Actions that are Considered Persecutions

PERTANYAAN

Is it considered maltreatment/persecution if a boyfriend/girlfriend rubs chilies on his/her significant other’s face?

INTISARI JAWABAN

The act of maltreatment/persecution carries a threat of criminal prosecution under the previous Criminal Code, which is still applicable at the time this article was published, as well as the new Criminal Code, Law 1/2023, which will entry into force 3 years from the date of its promulgation. What does the article say?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Perbuatan-perbuatan yang Termasuk Penganiayaan which was written by Bernadetha Aurelia Oktavira, S.H., and was published on Tuesday, 3 January 2023.

This article below is an update of the article with the same title, which was first written by Letezia Tobing, S.H., M.Kn. and was first published on Thursday, 4 April 2013.

This article is written according to the previous Indonesian Criminal Code and Law 1/2023 on the Criminal Code, which was promulgated on 2 January 2023.

All legal informations which are available through Klinik hukumonline.com have been prepared for educational purposes only and are general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

The Crime of Persecution

Regarding provisions relating to persecution, you can refer to Article 351 to Article 358 of the previous Criminal Code, which is still applicable at the time this article was published, as well as the new Criminal Code, Law 1/2023, which will entry into force 3 years from the date of its promulgation, [1] namely:

Criminal Code	Law 1/2023
Article 351 Maltreatment shall be punished by a maximum imprisonment of two years and eight months or a maximum fine of IDR 4.5 million.[2] If the act results in a serious physical injury, the offender shall be punished with a maximum imprisonment of five years. If the act results in death, he shall be punished by a maximum imprisonment of seven years. With maltreatment shall be identified as intentional injury to the health. Attempt to this crime shall not be punished.	Article 466 Any Person who commits a persecution, shall be sentenced to imprisonment for a maximum of 2 (two) years and 6 (six) Months or a maximum criminal fine of category III, that is IDR 50 million.[3] If the act as referred to in paragraph (1) results in Serious Injury, shall be sentenced to imprisonment for a maximum of 5 (five) years. If the act as referred to in paragraph (1) results in the death of a person, shall be sentenced to imprisonment for a maximum of 7 (seven) years. Included as a persecution as referred to in paragraph (1) are actions that damage health. Attempts to commit a Crime as referred to in paragraph (1) shall not be sentenced.
Article 352 Except for articles 353 and 356 maltreatment that does not result in an illness or obstacle in the performance of official or professional activities, shall, as light maltreatment, be punished by a maximum imprisonment of three months or a maximum fine of IDR 4.5 million.[4] This sentence may be enhanced with one-third in respect of the offender, who commits the crime against a person who is in service with him or who is his subordinate. Attempt to this crime shall not be punished.	Article 467 Any Person who commits persecution with prior planning shall be sentenced with imprisonment for a maximum of 4 (four) years. If the act as referred to in paragraph (1) results in Serious Injury, shall be sentenced with imprisonment for a maximum of 7 (seven) years. If the act as referred to in paragraph (1) results in the death of a person, shall be sentenced with imprisonment for a maximum of 9 (nine) years.
Article 353 Maltreatment committed with premeditation shall be punished with a maximum imprisonment of four years. If the act results in a serious physical injury, the offender shall be punished by a maximum imprisonment of seven years. If the act results in death, he shall be punished by a maximum imprisonment of nine years.	Article 468 Any Person who seriously injures another person, shall be sentenced due to severe persecution, with imprisonment for a maximum of 8 (eight) years. If the act as referred to in paragraph (1) results in death, shall be sentenced with imprisonment for a maximum of 10 (ten) years.
Article 354 The person who deliberately causes serious physical injury to another, shall, being guilty of serious maltreatment, be punished by a maximum imprisonment of eight years. If the act results in death, the offender shall be punished by a maximum imprisonment of ten years.	Article 469 Any Person who commits severe persecution with prior planning shall be sentenced with imprisonment for a maximum of 12 (twelve) years. If the Crime as referred to in paragraph (1) results in the death of a person, shall be sentenced with imprisonment for a maximum of 15 (fifteen) years.
Article 355 Serious maltreatment committed with premeditation shall be punished by a maximum imprisonment of twelve years. If the act result in death, the offender shall be punished with a maximum imprisonment of fifteen years.	Article 470 The Crimes as referred to in Article 466 to Article 469, the criminal sentence may be increased by 1/3 (one third), if said Crime is committed: against Officials when or due to carrying out their legitimate duties; by providing materials which are hazardous to life or health; or towards mother or Father.
Article 356 The punishments laid down in articles 351, 353, 354 and 355 may be enhanced with one third: in respect of the offender who commits the crime against his mother, his lawful father, his spouse or his child; if the crime is committed against an official during or on account of the lawful exercise of his office; if the crime is committed by administering any substances injurious to life or to health, to be eaten or drunk.	Article 471 In addition to the persecution as referred to in Article 467 and Article 470, any persecution which does not cause any disease or hindrance to the performance of any professional position or livelihood, shall be sentenced due to minor persecution, with imprisonment for a maximum of 6 (six) months or a maximum criminal fine of category II, that is IDR 10 million.[5] If the Crime as referred to in paragraph (1) is committed against a person who works for them or becomes their subordinate, the criminal sentence may be increased by 1/3 (one-third). Attempts to commit the Crime as referred to in paragraph (1) shall not be sentenced.
Article 357 In one of the crimes under Articles 356 and 355, revocation of rights can be imposed under Article 35 No.1-4.
Article 358 Those who deliberately take part in an assault or a fight in which several people are involved, apart from their individual responsibility for what was specifically done by them, are threatened: by a maximum imprisonment of two years and eight months, if the assault or fight only results in a serious physical injury; by a maximum imprisonment of four years, if the assault or fight results in the death of a person.

