INTRODUCTION
Corruption
as an extraordinary crime so the punishment is the Primum Remedium Corruption
as part of a criminal act with an economic motive is to get as much wealth as
possible, so to kill and deter the crime by impoverishing the perpetrator as
the most effective way to eradicate and prevent the act by seizing the results
and instruments of the crime. Corruption also has an impact on the demand for
redistributive policies, both individually and collectively (Hauk et al., 2022). This argument
certainly does not reduce the meaning of corporal punishment against
perpetrators of criminal acts. However, it must be admitted that merely
imposing a corporal punishment has not been proven to have a deterrent effect
on the perpetrators of the crime.
Data
from the Monitoring Results of the 2020 Corruption Crimes Trial conducted by
Indonesian Corruption Watch (ICW) shows that the total state financial losses
due to corruption in 2020 reached IDR. 56.7 trillion, while the replacement
money granted by the judge in his decision was only around IDR. 9 trillion. The
amount of state losses due to corruption and its impact on all aspects of
people's lives at large, but the assets resulting from the corruption of the
corruptors are not touched by the law Perpetrators
of corruption in Indonesia are still dominated by the ranks of the bureaucracy.
Based on ICW's monitoring report on the verdicts of corruption cases in the first
semester of 2010, there were 119 corruption cases tried with a total of 183
defendants
Donald
Fariz in Rahmayanti details that out of 119
corruption cases, 103 cases with 66 defendants were tried in the General Court,
while 16 cases with 17 defendants were tried at the Corruption Criminal Court.
Based on the level of verdicts for corruptors, the sentences were in the range
of 1-2 years, namely 38 defendants (22.89%). The total value of state losses in
2015 was IDR.
31.077 trillion with most of the modes used are budget abuse �Total budget
abuse is 24% of 134 cases with a loss value of IDR 803.3 billion
Based on various survey results, the
level of governance effectiveness is reflected in the survey results measuring
the level of corruption, if the level of governance effectiveness is high then
the level of corruption is relatively low. In terms of strategy to eradicate
corruption, logically it can be said that good governance can prevent
corruption. Governance describes efforts to improve the system which is one of
the mandatory steps in eradicating corruption in all sectors, public and private.
As a prevention effort, governance must grow dynamically and be flexible to
follow the needs of the community. This is in line with the understanding that
efforts to eradicate corruption must be interpreted as a long-term challenge
that must be addressed intelligently, enthusiastically and sustainably
The history of eradicating
corruption in Indonesia has experienced ups and downs, influenced by a mixture
of public demands, political and business demands, and even international
pressure, as well as various other interests. The earliest legal product in the
criminal act of corruption was the Regulation of the Military Authority Number
PRT/PM/06/1957, regulations and anti-corruption bodies were born and dissolved
for various reasons
The
handling of corruption in Indonesia so far has not been effective, this is
shown in the Indonesian corruption perception index (CPI), which has not
changed much and even tends to stagnate, Krisin Erdianto in Oly Viana Agustine said that based on a survey
released by Transparency International Indonesia (TII) in In
2017, Indonesia's Corruption Perception Index (CPI) score stood at 37 and was
in position 96 out of 180 countries surveyed. Compared to 2016, the score of 37
has not changed at all, so there is a need for unusual legal remedies to in
terms of preventing and eradicating corruption (Agustine, 2019). Thus, creating a
negative stigma for the Indonesian state and nation in the international
community. Responding to the corruption issue, Chaerudin,
Syaiful Ahmad Dinar and Syarif
Fadilah in Rihantoro Bayuaji
stated that: "Various ways have been taken to eradicate corruption along
with the increasingly sophisticated (sophisticated) modus operandi of
corruption (Bayuaji, 2019).
