scholarly journals PENERAPAN BEBAN PEMBUKTIAN TERBALIK DALAM PERAMPASAN ILLICIT ENRICHMENT KAITANNYA DENGAN HAK ASASI MANUSIA

2016 ◽  
Vol 5 (2) ◽  
pp. 392
Author(s):  
A.A Mirah Endraswari
Keyword(s):  
Human Rights ◽  
Descriptive Analysis ◽  
Burden Of Proof ◽  
Proof System ◽  
Presumption Of Innocence ◽  
Law System ◽  
Legal Principles ◽  
Penal Law ◽  
Pros And Cons ◽  
The Law

The way to prevention of corruption is to use the reversal burden of proof system to the official public wealth that is not fair ( illicit enrichment ), but in the implementation there is an indication against violation of human rights. This research will be discuss how rule about the reversal burden of proof in the penal law system of Indonesia ? and how to application the reversal burden of proof in deprivation the illicit enrichment which is related with the human rights ?. Method used in this research is normative law research. Data analysis is conducted on primary and secondary law materials and then comparing those both as well were processed and presented by descriptive analysis. Related norm about the reversal burden of proof system now is regulated in act No. 31 of 1999, act No 20 of 2001 and act No. 8 of 2010, but the character of reversal burden of proof system in Indonesia still limited because it can only be used during the trials. Then related illicit enrichment norm is not regulated in Indonesia act’s, while Indonesia has been ratified about illicit enrichment in Article 20 UNCAC. The pros and cons related to the implementation of reversal burden of proof to illicit enrichment it happens because it is considered to against of human rights, which is related to the principle of presumption of innocence and non – self incrimination. However, with regard to other legal principles and consider the interests of the wider, the regulation of the illicit enrichment should be regulated in the provisions of the law in Indonesia. Considering the purpose of the law it self is fighting corruption, money laundering and optimize return on assets of criminals who gained from the crime. Penanggulangan tindak pidana korupsi sebagai kejahatan yang sifatnya luar biasa (extraordinary crime ) membutuhkan penanganan yang sifatnya luar biasa pula. Adapun cara yang dapat ditempuh yaitu dengan menerapan sistem pembuktian terbalik  terhadap kekayaan pejabat Negara yang dimiliki secara tidak sah ( illicit enrichment ), namun dalam pelaksanaannya terdapat indikasi bahwa akan  bersinggungan dengan Hak Asasi Manusia ( HAM ). Dalam penelitian ini akan dibahas mengenai bagaimana pengaturan terkait pembuktian terbalik yang diatur dalam  sistem hukum pidana di Indonesia ? dan bagaimanakah penerapan sistem pembuktian terbalik dalam perampasan terhadap illicit enrichment dikaitkan dengan Hak Asasi Manusia ( HAM ) ?. Metode dalam penelitian ini menggunaan penelitian hukum normatif. Pada penelitian ini difokuskan pada hukum positif serta sumber bahan hukum baik berasal dari primer maupun sekunder. Analisis data dilakukan terhadap bahan hukum primer dan bahan hukum sekunder yang selanjutnya diolah dan disajikan secara deskriptif analisis. Terkait tentang pengaturan sistem pembuktian terbalik saat ini telah diatur dalam ketentuan Undang – Undang No. 31 Tahun 1999 jo Undang – Undang No. 20 Tahun 2001 tentang Pemberantasan Tindak Pidana korupsi serta Undang – Undang No. 8 Tahun 2010 tentang Tindak Pidana Pencucian Uang, namun sifatnya masih terbatas karena penggunaanya hanya dapat dilakukan pada saat persidangan saja. Sedangkan pengaturan terkait illicit enrichment saat ini belum diatur dalam ketentuan perundang – undangan, padahal Indonesia sendiri telah meratifikasi ketentuan illicit enrichment sebagaimana ketentuan Pasal 20  UNCAC. Pro dan kontra terkait penerapan pembuktian terbalik pada illicit enrichment karena ada indikasi bersinggungan dengan Hak Asasi Manusia ( HAM ) khususnya pada asas presumption of innocence dan non – self incrimination. Meskipun demikian, dengan memperhatikan prinsip hukum lainnya  serta untuk    kepentingan yang lebih luas maka pengaturan illicit enrichment sudah seharusnya diatur dalam ketentuan perundang – undangan di Indonesia. Mengingat tujuan pengaturannya  itu sendiri yakni demi memberantas tindak pidana korupsi, tindak pidana pencucian uang serta pengembalian aset  - aset yang diperoleh dari tindak pidana tersebut.

