POLICY RECONSTRUCTION TOWARDS JUSTICE COLLABORATOR DETERMINATION OF CORRUPTION CASES BASED ON LEGAL CERTAINTY AND BENEFITS ASPECTS
Setiyono*, Eriyantouw Wahid, I Komang Suka’arsana
Faculty of Law, Universitas
Trisakti, Jakarta, Indonesia
Email:
[email protected]*, [email protected],
[email protected]
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Article
Information |
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ABSTRACT |
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Received:
December 15, 2022 Revised:
December 28, 2022 Approved:
January 17, 2023 Online:
January 30, 2023 |
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One of the problems that
sometimes arises in the law enforcement process in the eradication of
corruption crimes is the problem related to determining the status as a
witness for cooperating perpetrators or justice collaborators in solving a
corruption case. The existence of several problems stemming from the
inequality of understanding or not having unification of policies in
determining the status of the perpetrator as a cooperating perpetrator witness
or justice collaborator along with the benefits arising from the
determination of the cooperating perpetrator witness or justice collaborator
certainly creates legal uncertainty and also does not provide benefits or
utility for the party who is determined as a cooperating perpetrator witness
or justice collaborator. The
reconstruction of the policy of establishing appropriate legal norms aims to
regulate the recognition or recognition and understanding or perception of
the same legally regarding the determination of the status of cooperating
perpetrator witnesses or justice collaborators that apply from the
examination stage at the investigation level to the examination stage at the
court level even up to the implementation of its execution in order to create
the principle of legal certainty for the Defendant who is designated as cooperating perpetrator witnesses or
justice collaborators. ·
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Keywords |
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Reconstruction; Justice Collaborator; Principle of Legal Certainty; Principle
of Benefit |
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INTRODUCTION
Idealistically,
the process of law enforcement in eradicating criminal acts of corruption is of
course not carried out by selective logging or discrimination because basically
law enforcement is carried out without any exceptions for any party. The
principle of equality before the law or equality before the law is a guideline
that must be obeyed by all law enforcement officials and law enforcement
agencies so that guarantees of law enforcement and legal certainty can be
implemented without discrimination (Saputra, 2015).
Other
problems that also often arise in the process of law enforcement in eradicating
criminal acts of corruption are problems related to the determination of status
as witnesses for collaborating actors or justice collaborators in the
settlement of a corruption case (Ariyanti & Ariyani, 2020).
Based on real experience during which the author provided legal assistance and
assisted the parties involved as perpetrators and was subsequently determined
as witness to the perpetrators who collaborated or justice collaborators in a
corruption crime case. Sutanti (2013)
stating normatively, what is meant by witnesses of actors who cooperate or
justice collaborators are suspects, defendants, or convicts who work together
with law enforcement to uncover a criminal act in the same case (Margono, 2017).
In his position as a witness, the perpetrator who cooperates or justice
collaborator, in a normative juridical way, obtains several privileges or
privileges, namely as follows (Achmad & Taun, 2022):
1. Witnesses
cooperating or justice collaborators cannot be legally prosecuted, either
criminally or civilly for the testimony and/or report that will be, is being,
or has been given, unless the testimony or report is not given in good faith (Ramadan, 2022).
2. In
the event that there is a lawsuit against a witness who cooperates or a justice
collaborator for the testimony and/or report that will be, is being, or has
been given, the lawsuit must be postponed until the case is reported by the
witness for the actor who cooperates or the justice collaborator or the witness
for the actor who cooperates. or justice collaborator testifying that the court
has decided and obtained permanent legal force (Tambajong, 2021).
3. Witnesses
who work together or justice collaborators can be given special treatment in
the examination process and awards or appreciation for the testimony that has
been given (Timbunan, 2018).
4. Special
handling of witness perpetrators who cooperate or justice collaborators as
referred to can be in the form of the following matters:
a. Separation
of places of detention or places of serving a crime between the Witnesses and
suspects, defendants and/or convicts whose crimes have been disclosed;
b. Separation
of filings between the dossiers of the perpetrator witnesses and the dossiers
of suspects and defendants in the process of investigation and prosecution of
the criminal acts they disclosed; and/or
c. Give
testimony in front of the court without dealing directly with the defendant
whose crime was revealed.
5. Appreciation
for the testimony given by the perpetrator witness who cooperates or the justice
collaborator as referred to can be in the form of the following:
a. Remission
of criminal imposition; or
b. Conditional
release, additional remissions, and other convict rights in accordance with
statutory provisions for witness actors who work together or justice
collaborators with convict status.
