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ANALYSIS OF THE MECHANISM OF RESTITUTION AND ITS

IMPACT ON THE FINANCIAL RECOVERY OF THE STATE DUE TO

CORRUPTION OFFENSES

Armen Foster

Sekolah Tinggi Ilmu Hukum IBLAM, Indonesia

Email: [email protected]

Abstract

This research aims to examine the effectiveness of the restitution mechanism, as

regulated in Article 18 of Law Number 31 of 1999 on the Eradication of Corruption,

as amended by Republic of Indonesia Law Number 20 of 2001 on Amendments to

Law Number 31 of 1999 on the Eradication of Corruption, in reducing state financial

losses due to corruption offenses. This study examines the implementation of the

restitution process and its impact on state financial recovery using a qualitative

normative juridical method. The researcher demonstrates that imposing restitution

as an additional sanction is crucial in recovering state financial losses caused by

corruption. However, challenges arise in the form of substitutionary penalties that

reduce the effectiveness of restitution, as well as the tendency of offenders to choose

imprisonment over fulfilling their obligation to make restitution. The lack of

coordination among relevant parties also affects the implementation of restitution.

To enhance the effectiveness of restitution, a comprehensive approach is needed,

strengthening legal compliance and coordination among law enforcement agencies,

judicial institutions, and auditing institutions. By addressing these challenges, the

restitution mechanism can significantly contribute to reducing state financial losses

caused by corruption.

Keywords

: Restitution of Assets; Financial Loss Incurred by The State; Corruption Crime

INTRODUCTION

Corruption has long been a serious problem in Indonesia and has significantly harmed

state finances. These crimes involve abuse of authority and embezzlement of funds by public

officials, which has a direct impact on wastage of public resources and reduction of the

government's ability to provide effective services to society (Irjayanti & Azis, 2012).

To fight corruption and recover state financial losses, Indonesia has adopted Law

Number 31 of 1999 concerning the Eradication of Corruption Crimes, which later underwent

amendments with Law Number 20 of 2001 concerning Amendments to Law Number 31 of

1999 concerning the Eradication of Corruption Criminal Acts (hereinafter abbreviated as the

Tipikor Law). The Corruption Law is an important legal foundation that regulates various

aspects of handling corruption cases, including the mechanism for reimbursement refunds

(Johnston, 2012).

One of the crucial aspects of the Corruption Law is Article 18 which regulates the

mechanism for reimbursement refunds. This mechanism is designed to return illicitly obtained

profits to the state. When a perpetrator of corruption is found guilty, the court can determine

the amount of money that must be returned as compensation to the state. This return process

Injuruty: Interdiciplinary Journal and Humanity

Volume 2, Number 7, July 2023

e-ISSN: 2963-4113 and p-ISSN: 2963-3397

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involves the confiscation of assets obtained from corruption crimes and the transfer of

ownership of those assets to the state (Surya & Diezo, 2022).

However, the implementation of substitute refunds faces a variety of complex challenges.

Identification of assets related to profits from criminal acts of corruption, determination of the

value to be returned, as well as administrative and technical processes are obstacles in the

implementation of these returns.

So the purpose of this study is to thoroughly analyze the replacement refund mechanism

regulated in Article 18 of the Tipikor Law, and look at it from the perspective of practices that

have been carried out in handling cases of criminal acts of corruption (Mahmud et al., 2020).

The research will involve a review of court rulings, government policies, and substitute refund

practices that have been undertaken by law enforcement agencies in Indonesia.

It is hoped that the results of this study can provide a more comprehensive understanding

of the implementation of Article 18 of the Criminal Law in the return of substitute money,

identify challenges faced in practice, and provide recommendations for improving and

strengthening the replacement refund mechanism in the context of state financial recovery due

to corruption in Indonesia.

METHOD RESEARCH

This study uses normative research methods to analyze the mechanism of returning

substitute money and its impact on state financial recovery due to corruption. The normative

research method is an approach that refers to the analysis of applicable laws and regulations to

understand the problem or phenomenon under study.

This data collection method is carried out by conducting library research, which involves

document analysis such as collecting legal data relevant to the research topic through literature

studies, both in the form of primary legal materials (laws and regulations, court decisions) and

secondary legal materials (journals, books, and related articles).

