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Legal Reform of Criminal Responsibility in
Imposing Poverty Sanctions for Perpetrators of Corruption to Restore State
Losses
Shri Hardjuno Wiwoho1*, Azis
Budianto2
1,2Universitas Borobudur, East Jakarta, DKI
Jakarta, Indonesia
Email: wiwohohadinagoro@gmail.com1*, azis_budianto@borobudur.ac.id2
ABSTRACT
The eradication of corruption is a top priority in efforts to build good
governance and transparency in Indonesia. This study explores the
implementation of poverty sanctions for corruption offenders as an effective
strategy to recover state losses and deter future corruption. It examines the
need for legal reform in criminal accountability to ensure fair restitution of
state losses and a stronger deterrent effect. By analyzing
the current Corruption Law and proposed revisions, the study highlights the
potential for strengthening poverty sanction mechanisms in line with principles
of justice and human rights. Findings suggest that measures such as asset
freezing, prohibition from holding public office, and stringent financial
monitoring can significantly contribute to combating corruption. Legal reform
is crucial in providing a solid foundation for these efforts, with consistent
and transparent implementation of revised regulations being key to success.
Keywords:
Corruption Crime; Criminal
Accountability; Poverty Sanctions.
INTRODUCTION
With current
developments, corruption is one of the dangers threatening the state
Corruption in Latin
is corruptio-corrumpere, which means bribery,
destruction, or distortion. A corruptor is someone who engages in corrupt acts,
someone who embezzles state funds within their corporation or workplace
In national law, the
criminal sanctions for perpetrators of corruption are not lenient, yet they do
not seem to deter either
Several corruption
cases with verdicts considered very lenient and unlikely to deter include: Case
Number 29/Pid.Sus-TPK/2021/PNJKT.PST, where former
Social Affairs Minister Juliari Batubara was
sentenced to 12 years in prison and fined Rp 500,000,000 for corruption
amounting to Rp 17,000,000,000 in the Covid-19 social assistance procurement,
with no asset seizures or impoverishment. Case Number 130/Pid.Sus/TPK/2017/PN.JKT.PST,
where former Speaker of the House of Representatives Setya
Novanto was sentenced to 15 years in prison and fined
Rp 500,000,000 for corruption amounting to Rp 574,000,000,000 in the e-ID card
project, although assets worth Rp 100,000,000,000 were seized, their
completeness was questionable. Supreme Court Decision Number 2223K/Pid.Sus/2012, where former Democratic Party politician
Muhammad Nazaruddin was sentenced to 4 years and 10
months in prison and fined Rp 1,000,000,000 for corruption amounting to Rp
4,600,000,000 in the Athletes' Village project, with asset seizures made but
their value not matching the state's losses. Decision Number 11/Pid/TPK/2013/PT.DKI, where former member of the House of
Representatives Angelina Sondakh was sentenced to 10
years in prison and fined Rp 500,000,000 for corruption amounting to Rp
2,500,000,000, with asset seizures made but their value not matching the
state's losses.
Due to the prevalence
and high number of corruption cases, legal reforms are needed to provide
alternative criminal sanctions for corruptors that instill a sense of
deterrence and also recover state losses
This research aims to explore the need for legal reforms
in addressing the increasing and severe cases of corruption, and to evaluate
the effectiveness of existing criminal sanctions such as imprisonment, fines,
and restitution payments, which are deemed insufficient in deterring corrupt
practices. Additionally, the research proposes and assesses the impact of
implementing alternative criminal sanctions, specifically impoverishment
penalties, which directly target the assets and wealth unlawfully obtained by
corrupt individuals. The urgency of impoverishment penalties is highlighted as
a response to the lenient sentences often imposed by judges, aiming to
strengthen deterrence, recover state losses, and send a strong moral message
that corruption will not be tolerated and will face severe consequences. Thus,
these penalties are expected to enhance the effectiveness of the judicial
system in restoring justice and public trust.
RESEARCH METHODS
This research
operates a juridical-normative research method with a legislative approach and
a conceptual approach. Legal materials focused on are found in legislation
related to corruption, such as the 1945 Constitution, the Anti-Corruption Law,
and other implementing regulations. The legislative approach is used to analyze
the legal framework governing the impoverishment penalty for perpetrators of
corruption, while the conceptual approach is employed to understand the legal
concepts underlying the application of this penalty. Data analysis is conducted
using deductive logic to draw conclusions and implications from the existing
legal framework regarding the impoverishment penalty in efforts to recover
state losses due to corruption.
RESULTS AND DISCUSSION
Corruption
is a crime classified as an extraordinary crime or an extraordinary offense.
