Corruption No again a foreign word in this country . In fact , in Indonesia, corruption viewed as act a very serious crime , because No only cause losses to the state and the country's economy , but also damages base culture , morality , politics , as well as the legal system and state security . [1] Phenomenon act criminal corruption in the Republic of Indonesia has develop become structured and massive crime , infiltrating all over joints life social , political and economic nation , so that result in the occurrence violation systematic to rights fundamental society , especially in aspect welfare social and economic . [2] Like " cancer" social " which is eroding body nation , practice corruption has proven become inhibitor main in acceleration development national and create significant inefficiency in governance government , so that effort eradication corruption become a priority agenda that is not can postponed in frame realize ideals Morning Indonesian nation for create a just and prosperous society as mandated in Pancasila and the 1945 Constitution. [ 3]
Although the Quran does not in a way explicit mention corruption , some paragraph touch on similar behavior with corruption , such as dishonesty and betrayal trust . One of the relevant verses of the Quran namely Surah Al-Baqarah verse 188, Allah SWT says . Translation “and do not part You eat treasure some of the others among You with false path and don't do it You bring affairs treasure That to the judge, so that You can eat part from treasure other people 's things with road sinful , even though You know ."
This verse remind people Islam so as not to take other people's property through the way that is not valid and contradictory with law , including bribery , manipulation , and embezzlement , all of which is part from corruption . [4]
The principle of lex specialis derogatory legion general is principle the law states that law of a nature special (lex specialis ) excludes law of a nature general (lex generalis). In the context of act criminal corruption , Law No. 20 of 2001 concerning Eradication Action Criminal Corruption is a lex specialis against the Criminal Code which is a lex generalis, which is also a base enforcement law corruption in Indonesia . [5]
One of objective from the Corruption Law that is For fix and speed up effort in eradicate corruption in Indonesia . For support apparatus enforcer law in handle case increasing corruption Lots the amount , the law This made as step strategic . However , reversing palm hand No as easy as eradicate case corruption . [6]
Although government has try stop corruption , the punishment given to the corruptors it seems Not yet make they deterrent or stop practice said . Corruption has develop become problem systemic in various sector , causing situation Where abuse power and abuse of public funds become common thing . [ 7 ] Many perpetrators corruption that has sentenced punishment Then return do the same things , showing that sanctions moment This No Enough For give effect deterrent . [8]
Conditions in the field show that corruption Already rampant and ingrained in the government Indonesia . Based on data from Transparency International, Indonesia occupy position 102 out of 180 countries in Index Perception Corruption For in 2022, with score reached 38 out of 100. In the index This , a score of 0 indicates level very high corruption , whereas a score of 100 reflects very free condition from corruption .. This figure show that corruption Still become challenge big for government and society . [9] Ironically , corruption This No only carried out by one person, but also caused robbery state finances in general collective . Phenomenon This indicates low morality and where shame and integrity has replaced by mentality deep - rooted greed strong in the behavior of the perpetrators corruption . [10]
Referring to the report latest released by BPS (Central Statistics Agency ) , the phenomenon act criminal corruption in the country still become a worrying specter for progress nation . Findings survey implemented comprehensively throughout 2021 reveals fact astonishing that almost three quarter respondents (73%) admitted has intersect with diverse manifestation practice corruption , good as witness eye or direct victims -start from giving gratification illegal until action manipulation state finances . [11] Reality This underline that despite various instrument law and efforts eradication Keep going encouraged , perception public Still consider behavior corrupt has take root strong and become a difficult phenomenon separated from dynamics life socialize . [12]
very crucial fundamental issue in eradication act criminal corruption and need get more focus Serious is How create effect deterrent for the perpetrators act criminal corruption and how replace loss to the country above state losses incurred consequence act criminal corruption , whether committed by individuals and also corporation . The empirical facts revealed during This show a worrying reality , where efforts eradication corruption only succeed saved around 10 to 15 percent of the total loss state finances due to act criminal corruption , a very minimal percentage if compared to with the total losses incurred . Therefore that , effort rescue state finances and assets become crucial thing . [13 ]
