Judicial Activism In Criminal Prison Sentences Below The Minimum Sentence In Narcotics Cases From A Criminal Accountability Perspective

Abstract

The decision to sentence below the special minimum that has been determined by law a priori is a denial of the principle of legality. However, in the paradigm of Judicial Activism, it can be justified as long as it meets the principles or principles of applicable criminal law, follows the development of community law and in the context of protecting the basic rights of the Defendant from the arbitrariness of law enforcement. Therefore, the author wants to test the extent to which the practice of Judicial Activism can be carried out by judges in sentencing decisions below the special minimum. In this paper, the author wants to test it by reinterpreting the principle of legality in the function of regulating criminal law, the concept of criminal responsibility and viewing it futuristically through the application of the National Criminal Code. The research method in this paper is normative with a statutory and conceptual approach. Two things are concluded, First, Judicial Activism can be applied within the framework of the principle of legality which means that the judge corrects the prosecution process by the Public Prosecutor in the criminal justice system and is based on the balance of the subjective state of the Defendant when committing a crime, so that the decision can be made below the special minimum. Second, the guidelines and limitations of judges in carrying out Judicial Activism are to consider the concept of the Defendant's criminal responsibility in the trial, the limits of which can be guided by the National Criminal Code, especially in relation to the Sentencing Guidelines.