Zoom YouTube uh Professor clip you still with us hello Professor clip can you you hear us are you still with us yeah I think you still muted okay okay yeah I'm I'm here uh but occasionally I cannot unmute myself because then it says the host can only do so okay sure sure uh thank you Professor we will start in about a minute yeah perfect yeah good yeah okay IND IND [Music] Nation IND d C Professor har Professor to SOS Professor Andre C [Music] [Applause] [Music] h the [Music] oh [Music] than fa Indonesia dran Aron silak shalom indon Natalina indon Professor har haris noo Professor too santoso Professor Andre FIP M University Indonesia India [Music] IND [Music] IND [Music] indones Professor harti har no Professor har [Music] IND highlights National con OB CME point uh Professor Andre clip there is an interpretation options for you I hope uh you could use it and uh the interpretation mode by uh thank you very much uh Andreas for introducing me you are so kind uh as if I know a lot of things but I'm still learning also I'm also a student of Life uh good afternoon professor andp and friends from uh all over Indonesia and maybe Netherlands um this is uh I think this is the right time to talk about the Indonesian and the Netherlands criminal code because we have the same route but we have separate development that was the title of a book that we uh wrote uh decade ago I think so uh I uh I named my file some notes on the Indonesian code and this was based on the question that Andreas just uh asked me with regard to the indonation criminal code which we call K baru okay um so these are the five missions that our new criminal code has uh uh uh declared which is the uh this will be an open and limited recodification meaning that what we have tried to do is uh uh codified the various uh criminal laws outside our criminal code and incorporated into this one book uh and then the democratization uh actualization modernization and also harmonization these are the five mission that uh we have with regard to our crial code of with that in mind we are planning to have this code to be applied Indonesia in January 2026 and at present we are still waiting for the law on procedure to be revised so it will be in line with the uh criminal code okay so um uh allow me to talk about the Novelties that we have and the in this code first of all um the existant is it this this is the oh how come I lost the first and okay I think the first Noy is that now we are no longer uh classifying the crimes in our crial code into felonies and misdemeanors and I will talk about this later on and then secondly we still have the existence of the living law which is to be embodied in local legislation as the basis for conviction and uh this will also be uh explain later on and uh at present each of the uh articles with regard to crimes no longer includes the element of intentional or uh uh dos should the crime is committed with negligence then it must be stated as such in law so uh different to the uh intentional crimes and then and uh we also have the uh we have constru mental and intellectual disability as mitigating or exculpating factors in accordance with the sidity of such disabilities in our old crial code well actually in the present criminal code we have the an article 44 the uh mental and intellectual disability as an exculpating factors so people who have uh mental illness cannot be uh uh punished by the judge but he or she can be sent to a pental institution and then the Novelties also include the formulation of the purpose of punishment this was uh new because in the present uh criminal code we do not have a purpose of punishment and also we have uh elaborated the guidelines for sentencing which I will also mentioned uh later on and um uh in this criminal code we also recognize the concept of corporate responsibility while in the old one we do not have corporate responsibility this was derived from various laws and regulation in Indonesia which already include Corporation as a subject of uh uh criminal responsibility and we incorporate that into this uh criminal code with regard to this corporate responsibility we also include the formulation of stri and VI is liability so uh this will be uh applicable to those crimes which has been stated as such by the law uh uh in question and uh also unlike the old criminal code we also um formulate mitigating circumstances circumstances that reduce the punishment for the uh perpetrator and then a grating stances which um increase the punishment of the rongo and then we are have excting circumstances which is um equating a person even though he or she has uh fulfill the elements of crime but he will not he or she will not be punish and then we we have the what we call the conspiracy EV conspiracy to commit crime which is also absent in our a pass criminal code and preparation to commit crime it has to be noted so that the uh the last two uh issues that I just mentioned will all will only be applicable if the law uh what we call Un un has said so if there is no such uh ulation in law then it will not be uh uh applied and oops where is okay this is the noties with regard to punishment I did mention that the uh this new criminal code has stipulated the purpose of punishment and uh which is from from the prevention up to the atonement of the uh of the perpetrator and then we have also guidelines for sentencing this was intended for the as a guide for the judges uh uh in in trying a case and then determining the kind of uh punishment or measures that he or she will uh uh decide and then we also mentioned the factors to be in sentencing at present be the judges are free to decide whatever they think is best uh regarding the case that uh coming before them but now we have uh stipulated the various factors that are to be considered by judges in sentencing and there was also an issue of judicial pardon which uh we copy from the Netherlands uh criminal code and Professor clip