Abstract
A. INTRODUCTION.
The terminology of corruption from Latin is corruption or corruptus, derived from the word corrumpere is a word from the older Latin. Furthermore, the term corruption appears in several languages in Europe such as English that is corruption and corrupt, french language with the word corruption, and the Dutch language using corruptie word which further becomes "corruption" in the Indonesian language.
The act of corruption harms the State's finances. Where the State's finances are stipulated in the State Budget (APBN), all budgetary budgets in the APBN are already shared to all Ministries and Institutions Non-Ministries, Provincial Governments, Regencies / Mayors, and State-Owned Enterprises (BUMN). All budgets that have been subdivided to potential state institutions / government institutions in the corruption of the ruling rulers have no sense of satisfaction and lack of them, other than corrupt the government budget still receive some money from the community either as entrepreneurs or members of the community Need his signature by accepting something of a gratuity. All government agencies have been caught up in corruption, and have been civilized and the general public both as entrepreneurs, contractors, and others are corrupt in the form of gratification. The act of corruption not only to meet the needs alone has even reached the level of luxury and greed.
All government agencies have been involved in corruption, and have been systemic in that state institutions of both the executive, legislative and judicial institutions have been contaminated with corruption, and corrupt acts have been entrenched and the general public both as businessmen, contractors, and others corrupt in the form of giving Gratification. Corruption is now categorized as an emergency of corruption that needs strict repression which is much to the detriment of the State's finances and miserable the people.
Corruption is the act of gaining the maximum profit which is detrimental to the State's finances that are contrary to the laws prevailing in the State of Indonesia, and immoral who only think of self-interest without thinking of the interests of the people, especially not thinking about the interests of the poor, with lifestyle A hedonist or a spree by using luxurious living facilities ranging from his clothes, shopping abroad, owning several luxury cars, owning several homes / fancy, organizing a child's marriage party or any other interest in meetings is always done in five star hotels and when viewed from the income Fixed or salary can not be bought or fulfilled, which leads to a life gap in the middle of society, especially the lives of poor people under the bridge or live in slums, reducing the quality of development, increasing the price increase of daily needs and experienced Aruh also to increase the price of export goods, and others.
If corruption is committed by law enforcers or corrupt officials, the causes of corrupt, greedy, low integrity and utter lack of awareness and sensitivity should be upheld by law, justice, truth, honesty, openness or transparency, responsibility, A sense of justice that lives and thrives in society, including conscience. Distorted behavior or abuse of power by the apparatus especially a law enforcement officer that is contrary to the rule of law, the risk or penalty is much heavier than that done by government officials / civil servants or corporations. If only the necessities of life are reasonable where Mahatma Gandhi says: There is enough for everybody, s need, but not enough for everybody, s greed. The world gives sufficient to meet everyone's needs, but not enough for everyone's greed. The act of corruption is essentially greed, and therefore the perpetrators are those whose daily lives are sufficient, so that the background of corrupt deeds is not merely to meet the needs, but to fulfill the desire for luxury. Thus the statement Bologna et al in Gone theory states, there are 4 (four) factors that encourage a person to commit a crime, that is because: (1) Greed ; (2) Opportunity (3) Need ; And (5) Showed (Exposition).
B.ProblemFormulation.
1.What Non self-incrimination principle can be applied in corruption cases.
2.What is more beneficial to the Government / State in applying the principle of non-self-incrimination with the principle of presumption of innocence or the principle of presumption of innocence in every case of corruption.
C.Researchpurposesandbenefits.
Based on the problems that become the focus of this study and the objectives to be achieved, it is hoped this research can provide the following benefits:
1) In addition to information for law enforcers in applying the principle of non-self- incriminationincasesofcorruption.
2) In addition to information for Formal Criminal Law Authorities in the future, especially regarding the principle of non self-incrimination
D.DISCUSSION
1.JuridicalReview.
