APPLICATION OF THE PRINCIPLE OF REVERSAL OF THE BURDEN OF PROOF BY THE KPK IN CORRUPTION CASES

APPLICATION OF THE PRINCIPLE OF CHARGE REVERSAL

EVIDENCE BY THE KPK IN  

 CORRUPTION CASE.

PIG

PRELIMINARY

A.     Background

Legislative policy in Indonesia regarding the reversal of the burden of proof uses Law No. 31 of 1999 which was amended by Law No. 20 of 2001 as the main reference and is related to other laws and regulations related to criminal acts of corruption. Various forms of regulations on corruption have been made and enforced, namely starting from the Military Rulers' Regulation Number Prt/PM/06/1957 dated April 9, 1957, Number Prt/PM/03/1957 dated May 27, 1957 and Number Prt/PM/03/1957 dated July 1, 1957, Law No. 24 Prp. of 1960 concerning the investigation, prosecution and examination of Criminal Acts of Corruption, to Law No. 3 of 1971 concerning the Eradication of Criminal Acts of Corruption. The legislative policy of reversal of the burden of proof began to be found in Law No. 24 of 1960 concerning investigation. Prosecution and examination of Corruption Crimes. Article 5 paragraph (1) states:

"Every suspect is obliged to provide information about all his/her assets and the assets of his/her wife/husband and children and the assets of any legal entity that he/she manages if requested by the prosecutor."

  The substance of this article requires suspects to provide information about all their assets upon request from the prosecutor. Consequently, without a request from the prosecutor, suspects do not have the opportunity to provide information about all their assets.

Indonesian legal policy regarding the reversal of the burden of proof is regulated in Law No. 31 of 1999, in conjunction with Law No. 20 of 2001. The provisions of Article 37 read as follows:

(1) The accused has the right to prove that he did not commit a criminal act of corruption.

(2). If the defendant can prove that he did not commit the crime of corruption, the court will use this evidence as a basis for declaring that the charges are not proven.

That the problem of corruption in Indonesia is not only observed from the substantive perspective of the law, but is also related to the system, especially the criminal law system because corruption has damaged the system (destructor to the system).

The systems approach to eradicating corruption is an ambitious approach, particularly considering corruption as an institutional political issue, in addition to discussing the substantive approach to legal material. As a law enforcement institution in the new constitutional system, the Corruption Eradication Commission (KPK) possesses legal facilities and infrastructure with extraordinary authority. extraordinary power which other agencies do not have.

Therefore, it is natural for society to have excessive expectations in line with this extraordinary authority.  extraordinary power which the Corruption Eradication Committee has, it is hoped that all forms, methods and applications of corruption can be made part of the corruption eradication system.

The future challenges for the Corruption Eradication Commission (KPK) lie more in institutional issues, or institutional corruption. This institutional corruption is intertwined with and always linked to policy issues, both those exploited by state officials and those arising from a lack of understanding among law enforcement agencies regarding the meaning of abuse of authority in the areas of State Administrative Law and Criminal Law. Of course, institutional corruption should not be interpreted as an institutional justification for corrupt acts by its own officials.

Institutional corruption is the result of individual or group stigmatization of institutions and corrupt behavior resulting from deviations from legislative norms by state officials. This has given rise to the label "institutional corruption." Corruption has become widespread and widespread within the government, state institutions, and the private sector. In fact, corruption has become considered a part of life in this nation.1.

Indeed, the polemic of power and corruption has become a lasting pair in a bureaucracy, as we have heard recently. Currently, there is a new trend in the form of Crimes by Government in the extensive sense, a crime involving public officials as a characteristic of White Collar Crime which is very difficult to prove.  

Furthermore, the application of the principle of Reversal of the Burden of Proof (Reversal Burden of Proof or omkering van het Bewijslast) Generally applicable in Anglo-Saxon countries, if applied in Indonesia, this principle would be contrary to the applicable procedural law, and would be a deviation from the general principle of Criminal Law which states that whoever makes a claim must prove the truth of their claim. In the case of "Reversal of the Burden of Proof," the defendant must prove his innocence. If he cannot prove it, he is considered guilty.   

B.     Problem

Based on the description above, the problems to be discussed are:

Does the application of the principle of reversal of the burden of proof for corruption crimes carried out by the Corruption Eradication Committee not conflict with applicable procedural law?

