Criminal law is essentially a legal instrument used by the state to protect the legal interests of the community through regulation of prohibited acts and the threat of sanctions for violators. However, the use of criminal law cannot be carried out indefinitely. Criminal law in the development of the modern legal system is seen as the ultimate remedium that is only used when other legal instruments, such as administrative law or civil law, are unable to provide adequate legal protection. This principle is important to prevent the excessive use of criminal law and maintain a balance between the interests of law enforcement and the protection of citizens' rights.
The development of laws and regulations in practice in Indonesia shows a tendency to use criminal sanctions to regulate various areas of people's lives. Not only acts that actually cause large losses or threaten public order, various administrative violations and relatively minor violations also begin to qualify as criminal acts. This phenomenon is known as overcriminalization, which is a situation when too many acts are criminalized or when criminal law is used excessively to solve various social problems.
Overcriminalization raises a debate in the study of criminal law because it has the potential to shift the function of criminal law from the last resort to the main means (primum remedium) in social control. In fact, not all violations must be responded to through criminal mechanisms. The use of criminal law that is too broad can cause a loss of proportionality in the formation of criminal law policies and ignore the existence of other legal instruments that are actually more effective and efficient. As the principle of proportionality is one of the important principles in the criminal law system which aims to ensure that the punishment imposed on the perpetrator of a crime is balanced with the seriousness of the crime committed
Another impact that is no less important is the increase in the number of correctional inmates. The criminalization of various offenses, including administrative offenses and relatively minor offenses, contributes to the increase in the number of inmates. As also conveyed by Mohammad Yofarrel, the increase in the number of prison inmates is largely due to the criminalization policy of minor offenses and administrative offenses.
Studies on overcriminalization need to pay attention not only to the definition and limits of the use of criminal law, but also to the various forms of its emergence in the regulation of people's lives and their impact on the criminal justice system. These problems in the context of Indonesian criminal law can be examined through the criminalization of administrative offenses, the use of criminal provisions related to civil liberties, and the regulation of behavior in the private sphere. These various forms have different characteristics and legal issues, but they both raise questions about the limits of the use of criminal law in regulating people's lives. This research focuses on the elaboration of forms of overcriminalization in Indonesian criminal law and the analysis of their impact on the criminal justice system, especially related to the overcapacity of correctional institutions and the burden of handling cases from the investigation stage to the court examination. Based on this description, the study of overcriminalization is important to be conducted in order to understand its forms, causes, and impact on the criminal justice system in Indonesia.
Criminal law is basically an instrument used by the state to protect the legal interests of the community through the determination of prohibited acts and the provision of sanctions against violators. However, the use of criminal law cannot be carried out without limits. As by John Kenedi,
Then, by Barda Nawawi Arief defines
Then, in the view of Kip Schlegel, David Eitle, and Steven Gunkel, it is considered that the problem
Erik Luna argues that overcriminalization is not only related to the number of prohibited acts, but also includes the following issues; what should be denominated as a crime and when it should be enforced; and what should be appropriate criminal limits and criminal sanctions in specific cases.
This study employs normative legal research using statutory and conceptual approaches. The primary legal materials comprise selected statutory provisions that impose criminal sanctions on administrative violations, conduct affecting civil liberties, and private conduct. These provisions are selected based on their relevance to the scope and limits of criminalization in Indonesia. Secondary materials include scholarly publications on overcriminalization, proportionality, criminal law policy, and the
The phenomenon of overcriminalization in the Indonesian criminal law system can be seen from the increasing use of criminal law to regulate various aspects of people's lives. One of the most prominent forms is the criminalization of administrative violations. Basically, the criminalization policy is to determine an act that is not originally a criminal offense to a criminal act in a law and regulations. According to Soerjono Soekanto, criminalization is an act or determination of the ruler of certain acts that are considered despicable and punishable by the community, then determined as criminal acts. Thus, criminalization is a normative process that leads to the formation of laws that prohibit an act and threaten it with criminal sanctions. However, not all acts that are considered reprehensible deserve to be made criminal acts. As conveyed by Soedarto, who then emphasized that in criminalizing several things, several things must be considered, including:
The issue of criminalization in the context of administrative law becomes relevant because many administrative regulations are accompanied by criminal threats. W. F. Prins even stated that almost every modern administrative law regulation ends with a criminal provision (in cauda venenum).