The principle of self-blame is regulated in Law Number 20 Year 2001 on Amendment to Law Number 31 Year 1991 on the Eradication of Corruption, in the "explanation of Article 37 paragraph (1) of this Article as a consequence Balanced on the application of reversed evidence against the defendant. The defendant still needs a balanced legal protection for fundamental rights violations relating to the principle of presumption of innocence and non-self-incrimination,
Core Elucidation Article 37 Paragraph (1) That is the principle of non self-incrimination. Anglo saxon while in Law No. 8 of 1981 About the Book of Criminal Procedure apply the principle of Presumption of innocence that adheres to continental erofah ideology.
Differences Principle Non self-incrimination with the principle of Presumption of innocence as follows:
a.The principle Non self incrimination (self-blame or presumption of guilt)
The principle of non-self-incrimination or the principle of presumption of guilt is Anglo saxon's assumption that the defendant was found guilty before, and when he declared a suspect and at the time the suspect was allegedly guilty and at that time Bears it directly in pull out of its responsibility and the responsibility of the government agency is submitted to the successor and do not let the office activities to serve the disturbed community. After being designated as a non-self-incriminating direct defendant, "When attributed to the case of an active Governor who is just one year in office, he stumbles upon a corruption case, and upon being designated as a suspect by one of the law enforcement officers, Prosecutors and investigators of the Corruption Eradication Commission (KPK) and at that time has been self-blame (and self-incrimination) and at the same time the post of Governor was dislodged and appointed by the Vice Governor as the executive of the Task as Governor and if no Vice Governor appointed The most senior of his position within the Governor or at the appointment of one of the Director General of the Ministry of Home Affairs. If the governor appointed by the suspect / defendant until the court decision has a definite legal force, then during the trial process and the judge's decision has not had the legal force that the suspect / defendant should not hold the position of Governor, only if the judge's decision already has a definite legal force The judge's decision to acquit the defendant, may re-serve as Governor until his tenure, but if the judge's verdict is subsequently terminated by the judge, it can no longer hold the position of the Governor because the term of office of the defendant's governor has passed five years. If the Judge ruling accused the defendant and sentenced him to seven years, and the judge's verdict already has a definite legal force, the defendant will remain serving his sentence at the Penal Court according to the judge's verdict.
For PLT incumbent governor because the governor was following the governor candidate a second time or are involved in corruption cases Governor may appoint the Director General of the Ministry of the Interior into the PLT Governor as the Governor of DKI Sumarsono replace Ahok nominate Governor of DKI both times.
Similarly, if there is the district head election in which there are three candidates Regent and Vice Regent and campaign and is currently running a campaign there was a candidate for the Vice Regent of one of the three (3) candidates (Paslon) is exposed cases of corruption related to the construction of the project and receiving money of a person at the time in question served one of the office of mayor or concerned at the time served in other places exposed cases of corruption and one of the investigating authorities set the case upgraded from inquiry stage investigation and have not set what is his name as a suspect, then there is no one who can blame, but if the name is already assigned investigators as a suspect, then at that time the suspect allegedly guilty or blame themselves (non self - incrimination) ". Due thought to be guilty then at that time the Commission or the authorities to strike out his name as a candidate for Vice Regent of the participants of the election of Regent and Vice Regent So Candidate Vice Regent, which has been named as a suspect is not included anymore in the campaign Candidates of Regional Head as the Regent because already suspected Guilty (non-self-incrimination) ". In general, in acting corrupt acts very difficult that detrimental to the State's finances and cause poverty to the public who generally holds office in the government that is very good to save the results of corruption and the difficulty of eradicating it because it still holds the position, until declared extraordinary acts (extra ordinary crime) And its action must also be extra ordinary measure.
The application of non self-incrimination or self-blame principle is more beneficial to the State than to apply the Presumption of innocence principle as follows:
1).The application of non self-incrimination is more beneficial to the State.
a).Finallyguiltyandmaynotholdoffice.
