Narcotics Crimes by Foreign Children, Deported or Convicted?

PERTANYAAN

How does Indonesian law apply to a foreign child caught committing a drug distribution crime? Will he be deported or detained and convicted in Indonesia?

INTISARI JAWABAN

Based on the territorial principle, a foreign national or foreigner who buys and sells narcotics in Indonesian territory is punishable as stipulated in the Narcotics Law.

However, because the perpetrator is a child, the imprisonment that can be imposed on him is at most 1/2 (half) of the maximum imprisonment for adults, as stipulated in Law 11/2012.

Then, if the foreign child has been subject to criminal sanctions, will the foreign child still be deported?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Kejahatan Narkotika oleh Anak WNA, Dideportasi atau Dipidana?, written by Dian Dwi Jayanti, S.H., and was published on Wednesday, 10 May 2023.

This article below is an update of the article entitled with the same title, written by Claudia Bhara Praditta, S.H.,M.I.Kom. from Lembaga Bantuan Hukum Mawar Saron, and was first published on Thursday, 19 September 2019.

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 information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Territorial Principle in Criminal Law

Before answering your question, we should first understand the applicability of Indonesian criminal law based on territorial principles.

Basically, the territorial principle is a basic principle of international law. The territorial principle stipulates that a state's jurisdiction applies to persons, acts, and objects in its territory, which causes all of these things in a state's territory to be subject to the authority and laws of the state concerned.[1]

Also read: Can Foreigners be Criminally Punished Under Indonesian Law?

The territorial principle is also recognized in criminal law in Indonesia. Wirjono Prodjodikoro in his book entitled Asas-Asas Hukum Pidana di Indonesia (p. 51) explains that the territorial principle is a principle that considers Indonesian criminal law to apply within the territory of the Republic of Indonesia, whoever commits a criminal offense. This principle is emphasized in Article 2 Criminal Code, which is still applicable at the time this article was published, as well as in the new Criminal Code, Article 4 letter a Law 1/2023, which will entry into force 3 years from the date of its promulgation[2] in 2026, as follows.

Criminal Code

Law 1/2023

Article 2 The Indonesian statutory penal provisions are applicable to any person who is guilty of a punishable act within Indonesia.

Article 4 Criminal provisions in the Law shall be applicable to Any Person who committed: Crime within the territory of the Unitary State of the Republic of Indonesia; Crime in Indonesian Ship or Indonesian Aircraft; or Crime in the field of information technology or other Crimes which consequences are experienced or occurred within the territory of the Unitary State of the Republic of Indonesia or in Indonesian Ship or Indonesian Aircraft.

Furthermore, R Soesilo in his book entitled Kitab Undang-Undang Hukum Pidana (KUHP) serta Komentar-Komentarnya Lengkap Pasal Demi Pasal (p. 29), states that the phrase "every person" in Article 2 of the Criminal Code means any person, whether an Indonesian Citizen or a foreign citizen ("foreigner"), without distinguishing gender or religion, position or rank, who commits a criminal offense within the territory of the Republic of Indonesia.

This means that Indonesian criminal law applies to anyone who commits a criminal offense in the jurisdiction of the Republic of Indonesia, and against such acts, legal proceedings will be carried out according to applicable provisions.

Also read: 5 Principles of Criminal Law in the New Criminal Code

Legal Provisions for Children Who Commit Narcotics Crimes

Indonesian positive law distinguishes the criminal justice process for children and adults. We assume that the child you are referring to fits the definition of a child in conflict with the law, as set out in Article 1 number 3 Law 11/2012, as follows:

Children in Conflict with the Law, from this point onward are referred to as Children, are children whose already 12 (twelve) years of age, but are not yet 18 (eighteen) years of age and are suspected for committing criminal acts.

In addition, we also assume that the "distribution of narcotics" referred to in your question is the "buying and selling of narcotics". This act is punishable under Article 114 Narcotics Law as follows:

1. Every person who without right or against the law offers for sale, sells, buys, receives, becomes an intermediary in the sale, purchase, exchange, or delivery of Class I Narcotics, shall be punished with life imprisonment or imprisonment for a minimum of 5 (five) years and a maximum of 20 (twenty) years and a fine of a minimum of IDR1,000,000,000.00 (one billion rupiah) and a maximum of IDR10,000,000,000.00 (ten billion rupiah).
2. In the event that the act of offering for sale, selling, buying, intermediating in the sale and purchase, exchanging, delivering, or receiving Class I Narcotics as referred to in paragraph (1) which in the form of plants weigh more than 1 (one) kilogram or more than 5 (five) tree trunks or in the form of non-plants weigh 5 (five) grams, the perpetrator shall be punished with death penalty, life imprisonment, or imprisonment for a minimum of 6 (six) years and a maximum of 20 (twenty) years and a maximum fine as referred to in paragraph (1) plus 1/3 (one third).