C. Objectives and Benefits of Research

a. General Objectives:         

The general objective of this research is to find out and understand the practice of applying the principle of reversal of the burden of proof to criminal acts of corruption in Indonesia.

b. Specific Objectives:

1. For practitioners to increase their knowledge in the field of criminal law, especially in terms of tackling crimes in the field of corruption.

2. Of course, as a contribution of thought in the context of developing the criminal justice system in Indonesia in the future because it cannot escape the development of globalization.

D.      Theoretical Basis.

That in order to study legal problems in depth, a theory is needed in the form of a series of assumptions, concepts, definitions and propositions to explain a social phenomenon systematically by formulating the relationship between concepts.2. A theory is essentially a relationship between two or more facts or an arrangement of facts in certain ways. These facts are something that can be observed and whose truth can be tested. Therefore, in its simplest form, a theory is a relationship between two variables whose truth has been tested.3

Thus, based on what has been explained above, several theories, concepts, definitions, and principles are used as a basis, as follows: The law that exists and applies in every activity in society is basically written law. Of course, the law that was made in written form by Hans Kelsen in his theory which is known as Stufenbau Theory which essentially says that the law is structured in layers and levels from the highest to the lowest, the lower level law applies and is based on the higher level law, and likewise the higher level law originates from, applies and is based on the highest law.

In assessing the effectiveness of law in society, Max Weber, in his theory of action, stated that behavior is the result of a subjective decision by the actor. This theory was further developed by Talcott Parsons, who then viewed society as a totality consisting of two types of environments: ultimate reality and organic physicalSociety organizes itself to cope with these two environments, encompassing economic, political, and socio-cultural systems. The largest flow of information flows through the cultural subsystem, with a smaller flow to the socio-political subsystem, and finally to the economic subsystem.

In line with this theory of action, Soerjono Seokanto stated that there are four factors that cause a person to behave in a certain way: 4

1. Calculate the profit and loss,

2. Maintain good relations with fellow authorities,

3. In accordance with his conscience,

4. There are certain pressures

Then, regarding the effectiveness of the law, Eugen Ehrlich, who is known as Living law theory says that: new positive law will have effective force if it contains or is in harmony with the law that exists in society, that the central point of law lies in society itself and the law itself cannot be orderly, because order in society is based on social recognition of the law, not on official application by the state.5

CHAPTER II

DISCUSSION

A.  Authority of the Corruption Eradication Commission

The transition from President Soeharto's reign to the end of President Megawati Sukarnoputri's reign has not resulted in the elimination of corruption. In fact, the opinion is increasingly strong that with the transition of power, power corruption is also increasing. This further worsens the system for combating corruption. Indeed, we have produced several legal products to address the problem, such as Law No. 28 of 1999 concerning the Eradication of Corruption, Collusion, and Nepotism, Law No. 31 of 1999 concerning Amendments to Law No. 31 of 1971 concerning the Eradication of Criminal Acts of Corruption, and the most recent amendment through Law No. 21 of 2000. However, it turns out that none of these have produced satisfactory results for the public. Moreover, the public has doubts about the spirit of law enforcement (eradicating corruption) carried out by law enforcement agencies that have the authority, particularly the police and the prosecutor's office.6

Indirectly, the origin of the Corruption Eradication Commission came from the thoughts of Prof. Andi Hamzah and Romli Atamasasmita, then this idea was accepted by Baharudin Lopa when he was young, who wanted to implement a system of reversing the burden of proof for corruption crimes. With this system of reversing the burden of proof, every gratification (bribery) worth more than 10 million rupiah must be reported to the Corruption Eradication Commission as regulated in Law No. 20 of 2001 concerning amendments to Law No. 31 of 1999 concerning the Eradication of Corruption Crimes.

The Corruption Eradication Commission is the mandate of Article 12 B paragraph (1) letter a in conjunction with Article 12C paragraph (1) of Law No. 20 of 2001, where the Government together with the House of Representatives ratified Law No. 30 of 2002 concerning the Corruption Eradication Commission on December 27, 2003. Furthermore, based on Law No. 30 of 2002, the Corruption Eradication Commission is hereinafter referred to as the KPK. The principles adopted by the KPK are legal certainty, openness, accountability, public interest, and proportionality (Article 5). The meaning of Article 5 is:

1. Legal certainty is a principle in a state of law that prioritizes the basis of statutory regulations, compliance and justice in every policy in carrying out the duties and authorities of the Corruption Eradication Committee.