will talk about this Netherland of course of course and we have the guidelines for single and alterate Punishment which is absent in our old criminal code we also have a number of AG againg circumstances which are circumstances which uh uh increase the penalty to one3 of the maximum penalty and then uh uh different from our criminal code we have uh punishment and measures uh at present avocode only recognize the punishment so we add the issue of measures in this and uh it is also to be noted that uh the punishment and measures are not uh applied only for one group but we distinguish between three different groups adults and then children and Corporation each of this group has uh its own separate punishment and measures elaborated and then we come to the issue of oh I didn't mention PP of punishment okay so these are the purpose of punishment and uh I I try to summarize because it is kind of lengthy sentences so the first is uh to prevent future crimes from occurring and I think the issue of derance is one of the uh most notable purpose of punishment that be found in various book of criminal laws and then we hope that by understanding by knowing the uh harsh consequences that comes from committing a crime then people would uh deter him or herself uh from committing a crime and then uh the punishment was also uh intended to rehabilitate the offenders because uh uh this was coming from the uh uh medical uh Medical Science because we think that uh uh oops coming from uh the offenders there are similar to people who have sickness so in order to be able to be um uh cured they have to be rehabilitated not punished and the third this uh third purpose of punishment was derived from the uh Indonesian local wisdom so we have uh three issues here first is to resolve conflict and the second is to restore societal balance and the third is to ensure security feeling of the people so uh these three uh uh propos PES are not to be found in the western literature but it will be found in Indonesian uh ancient literature so the first is to inser a sense of remorse and release guilt of the offender so these four uh purposes of punishment is uh serve as a guide for the judges when they uh tried a case before them uh about guidelines of sentencing uh we have many guidelines to sentencing uh the first is the judges must uphold not only law not only criminal law but also Justice I know that this sounds very difficult for the uh people to understand but yeah we understand that law is not always in line with just justice so uh the task that judges have was to uphold both Law And Justice what happen if there's a conflict between the law and Justice between legal sou and Justice our criminal code says that then Justice must Prevail over the legal certainty and then the third uh there are also factors to be considered by judges for both natural persons and legal persons and the fourth uh this is coming from the human right perspective that punishment uh inflicted by the judges shall not intended to degrade human dignity even though someone has committed a crime it doesn't mean that the human dignity should be uh should be left behind and um there is also a new uh guidelines for the judges for criminal acts carrying alternative punishment the imposition of a lighter sentence must be prioritized if it is considered as the most appropriate decision and is supporting the achievement of the purposes of punishment that I just mentioned so um this is uh guidelines for judges when they are facing with the uh crimes before them and uh there is also another issue of judicial pardon which provide opportunity for judges for giving pardons considering the following issues first is the triviality of the crime and then the perpetrator personal circumstances or the situation at the time the crime was committed and what happened after the crime was committed so this a part of the uh um guidelines for sentencing for judges and uh I did uh mention about the uh recommendation for not imposing imprisonment uh this was uh recommended whenever first the defendant is a child or over 75 years old or a first offender then the judges um should not uh impose uh imprisonment the theity of loss and suffering of the victim the defendant has paid compensation or uh restitution to the victim defendant is not aware that it the his or her act will cause a large loss the crime occurred due to a very strong incitement from another person it is a victim precipitated crime or a crime is the result of an unrepeatable situation the personality and behavior of the defendant as such that will not reuen he will not commit another crime that and I imprisonment will cause great suffering to the defendant or his family and finally the crime is committed in a negligent Manner and negligently oops okay uh so this is In N what the Novelties we found in our new code now uh allow me to answer the question posed by Andreas first on the division of crimes the old criminal code divided crimes into felonies and misdemenor the new criminal code no longer divided into those two types of crimes and um the reason for living the distinction uh of felonies and MD first that there is considered no longer relevant to differentiate between felonies or we call from the Dutch re Deli and misdemeanor or west uh because basically there is no principal difference between felon and misdemeanor since both are crimes the difference between them is related to the criminal sanction the severity of crial sanction heles are considered as more serious crimes or we call it Mala in say in Lon hence the sanction is more severe while misdemeanors are less serious crimes or we call Mala prohibita with less sever sanction the felony MISD distinction uh may be quite rigid then leading uh to situations where minor crimes are punished disproportionately all serious offenes receive relatively light or oops uh linean sentences so this is what we are also going uh trying to um prevent hence