However,
the privilege or previllege as described in the provisions of Article 10
Paragraph (1) and Paragraph (2) as well as the provisions of Article 10 A
Paragraph (1), Paragraph (2) and Paragraph (3) of Law Number 31 of 2014
concerning Amendments to Law Number 13 of 2006 concerning The Protection of
Witnesses and Victims cannot be applied to some perpetrators of corruption
crimes who have been defended and provided assistance by the author. In the
reality experienced by parties who have been accompanied by their defense by
the author, the granting of status as a cooperating perpetrator witness or
justice collaborator does not provide legal certainty nor does it provide
benefits or utility to these parties. Even in one of the corruption crime cases
related to the alleged corruption crime committed by Tubagus Chaeri Wardana
alias Wawan, there is a party named Dadang Prijatna who has been designated as
a witness for cooperating perpetrators or justice collaborators by the
Corruption Eradication Commission of the Republic of Indonesia is still charged
as a suspect and defendant status in corruption criminal cases that are
examined and prosecuted by the Banten
High Prosecutor's Office and the Tigaraksa District Attorney's Office.
Another
problem also arises in the case of which there is one party who has been
designated as a cooperating perpetrator witness or justice collaborator based
on the Decree of the Chairman of the Corruption Eradication Commission of the
Republic of Indonesia but in the trial at the Corruption Crimes Court at the
Semarang District Court, it turns out that the Panel of Judges has other legal
considerations that do not agree to determine the Defendant as a cooperating
perpetrator witness or justice
collaborator. This has happened in the Corruption Court at the Semarang
District Court which examined and tried defendant Cahyo Supriadi in a
corruption case about giving something to a civil servant or state organizer
(in this case to Tegal Mayor Siti Masitha Soeparno through a confidant of the
Mayor of Tegal, namely Amir Mirza Hutagalung) because of or related to
something contrary to obligations,
carried out or not carried out in his position as stipulated in the
provisions of Article 5 Paragraph (1) letter b of Law Number 31 of 1991
concerning the Eradication of Corruption Crimes as amended by Law Number 20 of
2001 concerning Amendments to Law Number 31 of 1991 concerning the Eradication
of Corruption Crimes
The
existence of several problems stemming from the lack of understanding or the
absence of unification of policies in determining the status of perpetrators as
witnesses to collaborating actors or justice collaborators along with the
benefits arising from the determination of witnesses to actors working together
or justice collaborators, of course, creates legal uncertainty and also does
not provide benefit or utility for the party designated as a witness to the
cooperating actor or justice collaborator (Semendawai, 2016).
It
is fitting that the problem as described above is related to the determination
of the perpetrator witnesses who cooperate or justice collaborators do not
arise if the legal politics of enforcing corruption crimes between law
enforcement officials or law enforcement agencies is carried out based on
formal criminal law principles such as the principle of mutual respect.
coordination as part of an integrated or integrated criminal justice system.
The key word of an integrated or integrated criminal justice system is the
existence of integration or integration in the form of policy construction and
construction of policy implementation owned by each law enforcement apparatus
or law enforcement agency (Pratama, Muhammad, & Tando, 2022).
Such integration or integration is the main factor for eliminating or at least
minimizing the egotism of policies and main tasks as well as the functions or
duties of every law enforcement apparatus and law enforcement agency. Based on
the principle of formal criminal law, the existence of egoism in policies and
main tasks as well as the functions or duties of each law enforcement apparatus
and law enforcement agencies is part of the principle of functional
differentiation.
If
it is correlated with the emergence of differences or inequalities in the
construction of policies and the implementation of policies to determine a
suspect or defendant as a witness for a cooperating actor or justice
collaborator starting from the level of examination in investigations to
examinations in court, this is one example of the domination of institutional
egoism. Therefore, it is necessary to carry out a reconstruction related to the
unification of policies governing the determination of witness actors who
cooperate or justice collaborators, including the reconstruction of the
unification of the implementation of policies regarding the determination of
witness actors who cooperate or justice collaborators so as to provide legal
certainty and equal benefits to all parties who are determined as witnesses to
the perpetrators who work together or justice collaborators. Thus, the study aims to examine (1) what
are the current regulations regarding the policy of establishing a Justice
Collaborators in corruption cases? (2) what
is the implementation of the policy of determining Justice Collaborators in
corruption cases?
