INTRODUCTION
The
difficulties experienced by the Public Prosecutor in the evidentiary stage in
cases of gratification and bribery for criminal acts of corruption have
hampered optimal law enforcement efforts, related to the desire to realize a
fast, cheap and simple trial, as required by Law no. 4 of 2004 in conjunction
with Law no. 48 of 2009 concerning Judicial Power (Ali, 2016). The Public
Prosecutor as a single prosecution by the Criminal Procedure Code is assigned
to prove that the defendant is guilty or not, has committed a crime in
accordance with the actions he is accused of based on the evidence presented
before the trial. This is in view of Article 66 of the Criminal Procedure Code
which confirms that the suspect or defendant is not burdened with the
obligation of proof, referring to the principle of presumption of innocence
(principle of presumption of innocence). Exceptional waiver by the law related
to the principle of presumption of innocence regarding the burden of proof in
the Criminal Procedure Code has been enacted since Law no. 3 of 1971 concerning
the Eradication of Corruption Crimes and Law no. 31 of 1999 as amended by Law
no. 20 of 2001 concerning the Eradication of Corruption Crimes. Regarding
corruption cases, the burden of proof has undergone a paradigm shift, because
it is specifically borne by the defendant.
The method of
reversing the burden of proof as regulated in Article 37 of Law no. 20 of 2001
concerning Amendments to Law no. 31 of 1999 concerning the Eradication of
Corruption Crimes, in principle, provides an opportunity for the defendant to
prove that he is not corrupt (Rahim & Mokobombang, 2020). This means
that the Defendant must be presumed guilty before he can prove otherwise. The
method of reversing the burden of proof as stated in the provisions of Law No.
20 of 2001 can be described as known for the mistakes of people who are
strongly suspected of committing a criminal act of corruption as stipulated in
Article 12 B and Article 37 of Law no. 20 of 2001 (Samosir, 2017). Then the
results of criminal acts of corruption are regulated in the provisions of
Article 37 A and Article 38 B paragraph (2) of Law no. 20 of 2001.
There is a
crucial dilemma in the Indonesian legislation regarding the Method of Reversing
the Cost of Proofing. In the provisions of Article 12 B and Article 37, Article
38 B of Law no. 31 of 1999 in conjunction with Law no. 20 of 2001 regulates the
Method of Reversing the Burden of Proof. Although in this provision there are
rules regarding the method of reversing the burden of proof in criminal acts of
corruption, there is an ambiguity in the formulation of norms in Article 12 B
of Law 31/1999 in conjunction with Law 20/2002. The method of reversing the
burden of proof at the level of legislation policy already exists in
legislation, but in its application policy it is still difficult to implement
optimally (Rahmad, 2019).
The aims of
this study are (1) What are the
legal rules related to reverse evidence in handling the disclosure of
corruption? and (2) What are the obstacles
faced in applying reverse evidence in bribery cases for corruption?
METHOD
Normative
research in the form of literature studies of laws and regulations, research
journals, literature related to corruption, the procedural law of corruption,
and the results of research on bribery in corruption, which have been carried
out previously (Nurhayati et al., 2021).
RESULTS AND DISCUSSION
A. Rules of Law Related to Reversed Evidence in
Handling Disclosure of Criminal Acts of Corruption
The definition of
corruption can be viewed from various aspects, depending on the discipline
used, there are 4 (four) types, namely 1) discretionary corruption, 2) illegal
corruption, 3) mercenary corruption, and 4) ideological
corruption (Suyatno, 2005).
According to Prodjohamidjojo, (2000), the definition or formulation of corruption has
developed, which can be classified into 5 (five) formulations, namely 1) the
formulation of corruption from the perspective of market theory; 2) the
formulation of corruption that focuses on government positions; 3) the
formulation of corruption with an emphasis on the public interest; 4) the
formulation of corruption from a political point of view; and 5) the
formulation of corruption from a sociological point of view.
