

The criteria of forced self defenceThe criteria of forced self defence1.1. The Attack come suddenlyThe Attack come suddenly

2.2. Reaction to the attack spontaneously.Reaction to the attack spontaneously.

3.3. Balance reactional attack.Balance reactional attack.

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Do Statute Order Do Statute Order

Article 50Article 50³Every one committing conduct to implement rules³Every one committing conduct to implement rules

of statute, is not punished.´of statute, is not punished.´

Do Higher Official Order Do Higher Official Order

Article 51(1) KUHPArticle 51(1) KUHP

³Every one committing conduct to implement higher ³Every one committing conduct to implement higher authorize official order, is not punished.´authorize official order, is not punished.´

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DURESDURES

Article 48Article 48

³Every one committing conduct under forces, is not³Every one committing conduct under forces, is not

punished.´punished.´

Dures is the defence that applyes where a personDures is the defence that applyes where a person

commits a crime because they were acting under commits a crime because they were acting under threat of death or serious personal injury tothreat of death or serious personal injury to

themselves or another.´themselves or another.´

Dures can not justify murder (Intentional Killing),Dures can not justify murder (Intentional Killing),

but it can justify ³treason´. Dures has been held abut it can justify ³treason´. Dures has been held agood defence to a lesser crime as robbery,good defence to a lesser crime as robbery,

burglary, and maucious mischief.burglary, and maucious mischief.

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It has been recognize that dures may be a defenceIt has been recognize that dures may be a defence

to kidnapping, arson, prison escape andto kidnapping, arson, prison escape and

possession of a weaponpossession of a weapon

Dures is a condition when someone fetteredDures is a condition when someone fettered

causing he/she can not express his/her will freely.causing he/she can not express his/her will freely.

example: a cashier under threaten of a gunman isexample: a cashier under threaten of a gunman is

force to offer some money in strong box.force to offer some money in strong box.

Dures:Dures:-- Limited forcedLimited forced

-- Emergency.Emergency.

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Emergency:Emergency:

1.1. Fettered in 2 interestFettered in 2 interest

2.2. Fettered between interest and dutyFettered between interest and duty

3.3. Conflict between 2 dutiesConflict between 2 duties

AdAd--1. Case of Karneades plank1. Case of Karneades plank

AdAd--2. Hunger situation and duty to obey the law.2. Hunger situation and duty to obey the law.

AdAd--3. Duty to fulfill 2 Official inviting.3. Duty to fulfill 2 Official inviting.

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Perpetrator of CrimePerpetrator of Crime

1.1. Person giving order Person giving order

2.2. Person provoking someonePerson provoking someone3.3. Committer Committer

4.4. Second committer Second committer

5.5. Someone helpingSomeone helping

Article 55 KUHPArticle 55 KUHP

1.1. Punished as a perpetrator of crime/criminal act:Punished as a perpetrator of crime/criminal act:

a. Committer, person giving order and seconda. Committer, person giving order and secondcommitter.committer.

b. People promising a gift, abuse of power, dignity,b. People promising a gift, abuse of power, dignity,violently, threatening, or misleading or giving aviolently, threatening, or misleading or giving achance, a tool or information, intentionallychance, a tool or information, intentionallypersuade someone to commit crime.persuade someone to commit crime.

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2.2. To persuader only persuaded action will beTo persuader only persuaded action will be

considered and its concequences.considered and its concequences.

Article 56Article 56

Punished as helper to commit crime:Punished as helper to commit crime:

1.1. People intentionally giving support when crimePeople intentionally giving support when crimeoccurred.occurred.

2.2. People intentionally giving a chance, a tool, or People intentionally giving a chance, a tool, or

information to commit crime.information to commit crime.

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Jurisdiction 14-10-2008