Evidence is very important in the process of
imposing a criminal offense for the defendant. However, the authors see that
there are weaknesses in the evidentiary process in the criminal justice system
in Indonesia. For the purposes of proof, it is necessary to have physical
evidence or real evidence to explain the fact that a crime has occurred. Evidence
can be obtained through mandatory action, namely confiscation which is an
absolute thing in the investigation process. Confiscation aims to establish
evidence as a priority to be submitted before evidence at trial. This is
because the evidence is absolute to accept or not the case to be submitted to
the trial
Article 38 (1) of the Criminal Procedure Code (KUHP)
stipulates that confiscation can only be carried out by investigators with the
permission of the head of the district court. Article 1 point 16 kuhap also stipulates that, for reasons of evidence,
investigators are authorized to confiscate property in investigation,
prosecution and trial. Along with modernization and the emergence of various
modus operandi, it is often difficult for investigators at the confiscation
level to collect all evidence and evidence. As a result, the public prosecutor
received a case file and incomplete evidence, even though it had met the
minimum evidence and the public prosecutor stated P-21.� This situation has an effect on the failure
of the judicial process so that the defendant is free from the demands of the
public prosecutor. This will result in the professionalism of the public
prosecutor in defending his charges.
The public prosecutor as the party representing the
public interest and the victim will at the same time be required to account for
it, both accountability from the professional aspect and the juridical aspect
which will affect the development of the public prosecutor concerned. The act
of confiscation is one of the actions that is a very important part in a legal
process, according to Law no. 8 of 1981 concerning the Criminal Procedure Code
(KUHAP) in Article 1 number 16 states that: �Confiscation is a series of
actions by an investigator to take over and or keep under his control movable or
immovable objects, tangible or intangible for the purpose of proof in
investigation, prosecution and trial�.
The
construction of the criminal law system that has been developed recently in
Indonesia is still aimed at uncovering the criminal acts that occurred, finding
the perpetrators and punishing the perpetrators of criminal acts with criminal
sanctions, especially "imprisonment" both imprisonment and
confinement. Meanwhile, the issue of developing international law, such as the
issue of confiscation and confiscation of proceeds from criminal acts and
instruments of criminal acts, has not yet become an important part of the
criminal law system in Indonesia (Ramelan, 2012). In the Economic Analysis of Law
Efforts to increase the risk or punishment for perpetrators and recipients of
bribes need to be made to provide a level of efficiency and a deterrent effect.
There is a conflict of legal norms
in the application of Article 38 paragraphs (1) and (2) of the Criminal
Procedure Code where the authority to confiscate is not fully attached to the
investigator but is also attributively owned by the Public Prosecutor as
Dominus Litis as mandated by Law no. 16 of 2004 concerning the Prosecutor's
Office of the Republic of Indonesia as amended into Law Number 11 of 2021
concerning amendments to Law no. 16 of 2004 concerning the Prosecutor's Office
of the Republic of Indonesia. Because the Public Prosecutor is an integral part
of the criminal justice system as an integral and inseparable part of the law
enforcement ecosystem
Based on the authority they have, the
Public Prosecutor not only acts as a Public Prosecutor before the court but
more broadly the Public Prosecutor has the authority to control a case where
the investigation process is part of the pre-prosecution stage (Supit, 2016).
Thus, it becomes an inseparable unit in the prosecution process. because the
investigation is a series of prosecution processes as in Article No. 14� (Undang-Undang No. 8 Tahun 1981 Tanggal 31 Desember 1981 Tentang Hukum
Acara Pidana, 1981), the Public
Prosecutor has the position and responsibility in taking action since the
investigation stage in realizing the legal objectives to form an order of
justice, certainty and benefit in the democratic life of the nation and state.
However, another matter regulated in
the Elucidation of the Draft Law of the Criminal Procedure Code Article 15
Paragraph (3) is that at the request of the public prosecutor, investigators
may carry out certain legal actions in terms of confiscation of evidence that
has not been confiscated at the time of the investigation. This of course
causes a blurring of norms because the Public Prosecutor cannot carry out
confiscation actions independently even though it is the Public Prosecutor who
will prove the material truth of the elements of unlawful acts based on the
object of confiscation (Undang-Undang No. 8 Tahun 1981 Tanggal 31 Desember 1981 Tentang Hukum
Acara Pidana, 1981).