The principle of primum remedium , which means sanctions criminal functioning as a " tool" main " in A regulation legislation or principle law that emphasizes how importance enforcement law as step First in handle violation or act criminal law . In law criminal , principle This emphasize that action strict and direct law to violation is step First before take action administrative , rehabilitation , or prevention . However in the practice until moment this , the implementation primum remedium principle in case act criminal corruption Still Not yet succeed implemented in a way effective seen from return data the state loss is considerable still very small as well as the fall criminal prison to the perpetrator . With thus study this is very necessary in analyze implementation primum remedium principle in the fall criminal as well as return state losses . [14]
Corruption cases analyzed by the author that is case corruption in the provision of grant funds to the DPC LAKI mass organization in the Regency Wajo amounting to Rp. 50,000,000. The defendant Marsose as chairman of the DPC LAKI Regency Wajo No give Report Accountability for Grant Funds and returning Grant Funds that are not used used To Kesbangpol . So that cause loss in finance or the country's economy is Rp. 50,000,000,- (fifty million rupiah). million rupiah). The defendant Marsose who was charged has violating Article 3 in conjunction with Article 18 paragraph (1) letter b of the Republic of Indonesia Law No. 31 of 1999 concerning Eradication Action Criminal Corruption as has changed with Law No. 20 of 2001 concerning Eradication Action Criminal Corruption in conjunction with Article 55 paragraph (1) point 1 of the Criminal Code. In the Decision Number 46/ Pid.Sus.TPK /2024/PN Mks . Defendant has proven in a way valid and convincing do act criminal corruption , so that sentenced punishment prison for 1 ( one ) year , but No charged criminal fine . And imposed criminal addition to defendant For pay compensation amounting to Rp. 50,000,000 (fifty million rupiah). million rupiah). [15]
Magnitude the state losses are considerable small , resulting in existence gap between the stated policy in the SE of the Deputy Attorney General for Action Criminal Special No. B1113/F/Fd.1/05/2010 which contains Instructions For try to return state losses through approach justice restorative in case act criminal corruption with relative state losses small . Not yet study comprehensive study that examines how the judge considers policy the in his decision , especially in context balance between efficiency Handling cases and enforcement law . Based on description Itar the back that has been listed above , then writer consider need For do study regarding the APPLICATION OF THE PRIMUM REMEDIUM PRINCIPLE IN CRIMINAL ACTS CORRUPTION ( Decision Study) Case Number 46/ Pid.Sus.TPK /2024/PN Mks ).
Study This use type method study normative , namely research conducted based on material law main with method to examine theories , concepts , principles , norms law as well as regulation related legislation with study this . [16]
Before to cut off a case Lots things that become base Judge's consideration for set guilty whether or not someone . Under This is the judge's considerations in the case decision Number 46/ Pid.SUS.TPK /2024/ PN.Mks . Considering , that Because all over elements in indictment The Subsidiary Public Prosecutor has fulfilled so with thus Defendant must be stated has proven in a way valid and convincing guilty do act criminal as charged in indictment Subsidiary That ;
Considering , that as for Regarding the Defense Note Defendant's Legal Counsel who in essence request Assembly to release Defendant from all demands law with reason Defendant bone back family who still need Lots cost For continuation life his family , the Defendant classified as economy weak , Defendant Not yet Once convicted and accused cooperative when undergoing legal processes , because Assembly evaluate that defense Advisor law Defendant No touch material main case so defense This must be rejected ; [17]
Considering , that in trial , the panel of judges did not find things that can to erase accountability criminal , good as reason justifier and or reason forgiving , then Defendant must be accountable his actions ;
Considering , that because of that Defendant capable responsible answer , then must stated guilty and sentenced criminal ; [18]
Considering , that as for about the right punishment For dropped to Defendant is as regulated in provisions of Article 3 of the Law Number 31 of 1999 concerning Eradication Action Criminal Corruption as has changed with Constitution Number 20 of 2001 concerning Change on Constitution Number 31 of 1999 concerning Eradication Action Criminal Corruption , namely criminal prison maximum 20 years and minimum 1 year , then Assembly determine For to drop criminal long prison sentence as in Article 3 above . Considering , that besides the fall criminal prison , Article 3 of the Law Number 31 of 1999 concerning Eradication Action Criminal Corruption as has changed with Constitution Number 20 of 2001 concerning Change on Constitution Number 31 of 1999 concerning Eradication Action Criminal Corruption also implies existence the fall fine namely at least Rp. 50,000,000,- (fifty million rupiah). million rupiah) and a maximum of Rp. 1,000,000,000,- ( one billion rupiah);
