Fakultas Hukum, Universitas Lampung, Bandar Lampung, Lampung, Indonesia.
http://jurnal.fh.unila.ac.id/index.php/corruptio Volume 04 Issue 1, March 2023. PP: 41-50
P-ISSN: 2723-2573 E-ISSN: 2745-9276
Formulation of Criminal Law Calculation Regarding Insufficient Compensation Money in Corruption Cases
Ade Sofyansyah1 Bayu Sujadmiko2
Kejaksaan Tinggi DKI Jakarta, Indonesia, [email protected] Lampung Corruption Watch, Indonesia, [email protected]
Article’s Information Abstract
Keywords:
Corruption, Reformulation, Substitution
DOI :
https://doi.org/10.25041/corruptio.v4i1.2976
So far, corrupt convicts continue serving full sentences even though they have paid part of the replacement money. At the same time, there is no specific formulation regarding calculating the amount of compensation paid for the length of imprisonment for replacement money that needs to be paid more. This is certainly a problem for the prosecutor's office as law enforcement officers in Indonesia to eradicate corruption cases. So that a special formulation is needed in calculating the replacement money, which is then ratified in legal regulation; based on these legal issues, this research aims to examine the perspective of the formulation of criminal law calculations on insufficient replacement of money in corruption cases. This research uses a normative research methodology and examines written law from various perspectives, including theory, history, philosophy, comparison, structure and composition, scope and material, consistency, general explanation and article by article, formality, and binding power of a law- law. This research includes primary, secondary, and tertiary legal materials as data sources. Data processing includes data verification, data marking, data reconstruction, and data systematization. Furthermore, a qualitative Submitted: April 04 2023; Reviewed:April 12 2023 ; Accepted: April 26 2023
money in corruption cases is based on a proportionality or comparability approach.
A. Introduction
Corruption is a familiar thing in various countries of the world, including Indonesia. 1In Indonesia, regulations regarding corruption are regulated in general and special provisions.
General provisions regarding criminal acts of corruption are regulated in the Criminal Code. In contrast, specific provisions are regulated in "Law Number 20 of 2001 concerning the Eradication of Corruption Crimes" (from now on referred to as the Corruption Eradication Law). 2 Meanwhile, the regulation regarding sanctions for corruptors is regulated in Article 2 of the Corruption Eradication Law " Criminal sanctions for those convicted of corruption are imprisonment, fines, and the death penalty."3 Further in, Article 18 regulates additional punishment for corruptors consisting of confiscation of goods, payment of replacement money, closure, and revocation of rights.4 However, of the several types of sanctions, payment of replacement money is a sanction with several problems in its implementation.
The application of reimbursement money in corruption cases in Indonesia faces complicated problems, such as the need for clear regulatory standards.5 Another obstacle is the difficulty in tracing money or wealth resulting from corruption because the money has run out or there has been a transfer in other forms using the name of a third person.6 Additional punishment is indeed regulated in the Criminal Code ( lex generalis ), but regarding compensation money, the Criminal Code does not regulate it. The Corruption Law regulates the payment of replacement money ( lex specialists ).7
As in determining the nominal replacement money for convicted corruption prosecutors based on audits of the Financial Audit Board or BPK, which is based on " Supreme Court Circular Letter (SEMA) Number 4 of 2016 concerning Enforcement of the Formulation of the Results of the 2016 Supreme Court Chamber Plenary Meetings " s as a Guideline for the Implementation of Duties for the Court Part A number 6. The Public Prosecutor often relates this to state losses in the audit process.8 Such as the case with the procurement of garbage traps
1 Nikmah Rosidah dan Mashuril Anwar, Penanganan Perkara Tindak Pidana Korupsi Dengan SUbjek Hukum Korporasi, (Yogyakarta: Suluh Media, 2021), 20. Lihat lebih lanjut dalam Noore Alam Siddiquee, and Habib Zafarullah. “Absolute power, absolute venality: The politics of corruption and anti-corruption in Malaysia”, Public Integrity 24, no. 1 (2022): 1-17, DOI: https://doi.org/10.1080/10999922.2020.1830541.
