(In Law Enforcement Practice Perspective)
By : Dr. Eko Wiyono, SH, MHum
The crime of corruption which is qualified as an extraordinary crime makes attention to the occurrence of these crimes more serious, both in terms of regulation of the legal norms that govern them and the practice of law enforcement by law enforcement officers and no less important. is against the consequences that can be caused economically with the potential for large state losses.
As a result of criminal acts of corruption in addition to harming state finances or the state economy, it also hinders the growth and continuity of national development so that corruption is seen as a vicious cycle that revolves around all factors and actors, both in the legislative, executive, and judicial institutions that has been happening lately. Therefore, there are at least 3 interrelated components in the occurrence of criminal acts of corruption, namely the perpetrators of the crime, the crime committed itself and the proceeds of the crime. For perpetrators of corruption, assets or assets resulting from criminal acts are “live blood of crime” or “blood flow” that supports the crime itself, so that law enforcement should begin to be directed to the concept of Follow the Money replacing the concept of Follow the Suspect by researching the flow of funds from downstream to upstream to then carry out confiscation/confiscation of assets/assets that are suspected to be the result of the criminal act of corruption.
In an effort to prevent and tackle corruption in an effective and aspirational manner with the demands of the community, the main attention paid to law enforcement officials and their laws and regulations is quite important. This is in line with Sudarto’s opinion, that in the prevention and eradication of corruption there are 2 (two) determining factors, namely: the legal factor (laws) and the human factor (men), both of which are like interrelated blades and cannot be separated from one another. with others. The human factor focuses on the ability of law enforcers to understand the applicable legal provisions, then apply them in concrete situations in law enforcement practice in accordance with the demands of a sense of justice. While the legal factors must be formulated in clear and complete norms. In this context, the professionalism of law enforcement officers in handling corruption cases as a type of white-collar crime with a fairly sophisticated modus operandi and having a massive detrimental impact on the state, cannot be separated from the provisions of the laws that govern it and universal human rights principles where in addition to the victim there is another party as a third party who is in it.
In carrying out corruption investigations, the law authorizes investigators to confiscate goods that are strongly suspected to be related to criminal acts, which are then submitted as evidence in investigations, prosecutions, and examinations in court. The goods that can be confiscated do not only belong to the suspect, the defendant but can also belong to another person as a third party on condition that there is a strong suspicion of connection with a criminal act of corruption, which will be used as evidence in an effort to make the crime clear.
After the investigator confiscates the goods from the defendant or owned by a third party which are used as evidence in the trial until finally at the trial court decision which states that the evidence that has been confiscated is confiscated for the state (verbeud verklaard), including the evidence from the third party. , then the third party will definitely respond to the decision in the form of an objection to the decision on the grounds that he feels that his property rights have been usurped for the state, while he has sufficient evidence of ownership over it.
Third parties who object to the confiscation of their belongings in the corruption case can take legal action through, among others, first, pretrial as stated in the decision of the Constitutional Court (MK) Number 21/PUU-XII/2014 on 28 April 2015 which has expanded the provisions of Article 77 letter a of the Criminal Procedure Code concerning Pretrial objects by including confiscation as a Pretrial object. Second, if the Court’s decision states that the evidence is confiscated for the state, a third party with good intentions has the right to file an objection at the District Court where the case (Tipikor) was decided in accordance with the provisions of Article 19 paragraph (2) of the Anti-Corruption Law No. 31 of 1999 in conjunction with Law No. 20 of 2001, not later than 2 (two) months after the verdict is read.
Article 19 of Law Number 31 of 1999 concerning the Eradication of Corruption Crimes (Tipikor), provides stipulations that:
1.A court decision regarding the confiscation of goods that do not belong to the defendant shall not be rendered, if the rights of a third party in good faith will be harmed.
2. In the event that the court’s decision as referred to in paragraph (1) includes third party goods that have good faith, then the third party may file an objection letter to the relevant court, within a period of 2 (two) months after the court’s decision is pronounced at the court. trial is open to the public.
3. The submission of the objection letter as referred to in paragraph (2) shall not suspend or stop the execution of the court’s decision.
4. In the circumstances referred to in paragraph (2), the Judge asks for information from the public prosecutor and interested parties.
5. The decision of the Judge on the objection letter as referred to in paragraph (2) may be appealed to the Supreme Court by the applicant or the public prosecutor.