Considering , that on provision fine said , because according to Article 16 of the Regulation Supreme Court of the Republic of Indonesia (PERMA) Number 1 of 2020 Concerning Guidelines Criminalization of Article 2 and Article 3 of the Law Eradication Action Criminal Corruption that the judge did not may to drop criminal fine in matter loss state finances or the country's economy is below Rp. 50,000,000,- (fifty million rupiah). million rupiah), and because state losses incurred in case This only amounting to Rp. 50,000,000,- (fifty million rupiah). million rupiah) then Assembly decide For No to drop criminal fine to Defendant ;
Considering , that in case This to Defendant has charged detention , then the period of detention the must reduced from the sentence imposed ;
Considering , that For make it easier the way execution , then to Defendant must be set For still is at in prisoner ;
Considering , that For to drop criminal to Defendant so need under consideration moreover formerly aggravating and mitigating circumstances defendant
Aggravating circumstances :
- Actions Defendant unsettling public
Mitigating circumstances :
- The Defendant polite in trial and admit Keep going bright his actions ;
- The Defendant Not yet Once punished ;
Considering , that because of that Defendant sentenced criminal so must be also burdened with pay cost matter ;
Noting , Article 2 Paragraph (1) of the Law Number 31 of 1999 concerning Eradication Action Criminal Corruption as has changed with Constitution Number 20 of 2001 concerning Change on Constitution Number
31 of 1999 concerning Eradication Action Criminal Corruption as well as regulation other relevant legislation , Article 3 of the Law Number 31 of 1999 concerning Eradication Action Criminal Corruption as has changed with Constitution Number 20 of 2001 concerning Change on Constitution Number 31 of 1999 concerning Eradication Action Criminal Corruption , Article 18 Paragraph (1) of the Law Number 31 of 1999 concerning Eradication Action Criminal Corruption as has changed with Constitution Number 20 of 2001 concerning Change on Constitution Number 31 of 1999 concerning Eradication Action Criminal Corruption , Article 52 of the Criminal Code , Regulations Supreme Court of the Republic of Indonesia Number 1 of 2020 and other related provisions with case This ;
Analysis Writer
A judicial process will end with decision the end ( verdict ) in which there is the fall punishment , which will be determine whether or not it is wrong someone . And not close possibility existence difference opinion in the fall decision to the accused . In addition , before determine a decision There is various things that become Judge's consideration . And in the fall criminal , the judge must based on at least two tools valid evidence Then tool proof the judge obtained belief that act the crime charged truly happened and it was the defendant who did it . This set up in Article 183 of the Criminal Procedure Code. Sentencing criminal 1 year in prison and a fine of Rp. 50,000,000,- show that The Panel of Judges has consider provision in the Corruption Law and aspects recovery state losses .
With This writer to argue that , the Judge's considerations in to drop verdict on the case This has use consideration juridical based on facts juridical which has revealed in trial , for example prosecutor's indictment , statement Defendant , statement witness , statement expert , goods evidence , and Articles in law criminal . In addition to considerations juridical , Judges also use non- juridical considerations , namely considerations seen from non- legal aspects namely in consider heavy lightness criminal corruption , Judge considers aggravating and mitigating factors The defendant .
Besides that The Panel of Judges based on the facts that arise in court evaluate that defendant can be accountable the act of committing with consideration that at the time do his actions , the Defendant aware will the consequences caused . The defendant in do his actions be in a healthy and capable condition For consider his actions . Implementation primum remedium principle is effort For restore loss state finances , the Panel of Judges with possibility include criminal addition in the form of replacement money show that they consider more steps nature restorative than just punish . Replacement money given so that the accused responsible answer on losses incurred .
However If seen from the amount of compensation determined panel of judges whose nominal arguably small . At the time Still stage prosecution , prosecutor general authorized For stop prosecution in a case criminal , thing This there is in Article 140 Paragraph (2) of the Law Number 8 of 1981 concerning the Criminal Procedure Code. Public prosecutor can use non- litigation settlement with approach justice restorative , because seen of the total state losses which are estimated small , thing This referring to the policy in Circular Letter Form of the Deputy Attorney General for Criminal Procedure Criminal Special with Number : B1113/F/Fd.1/05/2010 concerning priorities and achievements in Handling case act criminal corruption that contains order For strive for return state losses using restorative justice approach to act criminal corruption with large scale state losses small . Reason for the case act criminal corruption can stopped with use restorative justice approach is costs incurred by the authorities enforcer law For processing perpetrator can exceeding Rp. 50,000,000.