2 Husin Wattimena, “Perkembangan Tindak Pidana Korupsi Masa Kini Dan Pengembalian Kerugian Keuangan Negara,” TAHKIM 12, no. 2 (2017): 77-78, DOI: https://doi.org/10.33477/THK.V12I2.39.
3 Amirullah, “Tindak Pidana Korupsi Dan Sanksi Pidana Mati Perspektif Keadilan Hukum,” Al-Daulah: Jurnal Hukum Dan Perundangan Islam 3, no. 2 (2013): 323-355, 330, DOI: https://doi.org/10.15642/ad.2013.3.2.323- 355.
4 Inggrid Pilli, “Hukuman Tambahan Dalam Putusan Pengadilan Tindak Pidana Korupsi,” Lex Crimen 4, No. 6, (2015): 169-176, 170.
5 Aga Wiranata, “Kendala Jaksa Dalam Eksekusi Pidana Tambahan Uang Pengganti Pada Perkara Tindak Pidana Korupsi (Studi Kasus Korupsi Di Kejaksaan Tinggi Jawa-Timur),” Jurnal Hukum UB Februari, (2014): 1-21, 4.
6 Ade Mahmud, “Dinamika Pembayaran Uang Pengganti Dalam Tindak Pidana Korupsi,” Jurnal Hukum Mimbar Justitia 3, No. 2, (2017): 137-156, 145, DOI: https://doi.org/10.35194/jhmj.v3i2.216.
7 Rizky Pratama dkk., “Criminal Compensation Money Against Corporations,” Jurnal Yudisial 13, No. 2, (2020):
160, DOI: https://doi.org/10.29123/jy.v13i2.366.
8Diandra Ayasha Soesman, Op.Cit., hlm. 434.
by Piator, in which the replacement money that was returned was Rp. 698 million, while the overall state loss was Rp. 1.4 billion.9
This case shows that demands for compensation for state losses are often inappropriate. This is because compensation money and state losses are different.10 Returns to state losses due to corruption in the form of money or state assets are only 10 to 15% of the total amount of money corrupted, so laws and regulations are needed that strictly regulate punishment for perpetrators of corruption.11 In addition, as stipulated in Article 1, " Regulation of the Supreme Court (PERMA) Number 5 of 2014 concerning Additional Compensation Money in Corruption Crimes ", explains that regarding the calculation of the amount of replacement money that is as close as possible to the value of the property obtained by the defendant due to corruption, the amount must be as close as possible to the value of the property. The meaning of "as much as possible" from the article can lead to legal uncertainty. This is because there is no explanation regarding the minimum and maximum numbers of the meaning of "as much as possible." In contrast, in legal regulation, it is necessary to have legal certainty as the main principle.12
The need for regulations regarding replacement money raises many problems. One of them is to determine the amount of compensation that can be charged to perpetrators of corruption.13 As stated in Article 18 Paragraph (1) of the Corruption Eradication Law, it states that " payment of replacement money is a maximum or the same amount as the assets obtained from the proceeds of corruption."14 It is further stipulated in Article 18 Paragraph (3) which regulates the condition that when the perpetrator of corruption does not have enough money or assets to make a replacement payment, the perpetrator is imprisoned for a term not exceeding the principal sentence.15
Obstacles arise when a corrupt convict has paid part of the replacement money, but more is needed to fulfill the punishment stipulated by the decision. As in the case of corruptor Setya Novanto who had not paid compensation of USD 7.3 million, 16and three people convicted of fictitious death compensation corruption cases in Bali, namely Indah Suryaningsih I Gede Astawa and I Dewa Ketut Artawan, who had not paid fines and state compensation money.17
Based on Article 11 (4) PERMA Number 5 of 2014, said " When a corruption convict can only pay a portion of the replacement money imposed on him, the payment of the replacement money will be calculated proportionally as a reduction in the length of replacement prison that
9 Tim Detikcom, “Kejari Jakbar Terima Uang Pengganti Rp 698 Juta Di Kasus Perangkap Sampah,” accessed July 1, 2021, https://news.detik.com/berita/d-5147090/kejari-jakbar-terima-uang-pengganti-rp-698-juta-di-kasus- perangkap-sampah.
