Criminalization is a term used by the community in law enforcement which is not done for the purpose of law enforcement itself. According to the language, the term criminalization means the determination of the crime or the person who commits evil (Al-Barry, 1994: 201). Whereas in criminology, criminalization is a process when there is a change in the behavior of individuals who tend to become criminals and criminals (Lynch & Michalowsk, 2006).
Here are some definitions of criminalization from several book sources:
- According to Soekanto (1986: 62), criminalization is an act or determination of the authorities regarding certain actions which are considered by the community or groups of people to be criminal acts or to make an act criminal and therefore can be convicted by the government by working on his behalf.
- According to Effendy (1989: 64), criminalization is a change in value that causes a number of acts that were previously unimpeachable and not prosecuted, turned into acts that are considered despicable and need to be convicted.
- According to Sudarto (1983: 31), criminalization is the process of determining a person’s actions as acts that can be convicted. This process ends with the formation of a law in which the act is threatened with a sanction in the form of a criminal.
Size and Guidelines for Criminalization
According to Arief and Muladi (1992: 256), there are several measures that must be considered doctrinally as criminalization guidelines, which are as follows:
- Criminalization should not appear to lead to over-criminalization which is categorized as the misuse of criminal sanction.
- Criminalization must not be ad hoc.
- Criminalization of emotion contains elements of actual and potential victimizing victims.
- Criminalization must take into account the cost and yield analysis and the ultimum remidium principle.
- Criminalization must produce regulations that are enforceable.
- Criminalization must be able to obtain public support.
- Criminalization must contain sub-social elements causing harm to the community, even if it is very small.
- Criminalization must heed the warning that every criminal code restricts people’s freedom and gives law enforcement officials the possibility to curb that freedom.
Meanwhile, according to Soedarto (1983: 39), there are four conditions that must be considered in criminalizing, namely:
- The aim of criminalization is to create public order in order to create a welfare state.
- Criminalized acts must be acts which cause widespread damage and cause casualties.
- Must consider the cost and yield factors, meaning the costs incurred and the results obtained must be balanced.
- Must pay attention to the ability of law enforcement officers. Do not let law enforcement officers exceed the burden or exceed the limits.
Principles of Criminalization
There are three principles of criminalization that need to be considered in determining an act as a criminal offense along with the threat of criminal sanctions, namely the principle of legality, the principle of subsidiarity and the principle of equality / equality. The explanation is as follows (Saleh, 1993: 38):
a. Principle of legality
The principle of legality is the most important principle in criminal law, especially the main principle in determining criminalization. According to the principle of legality contained in the phrase “Nullum delictum, nulla poena sie praevia lege poenali” stated by Von Feurbach which means that there is no act that can be convicted except for criminal laws that existed before the act was committed.
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The function of the principle of legality is as follows (Peter, 1981: 28):
- In essence, the principle of legality is designed to give the public as much information as possible about what is prohibited by criminal law so that they can adjust their behavior.
- According to the classical school, the principle of legality has a function to limit the scope of criminal law. Whereas in the modern flow the principle of legality is an instrument to achieve the goal of community protection.
- The function of the principle of legality is to secure the people’s legal position against the state (the ruler). This is a traditional interpretation which has ruled out the full meaning of the principle of legality as intended by criminal law experts in the XVIII century (eighteen).
- The principle of legality is associated with criminal justice, hoping for more than just protecting citizens from government abuse. The principle of legality is expected to play a more positive role, which must determine the levels of the problems handled by a criminal law system that can no longer be used.
- The main purpose of the principle of legality is to limit the arbitrariness that may arise in criminal law and supervise and limit the exercise of that power or normalize the supervisory function of the criminal law. This oversight function is also a function of the principle of equality, the principle of subsidiarity, the principle of proportionality, and the principle of publicity.
- The principle of legality provides legal certainty to the public regarding prohibited acts (criminal acts) accompanied by certain criminal threats. The stipulation of prohibited acts means that there is certainty (guidelines) in behaving for the community.
b. Principle of Subsidarity
The principle of subsidiarity is that criminal law must be placed as an ultimum remedium (the ultimate weapon) in overcoming crime that uses the instrument of punishment, not as a primum remedium (main weapon) to overcome the problem of crime.
The application of the principle of subsidiarity in the criminalization and decriminalization policies requires an investigation into the effectiveness of the use of criminal law in combating crime or acts that are detrimental to the community. The main problem that needs to be investigated is whether the objectives to be achieved by using the criminal law cannot be achieved also by using other means that are less social and individual costs. This requires that we know about the consequences of the use of criminal law, and can guarantee that the interference of criminal law is indeed very useful.
c. The principle of equality / similarity
The principle of equality / similarity is simplicity and clarity. According to Servan and Letrossne the principle of equality is not a statement of aspirations about a fairer criminal law. The principle of equality is more a desire for a clearer and simpler criminal law system. Whereas Lacretelle argues that the principle of equality is not only an impetus for criminal law that is fair, but also for appropriate criminal penalties