METHODS
The
research method used in this study is a type of normative legal research using
secondary data obtained by conducting a document study. As for the secondary
data that will be used in the form of laws and regulations, studies, papers,
documents and other literature books related to the material regarding Policy
Reconstruction Against the Determination of Justice Collaborators in Criminal
Cases Corruption Viewed From The Principle Of Legal Certainty And The Aspect Of
Benefits. The entire secondary data can be reclassified based on its type into
primary legal materials, secondary legal materials and tertiary legal materials
(Soekanto & Mamudji, 2001).
RESULTS
A. GL
Compilation of arrangements
regarding witness perpetrators who cooperate or justice collaborators are as follows:
1.
Law Number
31 of 1999 concerning the Eradication of Corruption Crimes as amended by Law
Number 20 of 2001 concerning Amendments to Law Number 31 of 1999 concerning the
Eradication of Corruption Crimes. Researchers argue that in Law Number 31 of 1999
concerning the Eradication of Corruption Crimes as amended by Law Number 20 of
2001 concerning Amendments to Law Number 31 of 1999 concerning the Eradication
of Corruption Crimes does not mention the existence of terms and definitions
regarding witnesses of cooperating perpetrators or justice collaborators. On
the other hand, in Law Number 31 of 1999 concerning the Eradication of
Corruption Crimes as amended by Law Number 20 of 2001 concerning Amendments to
Law Number 31 of 1999 concerning the Eradication of Corruption Crimes, it only
regulates whistle blowers or whistle blowers which are part of the form of
community participation in the legal politics of eradicating corruption.
2. Government
Regulation Number 71 of 2000 concerning Procedures for Implementing Community
Participation and Giving Awards in the Prevention and Eradication of Corruption
Crimes as implementing regulations of Law Number 31 of 1999 concerning
Eradication of Corruption Crimes. This government regulation is a follow-up
regulation mandated by Law Number 31 of 1999 concerning the Eradication of
Corruption Crimes as amended by Law Number 20 of 2001 concerning Amendments to
Law Number 31 of 1999 concerning the Eradication of Corruption Crimes.
When looking at the substance
of Government Regulation Number 71 of 2000 concerning Procedures for
Implementing Community Participation and Awarding in the Prevention and
Eradication of Corruption Crimes as implementing regulations of Law Number 31
of 1999 concerning Eradication of Corruption Crimes, there is a first
regulation regarding public participation in assisting the disclosure of
criminal acts of corruption by providing information to law enforcement
agencies or commissions. In addition to providing information, the public can
also provide suggestions and opinions related to criminal acts of corruption (Dewi et al., 2017).
Furthermore, after law
enforcement agencies or commissions receive reports or information from the
public, clarification will be carried out first through the case mechanism by
law enforcement. Bang(2019)case
title is an activity of conveying an explanation regarding the investigation
and investigation process by the investigator to the participants of the case
title and then proceed with group discussions with the aim of providing
constructive and correctional responses or suggestions or opinions in order to
provide recommendations to determine follow-up in the investigation process and
investigation.
If after the verification
stage with the case title mechanism it is assessed that the information or
report regarding the existence of a criminal act of corruption submitted by the
public is sufficient to carry out a follow-up examination process starting from
the investigation stage, the investigation stage, the prosecution stage up to
the examination stage through trial in court, then The government has an
obligation to provide legal protection. The form of legal protection given to
people who have played an active role in uncovering criminal acts of corruption
is as follows:
1. Provision
of legal protection for the legal status of the public who have played an
active role in providing information or reporting on criminal acts of
corruption. If from the results of the investigation or investigation there is
sufficient evidence to corroborate the involvement of the complainant in the
reported corruption case, the reporter is not given legal status, in this case
he is not given the status of a suspect. In addition, this legal status can
also be applied to the reporter if the reporter himself is subject to
prosecution in other cases (Hikmawati, 2016).
2. Provision
of a sense of security in the form of not providing information regarding the
identity of people who become reporters or informants in corruption cases.
3. In
addition to obtaining legal protection, the Government is also required to
provide appreciation in the form of a charter or premium to the public who have
provided information or reported on the act of corruption. The existence of the
provision of legal protection and also the provision of appreciation in the
form of a charter or premium is a right obtained from the community as a party
that has played a role and actively participated in the disclosure of criminal
acts of corruption.
B. KKK
The design of the
reconstruction of the policy for the determination of witness collaborators in
cases of criminal acts of corruption by law enforcement institutions in
Indonesia is as follows:
1. Submit
a request to the legislature, namely the House of Representatives together with
the Government of the Republic of Indonesia in this case through the Ministry
of Law and Human Rights of the Republic of Indonesia to be able to add new norms
to the Draft Criminal Procedure Code that has not been ratified regarding model
arrangements Witness Agreement between law enforcement agencies and suspects or
defendants who will later be designated as witnesses to cooperating actors or
justice collaborators (Mulyadi, 2014).