Whereas based on the Administrative
and Technical Guidelines for General and Special Criminal Courts through the
Decree of the Chief Justice of the Supreme Court of the Republic of Indonesia
Number: KMA/032/SK/IV/2006 dated April 4, 2006 concerning the Enforcement of
Book II of Guidelines for the Implementation of Duties and Administration of
the Court, it provides space for Judges as long as If it is necessary to give
permission and or approval to confiscate, the judge may grant the
investigator's request and or order the case to the investigator through the
Public Prosecutor to carry out the confiscation (Mari, 2008).
The conflicting norms that occurred
between the application of Article 38 and Article 39 of the Criminal Procedure
Code caused inconsistencies in the application of legal norms that were borne
by the Public Prosecutor for the confiscation actions he carried out in the
process of handling cases. For this reason, it is necessary to have uniform
norms governing the authority of the public prosecutor in making confiscations
based on the material burden of proof owned by the public prosecutor as an
effort to optimize the authority of Dominus Litis owned by the Public
Prosecutor and shorten the time in the process of completing the completeness
of the case file.
The
proceeds of a crime are assets that are directly or indirectly obtained from a
crime ("Proceeds of crime" shall mean any property derived from or
obtained, directly or indirectly, through the commission of an offense). While
the definition of property is all movable or immovable objects, both tangible
and intangible ("Property" shall mean assets of every kind, whether corporeal or incorporeal,
movable or immovable, tangible or intangible, and legal documents or
instruments evidencing title to, or interest in, such assets) (Ramelan, 2012). Therefore, this article explores the following
research questions; How is the Economic Analysis of Law in
Maximizing the Confiscation of Corruption Proceeds.
METHOD
This research is based on judicial normative. Data were collected
using search methods and literature review. The analysis is based on both
primary and secondary legal sources related to this research, then classified
and summarized and then concluded. The approach in this study uses a conceptual
approach and a statute approach where the study is based on an analysis that is
sourced from the provisions of the written legislation (Efendi & Ibrahim, 2016).
Analysis of the problem in this study uses
the Economic Analysis of Law approach, namely an economic approach to legal
thought in solving problems in the spoils of corruption. Economic analysis of
law seeks to answer two basic questions about the rule of law. That is, what
effect does the rule of law have on the behavior of the actors concerned? And
is this effect of the rule of law socially desirable?
RESULTS AND DISCUSSION
A.
The
Economic Analysis of Law in Maximizing the Confiscation of Corruption Proceeds
The principle relating to the
theory of economic analysis in law must contain the Principle of Efficiency
which will create Wealth Maximization, namely increasing individual welfare
without harming other parties which is not only based on justice but also based
on social justice. Richard A Posner put it this way: �The efficiency is, by no
means, a condition of zero sum game. It is more into
the increases of individual wealth without causing loss to other parties.
Wealth maximization, or in Posner term, in this context sees particular side of
justice that includes more than distributive and corrective justice. Posner
puts stress on �pareto improvement�
wherein, the purpose of regulation of law brings valuable contribution to
justice and social welfare (Ahmad & Machmud, 2018).
Richard A. Posner said that
economics analysis of law is the application of economic principles as rational
choices to analyze legal issues. Richard A Posner also stated that:�...as for the positive role of economics analysis of law,
the attempt to
explain legal rules and outcomes as they are rather than to change them to make
them better�. The role of economics analysis of law from the point of view of
positivism is to explain the rules of law and their goals for change for the
better, further added the
efficiency theory of common as a system to maximizing the wealth of society� (Sulistyorini &
Zulaekhah, 2018).
The level of social welfare
is expected to be equal to the amount of utility expected by the individual.
