Article 2 of Law No. 31 of 1999 “On the Eradication of the Criminal Act of Corruption” (hereinafter the “Law”) criminalizes enrichment for personal benefit / for the benefit of a third party that damages the State, which entails life imprisonment or a prison sentence of 4 to 20 years and a fine of 200 million to 1 billion IDR (of roughly 13,500 to 67,500 USD). At the same time this article stipulates that under certain circumstances the individual who committed the above-mentioned crime may be sentenced to death (however, there have been no cases of such sentence as of yet).
Article 3 of the Law criminalizes the abuse of functions for personal benefit or for the benefit of a third party by taking advantage of the opportunities or other instruments available to the individual by virtue of his/her office if it damages the State. This crime is punishable by life imprisonment or a prison sentence of 1 to 20 years and a fine of 50 million to 1 billion IDR (of roughly 3,400 to 67,500 USD).
According to the Decree, judges should take into consideration six key factors to determine just punishment for the crimes provided for under the indicated articles:
- The amount of damage sustained by the State;
- The scope of the crime, the role of the individual in it and the overall benefit he/she obtained;
- The range of punishment;
- Aggravating or mitigating circumstances;
- Criminal record;
- Any other provisions related to criminal conviction.
Besides that, the act lays down a set of criteria for evaluating the first two factors.
In particular, the amount of damage sustained by the State may be assessed as:
- minimal: up to 200 million IDR (roughly 13,500 USD), which is applied only to article 3 of the Law;
- minor: from 200 million to 1 billion IDR (from about 13,500 to 67,500 USD);
- medium: from 1 to 25 billion IDR (from 67,500 to 1.7 million USD);
- major: from 25 to 100 billion IDR (from 1.7 to 6.7 million USD);
- particularly large: over 100 billion IDR (over roughly 6.7 million USD).
When assessing the second factor, judges will take into account the administrative level at which the crime was committed (federal, regional or local), the role of the defendant in it (whether he/she was the organizer, the perpetrator of or an accomplice to the crime) and the overall benefit he/she obtained. In the outcome of the assessment the seriousness of the crime will be classified as low, medium or high.
A table correlating the assigned score and the respective punishment is annexed to the Decree. For example, if the scale of the crime, the role of the individual in it and the overall benefit he/she obtained are assessed as high with the damage sustained by the State being particularly large the defendant is liable to a prison sentence of 16 to 20 years and a fine of 800 million to 1 billion IDR (of roughly 54,000 to 67,500 USD). In the event that the damage sustained as a result of the crime does not exceed 50 million IDR (roughly 3,400 USD) the judge can opt for not imposing a fine.
The document is also supplemented by a list of aggravating and mitigating circumstances. For instance, the aggravating circumstances include:
- previous criminal convictions of the defendant;
- refusal to cooperate with the investigation;
- attempted concealment of evidence;
- defendant’s employment in public administration or law enforcement bodies, and others.
The mitigating circumstances are:
- no criminal record;
- active cooperation with the investigation;
- admission of guilt;
- voluntary return of the property proceeding from a corruption crime, and others.
Therefore, the Decree establishes a unified approach towards determining an appropriate punishment depending on the objective components of a crime. Before that, judges had been often accused of lacking impartiality and mitigating the severity of punishment.
For instance, in June 2019 the City Court of Makassar sentenced a former head of the village of Batugulung to two and a half years of imprisonment for the embezzlement of 542 million IDR (roughly 36,000 USD), yet in the case of a former head of the village of Hambuku, accused of the embezzlement of only 43 million IDR (around 2,900 USD), which is nearly 13 times less, the City Court of Banjarmasin chose a more severe degree of liability in the form of four years of imprisonment. All in all, according to the non-profit Indonesia Corruption Watch, the average length of imprisonment for corruption crimes was of only two years and seven months in 2019 and of two years and five months in 2018.
Despite the overall positive assessment of the new measures, some experts are concerned about the fact that the Decree covers only such crimes as illicit enrichment and abuse of functions, meanwhile the other crimes addressed by the Law, for example, bribery, solicitation and acceptance of undue reward, fall outside the scope of its application.
