indonesian journal of criminal law studies (ijcls)

113 Pages·2017·3.33 MB·Indonesian

IJCLS
Indonesian Journal
Criminal Law Studies
of
Volume II Nomor 1, Mei 2017
Articles :
Basir Rohromana
The Application of Participated Doctrine in Corruption (Study Of Decision on Corruption
Criminal Act Court at Ia Jayapura District Court)
Muhammad Iftar Aryaputra; B. Rini Heryanti; Dhian Indah Astanti
Menyorot Putusan Mahkamah Konstitusi Nomor 25/PUU-XIV/2016 Terkait Unsur
“Dapat Merugikan Keuangan atau Perekonomian Negara” dalam Perkara Korupsi
Hwian Christianto
Ajaran Sifat Melawan Hukum Materiil Sebagai Upaya Harmonisasi Ketentuan Hukum
Pidana Pornografi Melalui Internet
Rahmi Dwi Sutanti
Kebijakan Aplikatif Pemberatan Pidana bagi Pelaku Pengulangan Tindak Pidana
Denty Suci Mareta Femylia, Muchammad Chasani
Putusan Ultra Petita dalam Kasus Pembunuhan di Pengadilan Negeri Jakarta Timur
Wahyu Priyanka Nata Permana
Sinkronisasi Penanganan Perkara Pidana yang Dilakukan oleh Subjek Hukum Korporasi
Denny Ardiansyah
Pencabutan Hak Untuk Memilih Dan Dipilih Bagi Terpidana Tindak Pidana Korupsi
Muhammad Ikbal
The Implementation of Discretion on Criminal Settlement in The Theft Cases
ISSN Online 1478761011
Cetak 1478761608
Kesekretariatan :
Gedung K, Dekanat Fakultas Hukum Universitas Negeri Semarang
Sekaran Gunungpati Semarang 50229
Telepon [phone]; [phone]; Fax. [phone]
FOCUS AND SCOPE
Indonesian Journal of Criminal Law Studies (IJCLS) created to be
a means of dissemination of the results of legal research for all
researchers who have interest in the field. Through the
dissemination of research results in the journal is expected to
grow a network of researchers in the field of criminology,
criminal law and penal reform according to their research
interests. In addition, through the dissemination of the research
is expected to develop the jurisprudence of the field of interest.
The scope of this journal is the publication of research in the
field of criminal law, both written by researchers from the fields
of law or other parties whose study is law. This journal is
published twice in a year, that is on MAY AND NOVEMBER.
This Journal firstly published in November 2016
EDITORIAL TEAM
Editor in Chief
Cahya Wulandari, Fakultas Hukum, Universitas Negeri Semarang, Indonesia
Board Editor Member
Barda Nawawi Arief, Fakultas Hukum, Universitas Diponegoro
Agus Raharjo, Fakultas Hukum, Universitas Jenderal Soedirman
Ali Masyhar, Fakultas Hukum, Universitas Negeri Semarang
Indah Sri Utari, Fakultas Hukum, Universitas Negeri Semarang
Rasdi, Fakultas Hukum, Universitas Negeri Semarang
Herry Subondo, Fakultas Hukum, Universitas Negeri Semarang
Managing Editor
Anis Widyawati, Fakultas Hukum, Universitas Negeri Semarang, Indonesia
Sonny Saptoajie W, Fakultas Hukum, Universitas Negeri Semarang, Indonesia
Indung Wijayanto, Fakultas Hukum, Universitas Negeri Semarang, Indonesia
Muhammad Azil Masykur, Fakultas Hukum, Universitas Negeri Semarang, Indonesia
Benny Sumardiana, Fakultas Hukum, Universitas Negeri Semarang, Indonesia
Diandra Preludio, Fakultas Hukum, Universitas Negeri Semarang, Indonesia
Ridwan Arifin, Fakultas Hukum, Universitas Negeri Semarang, Indonesia
DAFTAR ISI

Basir Rohromana 1-12
The Application of Participated Doctrine in Corruption (Study Of Decision
on Corruption Criminal Act Court at Ia Jayapura District Court)

Muhammad Iftar Aryaputra; B. Rini Heryanti; Dhian Indah Astanti 13-26
Menyorot Putusan Mahkamah Konstitusi Nomor 25/Puu-Xiv/2016
Terkait Unsur “Dapat Merugikan Keuangan atau Perekonomian Negara”
dalam Perkara Korupsi