The utility a person expects depends on whether he or she is doing an adverse
act, whether he or she is penalized, whether he or she is the victim of a loss
that causes harm to others, and on his tax payments, which will reflect the
costs of law enforcement, deductions in fines income. collected The more costs incurred in dealing with a risk, the level of
utility decreases, if individuals are risk neutral, social welfare can be
expressed simply as the gains derived from their actions, minus the losses
incurred, and minus the costs of law enforcement. Within the scope of
authority, enforcement authority is to maximize social welfare by selecting the
enforcement of, or, equivalently, the likelihood of detection, as well as the
level of sanctions, forms (fines, imprisonment, or a combination), and
liability rules (strict or fault-based) (Posner, 1992).
Assume initially that fines
are the form of sanction and that individuals are risk neutral. Then the
optimal fine f is hp, the harm divided by the probability of detection, for
then the expected fine equals the harm. This fine is optimal because, when the
expected fine equals the harm, an individual will commit a harmful act if, and
only if, the gain he would derive from it exceeds the harm he would cause. If
individuals are risk averse, one might expect the optimal fine to be lower than
in the risk-neutral case for two reasons. First, because risk-averse
individuals are more easily deterred than risk-neutral individuals, the fine
does not need to be as high as before to achieve any desired degree of
deterrence. Second, lowering the fine reduces the bearing of risk by
individuals who commit the harmful act. However, lowering the fine also
increases the number of individuals who commit the harmful act and hence bear
risk (Posner, 1992).
Polinsky and Shavell said
that the optimal term could be such that there is either under deterrence or over deterrence, compared to
socially ideal behavior. On the other hand, a relatively high term, implying
over deterrence,
might be socially desirable because it means that imprisonment costs are
reduced due to fewer individuals committing harmful acts. (For reasons that we
will discuss below and because of factors outside the model, our conjecture is
that over deterrence is unlikely to be optimal (Posner, 1992).
Imposing fines may, in fact,
be costly, due to the need for adjudication and fine collection. Were we to
take this into account, the main effect on our conclusions would be that the
optimal expected sanction would be higher because harmful acts would cause not
only direct harm but also, if detected, additional administrative costs. However,
any legal costs borne by the actor are already included in his calculus, so
they do not affect the optimal expected sanction).� Becker, Polinsky and Shavell in
Posner said that we
note that when the method of enforcement involves investigating particular acts
after they have been committed (rather than auditing or monitoring, such as
when police walk a beat), raising the probability of apprehension may, in some
ranges, involve lower costs on account of greater deterrence, which reduces the
number of acts that need to be investigated to maintain a given probability of
detection (Posner, 1992).
1. Regulations related to Corruption Crimes
The Government of Indonesia's
efforts to prevent corruption subsequently issued Law Number 3 of 1971
concerning the Eradication of Criminal Acts of Corruption, but it turned out to
be a lot of failure. This failure is partly due to the various institutions
established to eradicate corruption that do not carry out their functions
effectively, weak legal instruments, coupled with law enforcement officials who
are not really aware of the serious consequences of corruption (Saputra, 2017).
Vettori,
F. M Suseno in Refki
Saputra said that the paradigm shift in the way of overcoming crime by
imprisonment becomes the proceeds of crime (going for the money), in this case
by cutting directly to the center of the crime (head of the serpent) using the
concept of deprivation criminal and civil cases as a first step, because the
method of imprisonment gradually began to meet failure after failure the
paradigm of law enforcement at that time was no longer limited to the pursuit
of perpetrators, but also through the pursuit of illegal 'profits' (confiscate
ill-gotten gains). Fancois Noel Babeuf (1760-1797) as
the first person to voice the ideals of socialism, that ethically what is
stolen from the people should be confiscated as much as possible because the
proceeds of crime are something that the perpetrators of crime should not
always have, and therefore must returned to the rightful (Saputra, 2017).
