Achmad Shiva’ul Haq Asjach
Scholar ID, Sinta ID, Scopus ID, WoS ID
The development
of information and communication technology has brought significant changes to
modern society. Massive digitalization has provided convenience in various
sectors, including the economy, education, government administration,
electronic commerce, and social communication. However, such developments have
also given rise to new forms of crime that are increasingly complex, organized,
and transnational in nature. Cybercrime, such as phishing, personal data theft,
ransomware, electronic system hacking, digital fraud, and manipulation based on
artificial intelligence, has become a serious challenge for modern criminal law
systems (Muladi & Arief, 2010). These changing patterns of crime
demonstrate that technology not only creates convenience but also expands the
scope and opportunities for criminal activities within the digital sphere.
The primary
characteristics of digital crime differ significantly from those of
conventional crime. Cybercrime is generally anonymous in nature, operates
through global networks, evolves rapidly, and frequently involves cross-border
jurisdictions. This situation causes conventional criminal law approaches to
face substantial limitations in responding effectively to technological
developments. In addition, digital evidence and digital forensic processes
present distinct challenges in proving criminal offenses committed within
cyberspace (Medeline et al., 2022).
In this context,
adaptive and comprehensive criminal law policies are required to enable the
state to provide effective legal protection for society. In modern criminal law
studies, two important concepts are commonly recognized in crime prevention and
control, namely penal policy and criminal policy. These two concepts are
closely related; however, they differ in terms of scope, objectives, and
implementation mechanisms. Penal policy primarily emphasizes the use of
criminal law as a repressive instrument in combating crime, whereas criminal
policy has a broader scope by integrating both penal and non-penal approaches
in order to achieve social defence and social welfare (Muladi & Arief,
2010).
In the era of
digital transformation, understanding the relationship between penal policy and
criminal policy has become increasingly important in order for the state to
formulate policies that are proportional, effective, and oriented toward the
protection of public rights without neglecting the principles of the rule of
law and human rights. Criminal law policies in the digital era are no longer
solely focused on punishing offenders, but must also be capable of anticipating
the rapid development of technology.
Definition of
Penal Policy and Criminal Policy
Penal policy
refers to the state’s policy in utilizing criminal law as a means of combating
crime. This policy encompasses the processes of criminalization, the
determination of criminal sanctions, law enforcement, and the implementation of
punishment against criminal offenders. The primary focus of this approach lies
in the use of the criminal justice system as a repressive instrument to
maintain social order and create a deterrent effect for perpetrators of crime
(Arief, 2018).
According to
Marc Ancel, penal policy constitutes both a science and an art aimed at
enabling positive legal rules to be formulated more effectively in order to
provide guidance for legislators, judges, and authorities responsible for the
implementation of criminal sanctions (Ancel, 1965). This concept demonstrates
that penal policy is not merely concerned with punishment, but also encompasses
the process of establishing criminal law that is effective and grounded in
justice.
In the
Indonesian context, the implementation of penal policy can be observed through
the enactment of various regulations related to cybercrime, such as the
Electronic Information and Transactions Law, the Indonesian Criminal Code, as
well as numerous regulations concerning personal data protection and
cybersecurity. These regulations serve as the legal foundation for prosecuting
perpetrators of digital crimes such as hacking, data theft, the dissemination
of false information, and online fraud.
Meanwhile,
criminal policy is a broader concept because it encompasses all rational
policies adopted by society in combating crime through both penal and non-penal
measures. According to G. Peter Hoefnagels, criminal policy refers to the
overall rational efforts of society in addressing crime (the rational
organization of the social reactions to crime) (Hoefnagels, 1973).
Therefore, criminal policy does not merely emphasize the punishment of
offenders, but also focuses on preventive measures through education, digital
literacy, social policies, the strengthening of cybersecurity, and
international cooperation.
The criminal
policy approach views digital crime as an issue that cannot be resolved solely
through punishment. Social, economic, cultural, and technological factors that
contribute to the emergence of crime must also be addressed through a
multidisciplinary approach. Therefore, criminal policy encompasses penal
policies, social policies, technology-related policies, public education, and
cross-border collaboration in combating digital crime.
Differences
Between Penal Policy and Criminal Policy
The fundamental
difference between penal policy and criminal policy lies in their scope and
policy orientation. Penal policy focuses on the use of criminal law as a
repressive instrument through processes of investigation, prosecution, and
punishment of criminal offenders. The primary objective of this approach is to
create a deterrent effect and maintain public order through the enforcement of
criminal law (Arief, 2018).