All over provision related with system justice act criminal corruption set up in Constitution one of which is also explains about position court corruption as explained in Article 3 which is in essence explain that position court corruption be in every capital city / district . But in reality , the position court corruption moment This Still be in every capital provinces in Indonesia and not seldom cause the amount expenditure cost Handling case act criminal corruption that sometimes No comparable with the state losses it causes .
Restorative justice itself is A an approach that seeks For finish case act criminal in a way peace with empowerment of parties who have interest in settlement case act criminal said . Settlement in a way peace the can happen if perpetrator realize his awareness and with voluntary willing give change loss to the victim.
If you look at it return , return this country's loss contradictory with Article 4 of the Law Number 31 of 1999 concerning Action Criminal Corruption in essence explain that return state losses do not delete criminalization . Circular issued by the Prosecutor's Office the of course reap Lots criticism and not rarely do people consider that Prosecutor's Office as if belittle act criminal corruption with release the corruptors . However as one of the apparatus enforcer the law given authority in Handling act criminal corruption , in taking decision about letter circular said , the Prosecutor's Office Of course No origin in determine policy with notice existing circumstances and also some condition certain one of which is implementation the restorative justice approach only can applied to the act criminal corruption with small state losses .
Case Position
The DPC LAKI Community Organization submitted a proposal to Regent Wajo , Then Regent Wajo to dispose letter which is intended to Head of Management Agency District Finance and Regional Revenue Wajo , Then Head of Management Agency Finance and Regional Revenue of the Regency Wajo forward to the Unitary Body Nation and Politics Regency Wajo For accommodated . based on the Application Proposal from The DPC LAKI Community Organization requested help amounting to Rp. 244,950,000,- (two hundred and four thousand rupiah) . tens four million nine hundred and fifty thousand rupiah) and the Witness as Head of Kesbangpol Agency Regency Wajo issue a Letter of Recommendation for Proposal Evaluation Results with Agreed amount / value amounting to Rp. 100,000,000,- ( one hundred million rupiah). [19] Then results evaluation submitted to the Regional Revenue and Management Agency of the Regency Wajo who is the submitted as material consideration , then the Regional Revenue and Management Agency of the Regency Wajo Issue a List of Grant Assistance for proposed in the APBD of the year 2021 Budget for Community Organization DPC LAKI Regency Wajo amounting to Rp. 50,000,000,- (fifty million rupiah). million rupiah). However Defendant . Marsose as Head of DPC LAKI Regency Wajo and act as Recipient on grant in the form of money worth Rp. 50,000,000.00 (fifty million rupiah). million rupiah) for the DPC LAKI Regency Wajo No convey report use grant to head area through PPKD with copy of related SKPD in accordance applicable provisions and regulations . That based on letter sent by the Regent Wajo is intended to Head of Kesbangpol Agency Wajo Regency Number : 181.3/318.5/TL.2022/ itda May 17, 2022 Regent has to order Head of Kesbangpol Agency Wajo Regency For ask DPC LAKI to deposit return of unused grant funds used amounting to Rp. 50,000,000,- (fifty million rupiah). million rupiah) and because No get response from Defendant then the grant funds Then become BPK RI Representative Office Findings South Sulawesi Province . After done billing Report Accountability to Defendant Marsose , the DPC LAKI party did not Once do return the state 's losses . [20]
Assembly has pay attention to the letter , namely Calculation Result Report Loss State Finances on the Case Allegation Action Criminal Corruption To Audit Result Report from District Inspectorate Wajo in the context of calculation Loss State/Regional Finance above Allegation Action Criminal Corruption In Case Deviation on Management of Grant Funds by the Chairman of the Indonesian Anti -Corruption Army (DPC LAKI) Branch Management Board Wajo Number : 700.01.2.1/213.1/DH/V/Itda submitted by the Public Prosecutor where mentioned inside it there is Indication loss State/Regional Finances amounting to Rp. 50,000,000.00 (Fifty Million Rupiah).
Verdict
TO JUDGE.
State The defendant MARSOSE did not proven in a way valid and convincing guilty do act criminal corruption as regulated and threatened in indictment Primary Public Prosecutor;
Freeing The accused because of That from The indictment Primary Public Prosecutor
State The defendant MARSOSE has proven in a way valid and convincing guilty do act criminal corruption as regulated and threatened in indictment Subsidiary Public Prosecutor;
Dropping criminal due to That to Defendant in the form of criminal prison for 1 ( One) year .