Observing the provisions of Article 19 of Law Number 31 of 1999, it shows that the granting of rights for third parties to be able to file an objection to the confiscation of evidence carried out by investigators in a corruption crime which by a court decision is declared confiscated for the state while the said evidence is goods his property as a third party, it means that the goods must really belong to him based on legal ownership rights so that he can be given legality as a third party in good faith with his ignorance or unrelatedness to the crime of corruption committed by the Defendant. Background norms Article 19 of Law no. 31 of 1999 concerning the Corruption Crime contains a legal political rationale that the norm is intended solely to provide legal protection to third parties who have good intentions in corruption cases so that third parties whose goods/assets are used as evidence and are declared confiscated for the state become is not harmed because the goods in question are actually his property which are not/at all related to the criminal act of corruption that is taking place and is suspected of being the Defendant.
The meaning of the norms of Article 19 paragraphs (2) and (3) of Law no. 31 of 1999 concerning the Eradication of Criminal Acts of Corruption only gives legal rights in the form of being able to file a letter of objection from a third party who objected to the decision, although the objection letter does not necessarily stop or suspend the implementation of the decision. Whereas a third party who has good intentions has a legal interest to explain and prove the origin of the object/goods submitted as evidence. Norms Article 19 of Law no. 31 of 1999 only regulates the granting of a third party’s right to file an objection to their confiscated property within 2 (two) months but without any explanation on how to calculate the 2 (two) month period and how to submit and resolve it through a court hearing.
Technically, Philipus, Hadjon provides guidelines in the distribution of legal protection, namely through preventive and repressive government actions. Preventive legal protection aims to prevent disputes from occurring, through providing opportunities for the community to participate in the decision-making process, as well as the opportunity to file objections (inspraak) so that the government is more careful in making decisions or actions through its discretionary authority, while legal protection The repressive one is more aimed at resolving disputes, including their handling in the judiciary.3
The regulatory norm of Article 19 of Law Number 31 of 1999 is to regulate the time limit and procedure for submitting an application for objection by a third party who has good intentions on his property which has been used as evidence in a corruption case which is declared confiscated by a court decision for the state. This means that the form of legal protection given to third parties with good intentions is repressive in nature because the completion of the protection is given when the handling is already in the decision stage by the Court.
In judicial practice, there is an objection to evidence in a corruption case that is declared confiscated for the state, which is submitted by a third party on the grounds that the evidence is his property which has no connection with the criminal act of corruption committed by the Defendant, even though the arrangement has been determined. normatively in Article 19 of Law Number 31 of 1999 concerning Eradication of Criminal Acts of Corruption (Tipikor), where a third party with good intentions can file an objection request to the Court within a period of 2 (two) months after the verdict is read in court, but because it is felt there is a sense of concern from a third party over his property/goods so that it will not be declared confiscated for the state in a court decision later, there is a practice of an application submitted by a third party to the Court at the time the trial for the examination of the corruption case is proceeding with The intention is for the Court to issue/issue a stipulation that the assets/goods belonging to a third party that are used as evidence can be issued as evidence in a corruption case and ordered to be returned to the third party on the basis of the evidence of ownership submitted by them. If the corruption case is dropped, the said evidence is no longer included in the evidence declared confiscated for the state.
Likewise, regarding the grace period for filing an objection request by a third party in a corruption case which is normatively determined in Article 19 of Law Number 31 of 1999, which can be submitted within 2 (two) since the verdict on the corruption case was read out in the Court trial, it also provides multiple interpretations. where on the one hand it means that the 2 (two) month grace period is calculated from the time the Court’s decision in the corruption case in question has permanent legal force / BHT (inkracht van gewijsde), and on the other hand there is an opinion that interprets the norm of Article 19 that the submission of westernization by a third party on property/property that is used as evidence in a corruption case and declared confiscated for the state is submitted within 2 (two) months after the verdict is read in the court trial, without seeing/considering whether the corruption decision has permanent legal force (BHT/inkracht van gewijsd e) or not.
However, in practice that has developed recently, there are several cases of corruption that are being examined and decided by the Court, then there are requests from third parties for their goods/properties which are also used as evidence and declared confiscated for the state, such as cases of criminal acts Jiwasraya Insurance corruption crime at the Central Jakarta Corruption Court Number: 30/Pid.Sus-TPK/2020/PN.Jkt-Pst On October 26, 2020, which in essence: Stated the confiscated evidence in the case file of Joko Hartono Tirto in the form of a securities account and its contents everything was confiscated for the state, which was confirmed by the Decision of the High Court of DKI Jakarta Number: 4/PIS.SUS-TPK/2021/PT.DKI dated February 24, 2021, which was also upheld by the Decision of the Supreme Court of the Republic of Indonesia Number: 2931 K/PID-SUS/ 2021 On August 24, 2021, an objection request has been filed by a third party, namely PT Angkasa Bumi Mas which states that the evidence in this case the head of Asuransi Jiwasraya whose decision stated that the evidence was confiscated for the state, there were belongings that were not related to the criminal act of corruption committed by the Defendant.