Hwian Christianto 27-39
Ajaran Sifat Melawan Hukum Materiil Sebagai Upaya Harmonisasi
Ketentuan Hukum Pidana Pornografi Melalui Internet

Rahmi Dwi Sutanti 40-53
Kebijakan Aplikatif Pemberatan Pidana bagi Pelaku Pengulangan Tindak
Pidana

Denty Suci Mareta Femylia, Muchammad Chasani 54-66
Putusan Ultra Petita dalam Kasus Pembunuhan di Pengadilan Negeri
Jakarta Timur

Wahyu Priyanka Nata Permana 67-89
Sinkronisasi Penanganan Perkara Pidana yang Dilakukan oleh Subjek
Hukum Korporasi

Muhammad Ikbal 90-101
The Implementation of Discretion on Criminal Settlement in The Theft
Cases
IJCLS II (1) (2017)

INDONESIAN JOURNAL OF CRIMINAL
LAW STUDIES (IJCLS)

THE APPLICATION OF PARTICIPATED DOCTRINE IN
CORRUPTION (STUDY OF DECISION ON CORRUPTION
CRIMINAL ACT COURT AT IA JAYAPURA DISTRICT COURT)

Basir Rohrohmana *
* Lecturer at Faculty of Law, Cenderawasih University
Info Artikel Abstract
________________ ___________________________________________________________
Sejarah Artikel: Decision of Criminal Act of Corruption Court at the IA Jayapura District
Received March 2017 Court Number 05/Pid.Sus-TPK/2015/PN.Jap, and (2) Decision Number
Approved April 2017
06/ Pid.Sus-TPK/2015/PN.Jap. Both decisions show the application of
Published May 2017
participated doctrine, both in the indictment, the prosecution of the prosecutor,
________________
and the basis of the judge's judgment to result the decisions to the
Keywords:
Participated; Corruption; offenders. There are 2 (two) findings to be disclosed in the analysis of these
___________________ decisions are (1) the participated doctrine which is applied apparently in their
application are within separate prosecution areas between the two indictments,
thereby treating the participants in the participated doctrine equally with the
independent offender, even impressed as a convergence offense, (2) with
prosecution in the indictment, the prosecutor and judge in applying the
participated doctrine in these two decisions tend to be restrictive in view that the
offender is compared to the dader not as part of the producer's entity (verzamen
term) in which there are qualities of offenders who can be distinguished between
pleger, doenpleger, medepleger, uitlokker or medeplichtigheid.

© 2017 Universitas Negeri Semarang
Jl. Kamp Wolker, Waena Jayapura, 99358 Papua Indonesia
Tel/Fax: [phone], E-mail: [email protected]
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Basir Rohrohmana / Indonesian Journal of Criminal Law Studies II (1) (2017)
INTRODUCTIONS Determining the positions of offenders
as above also becomes important, because
Criminal Acts of Corruption which in general these participated doctrine are
handled through the criminal justice process precisely made to hold accountability of
(pre-adjudication process and adjudication) them which enabling the offenders to
often reveal criminal act of corruption commit criminal acts, even if their actions
conducted by more than one offender. The do not contain all elements of the criminal
condition of offenders which are thus in the acts1. It is so hard to imagine that the public
criminal law constructed as a "participated prosecutor and the judge to ask criminal
doctrine" committing a crime or who is responsibility of each offender of criminal
often known as "deelneming". acts of corruption, when there is not clearly
The application of participated revealed the position of each
doctrine in criminal acts including criminal offender. Because according to Utrecht even
acts of corruption has resulted 3 (three) legal though they are not makers that they do not
issues, namely (1) it is often difficult to contain all the elements of criminal acts,
disclose the complex pattern of relationships they are also responsible or can be held the
among the offender of corruption, and (2) accountability of them for the criminal acts,
no clarification of the position or because without their participation of course
categorization of each offender the criminal acts are never happened2.
between (pleger), were told to In connection with the application of
do (doenpleger), who participate to conduct the participated doctrine in the criminl acts
(medepleger), who persuades of corruption, there are 3 (three) decisions at
do (uitlokker), and who helped the IA Jayapura District Court which is
conduct (medeplichtige), (3) sometimes in being the focus of the study, namely (1)
practice participated doctrine is reduced by Decision Number 05/Pid.Sus
identified it with deeds together committing TPK/2015/PN.Jap (2) Decision Number
a criminal offense, whereas acts which are 06/Pid.Sus-TPK/2015/PN.Jap. These two
did by more than one offenders may be decisions show the application of
prosecuted separately, because each participated doctrine, both in the
perpetrator satisfies all the formulas of the indictment, the demands of the criminal
offense. (requisitoir) of the public prosecutor, as well
Three legal issues concerning the as basic consideration of the judge to make
application of participated doctrine are a decision that interesting to be analyzed
interesting to be disclosed, because in the through the study with entitled Application
participated doctrine desires or requires the of Participated Doctrine In Criminal Acts of
fulfillment of some elements of the offense Corruption (Case Study of Corruption Court at
committed by each offender, not against the IA Jayapura District Court).
perfect offense. In addition, some of the
offenders may be categorized as indirect

