Criminal law experts warn to be careful in applying the article to the Kanjuruhan Tragedy
The Kanjuruhan tragedy is a dark picture of the world of football in Indonesia which resulted in the loss of life and injury to hundreds of people. Of course, one of the questions that arise from the tragedy concerns criminal responsibility. It is not surprising that criminal law was also discussed in the Review Forum Group Discussion on the Kanjuruhan Malang Tragedy, which was held on Wednesday, December 7, 2022. The activity was organized by the Airlangga Center for Legal Drafting and Professional Development, Faculty of Law, Airlangga University (ALC FH UNAIR) in collaboration with the Center for Anti-Corruption and Criminal Policy Studies (CACCP FH UNAIR) and the Criminal Law Department, Faculty of Law, Universitas Airlangga (FH UNAIR).
Present as a resource person who discussed the knowledge in the field of criminal law was Prof. Dr. Didik Endro Purwoleksono, S.H., M.H. Through this opportunity; he reiterated that a criminal act might have occurred because the incident caused severe injury and death. However, it is necessary to prove the causal relationship first. If the causality relationship is not established, it will be difficult to resolve the case from a criminal law perspective. In the context of the other person’s death, there are several articles, both in the Criminal Code (KUHP) and outside the Criminal Code, which can be applied, but depend on the elements being suspected or charged.
He also clarified that actions that cause other people’s death are human rights violations. Even insulting and threatening are also violations of human rights. However, it is necessary to review whether these human rights violations fall into the severe category. He answered emphatically, “not all human rights violations are gross human rights violations, but serious human rights violations are human rights violations”. This means that it is difficult for the Kanjuruhan Tragedy to be categorized as a gross violation of human rights. The keys to gross human rights violations are genocide and crimes against humanity.
He then also tried to examine the Kanjuruhan Tragedy using the provisions of Article 340 of the Criminal Code, which regulates premeditated murder. The primary condition for premeditated murder must be prepared from the start to commit murder. According to him, although there were deaths, it was difficult to categorize them as premeditated murders. Apart from that, the provisions for ordinary murder regulated in Article 338 of the Criminal Code will also be challenging to apply because there is no apparent intentional element. The criminal law provisions that he feels are appropriate to use are Article 359 of the Criminal Code, which regulates negligence resulting in the death of another person, and Article 360, which governs failure resulting in injury to other people. The criminal responsibility lies with the party who ordered the tear gas to be fired because his negligence resulted in the death of another person. It will be difficult for subordinates to be criminally responsible because of a position order. The organizing committee should also be held accountable if it finds out that there is excess capacity. Finally, he reminded that “if you are not careful in applying the article, it will result in the acquittal of the perpetrators in court. If elements are not fulfilled, it will result in a clearing.
The statement was later confirmed by Dr. Toetik Rahayuningsih, S.H., M.Hum., as a criminal law lecturer at the Faculty of Law, Airlangga University, who was present as a commentator. According to him, catastrophic events resulting from death cannot be presumed a crime. However, the Kanjuruhan Tragedy cannot be said to be a disaster either. This is, of course caused by several factors behind the tragedy, such as ticket sales exceeding capacity. Based on the circulating chronology, he believes that criminal responsibility should lie with the organizing committee as the organizer with the presumption of Article 359 of the Criminal Code and Article 360 of the Criminal Code. Of course, criminal responsibility must also pay attention to several elements such as the absence of excuses, no justification, there was a crime, and there was an error in the form of negligence due to carelessness or lack of guesswork.