In addition to the various
definitions of corruption put forward by the experts above, laws and
regulations also define corruption. In Article 1 Point 3 of Law no. 28 of 1999
concerning the Implementation of a State that is Clean and Free from Collusion,
Corruption, and Nepotism, it is stated that what is meant by: "Corruption
is a criminal act as referred to in the provisions of the laws and regulations
governing corruption" (Soekanto, 2014). Currently, the
regulations governing corruption are Law no. 20 of 2001 concerning Amendments
to Law no. 31 of 1999 concerning the Eradication of Corruption Crimes (UU
PTPK). The definition of corruption is not explicitly stated in the
legislation. However, Law no. 20 of 2001 only partially amended the provisions
in Law no. 31 of 1999. The definition of corruption can be interpreted through
the provisions contained in Article 2 of the old regulation, which stated that
“Anyone who unlawfully commits an act of enriching himself or another person or
a corporation that can harm state finances or the state economy, shall be
punished ." It can be considered as corruption if it fulfills all of the
following elements: a) Acts committed to enrich oneself, other people, or
corporations that are against the law; b) Such actions may cause losses to the
state finances of the state economy; c) Therefore, the act is subject to a
penalty.
The existence of evidence,
in criminal cases, is always important and crucial. This is because the
evidence provides a strong basis and argument for the public prosecutor to file
a claim. Evidence is seen as impartial, objective, and provides information to
judges to draw conclusions on a case that is being tried. In criminal cases,
this evidence becomes very essential and important because what is sought in
criminal cases is material truth (Hiariej, 2013).
Evidence in criminal cases
is different from evidence in other cases. Proof of criminal cases has started
from the preliminary stage, namely investigation and investigation. At the
preliminary stage, the procedure is much more complicated when compared to
other procedural laws. The settlement of criminal cases includes several
stages, namely the stage of investigation and investigation at the police
level, the stage of prosecution at the prosecutor's office, the stage of
examining cases at the first level in the district court, the stage of legal
action in the high court and the Supreme Court (MA), then the execution stage
by the prosecutor's executor. Thus, evidence in criminal cases involves several
law enforcement institutions, namely the police, prosecutors, and courts.
In the criminal case stage,
it is very possible for forced efforts to be carried out by law enforcement
officers and these forced efforts are related to evidence. Based on Article 1
point 14 of the Criminal Procedure Code, a suspect is a person who because of
his actions or circumstances, based on preliminary evidence, should be
suspected as a criminal act. The basis for the initial evidence is Article 17
of the Criminal Procedure Code. Article 17 of the Criminal Procedure Code only
states that what is meant by sufficient initial evidence is preliminary
evidence to suspect a criminal act in accordance with the provisions of Article
1 Point 14 (Hiariej, 2013).
Theoretically, the
principle of Criminal Procedure Law recognizes 3 (three) theories about the
evidence system, as follows. First, the Proof System according to the
law Positively (Positief Wettelijke Bewijs Theorie) with the benchmark
of proof the proof system depends on the existence of evidence which is
limitedly stated in the law. In short, the law has determined which pieces of
evidence can be used by the judge, how and how the judge must decide whether or
not the case being tried is proven.
In another sense, this
evidentiary system is referred to as a free evidentiary system followed by the
defendant (Alfitra, 2014). The theory of
free evidence as reflected and implied in the general explanation, and
manifests in matters as stated in Article 37 of Law no. 31 of 1999 concerning
the Eradication of Corruption Crimes, as follows.
1)
The defendant
has the right to prove that he has not committed a criminal act of corruption
2)
In the event
that the defendant can prove that he has not committed a criminal act of
corruption, then the information is used as an advantage for him.
3)
The defendant
is obliged to provide information regarding all his assets and the assets of
his wife or husband, children, and the property of any person or cooperative
suspected of having a relationship with the case in question
4)
In this case
the defendant cannot prove that the wealth is not balanced with his income. or
a source of additional wealth, then the information can be used to strengthen
the existing evidence that the defendant has committed a criminal act of
corruption.
5)
In the
circumstances as referred to in paragraph (1), paragraph (2), paragraph (3),
paragraph (4), the public prosecutor is still obliged to prove his indictment
only by not being bound by a rule.
Third, the
evidence system according to the law is negative (Negatief Bewijs Theorie). The
theory of proof according to the law in a negative way means that the proof is
carried out by the prosecution. In this case, the judge may only impose a
sentence on the defendant if the evidence is limited by law and supported by
the judge's belief in the existence of the relevant evidence. The theory of
negative evidence according to the law is reflected in Article 183 of the
Criminal Procedure Code, which reads as follows.