offenders (gehilfe) only facilitate or assist the
criminal act in this regard criminal acts of
1 E. Utrecht. 2000. The Essence of Series Lecture
corruption is not a full offender who meet Criminal Law II. . Surabaya: Pustaka Tinta Mas 2000.
p. 9
all the elements of a criminal offense.
2 Ibid
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Basir Rohrohmana / Indonesian Journal of Criminal Law Studies II (1) (2017)
RESEARCH METHODS or deelneming can be said that deelneming on
divulging strafbaarfeit or delict there when
The method used in this research is a delict snagged some people or more than
normative legal research that examines the one4.
application of legal principles and positive History records that the participated
legal norms related to the application of doctrine was first the brainchild of Von
particited doctrine in criminal acts of Feuerbach who difference in the two forms
corruption. As a type of normative legal of the participants, namely (a) they are
research, then put forward the study of legal directly trying the criminal act, this is
materials. The legal materials used are (1) called auctores or urheber, and (b) they are
primary legal materials, (2) secondary legal who only help the businesses, those who are
materials, (3) tertiary legal not directly sought, is
materials. Primary legal materials are (1) called gehilfe. Urheber is conducting the
UUTPK, Criminal Code, (2) Corruption initiative, and gehilfe is assisting5.
Court's Decision at IA Jayapura District The development of the participated
Court in the years 2014-2015. While doctrine then inserted in Article 55 and
secondary legal material are the result of Article 56 of the Criminal Code and is
previous research that examines the divided into urheber consists of
application of participated doctrine in doing (pleger), which have (so) do (doen
criminal acts of corruption, while tertiary pleger), who helped conduct (medepleger) and
legal materials are a legal dictionary and were persuaded (so do) called uitlokker,
legal encyclopedia that are used to help while Article 56 of the Criminal Code be
explaining legal terms and concepts of referred to those who are helping or called
participated doctrine in criminal acts of gehilfe (medeplichtige)6.
corruption. Legal material was collected The division of the participant
through a legal literature, and analyzed by offenders between
descriptive analysis technique. auctores or urheber with gehilfe, in the opinion
of other scholars such as that developed in
FINDINGS AND DISCUSSIONS Germany participant offenders into three (3)
parts,
1. Participated Doctrine in Criminal Law namely tater (maker), anstifter (promoters),
In the criminal law participated and gehilfe (maid)7. In terms of the
doctrine known as several terms such as (1) relationship of each participants to the
intervene in a criminal act (Tresna), (2) co- offense, then there are three (3) form a
act offense (Karni), (3) participate (Utrecht), relationship that are:
(4) deelneming (Netherlands), complicity a. Some people do a delict or offense;
(British), Teilnahme/Tatermehrheit (Germany
), Participation (France)3. Satochid

Kartanegara define participated doctrine
4 Satochid Kartanegara. Criminal Law A Collection

