Criminal Law and the Limits of Power

There is something interesting about Constitutional Court Decision Number 275/PUU-XXIII/2025, read out on 12 August 2026. The Court did not strike down the criminal provisions concerning attacks on the honour or dignity of the President and/or Vice President in Law Number 1 of 2023 on the Criminal Code (KUHP). Instead, the Court provided a firmer limit on who may bring such matters into the criminal process.

The Court interpreted Article 220 paragraph (1) of the KUHP to mean that the criminal offences referred to in Article 218 and Article 219 may only be prosecuted based on a complaint by the President and/or Vice President. Thus, a complaint cannot be lodged by another party who feels the need to defend the President or Vice President. Moreover, if a complaint is made through a legal representative, that authority must originate from the President and/or Vice President as the party directly victimised.

At first glance, the decision appears to concern the issue of complaint-based offences. However, the matter does not stop at who is entitled to complain. Within it lies a more fundamental question about how criminal law should be formed and used in a democratic state governed by the rule of law.

Article 218 of the KUHP does provide protection for the honour or dignity of the President and/or Vice President. The Court did not automatically consider that protection to be contrary to the constitution. The President and Vice President hold a constitutional position different from ordinary citizens. Both carry out constitutional functions and, in certain contexts, this also relates to the honour of the institution of the presidency.

Affirmation of Legal Protection

The question then is how that protection is provided. In a state governed by the rule of law, legal protection cannot be separated from the principle of proportionality. This means that when the state uses criminal law, restrictions on citizens must be explainable in terms of their reasons and limits.

The interest to be protected is indeed important, but the way the state protects it must also be accountable. This principle becomes even more important when the instrument used is criminal law.

Criminal law has a different character from other branches of law. When an act is criminalised, the state grants authority to law enforcement officials to conduct inquiries, investigations, prosecutions, and ultimately to impose punishment. Therefore, criminalisation cannot be based merely on the reason that an act is considered improper or harmful to a particular interest.

The more important question is whether criminal law is truly necessary to protect that interest and whether the restriction on citizens’ freedom is proportionate to the interest to be protected.

In the context of insulting the President, the interest in protecting honour can certainly be justified. But that protection must remain limited so that it does not turn into protection of power from criticism. This is where Article 220 of the KUHP becomes important.

The new KUHP has in fact made changes compared with the previous criminal law construction. Article 218 and Article 219 are positioned as complaint-based offences. Article 218 paragraph (2) also provides an exception when the act is committed for the public interest or in self-defence. In its elucidation, criticism of the policies of the President and/or Vice President is placed in a space related to the public interest.

The problem is that there remains a question about who may file a complaint. Article 220 paragraph (2) states that a complaint may be made in writing by the President and/or Vice President. The use of the word “may” opens the possibility of an interpretation that a complaint can also be made by another party.

In practice, such a space can create its own problems. A person may feel the need to defend the President, regard a criticism as an insult, and then use criminal law to bring that expression into the law enforcement process.

The Court closed that space. According to the Court, a complaint may only be made by the President and/or Vice President. This affirmation is important so that no other party acts in the name of the President and/or Vice President to initiate criminal proceedings based on their own judgement.

A New Spirit for Criminal Law

In my view, this is where the importance of the decision lies. Criminal law must not only provide protection. More than that, criminal law must also have a mechanism to prevent that protection from being used excessively.

For the problem in criminal law does not always lie in the substance of the prohibition. Problems can also arise from how a norm is used by officials and the public. A norm that is textually intended to protect a person’s honour can turn into an instrument of restricting freedom if it is not accompanied by clear limits on who may use it and under what circumstances the norm may be applied.

The experience with the provision on insulting the President in the old Criminal Code should serve as a lesson. The Constitutional Court, through Decision Number 013-022/PUU-IV/2006, once declared that the provision on insulting the President and/or Vice President in the Criminal Code had no binding legal force. One of the problems that emerged at that time was the large space that could be given to the state to use criminal law against citizens’ expression.

The national Criminal Code then arrived with a different construction. The legislature tried to provide limits through the nature of the complaint-based offence and the exception for the public interest or self-defence.

The Court’s latest decision shows that those limits still need to be clarified. Here we can see a larger question about the direction of national criminal law formation.

Criminal law reform should not be understood merely as the creation of new types of criminal offences or changes in criminal penalties. Criminal law reform must also reflect a change in the way power is viewed.

The greater the state’s authority to use criminal law, the greater the need to limit that authority. Therefore, every criminalisation should not stop at the question of what interest is to be protected.

The legislature also needs to explain why that interest must be protected through criminal law. Why are other legal instruments inadequate? What are the limits of its application? Who may initiate legal proceedings? And how are citizens’ rights still guaranteed when the norm is applied?

These questions should already be part of the legislative process. The question of proportionality should not only emerge after a norm has been enacted and citizens have to bring the matter to the Constitutional Court.

In this context, judicial review is indeed important. The Constitutional Court is one mechanism to ensure that legislative products remain within constitutional limits. But the existence of the Constitutional Court should not make the legislature feel that questions of constitutionality can be resolved later through court review.

The legislature still has a constitutional responsibility to ensure that restrictions on citizens’ rights are formulated proportionally from the outset. This becomes even more important in criminal law because the consequences of a criminalisation are not only felt by the person who is ultimately sentenced. The presence of a criminal norm can also influence public behaviour before the norm is used.

People may choose to remain silent for fear that their expression will be considered to have crossed the line. Criticism can turn into excessive caution. At a certain point, criminal law no longer works only through enforcement, but also through fear of the possibility of enforcement.

Therefore, the difference between criticism and insult cannot be seen only from the formulation of the norm. The state must also ensure that the mechanism for using the norm does not produce an excessive effect on freedom of expression.

This is where the Court’s decision becomes relevant for re-reading the relationship between criminal law and power. The President certainly has the right to legal protection.

But the President’s position as holder of governmental power also carries another consequence: his policies and actions are within the space of public scrutiny. Criticism of government policy is part of the democratic mechanism and cannot automatically be treated as an attack on personal honour.

In a democracy, power does need protection from acts that genuinely attack a person’s honour. But power also needs the ability to accept criticism.

At this point, the measure of good criminal law is not how far it is able to protect power from criticism. The measure lies precisely in how well the law is able to distinguish between interests that truly deserve protection and freedoms that must be allowed to grow.

Decision Number 275/PUU-XXIII/2025 should therefore not be read merely as a decision about who may complain of insults to the President and/or Vice President. This decision carries a broader message about the direction of national criminal law formation: that every expansion of protection through criminal law must be accompanied by adequate limits so that criminal law does not turn into an instrument for protecting power.

Ultimately, the matter returns to the relationship between power, law, and citizens. Power needs law. But at the same time, law is needed so that power does not operate without limits.

Therefore, the formation of criminal law must not only ask what the state wants to protect. The formation of criminal law must also ask what must be protected from the state. That is where the new spirit of criminal law should be built.

The birth of the National Criminal Code should not be the end of criminal law reform. Precisely after the Criminal Code comes into force, what is no less important is ensuring that criminal law operates within proportional limits and does not turn into an instrument for restricting citizens’ freedom. That is where the new spirit of criminal law needs to be placed.