reversal burden of proof in corruption case

8/13/2019 Reversal Burden of Proof in Corruption Case

1/8

REVERSAL BURDEN OF PROOF IN CORRUPTION CASE

Hilmi Ardani Nasution08410005

Criminal Penal Code as positive law codification in Indonesia includes various

types of crime, both in the form of a crime or offense. In addition to the offenses listed in

the Criminal Code, there are some settings crimes committed outside the Criminal Code

or commonly referred to as a specific criminal offense. This crime is a criminal offense

that is loaded in some laws made by the government because there has been no criminal

act as defined in the criminal code.

As a codification of the criminal law, criminal acts should all be included

in the codification but apparently it was not possible because it always acts arise because

of changing times can be a criminal offense.

Simply to be included in the Criminal Code cannot be done, then it was created

by the ruler of various laws and regulations in which includes a new offense that does not

exist in the Criminal Code

The special regulation provides a special treatment to one criminal conduct

because the special crime is not as simple as the crime with violence. The special

regulation related to the corruption case is one of the examples of special crimes, it

cannot be treated like the other crimes. There must be a special conduct or system to

provide this kind of crime because providing special treatment will help the law

enforcement towards corruption. One of the special treatment to reveal the corruption

conduct is the reversal burden of proof.


2/8

Within the scope of evidence, System Special Burden of Proof in Corruption case

we refer to the system of the burden of proof (general) in criminal cases the burden is

placed on the Attorney General. What about cases of Corruption, this is an exception and

has special properties associated with the Material and Formal Criminal Justice. The

burden of proof issue as a part of the formal criminal law experiences the change of

paradigm since enacted Law no. 3 1971 and Act No. 31 of 1999.

Origins of "Burden of Proof Inversion Principle"

The term reverse authentication has been widely recognized by the public as a

language that can easily be digested in one solution to the problem and eradicate

corruption. This term is not appropriate, in terms of the language known as omkering van

het bewijslat or reversal burden of proof which, when freely translated into "reversal of

burden of proof. As a universal principle, it would be a biased sense when translated as a

reversed burden of proof. Here there is a burden of proof is placed to one side, which lies

on the prosecution Universalist. However, given the nature of the urgent of speciality, the

burden of proof is placed no longer to the public prosecutor but to the defendant. Process

in a reversal of the burden of proof is then known to the lay term "reverse proof". The

opinion of Prof. SH Andi Hamzah, this is really appropriate because without putting the

word "burden" the meaning of which occur will be different. Burden of proof without

words can be interpreted no burdens of proof on the defendant so that literally only see

the sort order of evidence alone.


3/8

"This term (reverse proof) Is not appropriate when done grammatical approach.

Of the language known as Omkering van het Bewijslast or Reversal Burden of Proof that

when freely translated as "Reversal of the Burden of Proof '."

Problematic Reversed Burden of Proof

The second limitation on the Act raises the pros and cons in legal circles

regarding the application of the reversal of the burden of proof. Some of them say that a

total reversal of the burden of proof would violate human rights. Prof JE Sahetappy [5]

said, "Is it true that the application of the burden of proof is violating human rights?. I

did see lately many interpretations like beauty is in the eye of the beholder related to

Human Rights. I want to ask, whether such retroactive application of the principle that

has been approved by the Committee MPR in Senayan is against human rights. Many

NGOs and politicians eager to apply the retroactive principle related to the gross

violation of human rights. That in the world known principle of law de uitzonderingen

bevestigen de regal (exceptions ensure that existing rules), and it is often forgotten or

pretended not to be remembered by the partisans of a particular group."

"Is it not contrary to PERPU Criminal Code? Save me not, because in the

Corruption Act No. 31 of 1999, the law has accommodated the show, so there is no

reason to reject this PERPU. As a tentative conclusion can be recorded as follows:

PERPU is very is needed in order to eradicate corruption those who challenged this for

various reasons, can be categorized from a "fear" of corruption will be demolished, to try

to blame the authorities. No element of human rights violations, because the principle of

"rertroactive" to gross violation of human rights also violate the legal doctrine of


4/8

legalistic positivism; violation of the Code of Criminal Procedure is also not true, because

the Corruption Act which now has set its own procedural law in Article 28 of the

Corruption Act also requires further elaboration and it can be achieved through. I still

would expect the "common sense ", will also legal ethics and moral ethics, because if it is

not the case, then as a former educator, it is not good when I think of the words of David

Paul Brown that the mere lawyer is a mere Blockhead."

