Article 39 paragraph (2) which reads “Objects that are under confiscation due to civil cases or due to bankruptcy can also be confiscated for the purposes of investigation, prosecution and trying criminal cases, as long as they meet the provisions of paragraph (1)”.

The law stipulates that criminal confiscation has a higher public interest than individual interests in civil cases. Therefore, the interests of the plaintiff as the applicant and holder of revendication confiscation, guarantee confiscation, general confiscation in bankruptcy must be set aside to protect the public interest, by confiscating the goods in a criminal case, if the goods in question meet the categories described in Article 39 paragraph (1) of the Criminal Procedure Code.

Then the question is, can the curator file a lawsuit for cancellation of the criminal confiscation? Confiscation by the curator is contained in Law of the Republic of Indonesia Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, while confiscation carried out by investigators is contained in the Criminal Procedure Code.

The curator can file a lawsuit for cancellation of the criminal confiscation to the Commercial Court to place a general confiscation on the bankruptcy assets that have previously been subject to criminal confiscation by the investigator. The Commercial Court in this case has absolute competence to examine, decide on bankruptcy matters and other matters related to bankruptcy.

The conflict between general bankruptcy confiscation and criminal confiscation is a form of other matters related to bankruptcy, because the conflict is fighting over the confiscation status of the same object, namely the assets of the debtor who has been declared bankrupt through a decision of the Commercial Court, so that the legal status of these assets becomes bankruptcy assets.

In addition, the curator's rights are born on the basis of a decision from the Commercial Court, so that everything done by the curator, whether in order to lift the criminal confiscation of the debtor's rights, must obtain approval from the Commercial Court, namely through a legal product in the form of a decision.

In addition, in the event that the bankrupt's assets are confiscated criminally to be used as evidence in court, the judge in deciding the status of the confiscated goods must genuinely determine the ownership status of the confiscated goods.

Thus, if the bankrupt's assets have been previously confiscated criminally but the crime is not proven, then they must be returned to the bankrupt's assets for the purpose of general confiscation. Conversely, if it can indeed be proven that the assets originated from or were used in criminal activity, then in the interest of the law, the assets are confiscated for the state or seized for destruction.

As in the Supreme Court Decision No. 156K/Pdt.Sus-Bankruptcy/2015, in its considerations, the Supreme Court opined regarding confiscation, with the following statement: "Because the confiscation carried out by the Cassation Respondent was based on a criminal investigation, the cancellation of the confiscation must be carried out through the provisions regulated in the Criminal Procedure Code".

The existence of overlap between bankruptcy law regarding general confiscation and confiscation by investigators results in legal consequences that are very detrimental to creditors if there are bankrupt assets confiscated by investigators.

To determine which confiscation should take precedence, it is necessary to consider the balance between the interests that must be protected, and provide legal certainty for the public, in this case, the creditors.

If criminal confiscation is applied first, then a violation of the rights of creditors occurs, who should receive repayment of the bankrupt's assets, which cannot be resolved immediately because they must wait for the completion of the criminal case. Meanwhile, if general confiscation is established first, then the curator can carry out their duties to begin liquidating the bankrupt's assets.

References

  • Law of the Republic of Indonesia Number 8 of 1981 Concerning the Criminal Procedure Code
  • Law Number 37 of 2004 Concerning Bankruptcy and Suspension of Debt Payment Obligations
  • Adhia, Yurist Rahmawati, et al., “The Responsibility of Curators in the Confiscation of Bankrupt Assets by the State (Prosecution) (Case of PT Aliga Internasional Pratama Number 156K/Pdt.Sus-Bankruptcy/2015), Diponegoro Law Journal, Volume 10, Number 1, 2021.