Criminal Law. Entrapment. Reasonable Suspicion of Prior Crimes as Justifying Use of Decoys. Admissibility of Hearsay Evidence to Prove Suspicions of Government Officials

1927 ◽  
Vol 27 (5) ◽  
pp. 602
2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.


Author(s):  
Basri Mulyani

This article aims to examine the case of the distribution of clothing and food packages phase II in East Lombok Regency, or better known as Eid packages in terms of the legal considerations of the judge's decision. The point of policy confusion in state administrative law with criminal law or better known as administrative corruption. Government officials who must implement the policy, when the program is running, must deal with the criminalization of the policies that it implements. Based on these issues it is interesting to discuss related to the legal considerations of the judge's decision to release the accused and whether all government officials have the right to discretion in carrying out their positions. The research method used is a descriptive normative method, with a statutory approach, a conceptual approach and a case approach. The results of the discussion revealed that criminal law is used carefully and operationalized truly as the last drug (ultimum remedium) and not necessarily used as the main drug (primum remedium) so that government officials are no longer afraid to carry out work in the public interest and community welfare.


2018 ◽  
Vol 7 (4.9) ◽  
pp. 100
Author(s):  
Boy Yendra Tamin ◽  
. .

The high number of corruption cases among government officials in Indonesia cannot be separated from what is the object of the criminal law of corruption, especially since corruption laws in Indonesia do not distinguish between discretion and abuse of authority due to position. This raises the question, can discretion be the legal object of criminal corruption? This legal research is carried out with conceptual approach, statute approach and case approach, it can be concluded that discretion cannot be used as an object of the criminal law of corruption because discretion is not based on the principle of legality. Placing discretion as the object of the law of corruption is inconsistent with the demands of the welfare state. In the use of discretion, it is necessary only to set strict standards and supervision, and the use of discretion with consistent purpose principles. And it must be stated in the Act, that the expression is not the object of corruption.  


Author(s):  
O. S. Guzeeva ◽  

Introduction: the prerequisite for socially dangerous acts to be criminalized is their illegality; one of the forms of such acts is abuse of rights, when the behavior of the subject causing harm to the rights and interests of other persons has an external form of exercising his/her right. Criminal liability for abuse of rights has specific features that significantly distinguish it from other criminalization processes. Purpose: to analyze the theoretical foundations for constructing the grounds of criminal liability for abuse of rights, with the analysis being performed through the prism of criminal law and constitutional provisions. Methods: system analysis, formal and dialectical logic, modeling, method of interpretation of legal norms, method of constitutional examination, comparative legal method. Results: abuse of rights covers both situations of using rights to the detriment and those where the person goes beyond the limits of the right granted to him/her. It is necessary to distinguish between two types of abuse of rights. 1) Abuse of rights by government officials. In criminal law, it generates two problem situations: a) an assessment of the actions of civil servants who consistently implement such a policy of the state that is not legal by its nature and is aimed at depriving citizens of their rights and freedoms or restricting those; b) an assessment of the actions of government officials who abuse their official powers in conditions when such actions contradict the legal policy of the state. 2) Abuse of rights by individuals. In criminal legal assessment of this behavior, one should distinguish: a) abuse of a right as a method of crime and b) abuse of a right as the content of behavior. Conclusions: no abuse of rights can entail criminal liability if it is not associated with the infliction or a real threat of infliction of substantial harm to the rights of citizens. It is essential to optimize the system of liability for abuse of rights and particularly to solve the problem of responsibility of officials implementing non-legal policy of the state and also responsibility of private individuals for abuse of rights in cooperation with government agencies.


2020 ◽  
Vol 6 (1) ◽  
pp. 150-171
Author(s):  
Bayu Miantoro

The United Nations Convention against Corruption (UNCAC) provides states with the opportunity, by means of their national criminal law, to criminalize a number of diverse corruptive behaviors, inter alia, illicit enrichment. By using a legal normative approach, the author discusses the chances and obstacles Indonesia face when introducing illicit enrichment as a crime alongside other crimes regulated in the Law on (the eradication of) corruption and law re.  Money laundering.  Apparently the primary aim to criminalize illicit enrichment through the national criminal law is to provide the state with a legal instrument to recover assets the result of corruption or money laundering.  Attention should be given, however, on a number of obstacles coming from the interpretation of presumption of innocence principle and exiting regulation on the obligation for government officials to report their assets.