In the perspective of judicial practice, this means that an application for objection is filed by a third party for his/her property which is used as evidence in a corruption case filed by a third party after the main decision on the corruption case has been decided by the Court up to the stage of cassation, where the request of the third party The third proposal submitted by PT Angkasa Bumi Mas has been accepted and examined and decided by the Central Jakarta District Court with Stipulation Number: 03/Pid.Sus/ /TPK/2021/PN.Jkt.Pst.Dated 21 July 2022, which basically: Declaring that the Evidence belongs to the Applicant/Third Party to be separated from the Evidence in the Corruption crime case and Orders that the Evidence in question be returned to the Applicant as a Third Party.
If we examine the judicial practice as the decision of the Central Jakarta District Court with the Decision Number: 03/Pid.Sus/ /TPK/2021/PN.Jkt.Pst.Dated July 21, 2022 mentioned above, it can be seen several legal rules regarding the legal protection of third parties on his property/property which is used as evidence in a corruption case. First, that the meaning of a third party with good intentions as referred to by the norms of Article 19 of Law Number 31 of 1999 concerning the Eradication of Criminal Acts of Corruption (Tipikor) is defined as a third party who can prove that the evidence is actually his own based on evidence of ownership and obtained not from the Defendant but based on a sale and purchase transaction on the stock exchange as a free and open market and a third party is also not a participating actor with the capacity to participate or co-operate with or assist in the Defendant’s actions or be a witness who is aware of the Defendant’s actions and even There is absolutely no mention of the third party in the indictment of the Public Prosecutor in the corruption case which was charged to the Defendant and has been found guilty and sentenced to the said crime.
Second, the provisions regarding the submission of an application for objection can be submitted by a third party who has good faith in his/her property which is used as evidence in a corruption case and is declared confiscated for the state within a period of 2 (two) months after the verdict is read in a court session. The 2 (two) month grace period is calculated as 2 (two) months since the decision on the corruption case was decided by the Court with the status of having definite legal force / Permanent Legal Force (BHT / inkracht van gewijsde). So that if the corruption case has been decided by the Court which examines and decides on the corruption case but does not yet have definite legal force/permanent legal force (BHT/inkracht van gewijsde), then the application for objection by a third party who has good intentions on his property/goods which is used as evidence in a corruption case and declared confiscated for the country in question, cannot be submitted yet.
The difference in interpreting the norms of Article 19 of Law Number 31 of 1999 concerning the Eradication of Criminal Acts of Corruption (Tipikor) in the repertoire of its application in criminal justice practice is due to the arrangement in the norms of Article 19 that is incomplete, both in the formulation of the norm and in its explanation.
where there are no arrangements and complete explanations regarding what are the detailed requirements to be qualified as a third party with good intentions so that they have legal standing can file an objection to the evidence in a corruption case that is declared confiscated for the state.
Furthermore, the regulation of the norms of Article 19 as well as the explanation of Law Number 31 of 1999 also does not regulate and explain explicitly and precisely regarding the calculation of the time for filing by a third party against evidence in a corruption case that was confiscated for the state while the evidence is his. can be submitted within a period of 2 (two) months, which is calculated from the time the decision on the corruption case is read out at a court hearing that has permanent legal force (BHT/inkracht van gewijsde), or it is sufficient that it can be submitted when the corruption case verdict is read at the court hearing regardless of whether the decision has permanent legal force (BHT/inkracht van gewijsde) or not.
The incomplete regulation and explanation in the norms of Article 19 of Law Number 31 of 1999 has created legal problems in the practice of criminal justice, especially regarding the legal protection of third parties who have good intentions on their assets/properties which are used as evidence in corruption cases that are declared confiscated for the state, where if a third party files an objection to his/her goods/assets that are used as evidence in a corruption case and is declared confiscated for the state, it is filed within a period of 2 (two) after the verdict of the corruption case is read in the court trial but there is still an appeal. or Cassation, it will be declared premature and the third party’s western application is declared unacceptable, on the grounds that the corruption case is still not legally binding (BHT/inkracht van gewijsde). Meanwhile, in the formulation of the norms of Article 19 of Law Number 31 of 1999 and its elucidation, this matter is not regulated.
