Name : Giwangga Moch.

Fernanda

Class : LAW 02 ( 2019 )

Subject : Criminal Law

Topic : Concursus

A. The Definition of Concursus

Concursus is one of the most important branches of criminal law science.

Basically what is meant by coupling is the occurrence of two or more criminal acts
by one person or several people in which the criminal act committed for the first
time has not been convicted of a criminal offense, or between the initial criminal
act and the subsequent criminal acts has not been limited by a decision. 1 Concursus
has 3 forms, namely concurrent regulation (idealistic concursus), concurrent action
(concursus realist) and continuous concurrent action.

Thus, the conditions that must be met to be able to declare the existence of
concursus are:

a) There are two / more criminal acts committed

b) That two / more of the crimes were committed by one person (or two people
in terms of inclusion)
c) Whereas two / more of these criminal acts had not yet been tried
d) That two / more of the criminal acts will be tried at once

Seeing the development of a society that is increasingly advanced, criminal

acts that arise also tend to increase and increasingly complex. One of the
complexities of criminal acts today is that a defendant commits two or more
offenses both simultaneously and separately. The case of offense committed by
1
Roeslan Saleh, Perbuatan Dan Pertanggung Jawaban Pidana. (Jakarta: Aksara Bara, 1983), Hlm. 11
more than one by a defendant and each of them has not been ruled by the judge's
offense-offense referred to as concarengan (concursus).2 The concursus referred to
above is divided into three parts namely, first; idealistic concursus, second;
continuing and third actions; concursus realist.

The concursus case as explained above is a challenge for law enforcement.

Law enforcers such as the police, prosecutors and judges are the three institutions
that are given the authority to handle criminal cases in accordance with the division
of duties or functions according to statutory regulations. The challenges of each
institution are different, the police have the role of exposing the crime and
arresting the culprit. The police as investigators in conducting investigations into
suspects of a crime often make extremely extreme mistakes such as the disclosure
of related cases so that there are separate cases (splitz) even more ironic.3

The case with the role of the prosecutor as the public prosecutor, the
prosecutor must be able to prove the offense violated by the perpetrators of the
crime in this case is a difficulty for the public prosecutor. The difficulty of the
public prosecutor in proving offenses in concurrent cases can vary, starting from
proving absolute competencies and relative competencies that are adjusted to the
locus delikti and tempo of criminal offenses from crimes committed by the
perpetrators, proving the relationship between one offense and another offense as
well as tools evidence and other evidence.4 Aside from the difficulty of the public
prosecutor in the trial, he must also be more careful in the case of general criminal
cases or special crimes that will be charged to the defendant. Judges who have the
right to adjudicate concarus cases (concursus) are also faced with a difficulty in
passing the verdict on the defendant in the concurrent case. The difficulty of judges

2
Roeslan Saleh, Perbuatan Dan Pertanggung Jawaban Pidana. (Jakarta: Aksara Bara, 1983), Hlm. 75
3
Andi Hamzah, KUHP dan KUHAP. (Jakarta: Rineka Cipta, 1999). Hal. 86
4
Sudarto, Hukum Pidana. (Semarang: Yayasan Sudarto. Undip. 1997). Hal. 41
in concarius cases is that the system of sanctions is adjusted to the offenses. In
connection with the foregoing, the judge must not have a subjective opinion in
issuing a decision, but an objective view that can be tested scientifically.5

The meaning of concarius (concursus) in the Criminal Code has not been
explained directly in the articles but the elements of the incarceration are in the
Criminal Code article. The concursus elements are divided into three parts: first;
concursus idealis, contained in Article 63 of the Criminal Code which says that an
act is included in more than one criminal rule, second; continued acts, contained in
Article 64 of the Criminal Code which states that if a person commits several acts
each of them is a crime or violation between the acts there is a relationship such
that it must be seen as a continuing act, while the last is the concursus realist
contained in Article 65 of the Criminal Code which says that if someone commits
each act it stands alone as a crime (crime / violation).