10 Kristwan Genova Damanik, “Antara Uang Pengganti Dan Kerugian Negara Dalam Tindak Pidana Korupsi,”
Masalah-Masalah Hukum 45, no. 1, (2016): 1-10, 8, DOI: https://doi.org/10.14710/mmh.45.1.2016.1-10.
11 Guntur Rambey, “Pengembalian Kerugian Negara Dalam Tindak Pidana Korupsi Melalui Pembayaran Uang Pengganti Dan Denda,” De Lega Lata: Jurnal Ilmu Hukum 1, no. 1, (2016): 137-161, 138, DOI:
https://doi.org/10.30596/DLL.V1I1.785.
12 Mario Julyano and Aditya Yuli Sulistyawan, “Pemahaman Terhadap Asas Kepastian Hukum Melalui Konstruksi Penalaran Positivisme Hukum,” Jurnal Crepido 1, no. 1, (2019):13-22, 14, DOI:
https://doi.org/10.14710/CREPIDO.1.1.13-22.
13 Diandra Ayasha Soesman, “Penolakan Tuntutan Pidana Pembayaran Uang Pengganti Oleh Hakim Terhadap Tindak Pidana Korupsi (Suatu Penelitian Di Pengadilan Tindak Pidana Korupsi Banda Aceh),” JIM Bidang Hukum Pidana 2, no. 2, (2018): 430-440.
14 bdul Fatah dkk., “Kajian Yuridis Penerapan Unsur Merugikan Keuangan Negara Dalam Penegakan Hukum Tindak Pidana Korupsi,” Diponegoro Law Journal 6, no. 1, (2017): 1-15, 12.
15 Rizky Pratama et al., Loc.Cit.
16 Mardanai, “KPK Incar Aset Setya Novanto Karena Belum Lunasi Uang Pengganti E-KTP USD 7,3 Juta | Merdeka.Com,” accessed September 4, 2021, https://www.merdeka.com/peristiwa/kpk-incar-aset-setya-novanto- karena-belum-lunasi-uang-pengganti-e-ktp-usd-73-juta.html.
must be served. This article is a reference for the Prosecutor's Office regarding compensation money that is not sufficiently paid, but the phrase "proportionately" in this article has the potential to cause ambiguity. A number and little calculation require a definite formulation to achieve legal certainty.
The novelty of this research regards the formulation perspective on the calculation of replacement money in a legal regulation based on a balanced approach. So far, corrupt convicts continue to serve full prison sentences even though they have paid part of the compensation money. In contrast, there is no specific formula for calculating the amount of replacement money paid for the length of imprisonment for compensation that needs to be sufficiently paid.
This is a particular problem for the prosecutor's office as a law enforcement apparatus in Indonesia to eradicate corruption cases. So that in this case, the Public Prosecutor requires a special formulation in calculating the replacement money, which is then ratified in legal regulation.
Based on this background, the problem of this research is how is the perspective of the formulation of criminal law calculations against insufficient replacement money in corruption cases. This study uses a normative research methodology to answer these problems, examining written law from various perspectives, including theory, history, philosophy, comparison, structure and composition, scope and material, consistency, general explanation, chapter-by- chapter, formality, and the binding power of a law. This research includes primary, secondary, and tertiary legal materials as data sources. Data processing includes data verification, data tagging, data reconstruction, and data systematization. Furthermore, a qualitative descriptive analysis was carried out on the data.
B. Discussion
The purpose of punishment is based on the idea that punishment is only a means to an end.
Determining the purpose of sentencing begins with balancing two main objectives: protecting society, including victims of crime, and protecting/developing individual perpetrators. Terms and forms of sentencing are based on a balance of mono-dualistic thinking between the interests of society (objective factors) and the interests of the accused (subjective factors). Therefore, the sentencing terms are also based on two essential pillars of criminal law: social legality and the principle of guilt/mistake (the principle of humanity).
Community protection is protecting victims and restoring the balance of community values.
To fulfill this requirement, sanctions are required in the form of payment of compensation and implementation of customary responsibilities. These two types of punishments were added as additional crime categories because the settlement of legal justice problems by imposing basic criminal penalties on the perpetrators was often seen by society as inadequate.