Corruption is a deviant act carried out to obtain personal and family benefits.
Corruption leads to the misallocation of resources. The elements of the crime
of corruption in Article 2 paragraph (1) of the Anti-Corruption Law (UU Tipikor) encompass self-enrichment, enrichment of others,
and enrichment of corporations through illegal means, causing losses to state
finances or the national economy. In Article 2 paragraph (2) of the
Anti-Corruption Law, certain circumstances are considered aggravating factors
for perpetrators of corruption, namely if the crime is committed using funds
intended for handling situations of danger, national natural disasters,
tackling the aftermath of widespread social unrest, addressing economic crises,
and monetary crises as a means to combat corruption. In Article 1 points (1),
(2), and (3) of the Anti-Corruption Law, the subjects of corruption offenses
are every individual or legal entity. Corruption is classified into acts that
result in financial losses to the state, bribery, embezzlement in office,
extortion, fraudulent acts, conflicts of interest in procurement, and
gratuities. The elements of corruption offenses include every person, acting
unlawfully, engaging in acts of self-enrichment, enrichment of others or
corporations, and causing financial losses to the state or the national
economy.
According
to a legitimate viewpoint, the punishments for culprits of defilement are
serious. Article 2 of the Counter Debasement Regulation expresses that any
individual who unlawfully improves themselves, others, or partnerships to the
drawback of state funds or the public economy will be rebuffed with life
detainment or at least 4 (four) years and a limit of 20 (twenty) long stretches
of detainment, as well as a base fine of IDR 200,000,000.00 (200,000,000
Indonesian Rupiah) and a most extreme fine of IDR 1,000,000,000.00 (one billion
Indonesian Rupiah). Moreover, under specific circumstances, capital punishment
might be forced for demonstrations of debasement as specified in passage (1).
Based
on the Anti-Corruption Law, perpetrators of corruption can be divided into
three categories:
1.
Civil servants, including civil servants and
individuals receiving salaries or wages from state or regional finances, from
corporations receiving financial assistance from the state or region, or other
corporations using capital or facilities from the state or society;
2.
Corporations, which include organized entities,
both legal and non-legal entities;
3.
Every person, whether individually or through
corporations.
The
legal basis for combating corruption in Indonesia is based on several
regulations, including Law Number 20 of 2001 concerning the Eradication of
Corruption Crimes (Anti-Corruption Law). The Anti-Corruption Law is the main
legal framework governing corruption crimes in Indonesia. This law provides a
definition of corruption crimes, establishes sanctions for perpetrators, and
regulates the procedures for handling corruption cases by law enforcement
agencies. In addition, Indonesia has also ratified the United Nations
Convention against Corruption (UNCAC). UNCAC is an international legal
instrument designed to promote international cooperation in combating
corruption. By ratifying UNCAC, Indonesia is committed to implementing
international standards in combating corruption, including preventive measures,
law enforcement, and international cooperation. Both of these legal instruments
are important foundations in the efforts to combat corruption in Indonesia.
They provide a strong legal basis for the government and law enforcement
agencies to take preventive action, enforce the law, and recover assets
acquired from corruption crimes.
Corruption
crimes involve several elements that are specifically defined in Indonesian
law. The element of state financial loss refers to the economic impact
resulting from corrupt acts, where the state finances or the national economy
suffers losses due to the manipulation or misuse of public funds by
irresponsible parties. Bribery involves the giving or receiving of gifts,
money, or other benefits in exchange for gaining certain advantages or
facilities from others, especially public officials. This practice violates
ethics and integrity and undermines public trust in institutions and
governmental processes.
Next,
the element of embezzlement in office refers to the actions of officials who
unlawfully use the power or authority they possess to enrich themselves or
others, often by misusing funds or assets under their management. Extortion
involves the use of threats or violence to force others to provide something,
whether money or other benefits. Extortion in the context of corruption often
occurs when someone requests or receives a bribe with certain threats or
pressures. Furthermore, the crime of money laundering involves efforts to
conceal or legitimize illegally obtained funds, including from corrupt
activities, by changing or transferring them through a series of financial
transactions to make them appear as the proceeds of legitimate activities.
The
forms of criminal accountability for perpetrators of corruption can include
various types of sanctions established by the law. One common type of sanction
is imprisonment, where corrupt individuals are sentenced to incarceration in
correctional facilities for a specified period according to the severity of the
crimes committed. The purpose of imprisonment is to uphold justice and
deterrence, aiming to prevent perpetrators from repeating illegal actions.