Deion for not differentiating between the two types of crimes so I hope this uh uh answer the question uh posed by Andreas but if you're not certified we can discuss about this later and uh uh there is also the issue of article two which relate to the living law and the legality principle um living laws basically uh are ad laws laws which are still recognized and applied by the respective ad Community um it must be noted that uh not every part of Indonesia has still has the added Community some of them has blended into a larger Community but only uh specific uh regions have this other community um so what we uh we can call a uh violation of AD laws uh crime if they are not prescribed by the criminal code so for example in our criminal code we already have uh stipulated the uh adultery and all forication so it is not to be prescribed by this uh uh law on uh and um it has to be understood that the applicability of such law is limited to the respective other territory so whenever a person of the the set added Community he goes to another part of Indonesia then the so-called adult law will not be applied to this person and this is only with regard to the territory where the uh the act or the crime was committed and uh it must be noted that the criminalization and the criminal sanction shall be in line with the values found in first panasil second the Constitution third human rights and fourth the general principles of law recognized by the commune of Nations so it is not allowed for uh the criminalization and the CRI sanction to be against this uh values and finally it is important to note that ad viation must be embodied in local regulation or we called hence it is in line with the legality principle in particular Lepa it is written leera it is written and Lexa it is non multi interpretable so this is I hope this uh also answers the uh question uh posted by Andreas because uh unlike the misconception that some people have what we call the living law uh is not just the law that is still recognized without any um written law so it has to be written and it is written in the form of local regulation so we cannot just apply the laws that the community has without any uh validation of local uh legislators do I still have some time sure sure about 10 minutes 10 minutes okay thank you very much and um some some people have also uh complained that uh uh the criminal sanction carries of with the adult violation sometimes it is to severe that that is against the human right and so we in our code we already uh uh formulated that criminal sanction for S violation shall not be excessive I.E the monetary value shall not exceed the category to fines so now we have eight category of fines uh in our criminal new criminal code which are category two is 10 million rupia and uh we can compare it with the present Indonesian local legislation which may carry a fine of 50 million and six months of deprivation of Liberty so uh this is considered as a lot lighter than what the local legislation has uh at present we also must um warn the people that recognition of this living law is not intended to revive the ancient Adat Cor in the past we do have a that Court uh which is a court um operated by the local people by the um uh Elders of the uh local community and they have the right to uh inflict punishment or other decision now we are not uh recognizing again the ad C so if uh somebody has broken the local uh regulation or the ad that Del then the administration of the je proceeding is conducted by the court of the first instance by the national Court of the first instance not by the ad court and U Andre also asking me about what what shall be the content of the government regulation with regard and living law um well basically I have to say that uh uh this government regulation is not something which is um limiting the types of uh crimes of violation of law in the ad Community but we only we only um uh try to put down the um uh prerequisite for having such government regulation first such regulation must be based on scientific research then in determining which act should be prohibited in accordance with the ad law the local lawmakers must ensure that such process is preceded by an Empirical research in accordance with scientific Endeavor so it has to be fully scientific and as such This research shall be conducted by academician or other members of Civil Society organization having sufficient comp and proficiency uh this is very important since if uh such research was not done by people who have competence and proficiency then the result may not be uh in line with the scientific Paradigm uh we also hope that such research produce an academic draft and this draft will be utilized by the local lawmakers in order to decide which local regulation uh would include in the uh violation of the local law and uh this is also important to to note that the local leaders and also members of other community could be invited to participate in the public hearing sessions in order to ensure that what the uh uh leg legislature uh has decided is in l with what is believed by the local community um the next issue is interpreting the law um the formulation of each article in the C code has been conducted in a very careful manner although of course it is far from perfect you know there is no perfect uh uh result by uh uh human being because we have taken into consideration the various anticipated conditions running the crime and we also have uh thought that what we have formulated will avoid multiple interpretation of each article and then whenever necessary we also uh stipulated the authentic interpretation which is written in the elucidation section of the crial code uh let me give you an example uh for example defamation in chapter 17 article 433 um any person who Fally attacks the honor or good name of another person by accusing them of a certain act or condition with the intention that it becomes public knowledge shall