The principle of non self-incrimination or the principle of presumption of guilt that is the defendant in declaring the suspect is allegedly guilty and at that time the position he bears is directly removed from his responsibility and the responsibility of the government institution is submitted to his successor and not Until the office activities to serve the community are disrupted.
b).Removedsalaryandjoballowance.
Principle Non self-incrimination or principle of presumption of guilt that is the defendant in declare the suspect directly allegedly guilty, then at that time the salary and allowance of his position in the pull / disappear until the judge decisions that have the legal force is certain, So that during the course of the State's financial proceedings are not harmed.
2)Preventcorruption.
The defendant, having been declared guilty and then allegedly guilty, immediately discharged his office, so that all projects to be corrupted and receive corruption money from people who need his signature can not be done anymore, so that all projects can be used to build for the benefit of the people and can not Again receiving corruption money from the community, so that public services can be achieved with a good clean from the act of corruption
3).Reducelawenforcementofficerscorrupt.
The law enforcement officer who prolonged the settlement of the case is likely to be pre-trialed by the defendant if the prolonged settlement of the case is not completed for many years, the defendant immediately resolved the corruption case and allegedly the prosecutor / prosecutor did not dare to receive the corruption money from the defendan.
4).Easewitnessexaminationandseizureofevidence.
Applying non-self-incrimination principle or self-blame or presumption of guilty to Government apparatus who have been designated as suspect in corruption case especially suspect that is not endured during investigation stage, prosecution and trial stage. The application of the principle of non self-incrimination or self-condemnation or the guilty presumption of corruption which is one of the factors to facilitate the settlement of corruption cases is mainly related to the examination of witnesses and the seizure of evidence as follows:
a). Witnesses will be more daring to give their testimony without being affected by their former leaders who have been inactive, and can seize all necessary evidence that has not yet been eliminated by the suspect / defendant, and does not affect the witness to provide information according to the wishes of the suspect.
b). Younger seized evidence in the form of money or other valuable items that have not been hidden or damaged by the defendant because his position has been dislodged.
5). The investigator and the General Secretary immediately resolve the corruption case.
Another advantageous factor is by applying the principle of non self-incrimination or self-blame or presumption of guilt, where every corruption issue that is determined as a suspect law enforcement officer who handles it will be resolved because if not quickly resolved law enforcement officers who handle it will be urged suspects for investigators Immediately resolved to find out the certainty of settling his case in the hope that if not proven to occupy his position again and if proven to live execute the judge's verdict.
6).Investigator / Public Prosecutor in Pretrial of suspect / defendant.
When investigating the case suspect corruption is not resolved with a reasonable time, then the suspect may In pre-trial one investigator from law enforcement both investigator of the national police, the investigating prosecutors, and investigators Commission eradicatio Corruption (KPK) which handle will In pre-trial at the Court on charges of stopping an investigation or prosecution which violates Article 77 of the Criminal Procedure Code a. and letter b, which reads: District Court is authorized to examine and decide, in accordance with the provisions set forth in this Law concerning: a.sah or the arrest, detention, investigation cessation or termination of prosecution; b. Compensation and / or rehabilitation for a person whose criminal case is terminated at the level of investigation or prosecution. Pursuant to Article 77 letter a when the stage of investigation or indictment did not finish its case for years detrimental suspects who do not know the end of the acts of corruption are alleged, then the suspect may In pre-trial to court for stopping an investigation or prosecution, and if the termination of an investigation or No prosecution cessation mistakes and pretrial won the suspect / defendant, the investigator or prosecutor compensate or rehabilitate the name of the suspect or the accused. Seeing defeat pretrial investigators in suspected cases of law enforcement officers will quickly resolve any cases of corruption, because fear until at Pre Trial suspect / defendant again to the district court. Similarly, if law enforcement officials did not immediately resolve the corruption case, members of the public or legal aid organizations or public institutions can be filed pre-trial to the court based on Article 77 of the Criminal Procedure Code.
b.Application of the presumption of innocence principle is more favorable to the accused/defendant.