Also read: Maximum Criminal Penalty for Drug Makers and Dealers

However, because the perpetrator is a child, the imprisonment that can be imposed on him is at most ½ (half) of the maximum punishment threatened in Article 114 Narcotics Law. This is regulated in Article 81 section (2) and section (6) Law 11/2012 which reads respectively:

Article 81 section (2)

Imprisonment which may be rendered upon Children is at a maximum of 1/2 (half) of the maximum imprisonment sentence that may be imposed upon adults

Article 81 section (6)

If the criminal act committed by Children is a criminal act punishable with capital punishment or life time imprisonment, then the rendered sentence is imprisonment for a maximum of 10 (ten) years.

Legal Regulations on Deportation

According to Article 106 number 1 Perppu 2/2022 which amended Article 1 number 36 Immigration Law, deportation is an action to forcibly remove foreigners from Indonesian territory.

Immigration Officer has the authority to enforce Immigration Administrative Measures in the form of deportation of Foreign National residing in Indonesian Territory who engage in harmful activities which presumably threaten security and public order or disrespect or contravene the prevailing laws and regulations.[3]

Provisions regarding deportation are also emphasized in Article 146 Narcotics Law which reads:

1. Foreign Nationals who commit narcotics crimes and/or narcotics precursor crimes and have served their sentences as stipulated in this Law shall be expelled from the territory of the Republic of Indonesia.
2. Foreign nationals who have been expelled as referred to in paragraph (1) are prohibited from re-entering the territory of the Republic of Indonesia.
3. Foreign nationals who have committed narcotics and/or narcotics precursor crimes abroad are prohibited from entering the territory of the Republic of Indonesia.

In conclusion, based on the territorial principle, foreign children who distribute narcotics in Indonesian territory are subject to a criminal punishment as stipulated in the Narcotics Law. The imprisonment that can be imposed on children in conflict with the law (in this case, drug trafficking) is 1/2 (half) of the maximum imprisonment for adults. Then, if threatened with the death penalty or life imprisonment, then the punishment imposed on the child is a maximum imprisonment of 10 (ten) years. After the foreign child has served his/her sentence, he/she will be subject to immigration administrative action in the form of deportation and will not be allowed to re-enter the territory of Indonesia.

Also read: Time Period to Deport Foreigners

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

Legal Basis:

1. Indonesian Criminal Code;
2. Law Number 35 of 2009 on Narcotics;
3. Law Number 6 of 2011 on Immigration;
4. Law Number 11 of 2012 on Child Criminal Justice System;
5. Law Number 1 of 2023 on the Criminal Code;
6. Regulation of the Government in Lieu of Law Number 2 of 2022 on Job Creation which has been passed into law under Law Number 6 of 2023 on 21 March 2023;

Reference:

1. Amalia Fadhila Rachmawati. Hermeneutika Asas Teritorial dalam Kasus Penenggelaman  Kapal Illegal  Fishing di  Wilayah  Zona Ekonomi Eksklusif Indonesia. Eksaminasi: Jurnal Hukum, Vol. 2, No. 2, 2022;
2. R. Soesilo. Kitab Undang-Undang Hukum Pidana (KUHP) Serta Komentar-Komentarnya Lengkap Pasal Demi Pasal. Bogor: Politeia, 1991;
3. Wirjono Prodjodikoro. Asas-Asas Hukum Pidana di Indonesia. Bandung: Refika Aditama, 2003.

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[1] Amalia Fadhila Rachmawati. Hermeneutika Asas Teritorial dalam Kasus Penenggelaman  Kapal Illegal  Fishing di  Wilayah  Zona Ekonomi Eksklusif Indonesia. Eksaminasi: Jurnal Hukum, Vol. 2, No. 2, 2022, p. 121.

[2] Article 624 Law Number 1 of 2023 on the Criminal Code.

[3] Article 75 section (1) and (2) letter f Law Number 6 of 2011 on Immigration.