be punished for defamation with a maximum imprisonment of 9 months or a maximum fine of category two so we uh are of the opinion that uh this um uh formulation is sufficient to uh be interpreted by the uh law enforcement people and uh there was also the elucidation of article for and uh which um let me read for you the nature of the defamation is if the act of insult is conducted by accusing either verbally in writing or in pictures and this attacks the honor and good name of a person so that it harms the person and then the alleg US the alleged act does not need to be a criminal act it could be anything uh during the deliberation with the parliament for example I mentioned that if one of the MPS uh went to the uh massage parlor which is not a crime but going to M par is considered an unethical Behavior because MPS Member of Parliament and uh so this example is an example of uh a act which is not a criminal act but it uh it could insult uh a person if it's make a public by uh perpetrator okay the object of criminal act according to the provision in this article is an individual but the information against government institution or a group of people is not included in the profession of the article it is addressed by the other article and then uh this is also issue of hate speech and uh we try to uh uh elaborate more than what the present CRI Cod has uh uh done right now any person who public expresses feelings of hostility hatred or insult directed against W groups of Indonesian residents based on race nationality ethnicity skin color gender mental stability or physical stability shall be punished by a maximum ement of 3 years or a maximum fine of category four so we think that this is uh quite uh clear what it meant by hate speech and uh also on the desecration of religion and article 243 okay let me go oh yeah um about jurisdictional issues um there are two kinds of jurisdiction with regard to uh criminal law first a jurisdiction to prescribe and div vises the authority of a state to make laws but it doesn't mean that they can uh apply it uh uh spontaneously which is this jurisdiction to enforce uh according to this jurisdiction the authority of a state to apply or enforce its law through legal institutions such as law enforcement agents or court so uh uh while the jurisdiction to prescribe includes ability to Define legal norms and obligation jurisdiction to enforce includ ability to persecute or punish individuals uh including of course investigation uh as such when we are talking about the uh cyber crimes and other crossb crimes we have to uh think very carefully so as we are we not we are not to and croach we are not to breach the sovereignty of other countries and so uh in Thea the crossb crimes is still a global challenge it remains a challenging issue globally be it in the legal technical I'm sorry there was a tyo or even ethical dimensions and there is a Dy to conduct crossb collaboration between on and among law enforcement agencies of different countries it could be bilateral or multilateral collaboration however due to the intricacies and everchanging model of randai of these crimes and particular cyber crimes for the steps are needed uh allow me to add that the proposal for a un convention on coning the use of information and communication Technologies for C purposes is com being being discussed so uh we don't know when it will be uh finished because this discussion really uh uh very difficult to have this meeting of mine oh thank you so I I I'm not overriding the uh time uh that thank you everybody thank you very much uh Professor for your eloquent uh presentation in regards to the context of Indonesian criminal code new criminal code uh specific [Music] Academy OFA IND from [Music] [Music] uh then dral [Music] share okay and Mar r uh uh Andre Okay uh uh for comp system systemic indones IND re criminal provision for for um Indonesia inter Dem proc yeah SE BL uh har uh Andreas Andreas okay cons professor uh trading then [Laughter] St for [Music] for okay by yeah open and limited recodification policy speci uh uh for for fortive min okay next for munderings for AR articles next signal organized crime um and for process forward professor and Professor Andre I hope you're ready uh to give the materials in this afternoon so basically U before before you you you start your presentation I would like to introduce you first uh so Professor Andre clip is basically a professor of a criminal law and criminal procedure and the transational aspect of criminal law in the Mast University and Professor Andis Kip is a member of the royal Netherlands Academy of Arts and Sciences the boards of directors and the International Association of panel law scientific committee so Professor Andre clip uh we hope that Professor Andre clip would like to respond to these following questions the first the first question is similar to the one that I have asked to Professor topos santoso what does the word code mean in the context of criminal code for Netherlands criminal law system secondly what are the considerations for the Dutch to take an organic growth or gradual approach in developing its criminal code and what are the pros and cons that the Dutch Scholars have discussed in regards to this issue the third question is what does the legality principle mean under the Dutch criminal code and the European criminal law how has the European criminal code shaped the Dutch criminal code also the last question is how does the Dutch Penal Code regulate jurisdictional rules in regards to the territorial extraterritorial principle how would the rules address law enforcement institutions need to fight against crossb crimes such as cyber crime similar to other speakers I would like to give you 20 to 25 minutes uh for your speech without further Ado I will give the opportunity to you Professor Andre C thank you so much uh Andreas maon for your kind words of introduction ladies and gentlemen it's a