Application of the presumption of innocence principle. It is more beneficial for the suspect / defendant and harms the interests of the State in the form of damaging the name of the State apparatus especially the law enforcement apparatus, for reasons including:
1).Investigators / Prosecutors, and judges are full of corruption.
The principle of presumption of innocence is an act committed by a suspect / defendant to be considered innocent before a judge's verdict has a definite legal force. During this case a corruption stipulates a person who is currently occupying the post of governor as a suspect, whose suspect is not Detained in the process of investigation, prosecution and trial process which applies the principle of presumption of innocence or innocence, often in the investigative / prosecuting apparatus, and the judge, because there is corruption money given by the defendant to the prosecutor, the defendant is not detained during the trial process Which can reach four to five years and even longer because it is more beneficial to the defendant and his law enforcement officers but damages the reputation of the state apparatus especially law enforcement officers.
2).Thesuspect/defendantcorrupts.
The suspect / defendant who is designated as a suspect is alleged to have committed innocence, in which the suspect / defendant remains in office either as Governor or other positions. Because is considered innocent and is not detained until the five-year term of office of the Governor, where the verdict of a new judge comes down which already has a definite power and at that time the suspect is found guilty and execute his sentence according to the judge's verdict, Only the new Governor's position in one year And for four (4) years his office remains for him and for four years allegedly committed corruption on projects under his control and receives some money from businessmen or communities who need his autograph. In this case thick money or corruption game so that the case is not held and remain in office of Governor until the end of his Governor's term with the period limit.
3).ThefinanciallossesoftheState.
Considering that a person is a suspect in a corruption case considered innocent whose status is withheld still get salary and job allowance from the state finance until the judge's decision has a definite legal force. The defendant who is held in detention can still be salary and job allowance, is of course detrimental to the State's finances ie no work given salary and job allowance.
4).The investigator/prosecutor removes the case.
It could also be an official assigned as a suspect because of the amount of money not being held in detention, still occupying his position and his case not processed until years past 18 years from the start doing corruption to 18 years later, beyond the limit of prosecution in the sense if 18 years suspects / defendants can not be prosecuted again, because according to the provisions of the act that the threat of life sentence and death sentence past the time of prosecution 18 years, so that the suspect / defendant can not be prosecuted again. It is stipulated in Article 78 of the Criminal Code which reads: The right to demand the death penalty (can not be executed again) because of the time: 1e. After one year of all offenses and for crimes committed by the use of printing; 2e.five six years, for crimes, subject to imprisonment, imprisonment or imprisonment of not more than three years; 3e. after twelve years, for any crime that is liable to a temporary jail term of more than three years; 4e. It has been eighteen years for all crimes that are threatened with death or life imprisonment.
5),Polate the settlement of the case.
Investigators / prosecutors deliberately prolong the settlement of the case because of the existence of a number of corruption money given the suspect / defendant to the prosecutor. This can happen that the case is not endured in a long time to the case of the prosecutor until the abolition of his case up to yearly, as well as the public prosecutor shall be liable to submit his case to the court. Prolonging the settlement of cases is not possible in the pretrial of suspects because the settlement is completed in accordance with the will of the suspect / defendant.
2.Never apply non self- incrimination Principles.
the principle of non self-incrimination or self-blame is still only regulated around 2001 as set forth in Law number 20 Year 2001 on the Eradication of Corruption. Relatively new to the law enforcement apparatus and still hesitate to apply it and almost never implemented. All cases of corruption after a person named as a suspect always apply the principle of presumption of innocence or presumption of innocence, the suspect / defendant is presumed innocent before the verdict has definite legal force. Enforcement of law and the general public only knows the presumption of innocence because the principle of the presumption of innocence or presumption of innocence has been known since the Dutch colonial era over 350 years plus the time of independence for 72 years altogether 422 years already familiar with the principle of presumption of innocence, while the principle of non-self Incrimination or self-blame in the year 2001 and only 16 years old. Appropriate law enforcement officers and the general public have not understood in depth and there are still doubts from law enforcement officers in applying it. The level of difficulty in combating corruption is high enough.