The data analysis method used in this study is qualitative analysis. The choice of this

method is based on the characteristics of research results that are not in the form of numbers,

but in the form of descriptions. Qualitative analysis aims to understand and interpret data in

depth (Benuf & Azhar, 2020)

RESULT AND DISCUSSION

1. State Finance and State Financial Losses in the Concept of Corruption

In the concept of corruption, state finances have a central role. State finance refers to

all financial resources owned by the state, including income from taxes, other state revenues,

and state assets. State finance refers to all aspects of finance related to the state, both in

terms of receipts and expenditures. State financial revenues include tax revenues, royalties,

dividends, proceeds from the sale of state assets, loans, and aid funds. Based on Article

1Paragraph (1) of Law Number 17 of 2003 concerning State Finance states that state finance

is all state rights and obligations that can be assessed with money, as well as everything both

in the form of money and in the form of goods that can be made state property in connection

with the implementation of these rights and obligations. The implementation of these rights

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and obligations consists of their respective scopes. The scope of state finance based on

Article 2 of Law Number 17 of 2003 concerning State Finance is Mustawa et al., (2022):

a. The right of the state to collect taxes, issue and circulate money and make loans.

b. The obligation of the state to carry out the duties of the general service of the state

government and pay the bills of third parties.

c. State revenue.

d. State expenditure.

e. Regional reception.

f. Regional expenses.

g. State wealth / regional wealth managed alone or by other parties in the form of money,

securities, receivables, goods and other rights that can be assessed with money, including

wealth separated from state companies / regional companies.

h. The wealth of other parties controlled by the government in the implementation of

government duties and / or public interests.

i. The wealth of others obtained by using facilities provided by the government.

The country's finances have a correlation with state losses. The failure of the country's

financial management has an impact on state losses. Article 1 Paragraph (22) of Law

Number 1 of 2004 concerning the State Treasury states that "a real and definite shortage of

money, securities, and goods as a result of unlawful acts either intentionally or negligently."

The meaning of the real nature of state losses means that the lack of money, securities, and

goods is real state property as evidenced by relevant, reliable, and valid documents

belonging to the state, while it definitely means the lack of money, securities, and goods

must be the amount, not an amount that is estimated, assumed, potential, indicated, or

imagined, an amount that is valued not based on the amount in and out of money, but on all

transactions recorded at book value and at real value reduced relevantly, reliably, and

validly.

This state loss can be recovered with State Indemnity. State Indemnity Mechanisms

typically involve legal or administrative proceedings in which the party responsible for state

losses is required to reimburse or return lost or harmed value to the state. The goal is to

restore funds or assets that should be owned by the state and restore the country's finances.

Based on Article 39 of Government Regulation Number 38 of 2016 concerning

Procedures for State/Regional Compensation Claims Against Non-Treasurer Public

Servants or Other Officials and Constitutional Court Decision Number 25 of 2016 provides

guidance on how state/regional compensation claims can be filed against non-treasurer civil

servants or other officials (Simatupang, 2011)

Criminal substitute money, also known as fine or compensation, is a form of crime

given to perpetrators of corruption crimes to compensate for losses incurred as a result of

their actions, The criminal payment of substitute money was first regulated in Government

Regulation in Lieu of Law (Perppu) Number 24 of 1960 concerning Prosecution,

Prosecution and Examination of Criminal Acts of Corruption. This instrument was then

continued in Law Number 3 of 1971 concerning the Eradication of Corruption and the

Corruption Law which states that the criminal payment of substitute money is one of the

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additional crimes in corruption cases in addition to additional crimes as referred to in the

Criminal Code (KUHP) and Article 18 paragraph (1) of the Corruption Law.

The payment of substitute money as an additional crime decided to perpetrators of

corruption crimes is essentially an effort to recover state financial losses caused by

corruption. Quoting Andi Hamzah's opinion that substitute money is a sum of money

charged to perpetrators of corruption crimes with the amount of money he has corrupted

which is as much as the same amount as the property obtained from the corruption

(Simatupang, 2011). Substitute money is one of the important efforts in the context of

eradicating corruption in our country. It can be said that because substitute money is the

impact of state losses caused by irresponsible people with the aim of enriching themselves.

Based on Article 18 Paragraph (1) Letter b of the Corruption Law, it states that the

payment of substitute money as much as possible is equal to the property obtained from the

criminal act of corruption. Neither the Criminal Law nor its Explanation regulates the

definition of substitute money. Article 18 Paragraph (1) point b of the Corruption Law only

mentions the relationship between substitute money and property "obtained" from

corruption.

According to Adami Chazawi, the criminal purpose of paying substitute money is to

recover losses due to corruption (Chazawi, 2018). Yudi Kristiana argues that additional

criminal sanctions in the form of payment of substitute money are important, because one

of the goals to be achieved in eradicating corruption is the return of state financial losses

(Kristiana, 2016).

