A Juridical Review of the Neglect of the Element of Overmacht by Police Investigators in the Determination of Suspects

Abstract

Suspect determination has become a significant issue in Indonesia’s criminal justice practice. Overmacht, as a justification for excluding criminal liability, should be assessed at the earliest stage of investigation to determine whether the suspect acted with fault. However, in practice, many cases continue to be escalated to the investigation phase and result in suspect designation despite the presence of compelling circumstances that legally negate criminal responsibility. This study aims to examine the normative regulation of overmacht, analyze the factors that cause investigators to ignore this element, and evaluate its legal implications for the principles of culpability, legality, and human rights protection. This research employs a normative juridical method with statutory, conceptual, and case-study approaches. The findings indicate that disregarding overmacht not only contradicts fundamental principles of criminal law but also leads to over-criminalization and legal uncertainty.