A judge may not
impose a sentence on a person unless, with at least two valid pieces of
evidence, he is convinced that a crime has actually occurred and that it is the
defendant who is guilty of committing it.
Therefore, the
requirements for imposing a criminal offense in the Criminal Procedure Code
system are very heavy, which must meet the following criteria (Alfitra, 2014).
a)
Minimum 2 (two)
pieces of valid evidence, according to law
b)
Judge's
conviction.
c)
There is a
crime that actually happened.
d)
The defendant
is the person who committed the act.
e)
There is an
error on the part of the defendant.
f)
What kind of
punishment will be imposed by the judge against the defendant.
Based on the
description above, it becomes clear the provisions regarding theories and
principles of evidence in general, which apply in Indonesia, including those
applied in the corruption case. Therefore, in the next section it is important
to describe in detail and explore the Method of Reversing the Burden of Evidence
in the eradication of Corruption.
Indonesia's
positive legal provisions regarding corruption are regulated in Law no. 31 of
1999 in conjunction with Law no. 20 of 2001. In this Law, the provisions
regarding the Method of Reversing the Burden of Evidence in corruption cases
are contained in Article 12B paragraph (1) letters a and b, Article 37, Article
37A and Article 38B. If you look closely, the Law on corruption crimes
classifies evidence into 3 (three) systems.
First, the reversal
of the burden of proof is borne by the defendant to prove that he has not
committed a criminal act of corruption. This reversal of the burden of proof
applies to the crime of bribery of receiving gratuities in the amount of Rp.
10,000,000.00 (ten million rupiah) or more (Article 12B paragraph (1) letter a)
and to property that has not been charged with a corruption crime. (Article
38B).
Following the
polarization of the thinking of legislators as a legislative policy, there are
some strict restrictions on the application of the Burden of Proof Reversal
Method associated with reasonable gifts for officials. The aspect-oriented
limitation is only applied to gifts (gratifications) in bribery
offenses, the gift is in the amount of Rp. 10,000,000.00 or more, related to
their position (in zijn bediening) and those who do work that is
contrary to their obligations (in strijd metzijn plicht) and must report
to the Corruption Eradication Commission.
Second, the method of
reversing the burden of proof which is semi-inverted or limited and balanced in
which the burden of proof is placed on both the defendant and the public
prosecutor in a balanced way against different objects of proof (Article 37A). In
the explanation of Law no. 20 of 2001 it is stated:
In addition,
this Law also applies limited or balanced reverse evidence, namely that the
defendant has the right to prove that he has not committed a criminal act of
corruption and is obliged to provide information about all of his property and
the property of his wife or husband. , children, and the property of any person
or corporation suspected of having a relationship with the case in question,
and the public prosecutor is still obliged to prove his indictment.
Third, the
conventional system in which the proving of a criminal act of corruption and
the guilt of the accused committing a criminal act of corruption is fully
charged to the public prosecutor. This aspect is carried out for the crime of
bribery to receive gratuities with a value of less than Rp. 10,000,000.00 (ten
million rupiah) (Article 12B paragraph (1) letter b) and the main crime of
corruption.
The Indonesian
criminal law system, especially the Method of Reversing the Burden of Proof in
corruption, normatively recognizes the method or principle of reversing the
burden of proof aimed at people's faults (Article 12B paragraph (1), Article 37
of Law No. 31 of 1999 in conjunction with Law No. 20 of 1999). 2001) and
ownership of the defendant's property (Article 37A, Article 38B of Law No. 31
of 1999 in conjunction with Law No. 20 of 2001). Chronologically, the reverse
evidence begins with the evidentiary system known from Anglo-Saxon countries,
which is limited to “certain cases” , especially for criminal acts of “gratification”
or giving that correlates with “bribery” (bribery), for example in the
United Kingdom of Great Britain. , the Republic of Singapore and Malaysia. In
the United Kingdom of Great Britain on the basis of the "Prevention of
Corruption Act 1916" there is a regulation called "Presumption of
corruption in certain cases"
Based on the issuance of Law No. 20 of 2001, the
Burden of Proof Reversal Method is also known in the Continental European legal
family such as Indonesia. Explicitly the provisions of Article 12B of Law no. 2
of 2001 in full reads as follows:
(1) Every
gratuity to a civil servant or state administrator is considered a bribe if it
is related to his position and is contrary to his obligations or duties, with
the following provisions:
a. The value of which is Rp. 10,000,000.00 (ten
million rupiah) or more, proof that the gratification is not a bribe is carried
out by the recipient of the gratification;
b. The value of which is less than Rp.
