DETERMINATION OF STATUS AS A WITNESS OF COOPERATING ACTORS (JUSTICE COLLABORATOR) AND THE RIGHT TO CRIMINAL LENIENCY IN THE LAWS AND REGULATIONS IN INDONESIA

Abstract


INTRODUCTION
The witness position is very important in criminal case examination process. This is prooved by the Article 184 KUHAP formulation which placed the witness statement in the first place of valid evidence list according to KUHAP. In the criminal case, the witness statement evidence is the main evidence. We could say that there is no criminal case escapes the proof of witness statement evidence. Almost all criminal case examinations are relying on the witness statement examination.
Article 1 number 26 KUHAP regulates that "what is meant by witness is the person who can provide statement for investigation, prosecution, and trial of a certain criminal case which he/she by himself/herself hears, sees, and experinces". 1 Beside the witness as regulated in KUHAP,UU No.31 Year 2014 On the Change of UU No.13 Year 2006 On Protection of Witness and Victim regulates also about perpetrator witness that is "the suspect, defendant, or convict who cooperate with the law enforcer in revealing a criminal act in the same case". In dealing with criminal act of corruption appears the term of Justice Collaborator or cooperative perpetrator witness. The Supreme Court issues circular letter (SEMA) Number 4 Year 2011 to provide instruction to the judges in order to give special treatment to the persons categorized as cooperative informant and perpetrator witness in the form of giving reduction of criminal sentence or other legal protections.
Criminal act is a common social problem faced by many countries. From time to time, crimes are developing in terms of criminal type, subject, or how to commit crimes. In its development, crimes are not only done by individuals, but can also done by corporate and in organized manner.
The criminal act of corruption is one of the organized crimes. In handling criminal act of corruption appears some terminologies such as justice collaborator which in the Act is described as cooperative perpetrator witness. The appearance of "character" of this justice collaborator emerges new hope in handling criminal act of corruption, since with the cooperative witness who also perpetrator it is hoped that the criminal act of corruption case could be revealed completely.
Considering the nature and character of criminal act of corruption which are very complicated, so we need extraordinary efforts to handle and eradicate it. One of the efforts so that criminal act of corruption may be thoroughly investigated is using the cooperative perpetrator witness position. This willingness of the perpetrator witness to cooperate is rewarded by the Act among others by reducting the criminal sentence.
Although Act rules the cooperative justice collaborator to be awarded reduction of criminal sentence, but in practice the regulation about reduction of criminal sentence award for justice collaborator is not fully in operation. There are still court sentences which are not considering the defendant status as justice collaborator.

RESEARCH METHOD
This research is a normative legal research using case study approach "i.e. case study on certain case from various legal aspects". Case approach is done "by analizing to the cases in connection with the faced issue which already become the court decisions with permanent legal force. In this research reasoning or court consideration to reach a decision will be analized. "According to Muladi, analyzing the judge's decision is always interesting, since the judicative product is an outcome of a quite complicated social process". This research is a normative legal research which prioritizing literature study by compiling data from library or other sources. The analized data are secondary data in the form of. 2 The analized data are secondary data in the form of: 1. Primary Legal Material is legal material which has authoritative nature means that it has authority. Primary legal material consists of regulations, official records or minutes in making the regulations and judge's decision. comments on court decisions. Main data to be analized in this research is secondary data compiled from literature study by analizing, studying, and processing literatures, regulations, or articles dealing with the problem to be researched. Data analysis uses qualitative data analyzing technique. The qualitative data analysis technique is "data analyzing method by grouping and selecting data derived from field research according to its quality and truth then being organized systematically, and analized using deductive thinking method afterwards, connected to the theories and literature studies (secondary data), and finally concluded in order to answer the problem formulated in this research". Reporting Witness, and Cooperative Perpetrator Witness is regulated that cooperative perpetrator witness is the witness who also a perpetrator of a certain crime act who is willing to cooperate with the law enforcer to reveal a crime act happened or to be happened to return assets or proceeds from a criminal act to the state by giving information to law enforcer and testifying in court proceedings as well. That Joint Regulation also regulates that to get protection as cooperating perpetrator witness must comply with followings: 2 a. Criminal act to be revealed is a serious and/or organized crime act, b. Give significant, relevant and reliable information to reveal a serious and/or organized crime c. Not the main perpetrator in the crime to be revealed. d. Willingness to recover the stollen assets got from the crime concerned, which is stated in written statement, and e. There is a real threat or concern about any threat, pressure, physically or psychologically toward the cooperative perpetrator witness or the family if the crime is disclosed according to the actual circumstances.