2. Burden of proof

2019 ◽  
pp. 10-36
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
Detailed Examination ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
Civil Cases

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

2. Burden of proof and presumptions

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
Detailed Examination ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
Civil Cases

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

PRESUMPTION OF INNOCENCE OF LEGAL PERSONS

2016 ◽  
Vol 4 (77) ◽  
pp. 26
Author(s):  
Edgars Golts
Keyword(s):  
Human Rights ◽  
Fair Trial ◽  
Legal Person ◽  
Presumption Of Innocence ◽  
The Public ◽  
Court Of Justice ◽  
Equity Principle ◽  
Principle Of Justice ◽  
The Law ◽  
The Right

There is a link between a presumption of innocence and the right to a fair trial. The rights of a legal person, to be regarded as innocent, protection is ensured by the guarantees in law. The Court of Justice has recognized that the right to the presumption of innocence, the legal persons does not apply in the same way as natural persons. The Constitution reinforces the presumption of innocence is to be subject to the right to a fair trial arising from the principle of justice. The Constitution stipulates that the rights of the person may be limited to the benefit of the public, but not the right to the presumption of innocence. In the article the author expresses the conviction, nowadays, the development of such rights, – the environment, animal, unborn children, deceased persons and other types of law; it is obvious that, on the basis of an equity principle, human rights are extended translated and applied. Justice fully embraces the principles of equality law, which allows concluding on the physical and legal persons to equality before the law and the courts.

scholarly journals Islamic criminal procedure law: human rights issues

2020 ◽  
Vol 23 (10) ◽  
pp. 47-57
Author(s):  
Yusif Mamedov
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Justice System ◽  
Due Process ◽  
Economic Status ◽  
Burden Of Proof ◽  
The Law ◽  
The Right

It has been established that harsh Islamic punishments are practically not applied due to the high burden of proof and the need to involve an exhaustive number of witnesses. It has been proven that the Islamic criminal justice system provides the accused with basic guarantees. It is noted that according to Sharia, Islamic crimes are divided into three categories: Hadd, Qisas and Tazir. It is noted that Islamic criminal law provides that the accused is not guilty if his guilt is not proven. It is noted that equality before the law is one of the main legal principles of the Islamic criminal model, as all persons are equal before the law and are condemned equally regardless of religious or economic status (lack of immunity). There are four main principles aimed at protecting human rights in Islamic criminal law: the principle of legality (irreversible action), the principle of presumption of innocence, the principle of equality and the principle of ultimate proof. In addition, the Islamic criminal justice system provides defendants with many safeguards, which are always followed during detention, investigation, trial and after trial. It is established that such rights are: 1) the right of every person to the protection of life, honor, freedom and property; 2) the right to due process of law; 3) the right to a fair and open trial before an impartial judge; 4) freedom from coercion to self-disclosure; 5) protection against arbitrary arrest and detention; 6) immediate court proceedings; 7) the right to appeal. It is noted that if a person is charged, he/she has many remedies It is noted that the trial must be fair, in which the qadi (judge) plays an important role. It has been established that, in addition to the procedural guarantees, the qualifications and character of the qadi, as well as the strict requirements of Islamic rules of proof, are intended to ensure a fair trial in the case of the accused. Adherence to these principles has been shown to indicate that the rights of the accused are fully guaranteed under Islamic criminal law.

scholarly journals Humans: The Biggest Barrier to Realising Human Rights - A South African Perspective

2020 ◽  
Author(s):  
Erika Serfontein
Keyword(s):  
Human Rights ◽  
South African ◽  
Legal Protection ◽  
Well Being ◽  
Human Behaviour ◽  
Individual Autonomy ◽  
International Human Rights Law ◽  
Human Right ◽  
Legal Principles ◽  
The Law