Additionally, fines are also a common form of criminal sanction imposed on
corrupt individuals. These fines are typically set at a specific amount to be
paid by the perpetrators to the state or the aggrieved party as compensation
for the losses caused by the corrupt actions.
In
addition to the primary punishment, there are also supplementary penalties that
can be imposed on corrupt individuals. One common supplementary punishment is
asset forfeiture, where assets obtained illegally from corrupt activities can
be seized by the state as a means of recovering state finances. Furthermore,
the revocation of political rights can also be imposed on corrupt individuals,
meaning they lose the right to stand as candidates or vote in general
elections. The obligation to pay restitution is also a supplementary penalty
commonly applied to compensate for the financial losses caused by the corrupt
actions, both to the state and the aggrieved parties. All these forms of
sanctions aim to provide preventive, punitive, and restorative effects in the
fight against corruption and the restoration of justice.
Law
enforcement agencies in Indonesia, such as the Corruption Eradication
Commission (KPK), the Prosecutor's Office, and the Police, play crucial roles
in combating corruption. The KPK, as an independent institution, has the
primary task of conducting investigations, prosecutions, and indictments
against acts of corruption involving public officials or private entities
engaged in giving or receiving bribes. The KPK also has the authority to
prevent corruption by monitoring institutions prone to corruption, providing
policy recommendations, and collaborating with other agencies in combating
corruption.
The
Prosecutor's Office, as the public prosecuting authority, is responsible for
prosecuting corrupt individuals in court. The Prosecutor's Office can also
conduct investigations and prosecutions of corrupt acts, although, in practice,
it often collaborates with the KPK in handling complex corruption cases
involving high-ranking public officials. Meanwhile, the Police have an initial
role in combating corruption by conducting investigations and collecting
evidence of alleged corrupt acts. The Police can also arrest corrupt
individuals and facilitate the investigation process conducted by the KPK or
the Prosecutor's Office.
There are weaknesses in the legal system for
combating corruption where the restitution of state finances is often not
executed properly. Prison sentences and fines are not sanctions that can
effectively deter perpetrators of corruption and facilitate the return of state
financial losses. The Corruption Eradication Law (UU Tipikor)
is the primary legal basis for combating corruption in Indonesia. However,
several weaknesses in this regulation can hinder the effectiveness of law
enforcement and the recovery of state assets that have been damaged due to
corruption. One weakness in the Corruption Eradication Law is the provision
regarding the restitution of state losses, which is considered vague and open
to interpretation. This makes the process of recovering state losses
ineffective and often time-consuming and provides loopholes for corrupt
individuals to evade their financial responsibilities. Additionally, the
suboptimal asset forfeiture mechanism also poses a challenge in law enforcement
against corruption cases. The complex asset forfeiture process, often hindered
by various administrative and legal reasons, impedes efforts to recover assets
acquired illegally by corrupt individuals.
The lack of deterrent effects from prison
sentences and fines is another problem in law enforcement against corruption.
Low sentences or fines that do not correspond to the losses caused by corrupt
acts often fail to deter corrupt individuals. Weak and inadequate judicial
decisions regarding sentences and the restitution of state financial losses
also pose issues in law enforcement against corruption. Weak and insufficient
verdicts can undermine public trust in the judicial system and send the wrong
signals to corrupt individuals.
One
of the weaknesses in law enforcement related to corruption is inconsistent and
suboptimal practices in proving the flow of corrupt funds. The inquiry and
investigation process often experiences obstacles in collecting evidence that
is strong enough to prove the flow of corrupt funds from the perpetrator of the
crime to the various parties involved. This can be caused by a lack of
coordination between law enforcement agencies, technical limitations, and the
complexity of corruption cases involving extensive networks.
Apart
from that, tracking and confiscating corruptors' assets is also a serious
challenge in law enforcement against corruption. Even though there is an asset
confiscation mechanism, this process often does not run optimally due to a lack
of technical support, weaknesses in regulations, as well as administrative and
legal obstacles. As a result, most of the assets obtained illegally by
perpetrators of corruption are still difficult to trace and confiscate by the
authorities. Then the problem of following up on court decisions regarding the
return of state losses is also a problem often faced in law enforcement against
corruption. Even though court decisions have stipulated the obligation to
return state losses to perpetrators of corruption, the implementation process
is often hampered by various obstacles, such as a lack of human and financial
resources, as well as a lack of coordination between relevant institutions.
Thus, there is a need for legal reform regarding
criminal liability with impoverishment sanctions for perpetrators of
corruption, which becomes a necessity in efforts to impose a stronger deterrent
effect and ensure justice for society. Impoverishment sanctions, such as total
confiscation of illegally obtained assets and actual repayment of state losses,
can be a more effective deterrent in preventing and combating corruption.