3.Lex specialis on the principle of non self- incrimination.
The principle of non-self-incrimination (principle of self-blame) set forth in the explanation of Article 37 of Law No. 20 of 2001 and the principle Presumtion of innocence stipulated in Law No. 8 of 1981 About the Book of the Law Legal Criminal Procedure (Criminal Procedure Code), then in handling corruption cases applied principle of non self-in crimination as a principle of lex specilis that put aside
Presumtion of innocence as a principle of lex Generally, the so-called principle of lex specilis derogat lex Generally ie disregard the principle of lex Generally .
4.Difficulty Level of Combating Corruption.
Difficulty to Eradicate Corruption, among others, the consequences or losses incurred by corruption crimes are not immediately felt, but require a long process of time so that only some time later individuals or groups of individuals / communities as victims feel it. Even in the case of bribery or gratification, the victim is more likely to protect the perpetrator by keeping silent because both benefit, as well as the law enforcement officers are both punished both the giver and the recipient.
According to Antonius Sujata, several other things to be said related to corruption are: a. Complexity of corruption cases, Corruption Crime done through a long process. Some existing procedures have been disrupted by the actors who should carry out the procedure. In addition, to calculate the losses incurred, required a special officer who has expertise. Once the complex process or procedure passed by the perpetrator, so that the result is often not felt or felt for some time after happened.b. Time Constraints, the disclosure of corruption cases is not instantaneous, but some time or several years later. This often complicates the collection of evidence and tracking of suspects or witnesses, having moved away, retired and so on. In fact, difficulties are also encountered in calculating the amount of losses suffered. c. Limitations on the intensity of functional supervision There is no denying that the classical reasoning that often arises is the volume and intensity of supervision by both internal and secondary level internal supervisory bodies, and the external oversight institution is unable to perform its duties thoroughly in all areas of all surveillance objects. In general, this problem is caused by budgetary factors.
The difficulty of eradicating corruption, the dominant element of office in corruption, makes the perpetrator of corruption classified as juridical compared to the average of other criminal actors, because he has a position supported by various provisions that allow for the exercise of discretional powers. The higher the position occupied, the more powerful the perpetrators of this offense. He has his own toughness that no one else has in any criminal law that may at times threaten him of the vast network of bureaucratic structures he occupies firmly, and facilities with various conveniences (including access to money) are quite numerous. All of which allows him to remain in his position even if various accusations of criminal offense hit him. Perhaps the term Ezzat E. Fattah calls them criminals - powerful criminals and criminals in power, where these formidable criminals consist of two classes: first, untouchable ), The perpetrators of crime whose reality is above the law, such as Hitler, Idi Amin, Pinochet, etc. when they are in power. Second, the unreachable . Included in this category are high-handedness criminals (formal or informal) high and difficult to reach the hands of the law, except with great difficulty and these exceptional circumcances (except with great difficulty and under special conditions).
E.CONCLUSION
Based on the above it can be concluded as follows:
1. The application of the principle of non-self-incrimination is more favorable to the state and will reduce the opportunity for law enforcement officials to mock corrupt money-laden matters.
2. The application of the principle of presumption of innocence is more favorable to the suspect / defendant who opens a great opportunity for law enforcement officers to commit acts of corruption in the settlement of corruption cases and eliminate the act of corruption until the time of prosecution beyond the limit of 18. years.
F.SUGGESTIONS.
Based on the above conclusions, it is advisable to apply non self-incriminatioan principles (self-blame) in eradicating corruption, which is more beneficial to the State. All development budgets can be used to build development projects within their budget for the benefit of society.
Dr. Monang Siahaan, SH., MM.
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