2. Forms of Refund in Lieu of Recovery of State Losses in Corruption Crimes

The mechanism for the return of substitute money and recovery of state losses by

prosecutors for corruption crimes is important to ensure that the state recovers funds and

assets that have been harmed. It also signals that corruption will not be left without

consequences and supports efforts to eradicate corruption.

Article 4 of the Criminal Law states that "The return of state financial or economic

losses does not eliminate the conviction of criminal offenders as referred to in Article 2 and

Article 3". The Law on the Eradication of Corruption provides a form of refund in the form

of additional crime-related additions as stipulated in the provisions of Article 18 Tipikor,

namely:

a. Article 18 Paragraph (1) which states that in addition to additional crimes as referred to

in the Criminal Code, additional crimes are:

1) Confiscation of tangible or intangible movable property or immovable property used

for or obtained from a corruption crime, including a company owned by the convicted

person where the corruption crime was committed, as well as from goods that replace

such goods;

2) Payment of substitute money in the amount of the same amount as property obtained

from the criminal act of corruption;

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3) Closure of all or part of the company for a maximum of 1 (one) year;

4) Deprivation of all or part of certain rights or removal of all or part of certain benefits,

which have been or may be granted by the Government to the convict.

b. Article 18 Paragraph (2) states that "If the convicted person does not pay the replacement

money as referred to in paragraph (1) point b no later than 1 (one) month after the court

decision that has obtained permanent legal force, then his property can be confiscated by

the prosecutor and auctioned to cover the replacement money.

c. Article 18 Paragraph (3) states that "In the event that the convict does not have sufficient

property to pay the substitute money as referred to in paragraph (1) point b, then he shall

be sentenced to imprisonment whose duration does not exceed the maximum threat of

the principal crime in accordance with the provisions of this Law and the length of the

crime has been determined in the court decision (Adyaksantoro et al., 2021).

The regulation of norms regarding the crime of tampering in the form of payment

of substitute money as Article 18 of the Law on the Eradication of Corruption Crimes, is

a shift in the political direction of the law to eradicate criminal acts of corruption, the

eradication of criminal acts of corruption is no longer oriented towards imposing prison

sanctions solely on perpetrators of criminal acts of corruption, but has undergone a shift

towards recovery/ recovery of state finances as the main goal, in addition to imposing

prison sanctions on perpetrators of corruption crimes.

Taking into account the provisions of Article 18 paragraph (1) point b of the

Tipikor Law, the substitute money is charged to the perpetrator of the crime of corruption

only in the amount of money he obtained from the crime of corruption. The provision

does not mention the amount of state losses, so the replacement money has nothing to do

with the amount of state losses. Thus, the purpose and purpose of applying substitute

money as an additional punishment is not to recover state losses or recover the magnitude

of state losses, but solely to deprive the profits obtained from the deeds committed.

3. Implementation of State Financial Returns and Substitute for Recovery of State Losses

in Corruption Crimes

State financial returns and state losses recovery in corruption crimes have significance

in restoring public funds, increasing accountability, preventing corruption, and restoring

system integrity. This mechanism contributes to overall corruption eradication efforts and

ensures that the state regains resources that should be in the public interest.

The implementation of state financial returns and state recovery in lieu of corruption

involves a series of measures to be taken to ensure that funds and assets harmed by the state

can be returned effectively. That today we have seen various kinds of corruption cases that

apply state financial returns as recovery of state losses. Based on the report of the

Corruption Eradication Commission (KPK), there are several data that describe the situation

of asset returns and handling corruption cases in 2022. The number of suspected corruption

cases was 149 people, an increase of 34.23% compared to the previous year which reached

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111 suspects. This shows an increase in law enforcement efforts against criminal acts of

corruption (Mahmud et al., 2022).

The KPK has succeeded in returning assets from fines for corruption crimes to the

state treasury. In 2022, the total return on assets reached IDR 46.17 billion, an increase of

108.82% compared to the previous year of IDR 22.11 billion. This shows the KPK's efforts

in returning funds that have been harmed by the state due to corruption. This data reflects

the KPK's efforts in taking firm action against corruption, including returning funds and

assets that have been harmed by the state. The confiscation of corrupt assets and the return

of substitute money are important steps in reducing the impact of corruption and recovering

state losses.

