National Police detective chief Comr. Gen. Ari Dono Sukmanto recently sparked controversy by stating that a corruption case might be withdrawn if the suspects could restitute the state losses. Furthermore, the draft amendment of the Criminal Code now being deliberated at the House of Representatives prescribes the same mechanism.
Corruption watchdogs like the Corruption Eradication Commission (KPK) and the Indonesia Corruption Watch (ICW) oppose out-of-court settlement, saying returning the stolen money would not write off the crime.
I believe both parties share the same purpose of fighting corruption, but use different approaches.
Certainly, Indonesia is still struggling to combat corruption. In 2017, state losses resulting from corruption totaled US$455 million, and the number of graft suspects went up to 1,298 from 1,101 in the previous year. Indonesia’s ranking also dropped from 90th to 96th out of 175 countries surveyed in the global Corruption Perceptions Index. Meanwhile, restitution of stolen state money was not commensurate with the law enforcement budget.
Notwithstanding the controversy, the United States has successfully implemented out-of-court settlements for white-collar crimes, including corruption, with the purpose of returning stolen state money and punishing the wrongdoers.
An out-of-court settlement is a viable alternative often utilized by the US Department of Justice because the result is more predictable, efficient and effective in returning the stolen money. This should overcome the main problem with most corruption cases in Indonesia, which is the lack of proportionality between attempts of restitution and the legal costs to investigate and prosecute individuals in court.
The process of out-of-court settlement is more efficient, and the result for money restitution is more significant than a court verdict.
Furthermore, if we hinge on the aim of out-of-court settlement in the US Attorneys’ Manual, its purpose is akin to a prison sentence. The main purpose of out-of-court settlement or pretrial diversion is “to prevent future criminal activity among certain offenders, to save prosecutive and judicial resources for concentration on major cases, and to provide, where appropriate, a vehicle for restitution to communities and victims of crime”.
In other words, out-of-court settlement also seeks to punish the wrongdoers by forcing them to return the stolen money, including fines (if any) and to deter future crime by supervising the fraudsters.
It is difficult to determine whether out-of-court settlement provides an effective deterrent, but based on robust facts in the US legal practice, out-of-court settlement yields a legal awareness for wrongdoers and consequently serves as a deterrent of future crime.
In Indonesia, it is possible to conduct out-of-court settlement during a penyelidikan (pre-investigation). When a potential suspect recovers the state’s finances, it should eliminate the element of “as to be detrimental to the finances of the state or the economy of the state” to an act of corruption. Thus, an act should not be considered corruption because it does not satisfy the elements of corruption, and law enforcement officers should not launch a penyidikan (formal investigation).
An out-of-court settlement without a prison sentence may not satisfy social justice for many. However, this stigma is not convincing because Indonesia needs a progressive way to eradicate corruption, rather than relying on the traditional way of indicting individuals in court.
Society should not view justice narrowly, by putting individuals behind bars. When prosecutors recover state losses and ensure that the proceeds thereof are utilized by the state for public interests, social justice should be deemed as having been served. Social justice will be satisfied too when out-of-court settlement demonstrates its forthcoming deterrent effect.
Besides, using the rationale and the nature of people who engage in corrupt behavior, the financial punishment and fines that an out-of-court settlement entails will suit the concept of corruption eradication. It could be a deterrent effect since people will avoid committing corruption for fear of losing their money.
Such effective deterrence confirms the statements of the former head of the Financial Transaction Reports and Analysis Centre (PPATK), Yunus Husein, and former KPK commissioner Bambang Widjojanto, who say that people who engage in corrupt behavior in Indonesia are more afraid to lose their stolen money than they are to face a prison sentence.
Out-of-court settlement may hopefully shed light on law enforcement in Indonesia because the country needs a progressive way to win its war on corruption.
*This article was published on TheJakartaPost.com,
https://www.thejakartapost.com/academia/2018/06/22/out-of-court-settlement-for-graft-possible.html.
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