Legal Literacy - This article explores the urgency of in absentia trials in cases corruption involving DPO defendants in Indonesia, examining the legal implications and the need for recovery of state financial assets. Discover in-depth insights into the legal process and challenges in maximizing the recovery of state losses due to corruption.
Dynamics of Law Enforcement in Corruption Cases with DPO Defendants
Indonesia is currently being shaken by corruption cases with very large nominal values from throughout the history of corruption cases that have occurred in Indonesia. Corruption is closely related to state financial losses, which then become an urgency to be recovered through a proper law enforcement process. In the law enforcement process, corruption perpetrators will not always be cooperative and responsible for the crimes they have committed. On the contrary, there are corruption perpetrators who flee and are listed as wanted persons (DPO), and ultimately the law enforcement process cannot be carried out optimally. The existence of corruption perpetrators with DPO status then gives rise to the implementation of in absentia trials.
The legal basis for the implementation of in absentia trials needs to be explored to ensure the realization of legal certainty as the main objective of law, considering that Indonesia is a State of Law as stipulated in Article 1 Paragraph (3) of the 1945 Constitution of the Republic of Indonesia (UUD NRI 1945). One legal expert, namely Gustav Radburch, stated firmly that legal certainty is the main objective inherent in law, so the realization of legal certainty must be carefully considered.
In absentia trials in corruption cases are basically legally protected by the provisions of Article 38 Paragraph (1) of Law of the Republic of Indonesia Number 31 of 1999 jo. Law Number 20 of 2001 concerning the Eradication of Corruption, which reads that “In the event that the defendant has been legally summoned, and is not present at the court hearing without a legal reason, the case may be examined and decided without his/her presence”.
However, we know that the law does not specifically regulate the procedural law for in absentia examination of corruption cases. The procedural law used refers to the Criminal Procedure Code (KUHAP). In in absentia trial examinations, this is due to the Defendant not attending the trial because they have fled and left no trace at all, so their whereabouts are not clearly known and their status is a Fugitive (DPO). DPO itself is not a term that has been explicitly regulated in the KUHAP.
The term Daftar Pencarian Orang (DPO) [Fugitive List] is stated in Article 17 Paragraph (6) of the Indonesian National Police Regulation Number 6 of 2019 concerning the Management of Criminal Investigation, but what is stated is related to the definition of a Suspect with DPO status, not a Defendant DPO.
Article 196 Paragraph (1) of the KUHAP which reads “The court decides the case in the presence of the defendant unless otherwise determined” cannot immediately be used as a basis in the in absentia trial examination of corruption cases, because this Article can be interpreted that in absentia can only be carried out at the verdict agenda as there is the word “decides the case”, not “examines the case”, which indicates that the defendant should have been known at the previous examination trial agenda. Article 214 Paragraph (1) Criminal Procedure Code is very appropriate to be used as a basis in the in absentia trial examination in corruption cases, which reads that “If the defendant or their representative is not present at the trial, the examination of the case will be continued”.
The provisions of Article 214 Paragraph (2) of the KUHAP which reads that “In the event that the verdict is pronounced in the absence of the defendant, the verdict letter shall be immediately delivered to the convict” cannot be used as a basis in the in absentia trial examination in corruption cases where the defendant has DPO status. This is because this article shows that the Defendant's whereabouts are known or do not have DPO status, but they are just unable to attend the trial on the verdict agenda because there are things that make it impossible to attend, such as illness, and so on.
Article 12 Paragraph (1) of the Law of the Republic of Indonesia Number 48 of 2009 concerning Judicial Power reads that “The court examines, adjudicates, and decides criminal cases in the presence of the defendant, unless otherwise stipulated by law”. This provision is appropriate to be used as a basis in the in absentia trial examination in corruption cases, because there is Law of the Republic of Indonesia Number 31 of 1999 jo. Law Number 20 of 2001 concerning the Eradication of Corruption which has stipulated otherwise, namely the existence of in absentia trials in corruption cases.
The explanation in the Article reads that "The provision in this verse is intended to save state assets, so that even without the presence of the defendant, the case can be examined and decided by the Judge." Article 12 Paragraph (2) of Law of the Republic of Indonesia Number 48 of 2009 concerning Judicial Power which reads that "In the event that the defendant is not present, while the examination has been declared complete, the decision may be pronounced without the presence of the defendant" is also appropriate when used as a basis, where the Article is a series of in absentia trial examinations at the decision stage.
Deterrent Effect of In Absentia Trial Examination on Corruption Crimes
The in absentia trial examination in corruption cases that has been carried out in accordance with applicable legal rules, even though the provisions are still separate, actually shows that legal certainty has been sought and realized. However, the in absentia trial examination in corruption cases cannot then create a deterrent effect for the perpetrators and cannot immediately restore state financial losses easily.
The explanation of Article 38 Paragraph (1) of Law of the Republic of Indonesia Number 31 of 1999 jo. Law Number 20 of 2001 concerning the Eradication of Corruption which also states the same is in reality cannot be realized.
This is shown as in the case in Decision Number: 66/Pid.Sus-TPK/2020/PN.Sby., in which there is a Defendant who is a corruption perpetrator with the status of a Wanted Person (DPO) in the name of Nur Cholifah, S.E. and the trial process was carried out In Absentia until a decision was handed down, which then resulted in legal efforts until it had permanent legal force. The defendant has corrupted Rp. 10,000,000,000.00 (ten billion rupiah), which has then caused state assets to lose Rp. 30,000,000.00, - (thirty million rupiah). Even though the defendant has undergone an in absentia trial examination, this does not then make him deterred, proven that until it was decided at several levels and had permanent legal force, he was still on the run.
Related to state assets that have been harmed by the Defendant, they also cannot be returned due to the many obstacles in the execution process. Based on the results of research that I have done, the obstacle occurs in the event that the defendant's family or closest people are uncooperative, so that the confiscation of assets cannot be carried out. Added to this, the assets have been transferred in various ways.
The value of state asset losses due to corruption is also smaller than the amount of costs needed for the requirements for implementing the in absentia trial examination, so that it actually reduces state assets. Thus, it shows that the in absentia trial examination in corruption cases cannot then be said to be able to restore state asset losses due to corruption. The existing legal provisions related to in absentia trial examinations in corruption cases show that they have not realized legal effectiveness.
According to Donald Black, the effectiveness of law is realized when the rules are in line with reality. When there is a rule for examining trials in absentia, which is intended to deter and restore state assets, but in reality, this intention is not realized, it certainly shows that the effectiveness of the law has not been achieved.
It is necessary to enact a specific law that regulates the criminal justice system in absentia, especially in corruption cases. This is because corruption is related to state assets that affect the lives of many people. This law refers to the existence of a law on the juvenile criminal justice system that specifically regulates the examination of cases where the perpetrators are children.
The law on the criminal justice system in absentia in corruption cases can later specifically regulate the examination of trials to the execution process in order to make the perpetrators deterred, and most importantly, the state assets that have been harmed can be recovered. This is in line with the concept initiated by Muhammad Yusuf, namely follow the money rather than follow the suspect in handling corruption cases. The point is to focus on the recovery of state assets rather than the perpetrators in corruption cases, so that when the perpetrators flee or are on the wanted list until the trial examination is carried out in absentia, the recovery of assets that have been harmed can still be realized.
In addition, the enactment of a law on the criminal justice system in absentia in corruption cases is intended to ensure that the legal provisions that regulate it are not separated, more certain, and clear, so as to realize the dignity of legal certainty properly. Considering the theory of legal certainty according to Jan Michael Otto, that legal certainty is realized by the existence of clear, transparent, and consistent legal rules.
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