Problems in judicial practice regarding the application of Article 19 of Law Number 31 of 1999 in law enforcement practices, especially in corruption cases, have spurred the issuance of the Regulation of the Supreme Court of the Republic of Indonesia (Perma) Number 2 of 2022 concerning Procedures for Settlement of Objections of Third Parties with Good Faith Against the Decision on Confiscation of Goods. Does not belong to the Defendant in the Corruption Crime Case, which was published on the basis of background in order to provide legal protection and for legal certainty of law enforcement practices against third parties who have good intentions in cases of criminal acts of corruption.
In the case of a third party who has good intentions in the norms of Article 19 of Law Number 31 of 1999 according to Perma Number 2 of 2022 as stipulated in Article 1 paragraph (3) must be interpreted as a party who can prove as the legal owner, guardian, guardian of the owner of the goods, or curator in bankruptcy cases on goods that have no legal connection in the process of the occurrence of a criminal act of corruption. In short, a third party who can file an objection to evidence in a corruption case that is declared confiscated for the state must have a legal ownership right as the owner of the evidence and the evidence belonging to the third party must have no legal connection with the criminal act of corruption. which is charged to the Defendant, either as goods resulting from corruption in whole or in part, or as a means of corruption by the Defendant or directly related to the act of corruption by the Defendant.
The procedure for filing an objection by a third party with good intentions in a corruption case is regulated in more detail and clearly by Perma Number 2 of 2022 as stipulated in Article 3 paragraph (4), (5) and (6) that Objections can be filed both before and after the object the property of a third party requested for execution by the Public Prosecutor in the corruption case, where if it is submitted before the execution is carried out then it does not prevent the Public Prosecutor from continuing to carry out the execution, whereas if the objection is submitted after the execution is carried out then the objection by the third party must also include the Minister of Finance RI as a co-respondent in the petition for objection.
Furthermore, because objections can be filed either before or after the decision is executed by the Public Prosecutor as the executor in the corruption case, it shows that the intended grace period for filing an objection by a third party must be submitted within a grace period of 2 (two) months from the time the corruption decision has taken effect. permanent law (BHT/inkracht van gewijsde), because it is determined that an objection is filed after the verdict is read in an open court in Article 4 paragraph (1) of the Supreme Court Number 2 of 2022, but it can be submitted before or after the execution. This means that an objection request by a third party can be submitted either before or after the execution by the Public Prosecutor is meaningful after the corruption decision has permanent legal force (BHT/inkracht van gewijsde) .
This is further clarified in Article 4 paragraph (4) of Perma Number 2 of 2022 where it is determined: In the event that the decision on the main case (the corruption case) is an appeal or cassation decision, the objection is submitted no later than 2 (two) months after the excerpt / copy of the decision is notified to the Public Prosecutor, the Defendant and/or announced on the court notice board and/or electronically. This means that the submission of third party objections in corruption cases can be submitted before or after the decision is executed by the Public Prosecutor but after the corruption decision has permanent legal force (BHT/inkracht van gewijsde). While the grace period for the submission is 2 (two) months after the decision is read out at the trial. The court is open to the public, according to the author, it means that the grace period of 2 (two) months after the decision is read out at the trial court at the first instance has permanent legal force, or 2 (two) months. after a copy/excerpt of the decision has been notified and has been received by the Public Prosecutor, the Defendant or announced in a court announcement or electronically, if the verdict in the corruption case is in the form of an appeal decision or an cassation decision.
Perma Number 2 of 2022 is more fully and clearly regulated regarding the mechanism of examination at the Court hearing which examines objections submitted by third parties as referred to in Article 9 which determines that there are no replicas and duplicates or conclusions and the examination must be completed within 60 days from the first trial. The objection request is examined as stated in Article 11 and it is quite important for Law Enforcement Officials (APH) to understand that the filing of an objection by a third party in a corruption case is free of charge and that legal remedies can be filed against the determination of a third party’s objection in Article 19 of the Law. Law Number 31 of 1999 is only an cassation to the Supreme Court, and against the decision of the cassation on the objection of a third party in the corruption case, it cannot be submitted for a judicial review (PK) as an extraordinary legal remedy.
A more complete and detailed regulation by Perma Number 2 of 2002 has at least minimized the differences in interpretation of the norms of Article 19 of Law Number 31 of 1999 concerning objections that can be submitted by third parties in corruption cases which are currently trending topics in recent years. At the end of the day, at the level of judicial practice in law enforcement in Indonesia, I hope this little writing can add references, especially for Law Enforcement Officials in the context of law enforcement, especially in the context of fighting for legal protection for third parties in corruption cases.
Jakarta, October 25, 2022
