In recent years, most of the Indonesian law enforcements have frequently prosecuted corruption cases by alleging “state economic loss” instead of “state financial loss” as one of the elements in the Eradication of Corruption Act. The implementation of “state economic loss” concept under the Eradication of Corruption Act in Indonesia has caused a significant debate; because in certain cases, the calculation of “economic loss to the state” were merely an estimation (potential loss) or assumptions, not an actual lost.
The issue above was addressed in the Constitutional Court Decision No. 25/PU-XIV/2016 where the Constitutional Court ruled that the “economic loss to the state” or the “state financial loss” in a corruption case should be actual and certain. The potential loss in the economic loss to the state is not sufficient to establish guilt in corruption cases. Thus, calculation of the “state economic loss” cannot be in the form of an estimation.
In the Supreme Court Decision 4551 K/Pid.Sus/2021, the Supreme Court has taken further steps to clarify and solidify the principle of actual loss in the “state economic loss” or the “state financial loss”. In this former customs official textile imports corruption case, the Supreme Court held that the state economic loss must be concrete, measurable, and proven. The Supreme Court concluded that even if the imported goods had successfully exited customs without paying the import taxes, the state retains the right to collect for up to three years, or even up to ten years in certain cases. This indicates that the state would not necessarily incur an economic loss simply because the import taxes had not been paid at that moment. This means, in interpreting the state economic loss, the prosecutors must demonstrate an actual impact on the state’s economy with solid proof.
Also, in the Supreme Court Decision No. 2384 K/Pid.Sus/2023 jo. 8/Pid.Sus-TPK/2023/PT DKI jo. No. 59/Pid.Sus.TPK/2022/PN.Jkt.Pst, involving a defendant who was accused involved in approving illegal export permits for cooking oil, leading to a domestic shortage and inflated prices, the prosecutors claimed due to these actions, the state suffered an economic loss estimated at over IDR 10 trillion. However, the calculation based on the shortfall in the total DMO (Domestic Market Obligation) is a potential loss. Referring to the calculation of actual and definite economic losses as mandated by the Constitutional Court decision, it should have been calculated with certainty and precision that this DMO shortfall could directly affect the distribution of cooking oil down to the retail level, leading to economic losses for the state. Here, the Supreme Court concluded that the element of “state economic loss” was not fulfilled as demonstrating the existence of harm to the state’s economy remains challenging due to its expansive scope and the lack of a regulatory method for assessing such losses. Additionally, the Supreme Court held that the calculation was based on assumptions that were more applicable for planning rather than representing actual losses wherein according to the Constitutional Court Decision No. 25/PUU-XIV/2016, the economic losses must be actual (actual loss) and not merely an estimation (potential loss) or assumptions.
In light of the above, using the rationale of the above Constitutional Court and Supreme Court Decision, the law enforcement shall comply using an actual loss in charging individual in corruption cases for the legal certainty in Indonesia. The calculation of “state economic loss” or the “state financial loss” in a corruption case shall be actual and certain. It is important for accurate legal standards in fighting corruption while also safeguarding the rights of the accused.
Written by: R. Bayu Perdana, and Shabrina Hanifa
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