10,000,000.00 (ten million rupiah), proof that the gratification is a bribe is
carried out by the public prosecutor.
(2) The
punishment for being a civil servant or state administrator as referred to in
paragraph (1) is life imprisonment or a minimum imprisonment of 4 (four) years
and a maximum of 20 (twenty) years, and a minimum fine of Rp. 200,000,000.00
(two hundred million rupiah) and a maximum of Rp.1,000,000,000.00 (one billion
rupiah).
B. Obstacles encountered in applying reversed evidence
in bribery cases of corruption
The existence
of the Burden of Proof Reversal Method from the perspective of legislation
policy is known in corruption as a provision that is "premium
remidium" and at the same time contains special prevention. Corruption
is an extraordinary that requires extraordinary enforcement and extraordinary
measures , so a crucial aspect in corruption cases is the effort to fulfill
the burden of proof in the process carried out by law enforcement officials.
This dimension is recognized by Oliver Stolpe that: “One of the most
difficult issues facing prosecutors in large-scale corruption cases is meeting
the basic burden of proof when prosecuting offenders and seeking to recover
proceeds.”
There is a
stipulation of the method of reversing the burden of proof , shifting the
burden of proof from the public prosecutor to the defendant. Even so, the
Method of Reversing the Burden of Proof is prohibited for mistakes/deeds of
people and overall corruption offenses but is normatively allowed for the
gratification of bribery offenses and the confiscation of property prices of
people who commit corruption crimes. This is a distinct weakness of the PTPK
Law. In practice this has been applied by the Hong Kong High Court (Court of
Appeal of Hong Kong) based on the provisions of Article 11 paragraph (1) Hong
Kong Bill of Rights Ordinance 1991.
The burden of
proof for such a major decision is enormous, and it falls on those who advocate
for such programs. If certain paths are prohibited a priori, they must be fully
justified and the alternatives shown (Heard, et al., 2017). According to Andi
Hamzah, seeking material truth is not easy, and in assessing the strength of
evidence There are several evidence systems or theories of proof, there are at
least 4 (four) systems or theories of proof:
a.
The Positive
Wettelijk Bewijstheorie (Positive Wettelijk Bewijstheorie) system or theory of
evidence is evidence that is based solely on the evidence which is called the law
positively, is said to be positive because it is only based on the law
alone.
b.
System or
Theory of Evidence Based solely on the judge's conviction, this theory is also
called conviction intime. This theory is based on evidence based on the
conviction of the judge's conscience, this system gives judges too much
freedom.
c.
System or
Theory of Evidence Based on the judge's belief on logical grounds (Laconviction
Raisonnee) according to this theory, the judge can decide someone is guilty
based on his belief, a belief based on the evidence bases accompanied by
conclusions based on certain evidentiary rules. so the judge's decision was
handed down with a motivation.
d.
System or
Theory of Evidence Based on the negative law (Negatief Wettelijk) in this
system or theory of evidence, sentencing is based on multiple evidence, namely
on the legislation and on the judge's conviction.
In proving
criminal cases in general and specifically for corruption offenses, the
Criminal Procedure Code is applied, while in the examination of Corruption
Offenses, apart from the Criminal Procedure Code, part of the Criminal
Procedure Code is applied, namely Chapter IV consisting of articles 25 to 40 of
Law No. 31 of 1999.
In the
explanation of the law Law Number 31 of 1999 states that the meaning of
"reverse evidence that is limited and balanced" means that the
defendant has the right to prove that he has not committed a criminal act of
corruption and is obliged to provide information about all his assets and the
assets of his wife or husband, children, and property every year. a person or
corporation suspected of having a relationship with the case in question and
the public prosecutor is still obliged to prove his indictment.
The Reverse
Evidence System in Proving Gratification Cases is suspected to have something
to do with corruption (Article 38 B). In this case, the author places more
emphasis on passive gratification, namely accepting bribes. Based on Article 12
B paragraph (1), the definition of bribery corruption receiving gratification
is: "Civil servants or state administrators who accept bribes related to
their positions and which are contrary to their obligations and duties."