B. Regulation on Justice Collaborator in Indonesian Regulations
Regulation on justice collaborator is a something new in Indonesia. The early idea to regulate it in domestic regulation can be traced in President Instruction Number 9 Year 2011 On National Act Plan of Corruption Prevention and Erradication Year 2011. There are little explanation to be dug about the background of that regulation importance, but it is undeniable that it is regulated in United Nations Anti Corruption Convention and Indonesia as the state party is obliged to implement it.
The idea to empower the suspect or defendant to give information and cooperate in 3 Ibid. disclosing transnational organized crime in Indonesia is based on some reasons. First, difficulty to disclose transnational organized crime as this crime is done by so organized, planned, and undercover criminal organization that needs insiders' information to disclose the crime. They could provide enough proof to the law enforcer if they would openly give information and testimonies. Furthermore, the law enforcer could use those proofs to demand criminal responsibility to the crime perpetrator with more important role. Second, the practice of using the suspect and defendant's information has been implemented in some countries such as United States of America and some European countries, e.g. Italy. And the cases handled had succeeded in disclosing and unraveling several mafia organized crimes. Third, in order to protect human rights of the Suspect or Defendant as regulated in some International Human Rights instruments ratified by Indonesia. Justice collaborator in Indonesia is regulated in some regulations i. Reason of reduction of criminal sentence given to the perpetrator. In KUHP we also know the reasons to give reduction of criminal sentence, among others are attempted crime and assistance. In crime court, judge may consider perpetrator's virtue as mitigating circumstances.
The legal instrument to regulate justice collaborator is quite complete. In the regulation it is arranged that there is a reward or award in the form of reduction of criminal sentence for justice collaborator. Although the legal instrument is provided, its real practice of justice is not fully smooth. In some cases somebody who is appointed as justice collaborator did not get reduction of criminal sentence.
Tipikor Court decision toward defendant Andi Agustinus a.k.a.Andi Narogong in the E-KTP project corruption, judge sentenced eight (8) years of prissoning, fine of 1 billion Rupiah subsidiary six (6) months in prisson, plus pay replacement money of 1.186 billion Rupiah. In his judgment the panel of judges thought that in that case, the defendant bluntly pleaded guilty and revealed other perpetrators. With this reason, Panel argued that quite reasonable to state the defendant as justice collaborator. However in the decision the panel of judges would remain completely consider the defendant's action and its effect.
At the appeal level, High Court sentenced 11 years of prissoning, fine of 1 billion Rupiah subsidiary six (6) months detention, plus pay replacement money of 1.186 billion Rupiah subsidiary three (3) years detention. In the decission, High Court cancelled Andi Narogong's status as justice collaborator. The panel argues that the defendant role was so dominant in this case, starting from budgeting and even in the E-KTP project implementation that the state lost trillion of rupiah, and that the defendant was categorized as the main perpetrator. At the cassation level, Supreme Court sentenced 13 years of prissoning, fine of 1 billion Rupiah subsidiary six (6) months detention, plus pay replacement money of 1.186 billion Rupiah subsidiary three (3)  The judge only considered the defendant Kosasih's position in the mitigating circumstances that the defendant pleaded his deeds and came clean in front of the court so he was considered cooperative, served as government employee for quite a long time, was polite in court, and had family dependents. There was no decisive consideration saying that Kosasih as JC as mentioned by the prosecutor.
Court sentence is supposed to give 'new breakthrough' in terms of constructing mitigating circumstances for Kosasih by considering 'public prosecutor's demands' and decisively said that Kosasih is a justice collaborator, through those mitigating circumstances.
The DKI High Court's sentence in Kosasih Defendant case upholds the Tipikor Court's decision. In his decision High Court Judge considered Kosasih role as Justice Collaborator. In Cassation level, Supreme Court reject the cassation of the applicant and sentenced five (5) years of imprissonment reduced by jail term and fined 200 million Rupiah subsidiary six (6) months of detention and replacement money amounts to Rp. 2.388.975.500 subsidiary 1 year detention. In Maluku infrastructure corruption case, by Verdict No.21/Pid.Sus/TPK/2016/PNJktPst, the defendant Abdul khoir was sentenced four (4) years of imprisonment and fined 200 million Rupiah subsidiary 5 months of imprisonment. This sentence is higher than sentenced by the prosecutor. In his consideration the judge saw that from the bribe giver perspective the defendant role was more active than other defendants. This enforced the defendant role that was so central amongst other perpetrators that the panel of judge considered the defendant is the main perpetrator. Then in the determination of justice collaborator was not considered in the sentencing process. DKI High Court in verdict No.48/Pid.Sus-TPK/2016/PT DKI considered that the defendant was not categorized as main perpetrator so that it was very fair to award such justice collaborator with reduced criminal sentence. Hight Court sentenced him imprisonment of two (2) years and six (6) months and fined of 200 million Rupiah subsidiary 5 months of detention.
In the said court verdict we see that there is no same understanding amongst the law enforcers in reading and applying the act so that a forum is needed to create the same understanding of the law enforcers in reading and applying the regulation on justice collaborator. This forum will prevent refusal of the approved justice collaborator status by cancellation by other law enforcer; and will give certainty to the suspect or defendant who are willing to become justice collaborator that he will get reduction of criminal sentence. This will encourage the suspect or defendant to cooperate in revealing corruption crime completely. Besides, to make optimum corruption crime law enforcement, regulation on justice collaborator should be strongerand binding all parties of law enforcement. It could be in form of Presidential Decree or Act which bind all parties of law enforcement. Moreover the severity of the judge punishment for the defendant must based on regulation stated in Article 28 Section (2) Act No.48 year 2009 On Justice Power and must also based on the good and evil traits of the defedant.
The grant of justice collaborator status needs careful consideration. The conditions as ruled in the act must be fulfilled. The grant of justice collaborator status must not only caused by the one's cooperation during the case investigation and examination process in court.