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The Shifting Definition of Corruption Offenses

In the beginning, the definition of corruption offense is regulated under Law No. 31 of 1999 as amended by Law No. 20 of 2001 concerning Eradication of Corruption (“Anti-Corruption Law”), Article 2 paragraph (1) which states:

“Any person who unlawfully commits acts of enriching himself or others or a corporation that can harm the financial or the economic condition of the country, is sentenced to life imprisonment or imprisonment for a minimum 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).”

Further elucidation of Article 2 paragraph (1) of the Anti-Corruption Law states:

“What is meant by “unlawfully” in this Article includes acts against the law in the formal sense as well as in the material sense, that is, even if the act is not regulated under laws and regulations, but if the act is considered despicable because it is not in accordance with a sense of justice or norms of social life in society, then these acts can be convicted. In this provision, the word “can” before the phrase “harm to the financial or economic condition of the country” indicates that a criminal offense is a formal offense, that is, the existence of a criminal act of corruption is sufficient by fulfilling the elements of the act that have been formulated not by the arising of consequences.”

In addition to the above provisions, the definition of corruption offenses was initially also regulated in Article 3 of the Anti-Corruption Law which states:

“Anyone who has the purpose of benefiting himself or another person or a corporation, abuses the authority, opportunity or means that available to him because of his authority or position that can harm the finances or the economy condition of the county, is sentenced to life imprisonment or imprisonment for a minimum of 1 (one) year and a maximum of 20 (twenty) years and or a minimum fine of Rp. 50,000,000.00 (fifty million Rupiah) and a maximum of Rp. 1,000,000,000.00 (one billion Rupiah).”

The Elucidation of Article 3 of the Anti-Corruption Law states:

The word “can” in this provision is interpreted in the same way as the Elucidation of Article 2.

Explanation regarding the shifting definition and/or nature of corruption offense after the issuance of Constitutional Court Decisions

Based on the Constitutional Court Decision Number 25/PUU-XIV/2016 which was read on January 25, 2017, the definition of corruption offenses contained in the Anti-Corruption Law has changed to be as follows:

Article 2 paragraph (1) Anti-Corruption Law:

“Any person who unlawfully commits acts of enriching himself or others or a corporation that harm the financial or the economic condition of the country, is sentenced to life imprisonment or imprisonment for a minimum 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).”

By eliminating the word “can” in Article 2 paragraph (1) of the Anti-Corruption Law, the definition and/or the nature of the offense of corruption changes from what was originally formal offense become material offense. In formal offense, any act that has the potential or can result in state losses can already be sentenced without the need to prove whether the state suffered losses or not. On the contrary, in material offenses it must be proven that there are consequences in the form of state losses before the offenses can be said to have been fulfilled. If the state loss cannot be proven, then the offense is not fulfilled.

Furthermore, based on the Constitutional Court Decision Number 003/PUU-IV/2006 read on July 25, 2006, it can be seen that the Elucidation of Article 2 paragraph (1) the phrase “What is meant by “unlawfully” in this Article includes acts against the law in the formal sense as well as in the material sense, that is, even if the act is not regulated under laws and regulations, however, if the act is considered despicable because it is not in accordance with the sense of justice or existing norms in society, then these acts can be convicted” declared to be contradicted with The 1945 Constitution and does not have legally binding power.

By eliminating the aforementioned phrase, the notion of the meaning of ‘unlawfully’ (wederrechtelijk) contained in the offense formulation of Article 2 (1) of the Anti-Corruption Law shall be limited to formal law.

Article 3 of Anti-Corruption Law:

“Anyone who has the purpose of benefiting himself or another person or a corporation, abuses the authority, opportunity or means that available to him because of his authority or position that harm the finances or the economy condition of the county, is sentenced to life imprisonment or imprisonment for a minimum of 1 (one) year and a maximum of 20 (twenty) years and or a minimum fine of Rp. 50,000,000.00 (fifty million Rupiah) and a maximum of Rp. 1,000,000,000.00 (one billion Rupiah). “

By eliminating the word “can” in Article 3 of the Anti-Corruption Law, the definition and/or the nature of the offense of corruption changes from what was originally formal offense become material offense, similar with Article 2 paragraph (1) of the Anti-Corruption Law.

Explanation of the difference between formal and material offenses.

In formal offense, what is formulated is a prohibited act (along with other matters/circumstances) without questioning the consequences of such action. Article 362 of the Criminal Code concerning theft is an example of an Article concerning formal offense.  The Article states that in theft, as long as the elements in Article 362 of the Criminal Code have been fulfilled, a criminal act has occurred and there is no question whether the person who was stolen suffered loss or not, felt threatened of his life or not. This means that this offense does not question the presence or absence of the consequences of the act of theft. Before the Constitutional Court issued the two Decisions, Article 2 paragraph (1) and Article 3 of the Anti-Corruption Act constitute as formal offenses because they are related to corruption offenses; as long as the elements of corruption offenses stipulated in Article 2 paragraph (1) and Article 3 of the Corruption Law are fulfilled, the offense has already occurred without the need to question or prove whether the State is experiencing financial losses or not. However, after the Constitutional Court issued the two Decisions, Article 2 paragraph (1) and Article 3 of the Anti-Corruption Act have been changed into material offenses.

In material offenses, other than the prohibited act that is being conducted, there must be a consequences arising from the action, in order to say that the crime has fully taken place. For example, in article 338 of the Criminal Code concerning murder, the consequences must be in the form of the death of the victim. This means that this offense questions the presence or absence of the consequences of these acts of murder. In this example, if there is no death then the offense of murder is not fulfilled. After the Constitutional Court issued the two Decisions, related to corruption offense, if the elements of corruption offense regulated in Article 2 paragraph (1) and Article 3 of the Anti-Corruption Law have been fulfilled, the corruption offense has not yet been said to have occurred because it must be proven first regarding state financial losses. If the state financial loss can be proven then the corruption offense can be said to have occurred, and on the other hand, if the state financial loss cannot be proven, then the corruption offense cannot be said to have occurred.

Hope it’s useful,

FREDRIK J. PINAKUNARY LAW OFFICES


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