Legal Analysis of the Waiver of Unlawful Elements in Corruption Cases (Study of Supreme Court Decision of the Republic of Indonesia Number 3968 K/Pid.Sus/2023)

Abstract

Corruption is a serious crime with wide-ranging impacts, where Article 2 paragraph (1) of the Corruption Eradication Law (UU Tipikor) requires the element of “unlawfully”. After the Constitutional Court Decision No. 003/PUU-IV/2006, this element was limited to the formal meaning. However, in practice, there is a disregard for the unlawful element in corruption cases. The case study of the Supreme Court Decision of the Republic of Indonesia Number 3968 K/Pid.Sus/2023 shows differences in interpretation between the public prosecutor and the judge, such as in the Juanda Prastowo case where the unlawful element of Article 2 paragraph (1) was disregarded by the judge from the first level to the cassation, and the Defendant was sentenced based on Article 3 of the Tipikor Law. This study aims to examine the application of the unlawful element in Article 2 paragraph (1) of the Tipikor Law, the judge’s consideration factors in disregarding it, and the implications of the decision. The normative-empirical legal research method was used with a case study and legislation approach, analyzed qualitatively. The results of the study showed that the Public Prosecutor based the indictment of Article 2 paragraph (1) on the fulfillment of formal unlawful elements (violation of the Presidential Decree on Procurement of Goods/Services). However, the judges up to the Supreme Court set it aside with the consideration of lex specialis derogate legi generalis, assessing that the Defendant’s actions as a PPK were more appropriately charged with Article 3 of the Corruption Law. This decision has the potential to increase the difficulty of proving the “unlawfully” element of Article 2 paragraph (1) of the Corruption Law in the future.