Author(s):  
Clapham Andrew ◽  
Casey-Maslen Stuart ◽  
Giacca Gilles ◽  
Parker Sarah

The United Nations Arms Trade Treaty (ATT) became binding international law in late 2014, and although the text of the treaty is a relatively concise framework for assessing whether to authorize or deny proposed conventional weapons transfers by states parties, there exists controversy as to the meaning of certain key provisions. Furthermore, the treaty requires a national regulatory body to authorize proposed transfers of conventional weapons covered by the treaty, but does not detail how such a body should be established and how it should effectively function. This book explains in detail each of the treaty provisions, the parameters for prohibitions or the denial of transfers, international co-operation and assistance, and implementation obligations and mechanisms. As states ratify and implement the treaty over the next few years, the commentary provides invaluable guidance to government officials, commentators, and scholars on the meaning of its contentious provisions. This volume describes in detail which weapons are covered by the treaty and explains the different forms of transfer that the ATT regulates. It covers international human rights, trade, disarmament, humanitarian law, criminal law, and state-to-state use of force, as well as the application of the treaty to non-state actors.


2012 ◽  
Vol 13 (9) ◽  
pp. 1037-1055 ◽  
Author(s):  
Liane Wörner

Going after terrorists, often means “fighting the unknown”. The so-called “new threat” cannot be tracked back to known terrorists plotting against known government officials within national boundaries. The need for early investigation is clear, nothing more urgent than to forestall further terrorist actions. Today's sleeper can be tomorrow's terrorist. Hence, the argument herein is that new developments remain as consequent continuation perfecting well-known terrorist strategies and techniques. Instead of predating criminal responsibility the unknown needs to be identified. In refusing such identification current criminal law turns into a soft law reflecting actual social needs by preventing a future wrong. Current German criminal law on terrorism overextends appropriate borders in criminalizing chains of preparations. Punishment is carried out for “thinking different” by way of pre-crime, just symbolizing the wrong. The paper argues that even if criminal responsibility is predated in order to identify the unknown, it has to base on behavior, which can be understood as disorder outside the offender's interim sphere to qualify as criminal wrong. This applies to suspected terrorists and also to all other suspects of crime.


Solusi ◽  
2019 ◽  
Vol 17 (2) ◽  
pp. 175-192
Author(s):  
Barhamudin Barhamudin

The purpose of this research is to find out, study and analyze in determining the element of abusing authority in government administrative laws. In this study using normative research with a statutory approach and a conceptual approach. Legal materials consisting of Primary Legal Materials, Secondary Legal Materials and Tertiary Legal Materials. The results obtained are benchmarks to determine the existence of abuse of authority according to administrative law, in this case UUAP occurs if government officials or officials conduct discretion without going through procedures and the purpose is not carried out within the scope of what has been determined by Law of the Republic of Indonesia Number 30 of 2014 concerning Government Administration in article 17 and article 18 includes: a. The statute goes beyond the authority; b. prohibition of confusing authority; c. prohibition of arbitrary actions. d. beyond the term of office or the validity period of the Authority; e. beyond the territorial validity of the Authority; and / or f. contrary to statutory provisions. g is outside the scope of the field or material given Authority; and / or h. contrary to the stated purpose of the Authority. Abuse of authority either according to administrative law or criminal law has the respective legal domain. Decisions and / or Actions that are determined and / or carried out by exceeding illegitimate Authority if it has been tested and there is a Court Decision that has permanent legal force and Courts that have permanent legal force.


2018 ◽  
Vol 4 (1) ◽  
pp. 9
Author(s):  
Odie Faiz Guslan

The aim of this resecearch is to determine about the limitations between the act of goverment officials (bestuurhandelingen) that inflict state financial loss qualified as a maladministration or a corruption offence. The research method used is Juridical Normative. The result of the study show that, not every act of goverment officials that inflict state financial loss qualified as a corruption offence. In determine of the limits between maladministration act and corruption offence, the government officials must avoid itself from acts of discretion that containing the nuances of criminal law such as: cheating (deceit), manipulation, mispresentation, concealment of facts, breach of trust, subterfuge, or illegal circumvention.


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