Opinions expressed matching succeeds Atmasasmita, the development of the

practice in be how many countries has led to a new initiative in addressing the

bottlenecks in the process of proving corruption. Evidence for this theory is the

recognized principle of proof "beyond reasonable doubt", which is considered to be

contrary with the presumption of innocence principle but on the other hand is often

difficult process proven in corruption cases. Proven in practice the verification system or

known as, "negative evidence" not easy to implement. Depth of knowledge and human

reason (legal logic) is not limited, so appear alternative principle of the new evidence that

is precisely the origin of the research developed countries and in good view does not

conflict with the protection of constitutional rights and the suspect, and yet very Effective

in wide open access origins of assets suspected obtained because of corruption.

The above description shows that the application of the principle of proof in a

criminal case is clearly a violation of the presumption of innocence (General Explanation

of Item 3 C Criminal Code). In the reversed burden of proof principle judges depart from

the presumption that the defendant was guilty of committing an offense or a presumption

of guilt. Then the defendant must prove that he is innocent, and if he can not prove it,


5/8

then he is declared guilty without proof again of the Public Prosecutor. If a suspect or

defendant arrested nearly impossible then it can be done and anyway it should be noted

that the Criminal Code does not charge any proof to the defendant (Article 66 of the

Criminal Procedure Code)

Alternative evidence submitted initiated by thinkers in the developed world

(Oliver, 2006) there is the theory of "balance of probability proof, which put forward the

proportional balance between the protection of individual freedom on the one hand, and

deprivation rights of the individual over his wealth which allegedly came from

corruption. The new model of proof principle is intended to disclosure of origin

completely assets suspected of corruption itself, by placing one's personal property rights

at a very low level, but at the same time put the right to freedom of the person concerned

at the level of the very high and absolutely should not be violated.

The balance of probability theory of proof in such assets put someone allegedly

involved in corruption at the position where the previous person concerned has obtained

the assets acquired as much now. The theory on the basis of the above considerations

have practiced by the High Court in Hong Kong Hong Kong ICAC cases against the

applicant 'judicial review "against reverse authentication process performed by the lower

court was in accordance with Hong Kong's Bribery Ordinance Act. Decision Hong Kong

High Court considers evidence that the process has reversed the lower court held have

given equal justice for both parties is to the applicant and to the Hong Kong ICAC in

presenting evidence.


6/8

As opposed to the model of Hong Kong (in reverse authentication) that can be

used in corruption cases through the criminal procedural law, then the model of proof in

the 2003 Convention against Corruption (Article 31, paragraph 8), and a lot to gain

recognition from both developed countries are using the system law "Common Law" and

"Civil Law", which supports the use of civil procedure in applying the theory of proof is

reversed by the balance of probability, that is, along the reverse authentication procedure

is intended to challenge the person's ownership rights over the wealth derived from the

follow- corruption.

Act No. 31 of 1999 (Article 31) and Law No. 15 of 2002 (Article 37) contains

provisions regarding proof has reversed (reversal of burden of proof or onus of)

provisions in both laws are still not grounded to the theoretical justification, as has been

described above, but only to place provision of proof solely as a means to facilitate the

verification process without considering human rights aspects of the suspect / defendant

Based on the 1945 Constitution. Now with the advent of two models with a reversed

burden of proof is the balance of probability, it has theoretical and practical references

are in upside evidentiary problems.

Certainly in terms of proof of ownership rights of an alleged property derived

from the corrupt pose the pros and cons. View counter said that, upside down in the right

proving ownership of property is also conflicting with human rights that every person has

the right to acquire wealth and privacy rights that must be protected. Thus, contrary to the


7/8

idea that corruption is a serious source of poverty and crime is difficult to prove in

practice the legal system in all countries, the individual rights over his property rights is

not seen as absolute, but relative rights, and in contrast to the protection of personal

freedom and the right to a fair trial and reliable.

The most important thing in the law of evidence of corruption, it should be a real

loss to the state elements are still expected even real losses, are not in place and

disproportionate to become a central element in the crime of corruption, and becuase not

need to be proven again. Even the loss of the general public especially the injured third

party due to corruption it should be accommodated in the new law on combating

corruption.


8/8

Conclusion

The problem of corruption is a big problem and interesting as the legal issues

regarding the kind of crime that complicated handling. One cause of the difficulty of

proving corruption is difficult, because the perpetrators of this crime to commit crime are

very neat. To solve the problem of the difficulty of proving the crime of corruption is one

of the efforts that can be taken by the government by means of penal by applying reverse

authentication against corruption matters.

Although the application of reversed burden of proof is contrary to the principle

of presumption of innocent or the presumption of innocence which has been

internationally recognized and regulated in the Criminal Procedure Code, but for the sake

of Indonesian law and in accordance with the laws aim to achieve as much happiness for

many people, then it can only be applied to cases of corruption of course without forget

the basic rights attached to the party and allegedly corrupt.

reversal burden of proof in corruption case

Documents