Moreover, these sanctions also send a strong signal that corrupt actions will
not be tolerated and will have serious consequences for the finances and
reputation of the perpetrators. Therefore, this legal reform can be a
progressive step in strengthening law enforcement and building a fairer and
more transparent legal system.
Currently, the legal system in combating
corruption still has several weaknesses and deficiencies that need to be
addressed promptly. One of the main issues is the injustice and ineffectiveness
of existing sanctions in returning state losses caused by corrupt acts. The
existing court rulings often do not impose adequate sanctions or fail to
proportionally recover state financial losses with the actual amount that has
been harmed. Thus, the potential gains obtained with existing criminal
sanctions do not effectively deter perpetrators of corrupt acts.
So,
there is an urgent need to reform the law to create a stronger deterrent effect
and ensure fairer recovery of state financial losses. Reforming the existing
law could provide recommendations for increasing stricter criminal sanctions,
including impoverishment sanctions which confiscate all assets obtained
illegally by perpetrators of criminal acts of corruption. In addition, a more
efficient and transparent mechanism is needed in the process of recovering
state financial losses, including the establishment of more efficient criminal
sanctions to manage and recover state financial losses with impoverishment
sanctions.
Impoverishment
sanctions can create a stronger deterrent effect and ensure a fairer recovery
of state financial losses. Impoverishment sanctions can confiscate all assets
illegally needed by the perpetrator of corruption. The concept of
impoverishment sanctions is one of the strategies in eradicating corruption
which aims to provide sanctions that are commensurate with the level of losses
incurred as a result of criminal acts of corruption and provide a strong
deterrent effect to perpetrators of criminal acts of corruption. Impoverishment
sanctions aim to reduce or eliminate personal profits obtained by perpetrators
of corruption illegally, as well as to provide fair recovery for the state or
society that has been harmed by acts of corruption. The forms of impoverishment
sanctions can vary, starting from confiscation of assets obtained illegally by
perpetrators of corruption, including property, vehicles, and other valuables.
Apart from that, the sanction for impoverishment can also be in the form of a
large fine, the amount of which is commensurate with the magnitude of the
losses caused by the act of corruption. The obligation to pay compensation is
also a form of impoverishment sanction, where the perpetrators of corruption
are required to compensate the state or society for losses as a result of their
actions. It includes a prohibition on holding public office can be a sanction
for impoverishment, which aims to prevent perpetrators of corruption from
repeating acts of corruption in the future and to send a signal that corruption
will not be tolerated in the public sphere.
Implementing
impoverishment sanctions in eradicating corruption requires clear mechanisms and
procedures as well as the involvement of various law enforcement agencies.
These mechanisms and procedures include the stages of inquiry,
investigation, trial, and implementation of court decisions. Law
enforcement agencies, such as the Corruption Eradication Commission (KPK),
the prosecutor's office, and the police, have different roles and
authorities in implementing impoverishment sanctions. The Corruption Eradication
Committee (KPK) has the authority to carry out inquiries and
investigations into corruption cases, while the prosecutor's office is
responsible for prosecution in court and implementing court decisions.
Meanwhile, the police play a role in collecting evidence and arresting
perpetrators of corruption.
Legal reform in
providing criminal sanctions for impoverishment is an important step
in increasing the effectiveness of eradicating corruption in Indonesia. It
requires revisions or changes to the existing Corruption Crime Law (UU Tipikor), or even the formation of new implementing
regulations that are more detailed and firmer in regulating poverty
sanctions. Revisions to the Corruption Law can be conducted by
strengthening the provisions relating to impoverishment sanctions, such as
adding articles that specifically regulate the mechanism for
implementing these sanctions, including implementation procedures, limitations,
and considerations that must be taken into account when imposing these
sanctions.
CONCLUSION
Legal reform
in criminal liability with the implementation of impoverishment sanctions for
perpetrators of corruption is an important step in efforts to recover state
losses due to corruption. With stricter and more effective impoverishment
sanctions, corrupt actors will face more severe consequences for their actions,
thus providing a stronger deterrent effect and preventing the recurrence of
corruption in the future. The legal reform can also ensure that the recovery of
state losses is done fairly and proportionally, by confiscating assets obtained
illegally and obliging corrupt actors to compensate for the losses incurred.
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Copyright holder: Shri Hardjuno Wiwoho,
Azis Budianto (2024) |
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First publication right: Asian Journal of Engineering, Social and Health
(AJESH) |
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