When Double Intention Ignored: A Study of Corruption Judicial Decisions

This study aims to analyze the application of participating perpetrator in court decisions in corruption cases. The research question is whether the double intention as a condition for participating perpetrator in the decision of a corruption case is fulfilled? As a normative legal research, the study in this research is focused on the ratio of four decisions on corruption cases, especially the concept of criminal participation. The results of the study concluded that the double-intentional evidence as a condition for participating perpetrator so was ignored by the panel of judges. The role of involvement of each defendant in the offense of participating perpetrator in the ongoing decision is not described. The judge is not even able to distinguish between the conditions of a person as a perpetrator and the participating perpetrator. In the decisions studied, the judges also mixed the concepts of ordering, advocating, and participating in committing criminal acts of corruption. The judge's inaccuracy in the use of double intention resulted in the emergence of an unfair sentence. Therefore, this study suggests that the Supreme Court should make guidelines for the application of participating perpetrator in corruption cases.


Introduction
Corruption is widely accepted as one of the transnational organized crimes committed with a very complex modus operandi. 1 Many actors are involved on a massive scale, 2 and are difficult to detect. 3 In Indonesia, this can be seen in the BLBI corruption case, 4 Wisma Atlet case of Hambalang, 5 bribery of the former Chief of the Constitutional Court, Akil Mochtar, 6 and mega corruption of  In these cases, Article 55 paragraph (1) 1 st of the Criminal Code is often used in both the prosecutors' charges and the judges' verdicts. Which means, the concept of participation to crime (medeplegen) has become an important indictment for charging the perpetrator.
It is clear that several kinds of offenses in Law Number 31 of 1999 in conjunction with Law Number 20 of 2001 (Anti-Corruption Law) require specific offender. Article 3 can only be done by someone who has public authority, Article 5 paragraph (2), Article 11, and Article 12 point a and b can also only be carried out by civil servants or state officials. Article 6 paragraph (2) and Article 12 point c and d which can only be perpetrated by a judge or a lawyer. The limitation of the subject of this offense has serious consequences for participation to crime (medeplegen). They are the ones who qualify as perpetrators (pleger). Apart from that, they are only appropriately placed as participant actors because they are not required to have the same eigenshap (subject, characteristics, and quality) as a perpetrator. The provision of participation to crime is precisely aimed at expanding the scope of the offense including the subject of the offense so that the involvement of people who do not meet the quality as perpetrators of offenses can still be subject to participation. 8 The aforementioned perspective is important for the judge when the Public Prosecutor uses together Article 55 paragraph (1) 1 st of the Criminal Code with the core offense in the Anti-Corruption Law. Inaccuracies will lead to mistake in formulating participation to crime in the judge's legal considerations (ratio dedicendi). Therefore, it is important to examine the accuracy of the use of double intention as an element of participation to crime in the court decisions of corruption cases. Unfortunately, previous study on this matter only focused on particular case, 9 the difference application of participation to crime between the private sector and the government official, 10 the judge legal reasoning in determining the criminal liability of the defendants in one case, 11 and the limits of the criminal responsibility of participation in criminal matters. 12

Problem Formulation
Based on the above research background, the legal problem formulation of this research is, has double intention as an element of participation to crime been fully satisfied in the corruption judicial decisions?

Research Purposes
The purpose of this study is to analyze whether or not the double intention as the element of participation to crime has fully been satisfied in the corruption judicial decisions.

Research Method
This research was a doctrinal (normative) legal research because what studied was the legal theory and the ratio dedicendi of court decisions. 13 The focus of research is on whether or not the concept and elements of participation to crime (medeplegen) are reasonably in the decisions of corruption cases using statutory, conceptual, and case approach. The primary legal sources are in the form of the Anti-Corruption Law, the Criminal Code, and 4 corruption judicial decisions included participation to crime, while the secondary legal sources include books, journals and research about participation to crime and offenses of corruption. The legal sources were then analyzed qualitatively through data reduction, presentation, and drawing conclusions. 14