it's a great pleasure to be here with you uh and I'd like to congratulate the um uh facultas UK unas inesia to its 100 birthday that is a a great event and uh it is a great honor uh that you have invited me to uh to speak at this occasion and I thank you for the invitation especially my thanks go to Professor GTI uh H noo and to Dr yosua s for for inviting me to this event um Professor akis NOA you referred in your introduction to a lifelong learning and I couldn't agree with you more um it often seems to me that a students regard professors as people that were born as professors that is not the case that is not the case I can live the secret professors were born as a student and the only thing that distinguishes a professor is that a professor is a lifelong student and that's I think is important to take on board um ladies and gentlemen more to the content on legality and the rules of jurisdiction for me the starting point for the preparation of my my talk to you is this the I hope you can see it uh well it is the V book from for Netherlands India uh 1918 and this code was a clear copy of this one the Dutch Penal Code of 1886 and of course the Dutch colonial power simply transplanted its own code to uh uh to the colonies it did so in in in Indonesia it did so in Surinam and it did so in the Caribbean islands but looking at the jurisdictional provisions and the legality principle in 1918 in the code we can see that it has the basic concepts of the Dutch code territorial principle in article two the uh extension over uh offenses in on ships [Music] uh uh the protective principle in article four and a very interesting active doile principle uh that in the Dutch version was an active personality principle but in the Dutch East Indies it appears as a rather Colonial uh version because it does not recognize Indonesians as being a Dutch national so it declares the competence over those that are Dom having said so um the copypaste nature is also applicable to the principle of legality and on that honestly I don't see a lot of differences between the legality principle in the 1980 code for the for the Dutch in in the Dutch code and the the legality Principle as it is uh formulated now in 2024 you ask me whether the Netherlands have a different opinion or different influence now because of European criminal law well of course there's a lot of influence of European criminal LA but that that does not affect the general part so ites does lead to many new offenses being implemented in the Dutch uh uh criminal legal order but it does not change the legality principle and even stronger the court of justice of the European Union has confirmed the U relevance of the legality principle even to such an extent that if a country if a member state has not implemented the uh uh the crime that the European Union wants to have criminalized you cannot punish the offender so that it still requires a clear legal basis in the National criminal setting a few words on the developments of uh all jurisdictional rules um when it when it concerns the the the Netherlands basically these Dutch criminal jurisdictional rules were unaffected by any change since 1886 even up to the 70s there were very few in changes hardly any application of extr territorial jurisdiction so the focus was very narrow very National and to a certain extent there was a link with extradition because the the the only provision that's on extra territorial jurisdiction that was occasionally us was the provision on active personality so Dutch Nationals committing crimes elsewhere in the world could be prosecuted if that conduct was also a crime elsewhere in that other country and the link with extradition was that there was a Prohibition to extradite D Nationals so you can only prohibit ex the exibition of your Nationals if you're willing to uh uh to prosecute that this yourselves and vice versa and that situation lasted until 83 and then the change came the change came that the Netherlands were willing to expedite their own Nationals so here's a a new period the the new period was from the end of the 1970s up to the 2000s around the year 2000 we see in a period of reluctant what I call a reluctant expansion so the Netherlands gradually uh um extend their jurisdiction and they do so as a result of treaties uh of the United Nations and treaties of the Council of Europe on International crimes and there are many of them there about a couple of dozens uh of those treaties on combating hijacking of Civilian airplanes uh bombing of Civilian airplanes the protection of diplomats um the protection of nuclear intelligence the protection or the combat of uh uh drugs International drugs trafficking and all those treaties led to a situation in which the Netherlands extended its jurisdiction as a result of the obligation in the treaty but it was also and that's why I call it reluctant expansion the Netherlands did not do more than the treaty required so that what the treaty required was the the maximum not the minimum and one could have also had a different attitude the Netherlands just simply followed the um the uh what the what the wish was what the wish was of the legislature of the treaty however there was one other development and that other development related to the uh view on international criminal justice uh by the early 1990s the Netherlands started to embrace the international criminal justice system the Netherlands volunteered to host the international criminal tribunals for the former Yugoslavia and for Rwanda and it also volunteered to host the international criminal court and that opens an every of being more receptive to International uh uh links and to jurisdiction over crimes elsewhere in the world this embracement uh of international criminal justice was further stimulated by hosting also in the head European agencies relevant for criminal justice erus ero and European judicial me all instit tions agencies that are working on