 

Elements of the Crime of Persecution

Regarding the persecution under Article 351 Criminal Code, R. Soesilo in his book entitled The Book of Criminal Code (Kitab Undang-Undang Hukum Pidana/ “KUHP”) and its Commentaries Article by Article explains that the law does not provide any provisions as to what is defined as “persecution”. According to jurisprudence, "persecution" is defined as intentionally causing unhappiness/uneasy feelings (suffering), pain, or injuries. According to paragraph 4 of this article, the definition of persecution is also "intentionally damaging people's health".

R. Soesilo then gives examples of uneasy feelings, pain, injuries, and damage to health as follows.

1. uneasy feelings, for example, push people to jump into the river so that the person gets wet, tell people to stand in the hot sun, and so forth.
2. Pain, for example, pinching, squeezing, hitting, smacking, and so forth.
3. Injuries such as slicing, cutting, stabbing with a knife, etc.
4. Damaging people’s health, for example, when a person is sweating while this person is sleeping, the perpetrator opens the window of his room, so that the person catches a cold.

According to R. Soesilo, the abovementioned actions must be carried out intentionally and not with good intentions or exceeding the permitted limits. For example, a dentist removes a tooth from a patient. In fact, he intentionally causes pain, but his actions are not abuse, because there are good intentions (medication). A father smacks his son on the bum because the kid is naughty. This, too, is actually intentionally causing pain, but the act is not considered abuse, because there is a good intention (teaching children).

However, if both of these incidents were to be carried out in a way that exceeded the permitted limits, for example, the dentist pulled out a tooth while joking around with his wife, or a father was teaching his child by hitting him with a piece of iron and hit his child’s head, then these acts are considered as abuse.

Based on the explanations above, if a boyfriend/girlfriend intentionally rubs chilies on his/her significant other’s face, and causes uneasy feelings (suffering), pain, or injury to another person, then the said action may be convicted as a criminal act of maltreatment/persecution.

Also read: Differences of Articles on Minor Persecution and Severe Persecution

Case Study

In order to make it easier for you to understand, we give an example of a case of persecution that has been stipulated at the cassation level through the Decision of the Supreme Court Number 555 K/Pid/2006. The testimony/statement of the witness and the defendant himself explained that the defendant had abused the victim by hitting and slapping the victim. This persecution resulted in the victim suffering bruises (p. 10 and 12).

Then, at the verdict, the panel of judges declared that the defendant was legally and convincingly proven guilty of committing the criminal act of persecution based on Article 351 section (1) Criminal Code and shall be sentenced to imprisonment for 4 months (p. 13).

However, the defendant does not have to serve the sentence unless there is another order in the judge's decision since the defendant is guilty of committing the crime before the 8-month probation period has elapsed (p. 13).

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Indonesian Criminal Code;
2. Law Number 1 of 2023 on the Criminal Code;
3. Regulation of the Supreme Court Number 2 of 2012 on the Adjustment to the Limitation of Criminal Minor Acts and Total Fine in the Criminal Code.

Reference:

R. Soesilo. Kitab Undang-Undang Hukum Pidana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal. Bogor: Politeia, 1991.

Court Decision:

Decision of the Supreme Court Number 555 K/Pid/2006.

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[1] Article 624 Law Number 1 of 2023 on the Criminal Code (“Law 1/2023”).

[2] Article 3 Regulation of the Supreme Court Number 2 of 2012 on the Adjustment to the Limitation of Criminal Minor Acts and Total Fine in the Criminal Code (“Supreme Court Regulation 2/2012”).

[3] Article 79 section (1) letter c Law 1/2023.

[4] Article 3 Supreme Court Regulation 2/2012.

[5] Article 79 section (1) letter b Law 1/2023.