One case of concarus (concursus) which can be tested by the objectivity of

judges in issuing a decision is a case of concarous act (concursus realist), seen
from the case of concarous act (concursus realis) the relationship between one
offense and another offense which is independently carried out by the individual
one person. In the case of concursus realist in theory, the judge in considering the
decision does not look at the type or relationship between one offense and another
offense.6 The judge in deciding a case in a concursus realist case must be in
accordance with the provisions of Article 65 to Article 71 of the Criminal Code.
These provisions govern the system of sanctions for realist concursus. Seen from
the article that regulates the provision of sanctions in concursus realist cases,
sanctions are given various kinds of views of the type of offense committed.

5
Bambang Purnomo, Teori Pertanggungjawaban Pidana. (Jakarta: Sinar Grafika. 1996). Hal. 135.
6
Roeslan Saleh, Perbuatan Dan Pertanggung Jawaban Pidana. (Jakarta: Aksara Bara, 1981) Hal. 16.
 The system of giving sanctions for crimes that are threatened with the same
type of imprisonment in concarus realis cases, so the judge in imposing a decision
on the defendant can only be subject to one criminal provided that the maximum
number of crimes must not exceed the heaviest maximum plus a third.

The system used by judges in these types of principal criminal decisions is a

sharpened absorption system. Unlike the case with a crime committed by a
defendant and the crime is threatened with a crime that is not the same type, the
judge has other considerations that are different from the same type of
imprisonment. Judges in considering decisions on imprisonment that are not the
same type, the judge handed down the type of criminal threat for each crime
committed, but the judge must not impose a decision exceeding the maximum
hardest sentence plus a third. The system used by judges in principal crimes that
are not the same is a softened cumulation system. Unlike the case in the case of
realist concursus between crimes and violations that were tried at different times,
the judge used Article 71 of the Criminal Code which reads: the criminal code
which was calculated in the criminal code which will be handed down by using the
rules in this chapter concerning the case of trial is tried at the same time. "

The Judge's authority which is very central in deciding a case is not only
based on laws and regulations but must be able to see from various aspects, not to
mention the sociological and philosophical aspects as well as the psychological
impact of such a decision both on the victim, the defendant especially on the
public. The fact that there are many judges decisions that do not reflect legal
certainty in accordance with statutory regulations.7

7
Soenorto Soerodibroto, KUHP dan KUHAP Dilengkapi Yurisprudensi Mahkamah Agung dan Hoge Raad. (Jakarta:
Rajawali Press. 2007). Hal. 205.
 In connection with more than one crime committed by one person or more,
then there are 3 possibilities that occur namely:

 Concurrent happened, if in the time between the two criminal acts it was not
determined one crime because the earliest criminal act between the two
criminal acts. In this case, two or more criminal acts will be filed and
examined in one case and the criminal will be handed down to one criminal,
therefore practically there is no criminal charge, what actually happens is
criminal deterrence, because of some offenses they are not convicted
themselves- itself and become a large total, but enough with just one crime
without taking into account the full crime in accordance with those
threatened by each crime. For example two murders (Article 338 of the
Criminal Code) are not convicted twice, each with a maximum
imprisonment of 15 years, but enough with one imprisonment with a
maximum of 20 years (15 years plus a third, Article 56 of the Criminal
Code).
 If an earlier criminal offense has been decided by convicting the maker by
the judge with a decision that has become permanent, then there is a repeat
here. In the conviction of the maker because of this second offense the
repetition occurs, and here there is a criminal award with a third.
 In the case of a criminal offense that was first carried out, the criminal of the
maker, but the decision does not yet have a definite legal force, then there is
no concurrent or repetition here, but each of the criminal acts is handed
down separately according to the maximum criminal sanction which is
threatened by several the crime.
B. Concursus Forms
 There are three forms of concursus known in criminal law, which are also
commonly referred to as teachings, namely:

a) Idealist concursus: if someone commits an act and it turns out that one act
violates several provisions of criminal law. In the Criminal Code referred to
as a parallel regulation.
a) Realist concursus: if someone does several actions at once.
b) Actions continue: if someone does the same thing several times, and
between the actions there is a relationship so close that the sequence of
actions must be considered as a follow-up action.

