LENIENCY IN CRIMINAL SENTENCE FOR JUSTICE COLLABORATORS WHO SUPPORTS LAW ENFORCEMENT AUTHORITIES BY UNCOVERING CRIMINAL CASES

I. INTRODUCTION

The key to a successful criminal law enforcement depends on the evidence that has been found and revealed. Article 184 paragraph (1) Law No. 8 of 1981 on Criminal Procedural Law (“KUHAP”) regulates list of forms of evidence applicable on a criminal proceeding, and the first form of evidence listed is the testimony of a witness.

M. Yahya Harahap stated that generally, the testimony of a witness is treated as the most significant in a criminal case; almost all criminal cases rely on the evidentiality through witness testimony.¹ Hence, many criminal cases are at risk of not being fully uncovered because lacking witness, primarily in criminal offences with participation (deelneming).

Moreover, uncovering such case will be more complicated when it comes to an organized crime involving a number of important and powerful figures, which possibly endanger the safety of the person who discloses it. Therefore, based on the mandate of Article 37 United Nations Convention Against Corruption (“UNCAC”) which has been ratified through Law No. 7 of 2006 on Ratification of United Nations Convention Against Corruption, and Article 26 United Nations Convention Against Transnational Organized Crime (“UNCATOC”) which has been ratified through Law No. 5 of 2009 on Ratification of United Nations Convention Against Transnational Organized Crime, to encourage the participation of the society for this purpose, the state could collaborate with crime offenders to provide information that can significantly support law enforcement authorities to uncover the crime, and in return, the state shall provide legal protection to the offender for his services in supporting law enforcement authorities to reveal the case by imposing leniency in criminal sentence as a reward.

II. DISCUSSION

A. Definition of Justice Collaborator and Conditions to be Met for a Person to Obtain the Status as Justice Collaborator 

Normatively, the term “Justice Collaborator” firstly introduced through Supreme Court Circular Letter No. 04 of 2011 on Measures for Crime Informant (Whistleblower) and Assisting Offenders (Justice Collaborator) in Certain Criminal Cases (“SEMA No. 04/2011”). This circular letter basically views the value of legal morality brought by both UNCAC and UNCATOC and adopted those values to be applied in practical criminal proceedings.²

Essentially, the Supreme Court has acknowledged that serious crimes as corruption, terrorism, narcotics, money laundering, human trafficking and other organized crimes has caused serious and threatening the stability of society, which undermines the institutions and democratic values, ethics and justice, also endanger the law supremacy.³ Through SEMA No. 04/2011, the Supreme Court reflects the importance to grow a conducive environment to provide legal protection and special measures to every person who knows, reports, and/or discovers something that may support law enforcement authorities to uncover and handle those crimes effectively⁴, and therefore encourages all judges to identify persons who can be categorized as Assisting Offender (Justice Collaborator).⁵

In the same year, several national institutions has collaborated to formulate a Joint Regulation between Minister of Law and Human Rights, Attorney General of Indonesia, Chief of the Indonesian National Police, Chairman of Corruption Eradication Commission (“KPK”), and Chairman of Indonesian Witness and Victim Protection Agency (“LPSK”) No. M.HH-11.HM.03.02.th.2011, PER-045/A/JA/12/2011, 1 of 2011, KEPB-02/01-55/12/201, 4 of 2011 on Protection for Informant, Crime Informant, and Assisting Offender (“Joint Regulation 2011”) to align perceptions, become guidelines between institutions⁶, creating a sense of security for civilians from any physical and psychological threat, provide rewards for civilians who has the knowledge of an occurrence of an organized and serious crimes, and to assist law enforcement authorities to uncover organized and serious crimes.⁷ 

Later in 2014, provisions regarding protection of Justice Collaborator have finally been followed by the issuance of Law No. 31 of 2014 on Amendment of Law No. 13 of 2006 on Protection of Witness and Victim (“Law No. 31/2014”). One of the main changes in this amendment is the acknowledgement of the big contributions of Assisting Offender (Justice Collaborator), Crime Informant (Whistleblower), Experts, and individuals who are willing to provide information although the information was not obtained from his own hearing, sight or experience, whose contributions support law enforcement authorities to uncover certain forms of crime. 

From the three regulations above, each of them has provided definitions of Justice Collaborator and conditions to be met for a person to be given the legal protection and reward as Justice Collaborator. For comparison, the provisions are presented on the table below:

From these stipulations, we can conclude that Law No. 31/2014 has emphasized that Justice Collaborators is able collaborate with law enforcement authorities from investigation stage to past-judicial stage (execution stage).