Arrangements
regarding the seizure of assets can be found scattered in the Criminal Code,
Criminal Procedure Code, Law no. 31 of 1999 concerning the Eradication of
Criminal Acts of Corruption as amended by Law no. 20 of 2001 (Corruption Act),
Law no. 8 of 2010 concerning the Crime of Money Laundering (UU TPPU), Law on
Mutual Legal Aid (UU MLA), Supreme Court Regulation No. 15 of 2014 concerning
the additional penalty of substitute money in the crime of corruption, and the
Prosecutor's Office Regulation no. 9 of 2019 concerning Amendments to the
Attorney General's Regulation Number -027/A/JA/10/2014 concerning Guidelines
for Asset Recovery. Disseminating regulations related to saving state assets
from the proceeds of economic crimes has resulted in less than optimal seizure
of assets resulting from criminal acts, and has not been able to present a
model of law enforcement that is just for the whole community (News, 2021).
2. Asset Recovery for Corruption Crime
The low of maximum fine for perpetrators of corruption - as part of an extraordinary
crime - a maximum fine of IDR. 1 billion for perpetrators of corruption is
certainly very low when we compare it with other crimes. For example, narcotics
crime with a maximum fine of IDR 10 billion as stipulated in Article 113,
Article 114, Article 116, Article 133, and Article 137 of the Narcotics Law.
Likewise, the maximum fine for money laundering is IDR 10 billion as stipulated
in Article 3 of the Money Laundering Law (News, 2021).
In addition to the small amount of fines, it also has an effect on the amount of KPK
PNBP deposits to the State Treasury, where the KPK's performance in returning
assets or assets resulting from corruption has decreased dramatically in the
last two years. This can be seen from the return on assets resulting from
corruption in 2019 reaching IDR. 468.81 billion, a decrease compared to 2018
which reached IDR 600.25 billion. Likewise, last year it was only IDR 294 billion (Ekonomi, 2021).
The regulation regarding compensation for state losses as regulated in Article
18 letter b of the Anti-Corruption Law is also not optimal. The additional
punishment in the form of giving replacement money which can be substituted
with an extension of imprisonment for a length of time that does not exceed the
maximum penalty of the main criminal sentence actually provides an opening for
corruptors to extend their prison term instead of paying replacement money (News, 2021).
3. Efforts to Handle Corruption Crimes
The first legal principle in
relation to law enforcement is the protection of human rights, while the second
is related to the principle of justice, in which the principle of justice that
is relevant to our national condition is the principle (theory) of justice with
dignity. It is necessary to be aware by all parties, that currently the State of
Indonesia is incessantly carrying out the eradication of corruption, because
corruption is not a crime that is positioned as a serious crime. However, it
does not mean that the state in carrying out law enforcement to eradicate
corruption ignores these 2 (two) major theories, namely human rights and
justice with dignity (Bayuaji, 2019).
This needs to be an important
concern of the state considering that the State of Indonesia as a democratic
country is not a country that has absolute power so that there are limits to
its authority, as well as having to consider legal elements where these
elements are characteristics of the rule of law. One of the elements in
question is that the law is obliged to meet juridical, sociological, economic,
moral, philosophical, and modern requirements. The law must also always aim to
achieve goodness, justice, truth, order, efficiency, progress, prosperity, and
legal certainty - The values of justice in Pancasila (Bayuaji, 2019).
Based on this civilized
justice, confiscation should only be carried out on assets that are truly
proven to have originated from criminal acts of corruption, which are
ultimately used for the benefit of the state. Even the state cannot confiscate
someone's assets that have never been proven guilty, because basically the
Dignified Justice Theory provides a juridical meaning that the seizure of
assets of perpetrators of corruption, both through the legal instruments of the
Anti-Corruption Law and the Money Laundering Law, cannot solely use the spirit
of "eradicating corruption". which relies on public opinion, but must
continue through the due process of law in which the proof of the perpetrator's
guilt must be prioritized (Bayuaji, 2019).
B. Maximizing
the Confiscation of Assets Related to Crime
The mechanism for
confiscation of assets resulting from criminal acts can only be carried out
after a court decision has permanent legal force. Confiscation efforts carried
out by filing investigators, as well as examination of files by the State
Attorney and also announcements of confiscation of assets (Liputan6, 2021).