Recovery of state financial losses is also a concern of the United Nations (UN); long before the 2003 Anti-Corruption Convention, the 1996 South African Constitution18 had provided sufficient protection to the judicial process, namely:
“The court may require the provision of legal aid or the expansion of state benefits to a group of people previously not entitled to these benefits. In our view, it cannot be argued that by including economic rights in human rights declarations, the responsibilities assigned to courts are quite different from those assigned to courts by human rights declarations, which result in violations of requests for separation of powers”.
So the protection of economic rights as a human right is not determined solely by a constitution but by concrete operationalization in the judicial process. This argument was driven by the tyranny of corruptors disturbing the progressive thinking of Michael Levi, who emphasized that first, the reason for prevention (prophylactic), especially to prevent criminals
18Asbjorn Eide (eds.), Hak Ekonomi, Sosial dan Budaya, terj. Rini Adriani, (Stockholm: Martinus Nijhoff Publishers dan Brill Academic Publishers, 2001), 65.
from controlling assets obtained illegally to commit other crimes in the future. Second, the reasons for propriety, namely the perpetrators of criminal acts do not have proper rights to the assets obtained illegally; and third, reasons of precedence or precedence, namely the crime of prioritizing the state over the right of the perpetrator to sue for assets obtained illegally.
The existence of additional criminal provisions for compensation money apart from having a strong juridical backing also sociologically gives a noble meaning than just implementing laws and regulations because the aim of eradicating corruptors is not just physical punishment but recovery of state financial losses through rescue efforts. Perpetrators of corruption, like ordinary crimes, calculate the profits and losses as well as the risks that will be borne, so what Posner said is that laws in the criminal field must be precise in providing the formulation of sanctions as criminal acts of corruption, as follows:
“To design a set of optimal criminal sanctions, we need a model of the criminal's behavior. The model can be very simple: a person commits a crime because the expected benefits of the crime exceed the expected cost. The benefits are the various tangible (in the case of pecuniary gain) or intangible (in the case of so-called crimes of passion) satisfactions from the criminal act…”19
Efforts to prevent losses to state finances through the punishment of replacement money in corruption laws can be seen from two aspects:
a) preventive
Additional criminal compensation money provides sufficient space for law enforcement, legally according to the law, to try to reveal and find criminal acts and maximum confiscation of assets or assets suspected of being the result of corruption from an early age.20 This provision also closes space for convicts to transfer their assets to other parties or in other forms, such as shares or reasonable business entities. Methods of tracing bank accounts and blocking actions are strongly supported by laws and regulations in corruption and banking; even verification of the convict's assets and their heirs must be carried out as legal action.
More than that, because the crime of corruption has a broad dimension, 21which suppresses not only criminal law but also state administrative law, state financial law, and civil law, the demands of the legal function on law enforcers also extend to the mandatory choice of efforts to apply civil instruments in solving money problems. Replacement in tipikor. This allows law enforcement authorities, namely the State Attorney General to sue the convict and his heirs in a civil court to pay compensation.
b) Repressive
The Corruption Eradication Law, the Supreme Court Circular Letter and the Attorney General's Circular Letter provide repressive for corruption convicts and their heirs, namely the confiscation efforts in the context of auctioning the corruption convict's assets must be optimal but not to the confiscation of goods used by the convict and his family daily. A day apart from that, preventing the mixing of goods or assets belonging to third parties with good faith.
The existence of a complete confiscation and confiscation mechanism fosters a prudent attitude of investor partners in choosing business partners as well as law enforcers in executing any confiscated assets (corpora delicta) and asking for criminal responsibility for all
19Terjemahan bebas: “Guna merancang sebuah sanksi pidana yang optimal, kita membutuhkan sebuah model perilaku kejahatan. Model tersebut menjadi sangat simpel: seorang melakukan perbuatan pidana mengharapkan keuntungan dari kejahatan yang dilakukannya melebihi dari ongkos yang diharapkannya keluar. Manfaat tersebut adalah berbagai keuntungan atau kepuasan berwujud atau nyata (dalam kasus keuntungan ….) atau tidak berwujud (dalam kasus disebut sebaga kejahatan karena nafsu) dari perbuatan pidana…”
20
perpetrators jointly and jointly with heirs. By institutionalizing replacement money into the Corruption Eradication Law, it gives imperative authority to the Public Prosecutor to demand that the convict pay replacement money which was originally according to Article 34 sub c of Law Number 3 of 1971 concerning Eradication of Corruption Crimes and Attorney General Circular Letter Number SE -004/JA/8/1988 and the Circular Letter of the Supreme Court are not coercive for the Public Prosecutor to demand additional criminal compensation money.