International and European criminal justice all in the H and the other thing that as a result of that was uh was was done was the setting up of a specific unit with the National Police and with the national prosecutor to investigate International crimes so here was the big change of the views of the n's uh on what needs to be done that was a political decision and the political decision also meant that and then they enter in the in the in the next stage that they found out that the Dutch rules on jurisdiction they rather limited uh and that is was the start of the what I call the the period of unlimited expansion unlimited expansion of Dutch jurisdictional rules since more or less the year 2000 and this culminated in a new set of rules that were applicable from the 1 of July 2014 and I invite you to remember this date because the date is going to be very important in much here later on the 1 of July 2014 um I had the honor to uh uh give a an advisory opinion on and to write a report on the potential changes of the jurisdictional rules to the Min of Justice uh and that report uh was delivered in in 20110 the um more open attitude and the more active attitude uh uh was coupled uh uh with with a complete view complete change of views on exter territory jurisdiction um and um by the years 2000s the polit political view was that it was to be unheard of that there would be crimes over which no State at all would have jurisdiction so there was a lot of effort put in covering what was supposed to be uh vacum uh a loophole in uh uh the um the existence of criminal law over a certain situation honestly I've always been very critical on on this because I said this is a very very thecal issue and it would lead to trying to establish jurisdictions over situations uh uh when a stateless person on the South Pole would commit an offense against another stateless person then there is a loophole in jurisdiction and no state is uh is responsible it doesn't have really the practical application however the effects were that the nans created more and more jurisdiction and also European Union in every piece of legislation that the European Union asked the member States to criminalize uh criminal organizations drug offenses uh trafficking in human beings sex offenses against miners in all these rules of the European Union it also asks the member states to extend jurisdiction and one of the consequences is that within the European Union there's a lot of overlapping jurisdiction because you if all member states criminalize active personality passive nationality and a protective uh uh principle it means that uh there many states competent over exactly the same offense um I think that the the the most revolutionary uh uh uh point taken in uh in 2014 was the acceptance of the Netherlands of the passive nationality principle and that is extraordinary because the ne have always resisted against the passive nationality princi it always said uh this is something that uh uh should be uh covered protected uh by the state on which territory you are um and that uh uh was lifted so the the view now is that Dutch Nationals ought to be protected also elsewhere interesting is also that the passive nationality principle applies since 2014 but also over crimes that occurred before as long as the conduct had already been pered so in other words jurisdictional rules in the view of the of the Dutch Supreme Court and the Dutch government are not regarded as affected by legality legality only applies to the criminalization of the conduct but not to the jurisdiction uh and that is a very very interesting uh um View and on that I'm also sure that the is uh not um yeah may not be shared with many other states in in in the world the government also started to be more active in investigation and the two categories of people uh uh that had committed crimes outside the Netherlands that the the prosecution focused on one was the refugees it found on it territory so it was a clear focus on from refugees from the Yugoslav region from Rwanda from Afghanistan that's and if you have refugees in your country you will have people uh some of those that may might also have committed crimes uh and in those groups uh uh the potential perpetrators of international crimes were found that is one category and the other category was that the government insisted that the prosecution would go after Dutch Nationals that would be involved in crimes we had a prosecution against an individual that supplied substances chemical substances to S Saddam Hussein in Iraq uh who used that as mustard gas in order to exterminate cish population we had prosecution of Mr Bowen har uh who assisted Charles Taylor in Liberia uh uh with supplying him uh with weapons all of that uh was a clear policy choice in order to give the message you commit crimes elsewhere in the world and you are a Dutch national you will be prosecuted if you have committed crimes elsewhere in world and you come to the Netherlands you will also be there is a link with the Netherlands uh and um um a clear policy now and a unit that can go after if I look at the Indonesian penal code that has now been adopted uh and the um jurisdictional principles that you have In Articles 4 through n the first impression is that it's it's a it remains a modest change it's not as expensive after that shown uh however it's also modern because it takes into consideration the more modern technology and the more modern developments in article four I see in the new uh Indonesian uh the penal code a recognition of the principle of territoriality uh in combination with the the the Indonesian ships and the Indonesian airplanes uh all a a combination of principles that are that are seen in many P CS of the world it is added with the extension uh in paragraph C for the consequences that are felt in Indonesia through the it sector um this is done in an explicit way one could also have imagined that uh simply it's an