Sudarto defines administrative offences as offences that are violations of the government's efforts to bring public welfare or order, namely what are called "regulatory offences" or "ordnungsdelikte".
However, the use of criminal sanctions in administrative law should not make criminal law the first instrument (primum remedium). Criminal law should be placed as the last resort (ultimum remedium) if administrative sanctions are ineffective. According to Muladi, the complementary nature between criminal law and administrative law in the form of administrative penal law often occurs, which can be seen from the criminalization of acts that actually fall within the administrative jurisdiction. This can be seen in the practice of imposing articles on corruption crimes against acts that can fall into the realm of administrative law. This problem is often initiated by the concept of abuse of authority. As in the writings of Atqo Darmawan Aji,
However, the existence of criminal threats in administrative regulations cannot necessarily be categorized as overcriminalization. The use of criminal sanctions in administrative law is basically justified when necessary to protect important legal interests, ensure compliance with regulations, and prevent violations that cause significant harm or harm to society. Under certain conditions, administrative sanctions alone may not be sufficient to achieve the goal of such protection. Therefore, an assessment of an administrative criminal provision needs to consider the nature and seriousness of the violation, the legal interests to be protected, the effectiveness of the administrative sanction, and the proportionality of the criminal threat imposed. On the other hand, administrative criminalization has the potential to become overcriminalization if criminal sanctions are used without adequate necessity, especially when the offense that occurs is administrative, does not cause significant harm or harm, and can be effectively dealt with through administrative mechanisms. In such circumstances, the use of criminal law risks creating a disproportionate burden on individuals and the criminal justice system. Thus, the main issue is not solely the existence of criminal sanctions in administrative regulations, but whether the use of these sanctions is really necessary and proportionate to the nature of the violation and the purpose of legal protection to be achieved.
Another form of overcriminalization can be found in the expansion of the use of criminal law to activities related to civil liberties and citizens' rights, such as in the provisions of Article 256 of the new Criminal Code, which reads: Any person who without prior notice to the authorities holds a march, demonstration, or demonstration on a public street or public place that results in the disruption of public interest, causes disturbance, or riots in the community, is sentenced to imprisonment for a maximum of 6 (six) months or a maximum fine of category II. This indicates that violations of administrative requirements related to the expression of opinions in public can be subject to criminal sanctions. In fact, in a democratic country, freedom of expression is a constitutional right guaranteed by law. In addition, overcriminalization can also be seen from the increasing involvement of criminal law into the private sphere of citizens. One of the examples that is widely discussed is the regulation of cohabitation outside of marriage or known in society as "kumpul kebo", in Article 412 of the Criminal Code, which in some views states the criminalization of cohabitation acts as excessive and too intrusive into the private domain of each person. As stated by Sanford H. Kadish, the delinquency of acts that refer to the moral approach is exemplified such as the criminalization of sexual relations that are "deviant", carried out outside the relationship and legally recorded by the state until or considered "abnormal" can create overcriminalization.
Overcriminalization has various consequences for the criminal justice system. The use of criminal law as the main tool in dealing with various offenses can cause overcrowding in correctional institutions (prisons). The large number of individuals who are imprisoned for minor or administrative offenses causes prisons to be unable to carry out their rehabilitation functions optimally. This condition not only harms inmates, but also burdens the state budget. Data as of November 2024 shows that the number of prison inmates has reached around 265,346 people, while the ideal capacity is only around 140,424 people.
This increase in prison inmates is largely due to policies that criminalize minor offenses and administrative offenses. Many individuals are sentenced to prison for minor offenses, such as traffic offenses or self-use of narcotics, which should be addressed through administrative sanctions or rehabilitation programs. This approach not only burdens the correctional system, but also ignores the principles of fairness and effectiveness in law enforcement. Efforts to address the problem of overcrowding have been made through various approaches, one of which is the construction of new prisons in areas experiencing overcapacity. However, physical development alone is not enough to solve this problem comprehensively. More in-depth policy reforms are needed, including the implementation of alternative sanctions and rehabilitative approaches in the criminal justice system. In addition, the program to transfer inmates from overcrowded prisons to other prisons that still have space is also carried out as a temporary measure.