For more details, the following will be discussed in detail regarding the three
forms of concarious or concursus.

a. Idealist Concursus

Idealist concursus is an act that falls into more than one criminal rule. Also
referred to as a combination of one act (eendaadsche samenloop), which is an act
covering more than one article in the provisions of criminal law. The criminal
administration system used in the idealistic concursus is the absorption system,
which is only subject to the heaviest basic crimes. Among legal experts there are
differences of opinion regarding the meaning of an action or act. Before 1932,
Hoge Raad held that what was meant by an action in Article 63 paragraph 1 was a
real or material action. This can be known from Arrest Hoge Raad (11 April 1927
W 11673) that a driver has been revoked his driving license and in a state of being
drunk driving a car, is seen as just one action.

Hoge Raad's opinion then changed which can be seen in Arrest Hoge Raad
(February 15, 1932, W. 12491) ie a drunk driver driving a car without lights at
night is seen as two acts and violates two criminal provisions. In the first reality is
the state of the car, that reality can be seen as standing alone with different
properties of reality that one is not a condition for the emergence of another reality.
Here is a realist concursus.

Sianturi called in Article 63 of the Criminal Code as a single action along

with the term. The purpose of concursus idealis is that there is only conclusions in
mind. The act that was carried out was only one act of being dealt with and at the
same time had violated several Articles of criminal law. An example is a rape in
public, then the perpetrator could be threatened with 12 years imprisonment
according to Article 285 about raping women, and imprisonment of 2 years 8
months according to Article 281 for violating public decency. With the absorption
system, the heaviest is taken that is 12 years in prison. However, if a criminal case
is found that is threatened with the same basic crime and the maximum is the same,
then according to VOS, the main criminal has the most serious additional crime.
Conversely, if faced with an offense that is threatened with a principal offense that
is not the same, then the determination of the heaviest criminal is based on the
order of the types of criminal according to Article 10 of the Criminal Code.

If the judge faces a choice between two main crimes of the same type, the
maximum is the same basic crime with the most severe additional crime. If there
are 2 choices between 2 principal crimes that are not of the same type, then the
determination of the heaviest criminal is based on the sequence of types of criminal
as mentioned in Article 10. So for example choosing between 1 week of
imprisonment, 1 year of imprisonment and a fine of 5 million, the hardest criminal
is 1 year confinement. In Article 63 paragraph 2 a special provision is set which
deviates from the general principle in paragraph 1 in this case applies adigum "lex
specialist derogat legi genarali".
 Furthermore, in Article 63 paragraph (2) contained in lex specialis derogat
legi generali (special law rules nullify general rules). So suppose there is a mother
who killed her baby, then she could be threatened with Article 338 regarding
murder with a 15-year prison sentence. However, because Article 341 has
specifically regulated the criminal act of a mother who killed her child, the mother
is subject to a maximum sentence of seven years as stipulated in article 341.8

Based on the opinion above, the writer draws the conclusion that an action
taken by someone is not always appropriate to the concursus idealist meaning as
regulated in article 63 of the Criminal Code. A fixed action must be seen as a
number of actions if the action has more than one goal or scope, even though the
action arises at the same time does not mean something that is determinative for
actions that have different characteristics and does not become a condition for the
emergence of the action is seen as this stand-alone action is in accordance with the
meaning contained in the realist concursus.