This becomes an obstacle in efforts to recover state financial losses. The
trial process of a corruption case takes months and even years to obtain a
court decision that has permanent legal force, this condition provides an
opportunity for corruptors to hide their assets so that they are difficult to
trace by law enforcement officials (News, 2021).
Agustinus Pohan said that the
existing systems and mechanisms, both in the Anti-Corruption Law and other laws
and regulations, have not been able to support the return of assets resulting
from corruption. The United Nations Convention against Corruption (UNCAC) in
2003 regulates efforts to confiscate (recover) assets resulting from crimes
that have received worldwide attention. Corruption is not only a national
problem but also an international problem. Not a few state assets that are
corrupted are then taken away and hidden in financial centers in developed
countries which are protected by the legal system in force in that country as a
place to store assets resulting from corruption. Countries participating in the
signing of the UNCAC have an obligation to encourage the implementation of the
provisions for the seizure of assets within the scope of domestic law in their
countries. Asset confiscation is expected to be effectively implemented to
increase efforts to eradicate corruption by providing a deterrent effect (Agustine, 2019).
Ramelan in Refki Saputra states that non-conviction-based (NCB)
confiscation is a tool or means � which is able to transcend differences in the
legal system � to seize assets resulting from corruption in all jurisdictions.
Indonesia as a state party to UNCAC as formalized in Law Number 7 of 2006,
while still taking into account national sovereignty,
is required to take steps to implement the provisions of the convention.
Regarding asset confiscation without criminal prosecution, Indonesia has
proposed a bill to the DPR since 2012 until now. However, the Asset
Confiscation Bill has not been ratified until now. This method of in rem
confiscation of assets through the NCB Asset Forfeiture is a revolutionary
concept in seizing the proceeds of crime. The process, which is more effective
because it bypasses several legal principles and also lowers the standard of
evidence in criminal cases, is considered to have the potential to deal with
the principles of a fair trial (due process of law) as well as property rights (Saputra, 2017).
Purnawing M. Yanuar,
Juniadi Soewrtojo, Romli Atmasasmita in Rahmawati
According to an estimate by Transparency International (TI), the amount of
funds lost due to bribery in the procurement of government supplies.� is at least four hundred billion dollar around� the world. The
pattern of criminal acts of corruption is based on behavior or actions that are
immoral, unethical or unlawful for personal and or group interests that are
detrimental to state finances, so to eradicate corruption, in addition to
optimizing criminal law, must also use the means of civil law. The civil
process is carried out in recovering state financial losses using the civil
forfeiture regime (Rahmayanti, 2018).
However, Bayuaji,
Rihantoro said that in the confiscation of assets
resulting from a criminal act, the due process of law must be prioritized, in
which the proof of the perpetrator's guilt must be prioritized (Bayuaji, 2019).
Civil forfeiture is applied on a domestic scale, namely filing a civil lawsuit
to confiscate or confiscate or expropriate assets resulting from crimes that
are in the country. If the assets resulting from the crime are located abroad,
some countries that use civil forfeiture domestically apply it
extra-territorially (Rahmayanti, 2018) or by using the Law on
Mutual Legal Aid, Mutual Legal Assistance in Criminal Matters. If the assets
resulting from the crime are located abroad, some countries that use civil
forfeiture domestically apply it extra-territorially or by using the Law on
Mutual Legal Aid, Mutual Legal Assistance (MLA) in Criminal Matters� is a form of international cooperation
according to UNCAC 2003 in addition to the extradition treaty. Arrangements
regarding MLA have also been promulgated in Law Number 1 of 2006 concerning
Mutual Assistance in Criminal Matters. In this Law, there are efforts to
confiscate and block assets resulting from criminal acts, as set out in Article
1 Paragraph (5) (Santos, 2021).
Confiscation using civil
forfeiture is faster after it is suspected that there is a connection between
assets and criminal acts, so that state assets can be saved even though the
suspect has fled or died.The principle
of civil forfeiture is "the right of the state to return to the state for
the welfare of the people". This can be minimized by using civil
forfeiture because the object is the asset, not the corruptor, so that the
illness, disappearance or death of the corruptor is not an obstacle in the
trial process. In
proving through civil forfeiture a potential alternative, potential, because it
is more effective in efforts to recover assets (Rahmayanti, 2018).