Furthermore, we can also perceive that the legal protection provided for Justice Collaborators are mainly applied for serious and/or organized crime. However, Law No. 31/2014 has expanded this stipulation using the term “criminal act in certain cases”, which referring to the official explanation of Article 5 paragraph (2) Law No. 31/2014, includes serious human rights violations, corruption, money laundering, terrorism, human trafficking, narcotics, psychotropics, sexual crimes against children, and other crimes that result in the position of the Witness and/or Victim being faced with a situation that is very dangerous to their lives. Consequently, the forms of crime involving Justice Collaborators is no longer limited to serious and/or organized crimes only as regulated in SEMA No. 04/2011 and Joint Regulation 2011, but also to all kinds of criminal act that is threatening and putting Justice Collaborators in a very dangerous situation based on LPSK’s decision.

In addition, one of the important points regarding the conditions that must be met for a person to be granted the status as Justice Collaborator, is that the person is not the main perpetrator in the crime he/she reveals. However, those regulations did not define the term “main perpetrator” and KUHP does not recognize the term as well. Therefore, as emphasized by the Judges on Court Ruling No. 798/Pid.B/2022/PN.JKT.SEL which will be discussed below, the application of this condition will be left to court practice.

B. Leniency of Criminal Sentence as a Reward and How to Obtain It 

Based on Law No. 31/2014, one of the rewards that may be given to Justice Collaborators is in the form of leniency of criminal sentence.¹³ SEMA No. 04/2011 even encourages the judge to consider imposing the lightest sentence between all the other offenders who is proven guilty of the crime in question, but must take into account the sense of justice in the community. 

Additionally, the provisions regarding mechanism to provide reward for Justice Collaborators is quoted below:

Article 10 Joint Regulation 2011

(1) Protection in the form of awards for Assisting Offender as referred to in Article 6 paragraph (4) letter a in the form of leniency in criminal charge, including demanding probation, is carried out with the following provisions: 

a. the request is submitted by the offender himself to the Attorney General or the Head of KPK;
b. LPSK can submit recommendations for Assisting Offenders to then be considered by the Attorney General or the Head of KPK;
c. the request contains the identity of the Cooperating Witnesses, the reasons and the form of award expected;
d. The Attorney General or the Head of KPK decides to grant or to refuse to grant the reward which is carried out in accordance with applicable provisions.

(2) In the event that the Attorney General or the Head of KPK grants the request for reward as referred to in paragraph (1), the Prosecutor is required to state in his/her Charge regarding the role of Assisting Offender in assisting the law enforcement process so that it can be considered by the judge in making a decision. …”

Article 10A Law 31/2014
“To obtain an award in the form of a reduction in the sentence as referred to in paragraph (3) letter a, LPSK provides a written recommendation to the prosecutor to be included in his/her demands to the judge.”

Point 9.b SEMA No. 04/2011
“The Prosecutors in his/her Charge states that the defendant has provided significant testimony and evidence hence the Investigator and/or the Prosecutor could reveal the criminal act in question effectively, uncover the other offenders who has bigger role, and/or return the assets obtained from a criminal act.”

From the above stipulations, we can conclude that basically, the status as Justice Collaborator and reward in the form of leniency of criminal sentence can be obtained with the following mechanism:

a. The offender submits request to the General Attorney or Head of KPK, whose institution carries out the prosecution stage. The request contains the identity of the offender himself, the reasons and the form of reward expected which in this case is leniency in criminal charge. 

b. LPSK submits a written recommendation for the offender to be considered by General Attorney or Head of KPK.

c. Based on the offender’s request and LPSK’s recommendation, the Attorney General or the Head of KPK decides to give or to refuse to give the reward. 

d. If Attorney General or Head of KPK grants the request for reward, the Prosecutor is required to state in his/her Charge regarding the role of Assisting Offender in assisting the law enforcement process, including how the defendant has provided significant testimony and evidence hence the Investigator and/or the Prosecutor could reveal the criminal act in question effectively, uncover the other offenders who has bigger role, and/or return the assets obtained from a criminal act so that it can be considered by the judge in making a decision. 

e. The judges may consider the Prosecutor’s charge and LPSK’s recommendation and consider whether the defendant has indeed met the conditions to be rewarded with leniency in criminal sentence and given the status as Justice Collaborator. If the Judges determine that the defendant is suitable for the reward, the Judges may consider imposing the lightest sentence to the defendant among all of the other offenders, by also taking into account the sense of justice in the community.¹⁴

C. Case Example: Case No. 798/Pid.B/2022/PN.JKT.SEL at South Jakarta District Court with the Defendant Initial “RE”

The granting for reward as Justice Collaborator can be seen on the case of “RE” in South Jakarta District Court Ruling No. 798/Pid.B/2022/PN.JKT.SEL, regarding murder committed by “FS”, Head of Propam Division against his own aide, “NYH”. 