2. Transparency is a principle that opens itself to the public's right to obtain correct, honest and non-discriminatory information about the performance of the Corruption Eradication Committee (KPK) in carrying out its duties and functions.

3. Accountability is a principle that determines that every activity and final result of the KPK's activities must be accounted for to the community or the people as the holders of the highest sovereignty of the state in accordance with applicable laws and regulations.

4. Public interest is a principle that prioritizes public welfare in an aspirational, accommodative and selective manner.

5. Proportionality is a principle that prioritizes balance between the duties, authority, responsibilities and obligations of the Corruption Eradication Committee.7   

The principles in implementing the KPK's authority are expected to open the eyes of the public in an effort to at least minimize the act of corruption. The KPK as a state institution is an independent agency that in carrying out its duties and authorities is free from the influence of any power. As intended in the explanation of Article 3, what is meant by "any power" is the power that can influence the duties and authority of the KPK or individual members of the Commission from the executive, judiciary, legislative, and other parties related to corruption cases, or circumstances and situations or for any reason. This independent KPK is domiciled in the capital of the Republic of Indonesia and has representatives in every provincial region (Article 19).     

As stipulated in Article 12, in carrying out its duties of investigation, inquiry, prosecution, and Article 6 letter C, the Corruption Eradication Committee has the authority to:

         1. Conduct wiretapping and recording of conversations,

2. Order the relevant agencies to prohibit someone from traveling abroad,

3. Request information from banks or other financial institutions regarding the financial situation of the suspect or defendant being questioned,

4. Order banks or other financial institutions to block accounts suspected of being the result of corruption belonging to suspects, defendants or other related parties,

5. Order the suspect's leader or superior to temporarily suspend the suspect from his position,

6. Request wealth data and tax data of the suspect or defendant from the relevant agency,

7. Temporarily suspend a financial transaction, trade transaction, and other agreement or temporarily revoke permits, licenses, and concessions carried out or owned by a suspect or accused who is suspected, based on sufficient initial evidence, of being related to the criminal act of corruption being investigated.

8. Request assistance from Interpol Indonesia or other agencies or law enforcement agencies of other countries to conduct searches, arrests and confiscation of evidence abroad,

9. Request assistance from the police or other relevant agencies to carry out arrests, detentions, searches and confiscations in corruption cases currently being handled. 8

Apart from these authorities, the Corruption Eradication Committee also has obligations in accordance with Article 15 as follows:

1. Provide protection for witnesses or informants who submit reports or provide information regarding the occurrence of criminal acts of corruption,

2. Provide information to the public who need it or provide assistance to obtain other data related to the results of prosecution of corruption crimes that they are handling,

3. Prepare an annual report and submit it to the President of the Republic of Indonesia, the House of Representatives, and the Supreme Audit Agency,

4. Upholding the oath of office,

5. Carry out duties, responsibilities and authority based on the principles as referred to in Article 5.9  

The issue of authority and the transfer of authority will become an institutional polemic that deserves our attention. The issue of authority is a matter of institutional prestige because there will always be countermeasures against the reduction of power. Reduction of power can give rise to erroneous attitudes from the agency receiving the reduction. The agency may be deemed incapable of exercising the power granted, incompetent in exercising it, or even deemed to have never provided adequate accountability in accordance with public expectations. If this authority involves power, it is like " the elimination of power is a show of power”. The result is institutional arrogance as well as structural egoism which will disrupt the process. integrated criminal justice system comprehensively.   

A.     Corruption and Anticipatory Thinking Through Criminal Law.

The articulation of "system" has a broad and comprehensive meaning and can even be said to be a significant process. Corruption has become part of the existing system because of a maximum effort by law enforcement, especially the eradication of criminal acts of corruption must be carried out with a system approach itself, or known as “Systemic Approach”". This is especially true if the approach is implemented or linked to the crucial role of the judiciary as one of the law enforcement institutions in the final stages of corruption eradication. It is very difficult to determine the initial direction for anti-corruption preparations.10

Crimes that have been measured through structured crimes or systematic crimes, it is very difficult to determine the meaning of "eradication" or "elimination" for the act. Indeed, when we discuss corruption in the context of eradication and elimination, the term can be placed as an act that beyond the law because it is very difficult to prove the level of difficulty in proving it, the difficulty of proving it is caused by multiple factors, including the power and strength of the parties. eeconomic power where the influence of economic power (konglimert) and bureaucratic power as general power (bureaucratic officials) which can be said to have positioned them in a status beyond the law. As a result, law is often said to be merely a rhetoric of political power. Therefore, the premise and logic of society's law which states that discussing corruption is the same as discussing various complex diseases for which there is no medical cure, can be justified.