interpretation that crimes occur on Indonesian territory if the consequences are that that is a thing that you can choose it's logical uh and I think it is good that this has been stated in an expli explicit manner um the protective principle uh uh has remained similar to the original of 198 uh it it has protected all sorts of interest of the Republic of Indonesia uh that are affected at that's what you see in paragraphs a to H and only the last one in in Article Five I the Indonesian citizen in accordance with International agreement with the state where the crime is committed that in essence is a recognition of the passive nationality principle uh and that is very interesting that that is also regardless so you and the Dutch uh have gone the same way in recognizing in the passive nationality principle because it was not there 100 years ago um and uh the the the the Clause that is in the Indonesian provision with an international agreement with the state where the crime occurred make sure that there is a legitimacy that there is uh a justification under international law so also that is a very modern uh provision article six completely on universal jurisdiction completely corresponds to Dutch article six in the current and the new Penal Code it relates to crimes under international law for which there is universal jurisdiction so no link necessary with the country it's simply it is about SE and crimes that are so acious so horrible that uh The Intern Community should have the power and the competence to to to investigate and to adjudicate this is the legitimization under international law um there is um well my my my question is uh whether it requires a criminalization in writing in Indonesian Penal Code or whether the M fact that Indonesia is also bound to the uh specific convention is is enough so can you prosecute on the basis of the treaty formulation or does it require the clear implementation into the legislation um article seven for me is also a sign of a modern Pinal code because here you have jurisdiction over crimes uh of which you accepted the transfer of proceedings so one state can give its right to prosecute to Indonesia on the basis of an international treaty um this is a very modern provision which you can also find in article 8B of the new Dutch penal code um I don't know whether Indonesia has such a treaty already and I also do not know whether it might apply to international criminal Trum we have in the Dutch situation we have that expansion and if you ow me I will give you an example of such a treaty such a treaty that has also relevance for uh for for Indonesia on the 17th of July 2014 flight mh7 departed from Amsterdam to qu qualum and it was downed over Don in the Ukraine all 298 uh people on board B and crew died as a result of an attack of a book missile over Ukraine it was a civilian ad flying over the area of eastern Ukraine in which separatists backed by Russia and the regular Ukrainian Army were involved in an armed conf 198 of the 298 people on board were Dutch Nations 12 were Indonesian Nations and all of those many of those went to parum or in order to further go to Indonesia to have their holiday or to go back home I mentioned earlier that on the 1st of July 2014 the Netherlands had introduced passive nationality as a principle meaning that now the ne would have jurisdiction without this new legislation inev would not have jurisdiction because uh uh we don't have jurisdiction over crimes that occur in another country on a plane that is not ours and the simply fact that the plane left from the Netherland is not a jurisdictional basis however the prosecution also said if we only prosecute for the crimes committed against the Dutch victims we will ignore the non-dutch victims and they are in a similar situation the result was that the Netherlands and Ukraine concluded a treaty on the transfer of prosecution of the right to prosecute by Ukraine Ukraine had jurisdiction on the basis of the territoriality principle it happened over Ukraine all the the the the remains the bodies landed on Ukrainian territory so no dispute at all Ukraine had jurisdiction and Ukraine was fully competent to transfer that to the NS and so it happened there's a a convention concluded between the two states and in 2020 the trial started uh for accused had in summon and by the end of 2022 U the um U the verdict resulted in three convictions and one acle I'll finalize my talk uh uh there are a few remarks to uh to me there looking at the differences well there not that many differences of principle there a few detailed differences international criminal tribunals um the principle of our data Dy car the impacts uh of the EU EU on Dutch criminal law is an explanation on that but I think the the bigger ation is still the geographical uh explanation the Netherlands is a small country with many other countries in its vicinity we have free movement within the European Union meaning that many Dutch go elsewhere and many EU Nationals come in the Netherlands the Indonesian aripal uh is more remote in the sense that was a big country that's meaning that there is less free movement from other states uh uh to Indonesia and from the Indonesia to uh elsewhere you POS the question whether there's still the same concept in the code I think yes the the both the changes you Undertake and the changes I see in the D are are the answer is are clear yes codification uh the code is still a code meaning that everything applicable to criminal law to substantive criminal law is in the legality precedes everything and then it follows by by jurisdiction the but developments are taken into account and I think the code is prepared for the coming years a few final remarks on the future what I missed and I advised our government to do that and it ignored it what I miss is if you have your legislation applicable over equatorial offens we also need the power to investigate we have no regulation at all of how to