Replacement

Judge's


INTRODUCTION
Efforts to prevent and eradicate corruption that continue to be carried out in Indonesia are not a new issue since the establishment of Law Number 31 of 1999 on the Eradication of Corruption Crimes which was accompanied by the formation of the Corruption Eradication Commission (KPK) through Law Number 30 of 2002 on the Commission for the Eradication of Crimes which shows that corruption is a special concern for the state. 1 In addition, the government is also a part of United Nations Convention Against Corruption (UNCAC) and signed the convention on 18 December 2003, followed by the establishment of Law Number 7 of 2006 on 18 April 2006 as a follow-up to the UNCAC agreement to create a country free from corruption (Considerans of the United Nations Convention Against Corruption UNCAC, 2003).
Efforts to restore state losses are by providing additional punishment in the form of payment of replacement money.This has provided results in the form of income into the state treasury 2 from the payment of replacement money from convicts.Replacement money as an additional penalty in corruption cases must be understood as part of efforts to punish perpetrators of criminal acts of corruption. 3he payment of replacement money is contained in Article 18 paragraph (1) letter b of Law Number 31 of 1999, namely the payment of replacement money in an amount equal as much as possible to the assets obtained from criminal acts of corruption.
In determining and proving the amount of property obtained by a convict from a criminal act of corruption, it is not only measured from the property still controlled by the convict at the time of the court decision, but also the property resulting from corruption at the time for reading the verdict has been transferred by the defendant to another party.In practice, criminal decisions for paying replacement money vary in amount which can be caused by several factors, including the judge having his own calculations, the proceeds of corruption having been returned or the criminal act of corruption being committed by more than one person so paying replacement money is charged jointly. 4 terms of convict does not have sufficient assets to pay replacement money, he will be punished with substitute prison whose length does not exceed a main penalty in accordance with the provisions of the law and the length of the 1 The Corruption Eradication Commission is an institution that is independent and free from the influence of any power.The aim of its formation is to increase the efficiency and effectiveness of efforts to eradicate criminal acts of corruption, with the principles of legal certainty, openness, accountability, public interest and proportionality.Evi Hartanti,  Tindak Pidana Korupsi, (Semarang : Sinar Grafika,2005), hlm.31.
2 State finances are all state rights and obligations that can be valued in money, as well as everything, whether in the form of money or in the form of goods that can be made into state property related to the implementation of these rights and obligations.Agus Kasiyanto, Teori dan Praktik Sistem Peradilan Tipikor Terpadu di Indonesia, (Jakarta : Prenadamedia Group,2018), hlm .69.
sentence has been determined in the court decision. 5In fact, judges are given the freedom to determine legal decisions after looking at the existing facts. 6Because of this, in cases of criminal acts of corruption there are inequalities in terms of decisions.Where differences often arise in the length of replacement prison if the replacement money cannot be paid, even though the amount of replacement money which is imposed in the decision is almost close to the same nominal amount, some even have the same nominal amount, giving disparity in decisions regarding determining the length of the replacement prison sentence.Disparity can give injustice in society.7 Research conducted by Indonesia Corruption Watch (ICW) in 2014 found that corruption cases were sentenced to pay compensation of IDR.50,000,000.00 (fifty million rupiah) with imprisonment for 12 (twelve) months.Meanwhile, in another case, the panel of judges decided that the amount of replacement money was IDR.378,011,000,000 billion (three hundred seventy eight billion eleven million rupiah) with a substitute imprisonment for 12 (twelve) months. 8.substitute prison sentence is 3 (three) years, while at Bengkulu District Court level in Decision No. 25/Pid.sus/TPK/2020/PNBGL imposed the amount of replacement money Rp.4,750,000,000.00 (four billion seven hundred and fifty million rupiah) with a substitute imprisonment for 1 (one) year.

In Decision
From the data above, it is known that in determining the length of the replacement prison sentence which is linked to the amount of replacement money, there are differences or disparities in the imposition in the court decisions formulated by the panel of judges at the court.So it is very interesting to carry out research to find out in depth what matters are taken into consideration by judges in determining the length of imprisonment as a subsidiary of payment of replacement money if it is not paid and to formulate an idea or policy that can be developed to avoid significant disparities in determining the length of substitute imprisonment by the judge in imposing a decision.

RESEARCH METHODS
This type of research is empirical research with a non-doctrinal approach that was researched in the form of empirical studies to find theories regarding the process of occurrence and the process of how law works in society or what is often called sosio legal research.This research describes the legal provisions that should apply in imposing a prison sentence as a substitute for Additional Crime of Substitute Money and discusses in depth the judge's considerations in determining the length of the substitute prison sentence in formulating the decision.So that policy formulations or ideas can be found to anticipate disparities in decisions regarding determining the length of imprisonment if the convict does not pay compensation in accordance with the verdict.