One way to prevent the spread of corruption is to maximize the role of "criminal justice" in its broadest sense in eradicating corruption. This means it is not limited to the institution of "the judiciary" as a subsystem of the whole.

B.     The Principle of Reversal of the Burden of Proof and Its Effectiveness.

The principle of reversal of the burden of proof is a system of proof that is outside the theoretical conventions of proof in universal criminal procedural law, both continental and Anglo-Saxon systems, which recognize proof while still placing the burden of proof on the public prosecutor. However, in certain cases, a differential mechanism is introduced, namely the System of Reversal of the Burden of Proof, also known as "R".eversal of Burden Proof”. This is not done in an over-all manner but has minimal limits so as not to cause any destruction to potential legal violations, especially to the principled rights of a victim, suspect/defendant, society, and the state in the broad sense.  

The idea of ​​implementing the principle or system of reversing the burden of proof in Indonesia has actually been circulating since the time of Abdurrahman Wahid's Precedent when he responded to the first Memorandum of the House of Representatives during his term of office. Considering the crime of corruption as a " Extraordinary crime” which is difficult to prove remains a polemic, so some academics and practitioners are of the opinion that handling should be carried out in such a way and be extraordinary. Therefore, the crime of corruption, apart from being a polemic, is Extraordinary crime and seriousness of crime “ also requires extraordinary handling(Extraordinary enforcement)).

In this case, through a comprehensive shift to the existing evidentiary system. The evidentiary system in formal criminal law still places the Public Prosecutor as the party obliged to prove an act categorized as a criminal act, so in criminal acts of corruption the burden of proof is placed on the defendant. In Law No. 20 of 2001 Article 37, paragraph (1) states:

"The accused has the right to prove that he did not commit a criminal act of corruption."

Furthermore, by appointing a suspect/defendant to prove whether or not there has been a criminal act of corruption, it will of course be easier to prove that there has been a violation or crime committed, thus the application of the principle of Reversal of the Burden of Proof will be more effective when compared to the proof carried out by the Public Prosecutor specifically for corruption cases.  

CHAPTER III

CLOSING

A. Conclusion.

The Corruption Eradication Commission (KPK), with all its strengths and weaknesses, has positioned its existence as a law enforcement agency within the limited context of corruption eradication. Disagreements among practitioners, academics, and judicial institutions, both pro and con, regarding the issue of the KPK's authority and the reversal of the burden of proof applied in our procedural law, should be considered part of a democracy that respects opinion. It would be wise for the KPK to understand the transparency of differences for the good of this institution, which requires differing perspectives.

This shift in the evidentiary standard from our procedural law is not inconsistent with the provisions of the Corruption Law, which clearly regulate this matter and specifically apply to bribery (gratification) cases within corruption crimes. With its involvement, the Corruption Eradication Commission (KPK) has demonstrated the maturity of its authority and its dedication to the Indonesian nation and state in combating corruption.

REFERENCES

 Burhan Ashofa, 2004, Legal Research Methods. Rineka Cipta, Jakarta, Indriyanto Seno Adji (II), 2001, Corruption and Criminal Law, First Edition, Prof. Oemar Seno Adji, SH & Partners, Jakarta,

Indriyanto Seno Adji, 2006, Corruption and the Reversal of the Burden of Proof, Law Office and Legal Consultant Indriyanto Seno Adji and Partners, Jakarta,

Explanation of Law No. 30 of 2002, Concerning the Corruption Eradication Commission, Article 5

Soerjono Soekonto (I). 2001, Sociology: An Introduction, PT. Raja Grafindo Persada, Jakarta,

………………(II), 1988, Fundamentals of Legal Sociology, PT. Raja Grafindo Persada, Jakarta, page 119

 ……………..(III), 1985, Effectiveness of Law and the Role of Sanctions, Remaja Karya, Bandung,