Subsidiary imprisonment cannot be applied to corrupt convicts who do not pay off the payment of replacement money. Still, it is possible to do installments because the obligation to replace money according to the settlement of replacement money using civil instruments is considered a "debt" to the convict and his heirs until it is paid off.
So the laws and regulations provide a progressive role for the Public Prosecutor and State Attorney to coordinate in a self-esteem manner if the execution of court decisions in replacement money experiences problems because the convict does not pay off or is still in the form of fixed assets or is not fixed and or controlled by a third party or its assets are worth less than the number of liabilities to the state, so it must be pursued through civil channels.22 By notifying the convict to carry out the decision, having a quick response and being active in the execution of the decision are necessary to save assets and assets to cover state financial losses.
So the function of institutionalizing replacement money in the Corruption Eradication Law is from the aspect of protected legal interests (recht belangen) to protect the country's wealth ( vermogen ) from corruptors and their heirs. Philosophically, the purpose of institutionalizing replacement money is not merely from past aspects resulting from losses to state finances by corruptors but also efforts to save state assets for the future and for the sake of maintaining law and order and realizing people's welfare which is the obligation of the state. Furthermore, the existence and function of additional penal compensation are in line with legal doctrines, including Kantilism, namely ethical retaliation (ethische vergeiding ); Hegel namely dialectical revenge (dialectische vergeiding); Herbert namely aesthetic revenge ( aesthetische vergeiding ); and Stahl namely Divine justice ( Goddelejkegerechtigheid ).23
The Law on the Eradication of Corruption Crimes stipulates that, in the event of a criminal act of corruption, the perpetrator will only be punished with a fine of up to a maximum amount of replacement money equivalent to the property received through the act of corruption.
Furthermore, based on Article 11 (4) Perma for Replacement Money states that " when a corruption convict can only pay a portion of the replacement money imposed on him, the payment of the replacement money will be calculated proportionally as a reduction in the length of replacement prison that must be served". This article is a reference for the Prosecutor's Office regarding compensation money that is not sufficiently paid. Still, the phrase "proportionately"
in this article has the potential to cause ambiguity. A number and nominal calculation require a definite formulation to achieve legal certainty.
Financial and banking transactions. A special formula is needed for criminal law calculations for compensation shortages in corruption cases because this calculation requires special expertise, data, complete information, high accuracy, and the support of the diplomatic bureaucracy if the assets or proceeds of corruption are abroad. This is because corruption cases are complex. This complexity can be seen, among others, in the number of perpetrators, who are usually more than one person and come from intellectuals or officials, enabling them to easily move or hide assets resulting from corruption through various services.
The proportionality approach in sentencing is a newly formed concept in the criminal justice system. However, proportionality does protect against injustice when it arises, even though laws made by legislators are influenced by political directions, with the implementation of cases
22Zamhari Abidin, Pengertian dan Asas Hukum Pidana Dalam Schema (Bagan) dan Synopsis (Catatan Singkat), (Jakarta: Ghalia Indonesia, 1986), 10.
23Satochid Kartanegara, Hukum Pidana Bagian I, (Jakarta: Balai Lektur Mahasiswa, 1953-1954).
related to the character of judges who rely on judges to exercise their discretionary rights.24 The essence of proportionality is "equality of punishment for crimes, clarity of punishment, end of due process and administrative freedom, end of different sentences, and protection of rights through due process of law."25
The proportionality method can be applied in two ways. In most countries, the principle of proportionality calculates the maximum sentence rate, limiting its applicability. This allows for some flexibility in the implementation of predetermined laws. Still, related elements such as the offender's rehabilitation and personal circumstances can reduce the severity of the sentence.26 The strictness of proportionality in determining the severity of punishment depends on various applicable and relevant concepts and objectives.27
The concept of proportionality states that the severity of the punishment must be proportional to the severity of the offense.28 This idea takes time to execute. There are two main causes for this. First, there needs to be more understanding of which variables are significant to the severity of the violation. This can only be measured concerning the amount of suffering caused by the transgression. Second, it cannot be used to determine the severity/ lightness of the punishment.29
According to Didik Kurniawan, if the replacement money is paid proportionally, it can be used if it is partially/unpaid.30 Reimbursement of replacement money will be calculated using the jurimetric method so that the convict is not required to reimburse fully. The return of a portion of state losses will be calculated as a proportional decrease in reimbursement.