A. Judge's Considerations in Imposing Length of Prison Sentence as a Substitute for Additional Crime of Substitute Money in Corruption Crime Cases
The judge's considerations in imposing replacement money penalty in cases of criminal acts of corruption, are more likely to be based on juridical reasons because the judge can impose a replacement money penalty if the defendant has been legally proven to have committed a criminal act of corruption which is detrimental to the state's finances so that the main aim of imposing a replacement money penalty is hopefully to restore the state's finances.Meanwhile Based on Article 18 paragraph (2) of Law Number 31 of 1999 concerning the Eradication of Corruption Crimes, it is stated that if within 1 (one) month the convict cannot pay the replacement money, then the convict's assets can be confiscated by the Prosecutor and auctioned off to cover the replacement money.Then in paragraph 3 (three) it is explained that if the proceeds from the auction of the convict's assets are insufficient then it will be replaced with a prison sentence which will later be determined by the judge which does not exceed the main penalty. 9 Although Law Number 31 of 1999 concerning the Eradication of Corruption Crimes has included a period for payment of replacement money and legal consequences if the convict does not pay with sufficient assets to pay replacement money.However, the law only provides a simple formula regarding the amount of replacement money, as much as possible is the same as the property obtained from corruption, so it can be interpreted that the amount of replacement money can be calculated based on the value of the defendant's assets obtained from the criminal act of corruption in which he was acussed.
Several problems related to replacement money that have not been answered in Law Number 31 of 1999 concerning the Eradication of Corruption Crimes, these problems involve several things, that are: 1. Parameters for calculating the amount of replacement money; 2. The relationship between the additional punishment of seizure of goods and replacement money; 3. Procedures for execution of replacement money, declaration, auction, and implementation of replacement prison.
Based on the above matters, the Supreme Court issued Supreme Court Regulation (PERMA) Number 5 of 2014 about Additional Crime of Substitute Money.This regulation explains the provisions of Article 18 of Law Number 31 of 1999 concerning the Eradication of Corruption Crimes. 10When a judge imposes an additional penalty of paying replacement money for a convict, the judge must also include imprisonment as a subsidiary punishment.The purpose of this to deter the convict and remain responsible for the actions he has committed even though the convict cannot fulfill his obligation to pay replacement money. 9Ibid.hlm.197. 10 Ibid.
In relation to the length of substitute imprisonment as regulated in Article 8 of Perma Number 5 of 2014 concerning Additional Penalty Replacement Money in Corruption Crimes, it states that the length of substitute imprisonment which can be imposed is the highest of the principal criminal threat for the article which is declared proven and in the event of a threat The principal penalty for the article which is declared proven is life imprisonment, i.e. the maximum alternative imprisonment is 20 (twenty) years. 11ecifically, regarding the determination of the length of imprisonment as a subsidiary of the penalty for payment of replacement money, where in several decisions there are differences in the length of imprisonment as a substitute for the penalty for payment of replacement money.Even though the nominal amount of the payment of replacement money is almost the same or even the same.This is caused by the regulation of the length of substitute imprisonment only state the maximum length of substitute imprisonment.
Regarding the judge's consideration in imposing a prison sentence as the substitution of additional prison replacement money, Sunarso stated that substitute imprisonment is the last alternative to be used if the defendant's assets cannot cover the additional penalty. 12Regarding the length of the substitute prison sentence, Sunarso explained that there are no guidelines or patterns in determining the prison sentence as a substitute for the additional penalty of paying replacement money.The parameters used in determining the length of imprisonment, subsidiary to additional crime of substitute money, are based on the judge's beliefs. 13e judge's confidence was built because of the facts in the trial.For example, the ability and intention of the convict to recover state financial losses.If the defendant recovers state financial losses, his punishment can be reduced. 14A judge's decision must contain a totality based on legal justice, social justice and moral justice which are one unit.The measure in providing a judge's beliefs certainly cannot be equated with a mathematical measure which has a standard value.Therefore, the judge must make direct observations during the conference.The judge's beliefs must be based on the judge's code of ethics as accountability.According to Arini, the crime of paying replacement money is imposed on the defendant if the defendant is proven to have enjoyed state money that he corrupted.Based on Supreme Court Regulation Number 5 of 2014 on Additional Crime of substitute Money in Corruption Crime, it only determines the maximum length of replacement prison sentence.There are no rules or patterns regarding the length of the substitute prison sentence based on the nominal amount of the additional Additional Crime of substitute Money. 16e juridical aspect of additional crime of substitute money is still very lacking.There is no specific regulation regarding the nominal amount of additional crime of substitute money.There are no clear rules regarding the standard length of substitute imprisonment if the defendant does not pay additional crime of substitute money.Corruption criminal cases must be pursued so that the defendant can pay substitute money.This is because the aim of resolving corruption cases is to recover state losses.If the defendant is unable to pay additional crime of substitute money but he underwent a substitute prison sentence, the goal of resolving the criminal corruption case cannot be achieved. 17 According to Bambang Angkoso as the Ad Hoc Judge for Corruption Crimes, there is no further clarity regarding imprisonment as a substitute for additional crime of substitute money.So the judge has the right to determine how long the prison sentence will be as a substitute for additional crime of substitute money as long as it does not exceed the maximum limit. 18Judges in determining the length of subsidiary imprisonment must be based on considerations based on juridical aspects, philosophical aspects and sociological aspects and also based on several other parameters in accordance with Article 5 of Perma Number 1 of 2020 on Sentencing Guidelines Article 2 and Article 3 of the Crime Eradication Law Corruption Crimes, and the judge also looks at the good faith of the defendant, the amount of state financial losses that are returned will affect the substitute prison sentence. 19 a decision, always pay attention to mitigating and aggravating factors.In determining the length of imprisonment as a substitute for payment of replacement money, it can be seen that the judge does not have a pattern in determining the length of substitute imprisonment based on the nominal size of the replacement money.Therefore, judges only use the juridical, philosophical and sociological side by looking at the legal facts of each case.

