Ahmad Sofian testifying as an expert for the Petitioners at a material judicial review hearing of the Criminal Code (KUHP), Tuesday (7/9/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The act of taking away of a child by any person, including the child’s parents, who are not the child’s custodian based on a court decision with permanent legal force, constitutes a criminal offense as stipulated in Article 330 paragraph (1) of the Criminal Code (KUHP), even though the child has given consent to be taken away.

The statement was made by criminal law expert Ahmad Sofian, who the Petitioners presented at a hearing for case No. 140/PUU-XXI/2023 on Tuesday, July 9, 2024 in the plenary courtroom.

Ahmad further said that the child’s consent must be considered null and void because the court has determined their custodian and examined the child and both parents. “In the event of a criminal offense of child abduction where the child is still under the control of one of the parents who is not the child’s custodian, Article 330 paragraph (1) of the Criminal Code must be interpreted as applicable,” he explained.

In addition, in his written statement, he asserts that the crime of child abduction is a criminal offense where the action continues. This means that one of the biological parents control the child while the other is not given access to meet the child or even know their whereabouts. There are psychological consequences for the parent who has lost the child, so Article 330 should not only be interpreted in relation to the offense committed but also the consequences the victim (parent) suffers when the criminal offense is still ongoing and the child has not been returned to the legal custodian.

“This interpretation is not a violation of the principle of non-retroactivity, but as part of a continuing act that has psychological/psychiatric consequences and or other consequences felt by the victim or the biological mother or father or the child’s custodian,” he said. 

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The petition No. 140/PUU-XXI/2023 was filed by five mothers seeking custody of their children—Aelyn Halim, Shelvia, Nur, Angelia Susanto, and Roshan Kaish Sadaranggani. They challenge Article 330 paragraph (1) of the Criminal Code, which reads, “Any person who with deliberate intent withdraws a minor from the authority legally placed over him or from the supervision of the person who exercise said supervision over the minor with competence, shall be punished by a maximum imprisonment of seven years.”

At the preliminary hearing on Thursday, November 2, 2023, legal counsel Virza Roy Hizzal said that the petitioners all had something in common: after divorcing their husbands, they had custody of their children. However, they are deprived of this right because their ex-husband forcibly took their child. Petitioner Aelyn Halim revealed that she did not know where her daughter, Arthalia Gabrielle, was because she had been hidden by her ex-husband. This incident began on August 15, 2020 when Arthalia was 2 years and 8 months old. Aelyn’s ex-husband and Arthalia’s biological father took Arthalia when Aelyn was outside her home.

Aelyn reported the incident to the police but her report was not accepted because the kidnapper was her daughter’s biological father.

Virza said the state must act when there are violations of children’s rights. Separating parent and child and restricting a child’s access to their parents has a negative impact on their growth and development, which is not the realm of private law but the public domain, in this case criminal law.

The Petitioners assert that the phrase “any person” in Article 330 paragraph (1) of KUHP should apply to everyone, including the child’s biological father or mother, as a legal subject. There should be no exceptions that give absolute power and authority to the father or mother and exclude them from any lawsuit if there is a violation of the rights of the child. The fulfillment of children’s rights is part of human rights and the state have responsibility to provide protection, supervision, and law enforcement in order to achieve welfare for children. Therefore, the state has the authority to take action against parents who violate children’s rights.

In their petitum, the Petitioners request that the Constitutional Court declare the phrase “any person” in Article 330 paragraph (1) of KUHP, which was derived from the Wetboek van Strafrecht voor Nederlandsch - Indie (Staatsblad 1915 Number 732), which was later enacted under Law No. 1 of 1946 on Criminal Code jo. Law No. 73 of 1958 on the Entry into Force of Law No. 1 of 1946 on Criminal Code for the Entire Territory of the Republic of Indonesia, unconstitutional and not legally binding insofar as it is not interpreted to mean “any person, without exception the biological father or mother of the child.” 

Authors     : Putri Ratnasari, Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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