An action that violates several criminal provisions is still seen as an act if the
act arises at the same time, has an association with other realities and is a condition
for the emergence of other realities. In addition Article 63 paragraph (2) of the
Criminal Code stipulates that if there are special rules, general rules are set aside.
This can be seen in Article 351 of the Criminal Code concerning persecution with
Article 356 of the Criminal Code which is also about persecution but with more
specific provisions, for example, persecution by a husband to his wife.

b. Realist concursus

Realist concursus or a combination of several actions occurs when a person

commits several actions, and each act stands alone as a crime. Based on the

8
Andi Hamzah, op. cit. Hal 30.
formulation of paragraphs (1), articles 65 and 66. It can be concluded that each of
the criminal acts in the same act of one another must be viewed separately and
independently This is the main characteristic of the joint act.

Realist concursus occurs when someone commits a number of acts, each of

which acts independently as a criminal act (does not need to be of the same type
and does not need to be related). This is regulated in Articles 65, 66, 67 of the
Indonesian Criminal Code.14 An example of a realist concursus is that someone
committed theft one day or several months later committed fraud, several months
later committed murder.9

Article 65 paragraph (1) above can be concluded that if there is someone

who commits several crimes, one sentence will be given if the sentence threatened
is a type of punishment. While Article 63 paragraph (2) concludes that the sentence
should not be more than the maximum for the heaviest crime plus a third. As
stipulated in article 65 of the Criminal Code above, it discusses combined crimes
where the punishment is not the same. Then all types of criminal threats for each
crime are dropped, but the amount must not exceed the maximum heaviest crime
plus a third.10

Article 70 of the Criminal Code contains a combination of crime with

violations or violations with violations. So in this case each crime must be
sentenced separately as well as the offense must be sentenced individually. If there
is a sentence of imprisonment then this should not be more than one year and four
months while the sentence of imprisonment in place of a fine may not exceed eight
months.

c. Actions continue
9
R Soesilo, KUHP Serta Komentar-Komentarnya Lengkap dengan pasal Demi pasal. (Bogor: Poleteia. 1999). Hal. 21.
10
Roeslan Saleh, Perbuatan Dan Pertanggung Jawaban Pidana. (Jakarta: Aksara Bara, 1981) Hal. 16.
 Actions continue to occur when someone commits a number of actions
(crime or violation), and the actions are related in such a way that they must be
seen as a continuing action. In MvT (Memorie van Toelichting), the criterion "the
actions are related in such a way that they must be seen as a continuing action"
including there must be an intention or decision, the actions must be the same or
the same kind and the grace period between the actions the act was not too long.
The time limit for continuing actions is not clearly regulated in the law.
Nevertheless the distance between the one and the next is within reasonable limits
which still illustrates that the implementation of a criminal act by the maker has a
good relationship with the criminal act (the same) which was done earlier or with
the decision of the original basic will.11

The system of providing crimes for acts continues to use the absorption
system, which is only subject to one of the toughest criminal rules, and if it is
different then subject to the provisions that contain the heaviest basic crime.
Article 64 paragraph (2) is a special provision in the case of counterfeiting and
damage to currencies, while Article 64 paragraph (3) is a special provision in the
case of minor crimes contained in Article 364 (petty theft), 373 (minor
embezzlement), 407 paragraph (1) (damage to light goods), which is carried out as
a continuing act.

If the values of crimes arising from minor crimes committed as continuing

acts are more than Rp. 250, - according to article 64 paragraph 3, the criminal rules
applicable to ordinary crimes are imposed. For example, A commits 3 times minor
fraud (379) in a row as a continuing act and the amount of loss incurred is more
than Rp. 250, - Against A, not subject to article 379 which is a maximum of 3

11
Soenorto Soerodibroto, KUHP dan KUHAP Dilengkapi Yurisprudensi Mahkamah Agung dan Hoge Raad. (Jakarta:
Rajawali Press. 2007). Hal. 205.
months in prison but subject to article 378 which is a maximum of 4 years
imprisonment.