B. Policies to Prevent Disparities
The judge passing a decision must uphold parity, namely equal punishment for similar crimes.Judges must uphold parity based on the principle of proportionality which imposes sentences on criminals commensurate with the crimes committed. 21The judge is not bound by the previous judge's decision.This is because judges in Indonesia do not adhere to the principle of the binding force of precedent, meaning that judges are not obliged to follow previous judges' decisions in similar cases, so it is possible that the case is the same but the outcome of the decision is different. 22licies that can prevent disparity in decisions in imposing prison terms as a substitute for additional monetary compensation in cases of criminal acts of corruption, namely: 1. Forming sentencing guidelines for additional monetary compensation.
Sentencing guidelines are guidelines for the imposition or application of sentences for judges. 23It is intended to be a basis for guidance or guidance for judges in examining and adjudicating a case they are handling.In particular, for criminal acts of corruption, guidelines must be made regarding the punishment of additional criminal compensation if the additional criminal compensation is not paid by the defendant.Even though there is Supreme Court Regulation (PERMA) Number 5 of 2014 concerning additional criminal penalties for criminal acts of corruption, it only determines the maximum length of substitute imprisonment, namely 20 years.
The absence of sentencing guidelines for additional monetary compensation means that judges have the freedom to determine the type of punishment, high or low punishment.It can occur in the same offense or the dangerous nature is the same but the crime is not the same.However, this freedom does not mean that judges can impose sentences of their own accord.With the existence of sentencing guidelines, judges, in terms of implementing regulations as applicable policies, can impose sentences that are fairer, more humane and have juridical, philosophical and sociological guidelines.With the existence of sentencing guidelines for additional monetary compensation, it is hoped that we will be able to get closer to justice that reflects the values that exist in society.However, in reality in Indonesia there are no standard sentencing guidelines for imposing a prison sentence as a substitute for additional monetary compensation in Corruption Crime cases which can be a basis for judges to examine and try a case they are handling. 24ere is a need for guidelines that can be used as a pattern of punishment for additional monetary compensation.Where the contents regulate the conversion of the amount of additional criminal punishment as replacement money into imprisonment as a substitute if the defendant is unable to pay the additional criminal penalty as replacement money and regulates the length of time for the prison sentence as a substitute based on the nominal additional criminal punishment which has been paid or which has not been paid by the defendant.This follows the pattern in Supreme Court Regulation (PERMA) Number 1 of 2020 concerning sentencing guidelines in Article 2 and Article 3 of the Corruption Eradication Law so that it is hoped that it can reduce existing disparities.
2. The Supreme Court provides deeper guidance to judges regarding additional criminal cases regarding compensation money.
This is so that judges can be fair and impartial in handling a case and can also uphold justice and truth. 25Apart from that, judges who are more experienced can coordinate with other judges.This can be done informally by exchanging opinions because judges have independence and cannot influence or interfere with each other.Then you can also have broad insight and have a sense of responsibility for the decisions it produces.