As in the Supreme Court Decision Case No. 1616 K / Pid.Sus / 2013, which sentenced

Angelina Sondakh at the cassation level to 10 years imprisonment and a fine of Rp 500

million subsidiary to 6 months imprisonment and was required to pay a substitute sentence

of Rp 2.5 billion and USD 1.2 million, which if totaled around Rp 13.354 billion. But not

all the replacement money was paid by Angelina Sondakh. Head of Public Relations and

Protocol of the Directorate General of Public Relations Rika Aprianti said Angelina

Sondakh, out of a total substitute crime worth IDR 13.354 billion, had only paid IDR

8,815,972,722. This means that he still underpaid Rp 4,538,027,278. In the cassation

decision, the Supreme Court required Angelina Sondakh to pay a substitute sentence of IDR

2.5 billion and USD 1.2 million, if she did not pay it was replaced with a sentence of 1 year

in prison. However, because he had already paid Rp 8 billion, he had to serve a criminal

term of 4 months and 5 days.

From the perspective of state financial returns, this case highlights the need for

effectiveness in the process of recovering state losses. Although a court ruling has been

issued and the amount to be paid has been established, there are still challenges in ensuring

full and timely payment. It is important to identify obstacles that may arise in the

implementation of state financial returns and find appropriate solutions to ensure optimal

recovery of state losses.

Furthermore, in the case of Johny G. Plate in the alleged Money Laundering Act

(TPPU) related to the corruption of the 4G BTS project of the Ministry of Communication

and Information. The imposition of the TPPU article on suspects was carried out by the

Attorney General's Office with the aim of tracing the flow of funds allegedly derived from

corruption crimes. This shows that there is suspicion that there is an attempt to launder

money from corruption through the flow of funds. The trafficking trap is also intended to

facilitate the investigation team in seizing suspect assets and ensuring the return of state

losses (Sulhan, 2016).

Investigators in this case have focused on the seizure of the suspect's assets. By

trapping suspects with trafficking articles, the investigation team can trace and seize assets

suspected of originating from the proceeds of corruption. This step is important in efforts to

recover state losses caused by corruption and keep suspects from controlling or hiding these

assets.

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The Financial and Development Supervisory Agency (BPKP) calculated state losses

at Rp 8.32 trillion. This amount includes various factors such as the cost of preparing project

studies and analyses, budget inflated or unit price mark-ups, and unrealized development

payments. The amount of the country's losses shows the seriousness of corruption cases that

occurred in the 4G BTS project of the Ministry of Communication and Information.

The investigation team also coordinated with the Financial Transaction Reporting and

Analysis Center (PPATK) to trace the flow of funds allegedly flowing to political parties

and politicians in the DPR. This indicates the alleged involvement of other parties who

received funds from the corruption crime. Cooperation with PPATK can help in identifying

patterns of fund flow and its beneficiaries.

In this case, law enforcement efforts include the imposition of TPPU articles, asset

seizure, and cooperation with related institutions. This shows efforts to recover state losses,

strengthen law enforcement against corruption, and expose the involvement of other parties

who may be involved in the flow of funds derived from the criminal act of corruption. Law

enforcement efforts in the case still involve the imposition of TPPU articles, asset seizure,

and cooperation with related institutions. This shows a commitment to recover state losses,

strengthen law enforcement against corruption, and expose the involvement of other parties

who may be involved in the flow of funds derived from the criminal act of corruption.

Despite challenges in the execution of substitute criminals, these steps are still being taken

to confront the problem and ensure state recovery efforts are carried out as effectively as

possible.

The problem that often arises is that when the time comes for collection or execution,

most of the defendants state that they are no longer able or do not have property that can be

used to pay the substitute money, so that as a result, within the specified time limit the

defendant has not been able or unable to recover the state losses caused by it, it can be

replaced with imprisonment which cannot be more than the principal crime Rahim & Asma,

(2020). The thing that hinders the criminal implementation of substitute money also lies in

how the mechanism is calculated.

There are several arrangements regarding the return of money in lieu of corruption

crimes which refer to the crime of deprivation of freedom, order for the return of losses, or

substitute money in the amount of as much as the same as the property obtained from the

crime of corruption as stipulated in Article 18 Paragraph (1) point b, but this provision

cannot necessarily expect the money from corruption to be returned because of the

provisions of Article 18 Paragraph (2) and Paragraph (3) (Yahya, 2017).

If the convict does not pay the replacement money within 1 (one) month after the court

decision that has obtained permanent legal force, then the perpetrator's property can be

confiscated by the Prosecutor and auctioned to cover the replacement money (Article 18

paragraph (2) of the Tipikor Law). In the event that the convict does not have sufficient

property to pay the replacement money, then he shall be sentenced to imprisonment whose

duration does not exceed the maximum threat of the principal crime in accordance with the

provisions of this law and the length of the crime has been determined in a court decision

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(Article 18 paragraph (3) of the Tipikor Law). These two provisions are loopholes that are

very easy for corruptors to circumvent not to return or pay replacement money.