Participation to Crime: A Conceptual Approach
Participation to crime (medeplegen) is defined as to two or more people who consciously commit an offense together. There must be close cooperation among perpetrators when committing an offense (Moeljanto, 1983). 15 In order for two or more people can be called as a participant actor(s), double intention must be met.
Meaning there must be intention to cooperate and the implementation of an offense together is committed intentionally. The first one requires a deliberate cooperation. Here, it must prove that there are two forms of deliberation, namely deliberate cooperation and deliberate action to bring about a result of offense. The second implies that an offender does not require to completely meet all elements of the offense or that the act of carrying out the offense does not necessarily have to realize by the participating perpetrator. In participation to crime, each perpetrator must meet double intention. This is different from a perpetrator who requires meeting all elements of offense. 16 13 Depri Liber Sonata, "Metode Penelitian Hukum Normatif dan Empiris: Karakteristik Khas dari Metode Penelitian Hukum", Fiat Justisia Jurnal Ilmu Hukum, Vol. 8, No. 1, 2014, hlm. 25-27 14 Ahmad Rijali, "Analisis Data Kualitatif", Jurnal Alhadharah, Vol. 17, No. 33, 2018, hlm. 83-84 15 Moeljanto, Hukum Pidana Delik-delik Percobaan Delik-delik Penyertaan, Bina Aksara, Jakarta, 1983, hlm. 113 16 Remmelink, J, Hukum Pidana: Komentar atas Pasal-pasal Terpenting dalam Kitab Undang-undang Hukum Pidana Belanda dan Padanannya dalam Kitab Undang-undang Hukum Pidana Indonesia, Gramedia Pustaka, Jakarta, 2003, Participation to crime has three important characteristics. First, the execution of an offense involves two or more people. Second, all those involved actually collaborated physically in the committing the offense. Third, the occurrence of physical cooperation is not due to coincidence, but has indeed been an agreement that has jointly planned before. 17 The purpose of participation to crime is not realizing an offense, but rather carrying out a behavior that causes an offense. 18 Subsequently, there is no obligation for each party involved to fulfill all the elements of the offense.  person who committed the act (pleger) while Rico Diansari as the person who participated in the act (medepleger). 30 According to this study, the judges' legal considerations are not accurate.
The position of defendant II as the perpetrator (pleger)  The supreme court panels consider that both defendants have proven to participate to crime as follow: In accordance with the application of the provisions of Article 12 (a), the act of accepting a gift or a promise does not require that the recipient of the gift receive the gift or money himself but can do it by someone else who has collaborated with or has a special relationship with the recipient. In this case, defendant I and defendant II were husband and wife. 32 It is important to note that as long as there is a special relationship with the recipient of the gift (bribe), the bribery is deemed to have occurred and carried out jointly. A Governor's wife who receives a gift or promise from a contractor due to her husband's position is still deemed to have received a bribe with her husband who is a Governor without the need to prove that there is cooperation and implementation of an offense collectively as a condition for participation. 33 According to this study, the judges' legal considerations were inaccurate, tended to be misleading and dangerous because they undermine the concept and criteria of participation to crime.  Knowing Eddy Sindoro's plan to be sent home, the defendant asked Dina Soraya's assistance to prepare the Jakarta-Bangkok ticket and coordinated with Soekarno Hatta International Airport officers. Hence when Eddy Sindoro, Chua Chwee Chye, and Michael Sindoro (Eddy Sindoro's son) landed at the airport, they could continue flights out of the country directly without the immigration process. Upon this request, Dina Soraya asked Dwi Hendro Wibowo to pick up Eddy Sindoro and his entourage and immediately proceeded to overseas flights without the immigration process. On October 1, 2018, KPK arrested the 38 Any person who issues an IUP, IPR, or IUPK that is contrary to this Law and abuses his authority will be sentenced by a maximum of 2 (two) years imprisonment and a maximum fine of IDR200,000,000.00 39  According to this study, the panel of judges' legal consideration was weak and even mistaken to understand participation to crime in criminal law.  the aim is to mobilize to do or not do something in his position, which is contrary to his obligations. If a civil servant or state administrator 'has done something' so that he receives a gift or promise, it then infringes offense in Article 12b. 53 The act of the defendant did not fulfill the elements of these two offenses. In addition, the two offenses can only be carried out by civil servants or state officials. Other people who are not civil servants or state administrators can only declare as participant actor.

The Case of Nur Alam
Therefore, the status of defendant II as a perpetrator (pleger) in this case is missing since she has been proven guilty as a housewife. The involvement of the defendant I in participation to crime were also not clear.
In Nur Alam case, the defendant's actions were a violation of the Mineral and Coal Law because the state losses were incurred in this case were not state financial losses and had nothing to do with the defendant's actions in issuing mining permits violating the procedures. The judge's legal considerations which stated that the defendant was proven to have committed corruption together was wrong because the offense in Art. 3 of Anti-Corruption Law was not proven. In Lucas case, the panel of judges was unable to clearly distinguish between causing others to perpetrate (doenpleger), taking a direct part in the execution of the act (medepleger), and intentionally provoking other to execute the act (uitlokker). The term intellectual principal is only known in the concept of causing other to perpetrate (doenplegen) and provoking other to execute the act (uitlokker). In participation to crime, double intention becomes essential element. 54 In Andy Rikie Lam case, the defendant's action was appropriately as a matter of contractual relation between PEPC ADK and ABS rather than corruption case. As a Director of private company, the defendant cannot abuse his authority, opportunity, or means which are included in the domain of administrative law.
Hence, the defendant is unable to be a perpetrator of an offense as well as a participant actor. The penal of judges failed to prove the involvement of the defendant in the accomplishment of an offense and double intention.
According to this study, none of the defendants should have been sentenced for their actions either the cases were not offenses of corruption or the judge's inability to prove the involvement of the defendants in the double intention. The detail description of the actions of the defendants in the double intention for participation to crime were poorly found. Hence, the inaccuracy of the use of double intention in participation to crime leads to unjust punishment.
To articulate the application of participation to crime, it is important for the panels of the judges to follow the cumulative steps. At first, there must be convincing evidences either through witness testimony, letters or other legal evidence that there has been an intentional act on each of the perpetrators to commit a crime together. The absent of this fact leads to decision that there is no participation to crime in the case being tried. If the facts are found, then the judge must ensure based on convincing evidence that the joint execution of the crime is committed intentionally by the perpetrators. The actions of each perpetrator is too substantial for the occurrence of the offense.

Conclusion
Participation to crime requires to prove two cumulative conditions, namely the intention to commit a crime collectively and the accomplishment of a crime committed intentionally for each person involved. Of the four corruption cases examined, none of the judge's legal considerations accurately described the legal facts to the two conditions. They failed to distinguish between the elements of a perpetrator and participant actor as well as conditions for causing other to perpetrate, provoking other to execute the act, and participation to crime. This research is limited to the applying the double intention as an important element of participation to crime in corruption cases. Therefore, it is important to conduct further research related to the use of this concept in other criminal cases. In addition, to prevent unjust punishment, this study recommended the Supreme Court to issue guidelines for the application of participation to crime in court decisions.