Dropping criminal addition to Defendant in the form of replacement money amounting to Rp. 50,000,000 (Fifty Million Rupiah), if the defendant No pay compensation in time 1 ( one ) month after decision the court that has to obtain strength law still , then treasure the thing can confiscated by the prosecutor and in matter defendant No have treasure sufficient things For pay compensation so replaced with criminal prison for 3 ( three ) months in prison ;
Determine the period of detention that has been lived Defendant reduced all in all from the criminal period that has been dropped ;
Determine that the defendant still is at in prisoner
Analysis Writer
Based on decision the above , Implementation primum remedium principle in act criminal corruption , writer need analyze from perspective fulfillment objective law . In connection with objective law , implementation primum remedium principle must fulfil three aspect main : justice ( gerechtigheid ), certainty law ( rechtssicherheit ), and expediency ( zweckmassigkeit ).
Writer to argue that implementation primum remedium principle in decision act criminal corruption Number 46/ Pid.Sus.TPK /2024/PN Mks has try accommodate third objective law , but with different emphasis . In dropping decision criminal 1 year imprisonment and criminal addition in the form of compensation of Rp. 50,000,000,- , the Panel of Judges appeared more leaning towards aspect certainty law compared to aspect justice and utility .
This matter reflected from a number of considerations . First , the decision the show the judge's efforts to give certainty law through implementation strict sanctions in accordance with the applicable regulations . Second , even though aspect justice is also taken into consideration through imposition of replacement money as form recovery state losses , but relatively lightness criminal prison sentence imposed show that proportionality between actions and sanctions Still can debated . Third , from side benefit , decision This Possible not yet optimal in give effect deterrent remember lightness sanctions imposed .
In line with opinion Sudikno Mertokusumo and the reality faced by judges, the verdict This show complexity in accommodate third objective law in a way simultaneously . The judge has do compromise with more put forward aspect certainty law , even though matter This means must move stay away point Justice . Choice This Possible based on considerations casuistry to condition concrete the matter at hand .
With however , even though implementation primum remedium principle in decision This has fulfil objective law from aspect formality , still there is room For optimization especially in aspect justice and utility , in particular related with effect deterrent and effort prevention act criminal corruption in the future .
Decision Number 46/ Pid.SUS.TPK /2024/ PN.Mks , the Panel of Judges has consider aspect legal and non- legal in taking decision . The judge has apply primum remedium principle with to drop criminal prison and criminal addition in the form of equivalent replacement money with state losses . Although case This fulfil criteria For implementation restorative justice approach according to the Circular of the Deputy Attorney General for Criminal Investigation Criminal Special Number B1113/F/Fd.1/05/2010 because mark small state losses , but matter This clash with Article 4 of Law No. 31 of 1999 which confirms that return state losses do not delete criminalization . Regardless from controversy This is the Judge's consideration in decision the has in accordance with rule applicable laws and pay attention aspect recovery state losses . Implementation primum remedium principle in Decision Number 46/ Pid.Sus.TPK /2024/PN Mks has make an effort fulfil third objective law that is justice , certainty law , and benefits . However , in the verdict , the Panel of Judges more emphasize aspect certainty law compared to aspect justice and utility . This is seen from the fall criminal 1 year in prison and a fine of Rp. 50,000,000,- which shows firmness in implementation sanctions , although from side justice and utility Still need optimized especially related effect deterrent and effort prevention act criminal corruption in the future. party need comply mechanism settlement disputes that exist in clause agreement Good settlement dispute through litigation or non- litigation so that the settlement dispute become fast , flexible and effective for the parties . The need for choose a mediator who has skills negotiation , understanding issue law or business related , and behave neutral and independent . So that the resolution dispute in progress fast flexible and effective .
Prosecutor's Office in the case This need review return implementation of the Circular of the Deputy Attorney General for Criminal Procedure Criminal Special Number B1113/F/Fd.1/05/2010 for case corruption with small state losses , with consider efficiency cost Handling matters and effectiveness recovery state losses . The Panel of Judges in to drop decision act criminal corruption should consider balance between third aspect objective law ( justice , certainty) law , and benefits ) in order to be able to give effect optimal deterrent .