In contrast,
criminal policy has a broader orientation because it does not merely focus on
offenders, but also on the social factors that contribute to the emergence of
crime. This approach employs various instruments such as education, social
policy, economic development, cybersecurity technology, and the enhancement of
public digital literacy. Therefore, criminal policy is both preventive and
repressive in nature, as it aims to establish comprehensive protection for
society.
Another
distinction can be observed in the approaches employed by each concept. Penal
policy tends to be legalistic in nature because it relies primarily on the
criminal justice system and law enforcement authorities. In contrast, criminal
policy adopts a multidisciplinary approach by involving governments, academics,
technology companies, civil society, and international institutions in efforts
to combat digital crime. Therefore, it can be understood that penal policy is
essentially a component of the broader framework of criminal policy.
Technological
Challenges and the Responses of Penal Policy and Criminal Policy
The development
of digital technology has given rise to various new forms of crime that possess
characteristics distinct from those of conventional crimes. Digital crimes are
generally transnational in nature, exploit technological anonymity, are difficult
to trace through conventional methods, rely heavily on the speed and automation
of systems, and target data as well as electronic systems that constitute the
foundation of modern societal activities. These conditions cause cybercrime to
have extensive impacts on society, the digital economy, and national security.
The forms of
cybercrime that continue to develop today include hacking, phishing,
ransomware, digital identity theft, online investment fraud, deepfake
manipulation, and cryptocurrency-based money laundering. These developments
indicate that digital technology has transformed patterns of crime into
increasingly complex phenomena that are difficult to control through
conventional legal approaches.
From
the perspective of penal policy, the state responds to technological
developments through the criminalization of various forms of cybercrime and the
strengthening of law enforcement capacity. In Indonesia, such responses are
manifested through regulations concerning illegal access to electronic systems,
the dissemination of false information, electronic data theft, and the
recognition of electronic evidence within the criminal justice system. This
approach provides legal certainty, creates a deterrent effect, and reinforces
the legitimacy of the state in enforcing digital law.
Nevertheless,
the penal policy approach also possesses various limitations. The rapid pace of
technological development often causes the law to lag behind the continuously
evolving methods of digital crime. In addition, issues related to cross-border
jurisdiction, limited digital forensic capabilities, and the potential for
overcriminalization constitute serious challenges in the enforcement of cyber
law. These conditions demonstrate that a purely repressive approach is
insufficient to address the complexity of modern cybercrime.
Meanwhile,
criminal policy views the prevention and control of digital crime as requiring
a more comprehensive approach through the integration of penal and non-penal
strategies. This approach includes the enhancement of public digital literacy,
the strengthening of national cybersecurity, anti-fraud education, personal
data protection, the regulation and supervision of digital platforms, as well
as the reinforcement of technological ethics. By involving governments,
academics, technology companies, and civil society, criminal policy becomes
more adaptive to technological developments and the evolving patterns of
digital crime.
The
criminal policy approach possesses several advantages because it is more
preventive, flexible, and long-term oriented. Nevertheless, this approach also
faces challenges in the form of complex cross-sector coordination, high
implementation costs, and outcomes that are not always immediately visible.
Therefore, the integration of penal policy and criminal policy has become an
urgent necessity in addressing cybercrime and transnational crimes in the
digital era.
Conclusion
The
development of digital technology has transformed the patterns and
characteristics of modern crime into forms that are increasingly complex,
anonymous, and transnational in nature. Under such circumstances, penal policy
and criminal policy play highly significant roles within the system of crime
prevention and control. Penal policy focuses on the use of criminal law as a
repressive instrument through criminalization and punishment, whereas criminal
policy has a broader scope by integrating both penal and non-penal approaches
in order to establish comprehensive social protection.
In
addressing cybercrime and digital fraud, these two approaches must be
implemented in an integrated manner. Penal policy provides legal certainty and
creates a deterrent effect against offenders, while criminal policy offers
preventive and systemic solutions to the root causes of digital crime.
Therefore, governments need to strengthen the harmonization of cybercrime
regulations, enhance digital forensic capacities, expand international
cooperation, promote public digital literacy, and foster collaboration among
governments, academics, technology companies, and civil society in order to
create a secure and equitable digital ecosystem.
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