Criminal money substitutes do not have substitution options such as criminal fines

that can be replaced by criminal confinement. The existence of this option is not an

opportunity for the convict to choose the crime to be served. However, the Attorney

General's Office has interpreted the formula as an option. This understanding is also

reflected in the internal regulations of the Attorney General's Office, namely the Attorney

General's Decree Number KEP-518/J.A/11/2001. In the decision, it is stated that one of the

stages of criminal execution of substitute money is to ask the convict whether or not he is

able to pay the substitute money. The phrase "asking whether the convict is able to pay the

replacement money" clearly indicates that the convict can choose to declare whether or not

he is able to pay the substitute money.

This option clearly transfers the meaning of a subsidiary that should be a substitute if

the principal crime does not occur, into an option. This situation was eventually exploited

by convicts who, with the support of the conditions and limitations of handling corruption

cases, easily claimed to have no property to pay the replacement money, and "chose"

substitute imprisonment as a more favorable option for them (Akbal & Umar, 2020). What's

more, there is a possibility that convicts will be released sooner through granting remissions

at certain times. If the criminal conviction of substitute money is considered an option, then

efforts to restore state finances as a goal of enforcing corruption crimes will not be achieved.

4. State Financial Return Solution as State Financial Recovery

For the effectiveness of State Financial Return as State Financial Recovery in the

context of law enforcement, eradicating corruption involves a number of steps that can be

taken as a form of completing state financial recovery. These include:

1. It is necessary to increase the capacity and competence of law enforcers involved in

eradicating criminal acts of corruption. They need to have in-depth knowledge of

corruption laws, financial investigations, and management of seized assets. By increasing

their capacity, law enforcement will be more effective in conducting investigations,

gathering evidence, and returning state finances.

2. It is important to ensure that law enforcement agencies involved in combating corruption

have adequate funding. This will enable them to carry out their duties and responsibilities

effectively, including conducting in-depth investigations, gathering solid evidence, and

filing a lawsuit for the return of state finances. Adequate funding can also be used to

improve infrastructure and technology needed in law enforcement processes.

3. Close and synergistic cooperation between law enforcement agencies, such as the police,

prosecutors, KPK, and financial institutions, is essential. They need to share information,

coordinate, and work together to identify, investigate, and recover state finances harmed

by corruption. This collaboration will strengthen law enforcement efforts and the return

of state finances.

4. Transparency and accountability in state financial management are key in eradicating

corruption and returning state finances. There needs to be clear and strict regulation on

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the country's financial management, including detailed financial reporting and

independent audits. By increasing transparency and accountability, opportunities for

corruption will be reduced, and state financial returns can be made more effectively.

Corruption prevention efforts are also an important part of the country's financial

recovery. It is necessary to develop a strong integrity system in all sectors, including

government, business, and society. It involves the implementation of anti-corruption policies,

ethics and integrity training, as well as strict supervision of corrupt acts. By preventing

corruption in the first place, it will reduce the country's financial losses that need to be

recovered.

CONCLUSION

The substitute money criminal is an additional form of criminal that must be added to the

principal crime. Although the replacement money is returned to the state, it does not eliminate

the main criminal charges in accordance with the provisions stipulated in Article 4 of Law

Number 31 of 1999 concerning the Eradication of Corruption Jo. Law Number 20 of 2001

concerning amendments to Law Number 31 of 1999 concerning the Eradication of Corruption

Crimes. The procedure for payment of substitute money is regulated by the Attorney General's

Decree Number: Kep-518/J.A/11/2001 dated November 1, 2001 which regulates the

mechanism for payment of substitute money. The imposition of substitute money sanctions for

corruption defendants proven in court should not be given as substitution crimes such as

imprisonment or confinement. This is so that state losses due to corruption can be returned

optimally through substitute crimes. Imprisonment as a substitute crime can reduce the state's

chance to recover losses due to corruption. Substitution imprisonment is usually applied to

corruption cases with small state losses or if the defendant is unable to pay. The factor that

influences the application of substitute money is that corruptors or convicts prefer to serve

prison sentences rather than pay substitute money. This is because the substance of the law

gives leeway to the judge to grant a criminal substitution when the substitute money is imposed

and gives the defendant the option to pay the substitute money or serve a prison sentence. As

a result, many corruption defendants prefer imprisonment rather than paying money in lieu. In

fact, the purpose of the substitute money crime is to restore state finances, which unfortunately

cannot be carried out because it is replaced by imprisonment. The lack of coordination between

parties related to the return of state losses is also an influential factor.

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Armen Foster (2023)

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