investigate the crimes over which we have jurisdiction elsewh um I hear you are going to have a new code of criminal procedure we are going to have a new code of criminal procedure as well so this is another opportunity to learn from each other in the coming years and I'm looking forward to that exchange of you and thank you for your attention thank you so much thank you so much Professor clip for your explanation in regards to the context of uh Dutch criminal code uh since you already have explained to us about the context of Dutch criminal system and its criminal code we shall continue our session with the Q&A uh or question and answer session speci l probation for com [Music] spe for the last question uh will be given to you Professor Andre CP from Arwin univers banara and the question from Mr Arwin is this uh would you like Professor andp would you like to give a comments on the living law that Indonesia currently regulates within its new criminal code because living law doesn't have any standards in its Elemental uh elements it is the duty for the prosecutors to prove the best handle or the element of the written law uh what about your opinion in regards uh to this uh provision Professor Andre clip concluding remarks um for [Music] okay comp Forme [Music] [Music] J for for [Music] [Music] concluding remarks remarks e REM REM and [Music] now uh for now Andre liil for serious crimes yeah interal crimes crime interational crimes closing remarks uh the last one I will give this opportunity to Professor Anders clip uh in regards to Mr Arn's question specifically he asked about your comments or your opinion or maybe your suggestion in regards to the on living law that Indonesian has regulated in its article two uh Indonesian new criminal code uh this opportunity will be given to you and also the opportunity to give the closing remarks please uh Professor Andress c yeah thank you so much I'm not an expert on living law on ad but uh the association I have with that is that there there have always been Norms in the penal code that go with the time when you look at the at some of the Norms concerning indecent behavior on insult on specific sexual behavior you will see that what was regarded as inappropriate 100 years ago may now no longer be regarded as inappropriate so they go they live with the times and that as such is a phenomenon that we know already in in the Dutch penal code and my expectation is that that is also the same uh for the Indonesian situation the other situation is that that there are states of common law and common law uh does not always cify the offenses that are uh that that have been criminalized they are based on precedent and so on having said that we we see that countries that apply common law now gradually have started or are about to to make common law offenses as a closed list so they have cified now most and there's only a handful of offenses that are still developed through through the last remark that I would like to say when it comes to uh crimes against the opinions of the Civilized group of Nations community of Nations that has always been the NM exception in in in the European convention on human rights so we we we see in the 1950 European convention on human rights that uh uh some conduct that is so Unthinkable uh uh acious and horrible must be criminalized even with retrospective effect and that happened concerning the crimes that were committed in the second genocide crimes against humanity and so on um but added may be a little bit different then then on the the impact of cyber crime uh uh I think the the the Dutch perspective is that this is not a question of extr territorial jurisdiction this is national jurisdiction it's territorial jurisdiction and the Dutch Supreme Court has been very very lenient in saying the moment that there is a link with Dutch territory and it is already the fact uh uh that there is a link with an IT Tool uh uh um crimes if if if somebody is now going to insult uh somebody else there is a link with Dutch territory because I'm linked via a Dutch channel so so that that that is regarded as a very easy way to declare jurisdiction the other thing is how to investigate that is far more difficult difficult and we have many cries uh for which there are victims within the nments extortion uh all kinds of financial plan where the groups that are working on this are far away are in Kazakhstan or or somewhere in the Russian Federation and that is an entirely different problem so I I on that I would say it's less a question of jurisdiction but it is more a question of how to investigate and how to obtain the extradition of those that commit these CLS thank you so thank you than that's all from you Professor clip yeah I'm fine I'm fine once again a call for for uh when it comes to to jurisdictional rules also to look at the consequences of that on the uh procedural side you may have jurisdiction over all kinds of crimes elsewhere in the world or in the in the cyber world but you need investigatory tools to do something something with it and on that I think uh at least in this country we have not matched up and I think it would be an opportunity for Indonesia to do so and to create your possibilities to investigate uh and to cooperate with other states that is my my message and and call for you thank you thank you so much Professor clip uh for your answer and also your closing remarks uh specifically I would like to uh give thanks to you a lot uh for attending this event and also uh for your willingness to become the speaker of this event I hope that this will be not the last time uh for us to work together instead this will be the first or the initial uh work joint collaboration in the future thank you thank you so much professor and Professor to Professor for room leave Prof too and Prof Andreas clip please do not leave the zoom room first because we will we will have uh photo session together for the speakers only depart