of Lecture Part One. Balai Lektur Mahasiswa, Without
Year, p. 418
3 Barda Nawawi Arief. 2007. Essence of Lecture on 5 E. Utrecht. 2000. The Essence of Series Lecture
Advanced Criminal Law, Semarang: Lecture Material Criminal Law II. Surabaya: Pustaka Tinta Mas. p. 7
Supply Agency, Faculty of Law, University of 6 Ibid. p. 8
Diponegoro. p. 35 7 Barda Nawawi Arief, Op. Cit. p. 36
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Basir Rohrohmana / Indonesian Journal of Criminal Law Studies II (1) (2017)
b. perhaps only one person who has offenders (daders) and help to
the "willing" and "concocting" offense, conduct (medeplichters)10.
but this acts are not did by alone, but The next review of the participated
they use other people to carry out the doctrine focused on criteria for
offense; categorization of each participant offender
c. may also happen that one who commits referred to in Article 55 and Article 56 of
offense, while other people "help" to the Criminal Code, namely (1) pleger (actor),
carry out the offense8. (2) doenpleger (those who order us to do),
The relationship of each participant to (3) medepleger (the people who participate),
the offense may have a relationship and (4) uitlokker (promoters), (5) the people who
even become a benchmark to determine the are helping (medeplichtige).
liability of the participants against the A. Pleger
offense. According Satochid Kartanegara in Pleger is the person who does a deed
looking at the relationship of each by self that meet the formulation of the
participant to the responsibilities of the offense, in practice difficult to determine,
criminal, it is by its nature deelneming, it can especially in the case of the legislators did
be divided into (1) The forms not specify exactly who is the
of deelneming which stand-alone, in this offender. According to Barda Nawawi Arief
form the responsibility of each participant on this matter there are two opinions. (1)
appreciated alone, (2) The forms of The Indonesian judiciary: the makers (in the
deelneming who do not stand alone in this narrow sense that are the offenders) are
case are also called "accessori deelneming", the those which, according to the intent of
accountability of participants that one hung lawmakers should be deemed have
on deeds of the other participants, namely responsibility, (2) The Netherlands
doing a deed that can give a sanction to one Judiciary dader (in the narrow sense) is the
participant, so that the other participant was person who has the power or ability to put
also punished9. However Satochid an end to the offense that forbidden, but still
Kartanegara did not give further allowing forbidden circumstances to
explanation on matters which of these two continue11. To overcome the difficulties that
properties deelneming (stand-alone and does good practice to follow the opinion of
not stand alone) can be used, it is in the January Rummelink about pleger as
practice of criminal justice as if handed over follows:
to the criminal justice apparatus to use The provisions of Article 47
it. Linkages with it Satochid Kartanegara Sr. (Article 55 of the Indonesian Criminal
explained that the provisions of the Code) first stipulates who committed a
Criminal Code does not differentiate criminal act thoroughly. Even when the
between deelneming which are stand-alone offenders (pleger) are not the person who
and deelneming which are not stand- participate (deelnemer), may be able to
alone (zelfstandige understand why they need to be called.
deelneming and onzelfstandige deelneming), but Offenders, in addition to other parties
only held a breakdown between the participating or being involved in a criminal

8 Satochid Kartanegara, Loc. Cit. 10 Ibid
9 Ibid. p. 419 11 Barda Nawawi Arief, Op Cit. p. 38
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Basir Rohrohmana / Indonesian Journal of Criminal Law Studies II (1) (2017)
act they were doing, would be convicted tool), (3) the equipment used can not be
with them as the offender (dader), while the accounted for, a third element which is the
way to participate made and the sign characteristic of doenpleger15.
responsibility to it, also determined by its
relation with criminal offenses committed C. Medepleger
by the main offender because it is the In Ontwerp Regerings Ordinance or
offender (pleger), is a person who meets all the Plan of Government Regulation in
the elements of the offense (also in the form Netherlands, medeplegen at the first
of trial or preparation), including when called opzettelijk medewerken or deliberately
done through other people or their help to do, deliberately cooperation with the
subordinates (intended here in connection offenders. Therefore there are the challenge
with the offenses functional), because it is of Tweede de Kamer because these terms
understandable why the offenders are difficult to distinguish from
always referred by lawmakers when they the medeplichtigheid (co-) then the
formulate regulations and establish criminal government in this case the Ministry of
penalties12. Justice of Netherlands replaces it with
Based on Rummelink's point above, it medeplegen as also found in Article 55 of
is clear that pleger is a person who is the Criminal Code.
capable to realize or can fulfill all elements Muhammad Ainul Syamsu view that
of the offense, but in its implementation if compared to other forms of participation,
involves other people especially in 2 (two) participated doctrine (medeplegen) has a
things: (1) how to commit criminal act, and different characteristic because it requires
(2) responsibility against them for a crime. the joint action (meedoet) between the main
offender (pleger) the people who are
B. Doenpleger participate (medepleger)16.
Satochid Kartanegara call According to Barda Nawawi Arief the
doenpleger as Mideelijke Daderschap doctrine regulations do not give a definition
which have meaning "act with of medepleger (those who
intermediaries"13. In doenpleger recognized participated), Memorie van Toelicting declare
the existence of two (2) parties, namely (1) those who participate do (medepleger) is the
direct offender (onmiddelijke dader, auctor person who intentionally do or co-working
physicus, manus ministra), (2) indirect co-occurrence17.
offender (middelijke dader, doenleger, auctor The views of Pompe (in Barda
intelectualis/moralist, manus ministra)14. Nawawi Arief) medepleger are helped do
Doenpleger have three (3) elements, something happening criminal offense with
namely (1) the equipment used is human, there are three (3) possibilities, namely:
(2) the equipment used that do (not a die

