PENGHAPUSAN PIDANA BERSYARAT TINDAK PIDANA KORUPSI DALAM RANGKA PENEGAKAN HUKUM

Abstract

The judge in handing down the decision is based on the applicable law and the judge's discretion. The  basis of consideration for judges in imposing conditional sentences in cases of criminal acts of  corruption is based on sociological/non-juridical factors so that the imposition of conditional sentences  in cases of criminal acts of corruption depends more on the judge's conscience whether he wants to  impose a conditional sentence or not. The judge imposed a conditional sentence based on juridical  factors, namely Article 14a of the Criminal Code and non-juridical factors, namely considering that the  state losses caused were considered small. Conditional punishment is not regulated in the PTPK Law  but is regulated in Article 14a Book I of the Criminal Code concerning General Provisions. Based on  Article 103 of the Criminal Code, Article 14a as a general provision can also apply to laws outside the  Criminal Code, including laws on criminal acts of corruption, unless otherwise specified in the law. In the perspective of Article 103 of the closing regulations of the Criminal Code, conditional criminal  penalties can be imposed on perpetrators of criminal acts of corruption with a minimum sentence of 1 year. However, Article 14a of the Criminal Code is very controversial and unfair because corruption itself is a crime case that is extra ordinary in nature so that the provisions for carrying out penalization  should be regulated specifically in efforts to eradicate corruption and not be represented by the Criminal  Code whose basis is intended for ordinary or ordinary criminal acts by. Therefore, Article 14a must be  submitted for judicial review by the Constitutional Court because Article 14a of the Criminal Code is  unconstitutional when applied to corruption crimes, where so far the implementation of Article 14a has  provided a legal loophole for perpetrators of criminal acts of corruption to be free from prison. It is hoped  that judges will comply with applicable laws and regulations in imposing criminal penalties on  perpetrators of corruption, even though judges have the freedom to impose penalties in order to create  quality decisions that fulfill a sense of justice, expediency and legal certainty.

Key words: criminal cases; crimal acts; punishment; restorative justice