The Witness Agreement model will certainly strengthen the principle of mutual
coordination in an integrated or integrated criminal justice system so that
there are no longer differences in regulatory policies governing
standardization in setting criteria and categories of witnesses for
collaborating actors or justice collaborators including the granting of
privileges or the privilege.
2. Carry
out intense and continuous coordination between law enforcement agencies,
especially in order to be able to form mutually agreed norms regarding criteria
or requirements that can be used to determine suspects or defendants as
witnesses for perpetrators who cooperate in corruption cases.
3. Carry
out intense and continuous coordination between law enforcement agencies with
the aim of being able to carry out unconditional acceptance of legal products
issued by one of the legal institutions related to the determination of the
legal status of suspects or defendants as witness witnesses who cooperate in
corruption cases. This means that if a suspect or defendant has been determined
as a witness to the perpetrator who cooperated in a corruption case by one of
the law enforcement agencies through a Decree from the Leader or Head of the
said law enforcement agency, other law enforcement agencies are obliged to
accept a Decision Letter stipulating the suspect. or the accused as a witness
to the perpetrators who collaborated by putting aside egoism and culture owned
by the institution.
4. Carry
out intense and continuous coordination between law enforcement agencies to
provide treatment that benefits and relieves suspects or defendants who have
been designated as witnesses to cooperating perpetrators. This means that if a
suspect or defendant has been determined as a witness to a cooperating actor
who is then suspected of being involved in other corruption cases that are
still the same and become an integral part of the main corruption case and
occur in a systematic and structured manner, then the The perpetrator witness
who cooperates may be able to not apply his new legal status as a suspect
and/or may not be prosecuted against him because he has been determined as a
witness for the perpetrator who collaborated. By being designated as a
cooperating witness, the suspect or defendant has also dedicated all of his
abilities to commit to helping law enforcement agencies or officials to
disclose comprehensively and clearly in corruption cases with all the
consequences and risks.
5. Carry
out intense and continuous coordination between law enforcement agencies
including penitentiary institutions to be able to provide continuous monitoring
and attention to convicts who were formerly suspects or defendants who have
been designated as witnesses to cooperating actors or justice collaborators in
corruption cases. This also includes providing conveniences for convicts who
were previously suspects or defendants who have been designated as witnesses to
cooperating actors or justice collaborators in corruption cases to arrange the
requirements that must be met in order to apply for remission or parole. This
is in accordance with the principle of expediency that is actually expected by
the witnesses who cooperate.
CONCLUSION
Law
Number 31 of 1999 concerning the Eradication of Corruption Crimes as amended by
Law Number 20 of 2001 concerning Amendments to Law Number 31 of 1999 concerning
the Eradication of Corruption Crimes. Law Number 31 of 1999 concerning the
Eradication of Corruption Crimes as amended by Law Number 20 of 2001 concerning
Amendments to Law Number 31 of 1999 concerning the Eradication of Corruption Crimes
does not mention the existence of terms and definitions regarding witnesses of
cooperating perpetrators or justice collaborators. On the other hand, in Law
Number 31 of 1999 concerning the Eradication of Corruption Crimes as amended by
Law Number 20 of 2001 concerning Amendments to Law Number 31 of 1999 concerning
the Eradication of Corruption Crimes, it only regulates whistle blowers or
whistle blowers which are part of the form of community participation in the
legal politics of eradicating corruption.
Government
Regulation Number 71 of 2000 concerning Procedures for the Implementation of
Community Participation and Awarding in the Prevention and Eradication of
Corruption Crimes as an implementing regulation of Law Number 31 of 1999
concerning the Eradication of Corruption Crimes. This government regulation is
a follow-up regulation mandated by Law Number 31 of 1999 concerning the
Eradication of Corruption Crimes as amended by Law Number 20 of 2001 concerning
Amendments to Law Number 31 of 1999 concerning the Eradication of Corruption
Crimes.
Reconstruction of policies in the determination of
perpetrator witnesses who cooperate or justice collaborators is something that
must be carried out by law enforcement agencies. Reconstruction of this policy
is in the form of reconstructing regulatory policies regarding witness actors
who cooperate or justice collaborators and also reconstructing policies for
implementing the determination of witness actors who cooperate or justice
collaborators in cases of criminal acts of corruption in Indonesia. The concept
of this reconstruction is actually aimed at providing certainty and also
benefits for witness actors who work together or justice collaborators in cases
of criminal acts of corruption.
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