The case involved a number of other perpetrators, one of whom was RE, who was one of the victim’s colleagues and the executor of murder under the direction of FS. Given that the case involved a number of important figures from the police institution, the existence of power relations factor, the loss of a number of evidence, and the scenario brought by the other non-cooperating witnesses to cover up the actual facts of this case, are making the case difficult to uncover. 

However, RE, as one of the perpetrators, was willing to cooperate with law enforcement authorities by providing information and honest testimony, so that law enforcement authorities can find the common thread between his testimony and other evidence brought to the court.

Before the Judges’ decision was announced, the Prosecutors have conveyed their Charge and acknowledged RE’s position as Justice Collaborator.¹⁵ However, RE was charged with 12 years of prison, which was quite controversial. Criminal Law Lecturer in Faculty of Law, Trisakti University, Azmi Syahputra, considered that the prosecutor did not understand the justice collaborator is needed to uncover cases that were difficult to prove, hence he deserved a reward.¹⁶

Nevertheless, the Panel of Judges has given the consideration regarding the Defendant’s request to be granted the status as Justice Collaborator. The essential points of the consideration is as follows:

• Based on Law No. 31/2014, considering that legislators mandates LPSK to be given the authority to decide on the existence of “criminal act in specific cases”, including “…other criminal acts that result in the position of witnesses and victims being faced with situations that are very dangerous to their lives “, then according to the recommendation of LPSK dated January 11, 2023 to the Defendant RE, the criminal acts faced by the Defendant can be categorized as being included in the definition of “criminal act in certain cases” as referred to in Law No. 31/2014.
• KUHP, with the theorem of participation/deelneming, only recognizes the term “preparator/dader”. Therefore, who is deemed to be the main perpetrator is left to the court practice to determine. 
• As this case involves many other offenders, the Judges considers that the Defendant is a person who shot the victim, where FS as the originator of the idea, intellectual actor, designer and the one who shot the victim and involved other offenders including the Defendant. Therefore, FS was deemed as the main perpetrator, while even though the Defendant was as the person who shot the victim, he was not considered as the main perpetrator.
• The Judges acknowledges that within this criminal proceeding, many evidence has not been found, many also has been broken, removed, edited, added, and involving other parties who attempted to obscure this case. However, the Defendant has made this case clear by providing honest, consistent, logical information and in accordance with the other remaining evidence that is very helpful in revealing this case, even though it places the Defendant in a position and situation that is very dangerous to his life, considering that the Defendant is practically walking alone.

With the above consideration, the Judges granted the Defendant’s request to be given the status as Justice Collaborator and provided leniency in criminal sentence of 1 year and 6 months of prison. 

With the discussions and case study above, we can conclude that Justice Collaborator has played a very important role in uncovering the truth in criminal cases, especially organized and/or special crimes, or crimes involving important figures that lacks evidence and can endanger the people who discloses it. Therefore, it is important for legal protection for justice collaborators to be enforced accordingly and law enforcement authorities shall consider providing rewards if the justice collaborator has provided significant information to support uncovering crimes that are difficult to prove.

1. M. Yahya Harahap. “Pembahasan Permasalahan dan Penerapan KUHAP: Pemeriksaan Sidang Pengadilan, Banding, Kasasi, dan Peninjauan Kembali.” (Jakarta: Sinar Grafika, 2019)., p. 286 ↩︎
2. Point 3-4 SEMA No. 04/2011
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3. Point 1 SEMA No. 04/2011 ↩︎
4.  Point 2 SEMA No. 04/2011
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5. Point 7 SEMA No. 04/2011 ↩︎
6. Article 2 paragraph (1) Joint Regulation 2011 ↩︎
7. Article 2 paragraph (2) point b Joint Regulation 2011 ↩︎
8. Article 9.a SEMA No. 04/2011 ↩︎
9. Article 1 paragraph (3) Joint Regulation 2011 ↩︎
10. Article 4 Joint Regulation 2011
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11. Article 1 paragraph (2) Law No. 31/2014
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12. Article 28 paragraph (2) Law No. 31/2014
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13. Article 10 paragraph (3) Law No. 31/2014 ↩︎
14. Point 9.c SEMA No. 04/2011 ↩︎
15. Kompas News: https://nasional.kompas.com/read/2023/01/18/16183541/hal-yang-ringankan-tuntutan-bharada-e-salah-satunya-jadi-justice
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16. HukumOnline News: https://www.hukumonline.com/berita/a/lpsk-kritisi-penerapan-justice-collaborator-dalam-tuntutan-richard-eliezer-lt63db607d4151b/?page=all
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