3/23/2015

Session 7
Criminal Law
Department of Criminal Law  Criminal Attempt

Faculty of Law, University of Indonesia

January 2011

To be used exclusively at the Faculty of Law,

University of Indonesia
HPI 10102
3 SKS

Criminal Attempt Definition

 Definition  An overt act that is done with the intent
 Requirement/ elements to commit a crime but that falls short of
 Types of attempt completing the crime.

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PERCOBAAN (POGING)
 Article 53 of the Penal Code
Attempts which is punishable
(1) Attempt to commit a crime shall be punishable, if the intent to  Criminal attempt is an extended of criminal responsibility
do so has been materialized by the commencement of the  Basically a person will convicted if he/she has fulfilled all elements
execution/ performance, and the execution of conduct is not of a crime (the crime is completed), in case of such crime is not yet
completed only because of circumstances independent of his/her
own will. completed, the offender can be punished if the elements of a
criminal attempt are fulfilled.
(2) In terms of its penalty, the maximum of the punishment for the
maximum penalty shall be substracted by one third (1/3).  The elements of such an attempts are provided in Article 53 of the
Penal Code.
(3)For capital punishment or life sentence, the maxium punishment
turn down to 15 years imprisonment.  Only attempt to commit crime that is punishable, attempt to
commit overtredingen (less serious crime) is not punishable
(4) The additional sentence fot criminal attempt is equal with
additional sentence for completed crime  The sentence for an attempt is much lower compared to sentence
for completed crime
 Article 54
Attempt to commit overtredingen (Less serious crime) is
unpunishable

Elements of criminal attempt The first element

Intent or “Voornemen”
 Intent
 According to doctrine (scholar opinion) and
 Commencement of an execution/
yurisprudensi (court decision) :”voornemen”
performance should be interpreted as will ( “willen”) or
 the execution of conduct is not “opzet”
completed only because of circumstances  The offender should have intent to commit
crime
independent of his/her own will.
 Because there are three kinds of “opzet”, the
question is whether “opzet” should interpreted
in a narrow meaning (the first type of opzet) or
wider meaning (the first, second, and third
meaning?

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The second element
The beginning of an execution
 “Intent has been materialized with the
commencement of execution/ performance” 
een begin van uitvoering
 What does the meaning of “execution/
performance” ?
 The law (KUHP) does not define what is
“execution/ performance” or ”uitvoering” and
what is the form of such execution?
The Ruling of Hoge Raad
There is “commencement of execution/performance” if
between the conduct and the expected crime has direct
and close correlation namely: if there is no other
conduct is needed to make the crime completed
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Execution of will or
execution of crime?
 Grammatically, it should be connected to the previous
word , namely “voornemen”/ intent/will The intent
has been materialized with the beginning of execution
therefore : the execution is interpreted as “ execution
of will”  POGING SUBJECTIVE THEORY
 however, if it is connected to the next clause “… the
incompleted of the execution, is merely not caused by
his/her own will” then systematicaly it is interpreted as
“execution of crime”  POGING OBJEKTIVE THEORY
The limitation for Poging Subjective Theory
 The conduct is separated between:
 1. Preparation conduct (not punishable)
 2. Execution conduct (punishable)
 The question is: which are constitutes as
“preparation conduct” and which are
constitues as “execution conduct” ?
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Illustrative Case The third element

Incompleted action, that is merely not caused by his/her own will
 A proposed to kill B , to execute his will, A has to do several
actions, namely :
 a. A went to gun shop and selected several guns If the person cancelled his/ her conduct execution voluntarily
 b. A purchased one revolver could he/she still be punished?
 c. A brought his gun and back home
 d. A was learning and practicing how to use his gun
 e. A prepared his gun, fill up with bullets and put it carefully in his
bag
 f. A went to B’s house
 g. Approaching B’s house, took his gun from his bag
 h. A directing his gun to the head of B
 i. A shoot B

Analyse the case by using Objective and Subjective Poging Theory

Types of Poging according to the

Doctrine
 1. Percobaan yg  Mangel am
Sempurna attempt / tatbestand (gebrek
perfect /Voleindigde aan feitelijk tosdracht
Poging v/e zaak)
 2. Percobaan yg  Putatif Delict
Tertangguh / delayed
attempt/ Geschosrte
Poging
 3. Percobaan yg Tidak
Sempurna/ imperfect
attempt :
Ondeugdelijke Poging