Meanwhile, the definition of gratification in the explanation of that article,
is a gift in a broad sense which includes the provision of money, goods,
rebates (discounts), commissions, interest-free loans, travel tickets, and
other facilities.
With the
issuance of Law no. 20 of 2001, the Burden of Proof Reversal Method is also
known in the Continental European legal family such as Indonesia. Explicitly
the provisions of Article 12B of Law no. 2 of 2001 in full reads as follows:
(1)
Every gratuity
to a civil servant or state administrator is considered a bribe if it is
related to his position and is contrary to his obligations or duties, with the
following provisions:
a.
The value of
which is Rp. 10,000,000.00 (ten million rupiah) or more, proof that the
gratification is not a bribe is carried out by the recipient of the
gratification;
b.
The value of
which is less than Rp. 10,000,000.00 (ten million rupiah), proof that the
gratification is a bribe is carried out by the public prosecutor.
(2)
The punishment
for being a civil servant or state administrator as referred to in paragraph
(1) is life imprisonment or a minimum imprisonment of 4 (four) years and a
maximum of 20 (twenty) years, and a minimum fine of Rp. 200,000,000.00 (two
hundred million rupiah) and a maximum of Rp.1,000,000,000.00 (one billion
rupiah).
The balanced
limited inverted proof system is still a pro and contra in society and legal
experts, the limited reverse proof system is felt by many parties to violate
human rights and the principle of the presumption of innocence, because in this
proof system indirectly In reverse proof, the judge departs from the presumption
that the defendant has guilty of committing a violation of the law so that the
defendant then has to prove that he is not guilty, and if he cannot prove it,
then he is declared guilty without the need for further proof from the public
prosecutor.
In the evidence
system as above, it appears that the rights of a defendant are not guaranteed,
even violated. Whereas in Article 183 of the Criminal Procedure Code, a judge
may not pass a criminal verdict on a person unless with at least two valid
pieces of evidence he obtains the belief that a criminal act has actually
occurred and that the defendant is guilty of committing it.
In reverse
evidence, this provision is openly deviated because the judge may pass a
criminal verdict without any evidence, that is, if the defendant cannot prove
that he is innocent. So here only the judge's conviction is sufficient to
declare the defendant's guilt, without the need for evidence. Even though the
application of the reverse proof system is contrary to the principle of presumption
of innocence as regulated in the Criminal Procedure Code, some parties still
argue that the lex specialis derogate lex geneali principle applies so that
this is one of the means that can be taken to eradicate corruption that has
taken root in Indonesia and is expected to bring happiness or benefit to many
people because it can reduce corruption that has harmed the country so much.
CONCLUSION
The reverse system, on the one
hand, makes it easier to prove if someone is accused of bribery or receiving
gratuities. Facilitating means being more in favor of and in favor of the
Prosecutor. On the other hand, the reverse system can be very beneficial for
the defendant and detrimental to the prosecutor. This can happen because in the
reverse system the prosecutor is passive in proving. The reverse system must be
used in major cases with the following conditions: (1) civil servants or state
officials are suspected of having received bribes, especially from many
parties, for a long time and many times, (2) acceptance of such bribes is
difficult to prove, for example when when receiving a bribe, from whom the
bribe is and how much of each, (3) which causes or makes his wealth abundant,
(4) which is not balanced with salary or other legal sources of income.
Law Number 20
of 2001 concerning Corruption distinguishes the reversal of the burden of proof
into 2 (two) matters. First, on assets that are directly related to the case
being charged. Article 37A emphasizes that the defendant is obliged to provide
information about all of his property which is suspected to have a connection
with the case being charged. If you cannot prove that your wealth is not
balanced with your income, it strengthens the existing evidence that the
defendant has committed corruption. Second, for assets that have not been
indicted, but are suspected of being the result of corruption. Article 38B
states, for other assets that have not been charged with, but are also
suspected of originating from corruption, the defendant must also prove that the
assets are not the result of corruption. If they cannot prove it, the property
is considered the result of corruption and the judge has the authority to
decide that all or part of the property is confiscated for the state. It is
clear that the two laws above have allowed law enforcement to use reversal of
the burden of proof. This evidence system can be used in court. Thus,
prosecutors and judges have a central role in the application of reversing the
burden of proof.
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