Jakarta, IO – Why is ultimum remedium (the last means or last remedy) of the Criminal Law, which has been known for centuries, still used as a reference when several sanctions are available in a legal incident? One example is in the case of buying and selling which is covered by an agreement, where one of the parties commits a breach of contract or an act against the law.
Article 1320 of the Civil Code regarding the conditions for the validity of an agreement between two or more people states that for a valid agreement to occur, four conditions need to be fulfilled: an agreement of those who bind themselves, the ability to make an agreement, a certain subject matter, and a reason that is not prohibited. It also contains provisions for the cancellation of an agreement, as stated in Article 1321, “No agreement has any force if it is given by mistake or obtained by force or fraud.”
The makers of the Civil Code Law also acknowledged that an agreement can be canceled if fraud occurs (during the agreement process). In the Criminal Code, fraud is regulated in Article 378 as an act of cheating. Anyone who, with the intention of unlawfully benefiting himself or another person by using a false name or false dignity, by deception or a series of lies, induces another person to submit goods to him, or to give a debt or write off a receivable, is punishable by fraud with a maximum imprisonment of four years.
However, fraud must be first proven to cancel an agreement as regulated in Article 1328. Fraud is a reason to cancel an agreement if the fraud used by one party is such that it is clear that the other party will not enter into the agreement without any deception.
Fraud cannot only be predicted but must be proven. Starting from the provisions of the Civil Code and Criminal Code, it is clear that the two legal disciplines (Civil Law and Criminal Law) are not inseparable or can be separated but can only be differentiated. Referring to Article 1320 and Article 1321 of the Civil Code and Article 378 of the Criminal Code, it is stated that allegations of fraud in an agreement (civil law) can cancel an agreement if the fraud has first been proven.
Drawing a line from these provisions, the legal interpretation of these provisions, in practice, often creates legal uncertainty, whether in civil law procedures or criminal law procedures, even though, normatively, it states that criminal law procedures must take precedence before civil law procedures can continue.
The stance of the Indonesian Supreme Court in dealing with legal uncertainty in legal practice is seen in the issuance of Supreme Court Regulation (Perma) 1/1956, dated May 23, 1956, showing an attempt by the Supreme Court to fill the legal void regarding Prejudicieel Geschil (prejudicial dispute) which at that time had not been accommodated in criminal law procedures. In its considerations, the Indonesian Supreme Court states that because the current regulation of Court Procedure in Indonesia has no regulations regarding the relationship between civil courts and criminal courts, there appears to be doubt in this case. To remove these doubts, the Supreme Court considers it necessary, by using the power granted to it in Article 131 of the Indonesian Supreme Court Law, to issue the following regulations:
Article 1. If, during the criminal case investigation, it is necessary to decide whether there is a civil case regarding an item or about a legal relationship between two particular parties, then the criminal case investigation can be postponed to wait for a court decision in the civil case investigation regarding the existence or non-existence of that civil right.
Article 2. The suspension of criminal case investigation can be stopped at any time, if deemed no longer necessary.
Article 3. In investigating criminal cases, the court is not bound by the court’s decision in investigating civil cases regarding the existence or nonexistence of a civil right.
Initially, with the Perma mentioned above, legal uncertainty or legal void could be resolved. However, looking deeper into the provisions of Article 3 of Perma 1/1956, if it turns out that the provisions of Article 3 of the Perma have become increasingly uncertain, and the meaning of Prejudicieel Geschil is as regulated in Article 81 of the Criminal Code has become more obscure. In practice, the provisions of Article 81 of the Criminal Code and Perma 1/1956 have been used as a way to create legal uncertainty and even injustice for justice seekers because the civil cases being faced are always in conflict with the criminal aspects that arise from a case like the legal problems in the case above.
The problem of legal certainty is increased by the provisions of Article 3 of Perma 1/1956, which states that the investigation of criminal cases is not bound by any court decision in the investigation of civil cases regarding the existence or nonexistence of a civil right. It means that instead of resolving the issue of legal uncertainty, the provisions in the Perma have increased legal uncertainty, especially for justice seekers, as one of the parties in dispute will continue to report suspected criminal acts without any concern or reluctance to stop the criminal case investigation.
In fact, the Perma can resolve judicial disputes with legal certainty. The application of the ultimum remedium principle in criminal law practice is actually placed in the opposite direction, called primum remedium (the main remedy); the function of criminal law takes priority primarily, especially in corruption crimes.
In reality, corruption crimes involve many legal aspects besides criminal law aspects, including aspects of state/government administration law, civil law aspects, corporate legal aspects including cooperatives and aspects of state financial law. In this multifaceted legal status, the ultimum remedium function of criminal law should be optimized. However, the Prosecutor’s Office and the Corruption Eradication Commission (KPK) do not comply with this legal principle for two reasons. First, corruption is an extraordinary crime, so handling corruption cases must take priority. Second, the consequences of corruption crimes are detrimental to state finances or the state economy. Thus, mens rea must be assessed from the perspective of state interests compared to individual or corporate interests.
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Nonetheless, from the efficiency aspect of corruption eradication performance, it has been proven that the handling pattern using the primum remedium approach with the principle of retributive justice has been given an excessive assessment (overvalued) by the Prosecutor’s Office and the KPK. Meanwhile, the 2003 UN Anti-Corruption Convention has emphasized that state loss is not an element that determines a corruption crime (Article 3). Thus, the state proves to suffer greater state losses because government infrastructure development projects are halted and funds from the state budget cannot be absorbed according to the original development plan.
This is because the objectives of legal certainty and quantitative benefits are overestimated compared to calculations based on cost and benefit analysis, that is, the assessment of elements of state financial loss is not based on aspects of balance, efficiency or benefit.