Prison overcrowding not only has an impact on the physical condition of facilities, but also affects the quality of inmate coaching and rehabilitation. Congested and inappropriate conditions can hinder the rehabilitation process and increase the risk of human rights violations in prisons. Therefore, a comprehensive and sustainable approach is needed, including criminal law policy reform, capacity building and quality of correctional facilities, and strengthening rehabilitation and social reintegration programs for inmates. The overcrowding crisis is further exacerbated by the high number of inmates from groups of minor criminals and narcotics cases, especially users.
Then, the number of criminal laws or overcriminalized practices not only has an impact on the increase in the number of inmates, but also has direct implications for the workload of law enforcement officials from the investigation stage. The wider the scope of criminalized acts, the more cases enter the criminal justice system. This condition causes investigators to face a surge in the number of reports and cases, which ultimately affects the quality and speed of the investigation process. The effectiveness of investigations is a fundamental element in determining the overall success of the criminal justice system in Indonesia, including in ensuring the smooth trial process in court. This stage not only serves to find suspects and collect evidence, but also serves as the foundation for subsequent stages such as prosecution and examination at trial. If the investigation stage is carried out slowly, inaccurately, or uncoordinated, the impact will be felt directly on the prosecution process and lead to delays in the settlement of cases in court. A process that should uphold the principle of
Empirically, the effectiveness of investigations often depends on the quality of coordination between investigators and other law enforcement agencies, especially the prosecutor's office. In practice, bureaucratic and overlapping procedural obstacles often cause case files to be returned repeatedly (P-19). The process of submitting case files often faces administrative obstacles, such as differences in format or completeness standards between the police and the prosecutor's office. These obstacles not only slow down the prosecution stage, but also cause delays in the transfer of cases to the court. The 2023 Annual Report of the Attorney General of the Republic of Indonesia recorded that more than 45,000 general criminal case files were returned to investigators due to formal and material incompleteness. This condition shows weaknesses at the investigation stage that have a direct impact on delaying the trial process and have the potential to cause a backlog of cases in court. In addition to administrative issues, the human resource factor is also a central issue. The quality of investigators greatly determines the accuracy of the application of the article and the accuracy of the evidence collected. Errors in understanding the elements of a criminal act can lead to the preparation of substantially weak Examination Minutes. This weakness becomes fatal when the case is examined in court, because the judge will assess the strength of the evidence based on the quality of the files and evidence prepared from the investigation stage.
From the perspective of Soerjono Soekanto's theory of legal effectiveness, human factors are included in the elements of the legal structure. A legal structure that does not function optimally, due to a lack of personnel, lack of training, or low integrity, will cause the law to lose its effectiveness. If this structure is weak at the investigation stage, then the court will accept cases with suboptimal evidentiary quality, which ultimately prolongs the examination process and increases the workload of judges. The work culture of the apparatus also affects the effectiveness of the investigation. The orientation that emphasizes too much on administrative completeness rather than the search for material truth causes the file to appear neat formally, but substantially weak in front of the court. As a result, the trial becomes longer because the judge has to re-explore facts that should have been clear from the investigation stage. External factors such as limited facilities and infrastructure also affect the effectiveness of the investigation. In a number of areas, the limitations of forensic laboratories, DNA testing kits, and digital analysis devices have resulted in the proving process taking longer. This delay has an impact on the slow transfer of cases to the court and increases the potential for case accumulation. Then, if it is related to the theory of the criminal justice system proposed by Herbert L. Packer,
Overcriminalization in Indonesian criminal law should be assessed not merely by the number of criminal prohibitions but by whether each prohibition is legally justified, necessary, and proportionate to the harm it seeks to prevent. The examination of administrative violations, civil liberties, and private conduct demonstrates the importance of distinguishing legitimate penal intervention from criminalization that may exceed the protective function of criminal law. However, the classification of a particular provision as overcriminalization requires a provision-specific normative assessment rather than a general presumption that criminal sanctions are inappropriate. This study proposes that criminalization policy be evaluated through six considerations: legality and clarity of the offense, legitimacy of the protected interest, seriousness of harm, necessity of penal intervention, proportionality of sanctions, and implications for fundamental rights and the criminal justice system. The
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