Mohammad Yusuf in Toetik Rahayuningsih said that
the concept of asset forfeiture without conviction or nonconviction based (NCB) asset
forfeiture - This provision is one of the efforts to recover assets, especially
in revealing unnatural wealth. In some jurisdictions NCB Asset Forfeiture this
is also referred to as civil forfeiture, in rem forfeiture or objective
forfeiture, is an action against the asset itself (e.g. State vs. $100,000) and
not an action against an individual (in person), NCB Asset Forfeiture is a
separate action from criminal proceedings and requires evidence that a property
is tainted (stained) by a criminal act (Rahayuningsih,
2013).
NCB Asset Forfeiture is very
useful for now, because what is being sued is the asset, not the owner. If
using a criminal regime, unclaimed assets will be difficult to retrieve,
because in general confiscation in criminal law is always related to the
perpetrator. So that if within a certain period of time the confiscation is
carried out, no party objected, the State can immediately confiscate the
unclaimed assets. However, NCB Asset Forfeiture also has weaknesses (Rahayuningsih,
2013).
Mohammad Yusuf, Bismar
Nasution in Toetik Rahayuningsih
said that to file a lawsuit against NCB Asset Forfeiture requires its own
expertise, especially in identifying the assets to be sued and looking for
evidence to prove the allegation that the asset has a relationship with an
asset. Another weakness is regarding the limitations in taking assets from
corruptors. In general, NCB is a lawsuit to obtain compensatory or remedial
damage, not punitive as adopted in the criminal forfeiture regime so that not
all losses suffered by the government from a crime can be replaced with this
instrument. The
latest developments on asset confiscation regulations are related to efforts to
optimize the confiscation of assets resulting from crimes. The Supreme Court
issued Supreme Court Regulation (PERMA)
No.1 of 2013 concerning Procedures for Settlement of Applications for
Confiscation of Assets in the Crime of Money Laundering (TPPU) and Other
Crimes. The purpose of the establishment of the regulation is to avoid the
potential use of money in the practice of money laundering and other criminal
acts (Rahayuningsih,
2013).
This regulation helps PPATK
to handle assets by first seeking permission from the district court. In the
future, PPATK will also announce the existence of unclaimed accounts with the
intention that parties who feel they have and want to admit the accounts get
information. After a party confesses and objects to the confiscation of his
account, the court handling the case can prove the truth of the ownership of
the account by appointing a single panel of judges. However, if after the court
announces the number of unclaimed accounts and no party acknowledges it, the
PPATK can immediately carry out the confiscation. Furthermore, the money will
be declared as state property (Rahayuningsih,
2013).
The Criminal Procedure Code
(KUHAP) also contains a definition of confiscation and confiscation of evidence
in investigation, prosecution and court. Meanwhile, confiscation is an action
by a judge in the form of an additional decision on the main crime as stated in
Article 10 of the Criminal Code, namely revoking the right of a person's
ownership of objects. Based on the judge's determination, objects resulting
from criminal acts can be confiscated and then can be damaged or destroyed or
can even be used as state property. (Article 156 the Criminal Code) (Agustine, 2019).
The mechanism for
confiscation of assets is also contained in Law Number 31 of 1999 in
conjunction with Law Number 20 of 2001 concerning the Eradication of Criminal
Acts of Corruption and Law Number 46 of 2009 concerning Courts for Criminal
Acts of Corruption. Where in Article 18 letter (a) of the Anti-Corruption Law
states that "The confiscation of tangible or intangible movable goods or
immovable goods used for or obtained from a criminal act of corruption,
including the company owned by the convict where the corruption crime was
committed, as well as the price of the goods that replace the goods.� (Article
18 letter a of
the Corruption Law). Based on the article, the act of confiscation of assets
has been regulated and used as a sanction against perpetrators of criminal acts
of corruption, in terms of efforts to return the proceeds of crime (Agustine, 2019).