12 Jan Rummelink. 2003. Criminal Law, 15 Ibid. p. 39
Commentary on Articles Foremost of the Criminal Code of 16 Muhammad Ainul Syamsu. 2014. Shifting
Netherlands and its equivalent in the Criminal Code of Participated Doing the Doctrine of Participation, Critical
Indonesia, translated by Pascal Trustam Review Based Separation Theory of Criminal Act and
Moeliono. Jakarta: Gramedia Pustaka Utama. p. 308 Criminal Liability. Jakarta: Prenadamedia
13Satochid Kartanegara, Op. Cit. p. 422 Group. p. 59
14Barda Nawawi Arief, Op. Cit. p. 38 17 Barda Nawawi Arief, Op. Cit. p. 41
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Basir Rohrohmana / Indonesian Journal of Criminal Law Studies II (1) (2017)
1. Each of them fulfilled all the elements in D. Uitlokker
the formulation of the offense, two Article 55 (2) of the Criminal Code
people by cooperating in the theft of a tends to regulate the agitator responsible for
rice warehouse, committing a criminal offense, with
2. one meets all the elements of the offense measures prescribed by law (limitative). The
and the others are not, for example, two limitative measures referred to (1) by
people pickpocket (A and B) mutually granting, (2) promises, (3) abuse of
cooperate, A hit or crash the people authority, (4) by force, (5) by threat, (6) by
who become the target, while B took the deception, (7) or by giving a means or
wallet of target. information deliberately advocating or
3. none of the offenders fulfilled the persuading (committing) a criminal offense
elements of the offense entirely, but they shall be criminally charged as a criminal
are jointly to realize the offense, for offender. Rummelink views that happenings
example in the theft with damage of uitlokker not the person induced to
(Article 363 paragraph (1) to 5 of the commit a crime, but rather that the offense
Criminal Code), one is oversee the occurred because of suggestion or
suroundings, while the others entered persuasion of others, the object is not
the house and pick up the goods and (solely) the person who persuaded
then received to his friend who oversee (provoked), but also offenses provoked21.
the suroundings18. Furthermore, Jan Rummelink
Terms of the medepleger are (1) there is proposed 4 (four) requirements that must be
a conscious cooperation (bewuste met with criminal indictment, namely:
samenerking), (2) there is joint physical 1. Deliberate action to mobilize another
implementation (gezamenlijkeuitvoering/physi person to do an act that is prohibited by
eke samenwerking)19. Note from Jan law with the assistance of means as
Rummelink that in the case of stipulated in law;
the medepleger requirement that there should 2. The decision to be willing on the other
be no plan or agreement made side must be raised. This requirement is
beforehand. On the contrary, it needs to be dealing with psychic causality;
proven that there is mutual understanding 3. A person who is moved (persuaded or
among fellow offenders and when the provoked) to embody a plan instilled by
offenses are realized each of the actors a persuader or activator to commit a
cooperates to achieve the same goal20. crime or at least conduct an experiment
to do a crime. A bad faith of the mover
is not enough, it must be manifest into
action;
4. Undoubtedly persuaded people should
18 Ibid . p. 42
19 Ibid be held criminally responsible, if not
20 Jan Rummelink, Op. Cit. P. 314, in this case then it does not appear the inducement
also reveals the decision Rummelink HR Arrest on
but the effort told to do (doenplegen)22.
February 9, 1914, that there is no participation if one
person wanted to persecute perpetrators, while the
other players just about to commit murder. Each of
these actors who cooperate do not need to do a whole
set of action implementation and does not need to
meet all of the characteristics as actors, such as 21 Ibid . p. 328
officers or party that controls the material. 22 Ibid.
6