Special provisions regarding criminal law calculations for insufficient replacement money in corruption cases must be added to the Corruption Eradication Law. The formulation of criminal law calculations for insufficient replacement money in corruption cases is as follows:
Table 1. Formulation of criminal law calculations for insufficient replacement money Compensation
Money Crime (Rp)
Substitute Prison Replacement Refund Amount
Proportionality of Substitute Prison Length
Reduction
500,000,000 5 years 250,000,000 2.5 years
400,000,000 4 years 200,000,000 2 years
300,000,000 3 years 150,000,000 1.5 years
200,000,000 2 years 100,000,000 1 year
100,000,000 1 year 50,000,000 6 months
The table illustrates that the proportionality/comparison approach can be applied to the replacement money column by considering the payment of compensation that is not paid off/part of it. The penalty will be proportionally reduced from the replacement money.
24Hyman Gross, Crime and Punishment, (Newyork: Oxford University Press, 2012), 53.
25Barbara Hudson, Justice Through Punishment, First Published, (London: Macmillan Education, 1987), 38.
26Mirko Bagaric, Punishment and Sentencing a Rational Approach, First Published, (United Kingdom: Cavendish Publishing Limited, 2001), 23.
27 Ibid., hlm. 25.
28Mitchell N. Berman, “Proportionality, Constraint, and Culpability”, Criminal Law and Philosophy 15, no. 3 (2021): 373-391, DOI: https://doi.org/10.1007/s11572-021-09589-2.
29 Esther FJC Van Ginneken, dan David Hayes, “Just’punishment? Offenders’ views on the meaning and severity
In addition, Didik Kurniawan emphasized that prosecutors can use their discretionary authority by carrying out legal achievements for economic justice for the state through proportionality calculations. It is hoped that the payment of compensation money can be accepted as much as possible by the state because the return on state losses is calculated proportionally to the compensation for the crime of compensation money.31 The use of proportionality is not " abuse of power, "32 judges can choose the appropriate punishment for perpetrators in corruption cases, which are "extraordinary" offenses that require an extraordinary approach.
Indra Joseph Marpaung noted that recovery for state losses must be based on prudent policies that consider the convict's economic situation, making it difficult to pay compensation so the court can replace him in prison.33 However, the policy of determining substitute prison sentences must be truly balanced and proportionate to the value of replacement money charged to the convict, based on the calculation that the greater the replacement money that has not been returned, the longer the replacement sentence must be served. Vice versa, the smaller the replacement value returned, the shorter the replacement sentence will be served.
Wise and balanced sentencing policies are needed to deal with the dynamics of compensation payments in sentencing policies.34 The principle of proportionality must be used as the basis for determining the weight of the length of time for replacement punishment so that the problem of imbalance between the amount of replacement money and additional punishment can be avoided because the principle of proportionality requires a balance between the offense and the sentence to be received.
C. Conclusion
The absence of rules regarding calculating criminal law against compensation money that is not sufficiently paid in corruption cases causes convicts to prefer imprisonment rather than paying replacement money. Convicts prefer this to lose their property with an economic value and expect its value to increase or be invested. The formulation of criminal law calculations for insufficient replacement money in corruption cases is based on a proportionality or comparability approach. This means that the greater the value of replacement money that has not been returned, the longer the alternative sentence must be served. Vice versa, the smaller the replacement value returned, the shorter the replacement sentence will be served.
Based on these conclusions, this study recommends that a special formulation be made regarding calculating criminal law against insufficient replacement money in corruption cases contained in statutory regulations, for example, by adding provisions to the Law on the Eradication of Corruption Crimes.
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