Corruption places the act of
confiscation of assets not only as a criminal sanction, in the event that an
act of confiscation of assets can be carried out against a defendant who dies
before a decision is handed down against him by obtaining strong enough
evidence that the person concerned has committed a criminal act of corruption,
the judge on the demands of the public prosecutor stipulate acts of
confiscation of previously confiscated goods, as stated in Article 38 paragraph
(5) of the Anti-Corruption Law (Undang-Undang
Republik Indonesia Nomor 31 Tahun 1999 Tentang Pemberantasan Tindak Pidana
Korupsi, 1999).
Suharyono said that it was assumed
that there were several reasons that were hampered by the ratification of the
Asset Confiscation Bill, as follows: (Antikorupsi, 2008)
1) Still
taking into account the act of confiscation of assets
so as not to conflict with Article 28-H paragraph 4 of the 1945 Constitution,
which protects a person's private property rights.
2) There
is no institution for storing confiscated assets that can guarantee the return
of assets to the state. Although currently there is an asset depository
institution belonging to the Ministry of Law and Human Rights,
3) Concerns
about the mixing of confiscation of assets with assets that are not the result
of criminal acts of corruption.
4) Legal
protection for third parties who buy assets from corruptors.
Based
on the above reasons, the author assumes that the Bill on Asset Confiscation
proceeds from acts of corruption does not conflict with Article 28-H paragraph
4 of the 1945 Constitution, because every person whose property is confiscated
must be given the opportunity to prove backwards, that the assets he has
obtained are not the proceeds of corruption. Furthermore, protection for third
parties who purchase assets resulting from corruption are not ensnared by law,
where buyers with good intentions must be protected by law as long as the
person concerned does not know the origin of the assets. Where based on Article
1491 of the Civil Code it is stated that the seller is obliged to bear the
object that is the object of the sale and purchase transaction, as the seller's
obligation for the benefit of the buyer, namely control over safe and peaceful
objects based on Article 570 of the Civil Code where the seller is the owner
and authorized to the object and is free from hidden defects as well as
guarantees in Article 1491-1493 of the Civil Code (Kitab Undang-Undang
Hukum Perdata (Burgerlijk Wetboek Voor Indonesie) Staatblad Tahun 1847 Nomor
23, 1847) see (Isnaeni, 2015).
With
an economic approach to law, the author sees that government governance is not
optimal the level of penalties and fines is low so that the level of corruption
tends to stagnate and increase. If it is seen that there are still� many levels of state losses due to
corruption, prosecution can be carried out criminally and civilly to restore
state losses so that they can be used for development. With the punishment
related to financial securities in the form of confiscation of assets suspected
of being related to criminal acts and unfair transactions, the perpetrators
think twice about committing corruption. In the economic analysis of profit and
loss, if the application of criminal sanctions is primum remedium, besides that,
regulations regarding asset seizure are needed so that the perpetrators feel
maximum suffering, considering that the purpose of cooperatives is related to
economic problems, the profits obtained illegally must be confiscated for the
state.
CONCLUSION
Based on the economic analysis of law, the shift in
criminal orientation in criminal acts of corruption from corporal punishment to
a combination of corporal punishment, large fines, confiscation of assets and
impoverishment of perpetrators of criminal acts of corruption without
diminishing the meaning of corporal punishment against perpetrators of criminal
acts shows effectiveness and efficiency and will increase the deterrent effect
for perpetrators, in accordance with the economic approach to the law where the
costs incurred exceed the expected profits from the results of corruption
carried out and for the state. Confiscation it can replace state financial
losses that can be used for the welfare of its citizens. This approach
emphasizes that legal regulation is a change for the better, in this case,
Indonesia and Indonesian society in general.
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