In demarcating the law, human rights, and human behaviour, the objective is to explore the tension between safeguarding human rights and promoting individual autonomy. While international human rights law signifies the potential of creating dignified life experiences, the behaviour of humans, and, specifically, of those in government incited my focus on the effect of human behaviour on the realizsation of human rights. By studying human rights through a philosophical lens, a (a) conceptual clarification of human rights is provided, (b) the most prominent human rights are identified, (c) general and specific justifications of human rights discussed, and (d) the normative implications of human right claims explored. Focus is placed on South Africa although the value and potential generalisation generalization of the data for evaluating the effectiveness of human rights in achieving their social goal globally, are acknowledged. Reviewing literature, an overview is provided of the law and human rights; the different dimensions of human rights; and human behaviour. Persistent human rights violations, albeit legal protection, are delineated and the significant role played by human behaviour during such violations are highlighted. Given that human behaviour is influenced by various ethical, social, and legal principles, governments are urged to be mindful of the well-being of the humans they are ethically and legally obliged to serve.

scholarly journals Penyelesaian Perkara Anak yang Berhadapan dengan Hukum Menurut Undang-Undang No. 11 Tahun 2012

2020 ◽  
Vol 2 (2) ◽  
pp. 291-311
Author(s):  
Rachmawati Rachmawati
Keyword(s):  
Restorative Justice ◽  
Equal Opportunity ◽  
Descriptive Analysis ◽  
Individual Responsibility ◽  
Inductive Method ◽  
Criminal Prosecution ◽  
Rights Of The Child ◽  
Library Research ◽  
Penal Law ◽  
The Law

The repressive juvenile justice paradigm has begun to be abandoned and replaced by the concept of solving a child criminal case with a restorative concept that views all parties, perpetrators, victims, and communities having equal opportunity to resolve conflicts caused by a crime. The restorative concept is in conformity with the conventions agreed upon by countries in the world in the Convention on the rights of the child in 1990 with international instruments including Beijing Rule dated 29 November 1985. The study of the crime against children in Islam has existed before the rule of the child in the ancient conventional low. The objective of punishment in Islam is not only to recognize the retributive objectives as the main objective in criminal prosecution but also to recognize other objectives such as the rehabilitation of the perpetrator and also the restorative between the perpetrator and the victim. Here is the interesting thing that will be studied comprehensively related Maqasid Al Syari’ah in applying restorative justice especially in case of child face to law. See the complexity that accompanied restorative justice in children facing the law, the authors are interested to examine the settlement of lawsuits children in accordance with the law no 11 of 2012 analysis Maqasid Al syari’ah this research is library research, descriptive analysis and analyze data qualitative with inductive method. The approach used is normative juridical, by looking at restorative justice in the penal law of Indonesia, this research aims to know the value of Maqasid Al Syari’ah in process of settlement of child crime case and examining view of Islam law to restorative justice value contained in law no 11 of 2012. After the research, it can be conclude that the application of restorative justice has long been adopted in the Islamic legal system, precisely on qiyas-diyat criminal acts. In the context of children, the application of restorative justice is more accommodated, given the urgency and for the benefit of the child as the nation’s successor. Whereas in viewing restorative justice in the SPPA act indicates the existence of reconciliation effort of forgiveness, correction of relationship, there is also structural responsibility as balancing individual responsibility, all of which obviously accommodated in the purpose of punishment Al-isti’adah.

scholarly journals Corruption and Reversal Burden of Proof

2014 ◽  
Vol 4 (1) ◽  
pp. 62
Author(s):  
Wahyu Wiriadinata
Keyword(s):  
Burden Of Proof ◽  
Social Engineering ◽  
Analytical Form ◽  
Proof System ◽  
Law System ◽  
Legal Science ◽  
Theoretical Frame

This paper, entitled Corruption and Reversal Burden of Proof, was intended to deal with a question on the extent of the effectiveness of a reversal burden of proof as stipulated in positive (applicable) Indonesia law, that is, as provided for in Law Number 31 of 1999 on Eradication of Corruption Crime. Then, a problem that rose next was: could the application of reversal burden of proof in proving a corruption crime case prevent or reduce or even eliminate totally corruption crimes in Indonesia? This research built on a theoretical frame of thought from Roscoe Pound, who maintains that law is a tool of social engineering. This concept was cited by Muchtar Kusumaatmadja, who adapted it to Indonesia conditions and adjusted it to be law as a social engineering medium. Engineering is meant here as a transformation of the thinking ways of people from traditional thinking ways to modern ones. Law should be made as a means in resolving the entire problems that emerge between and among community, including corruption crimes. One of the things that needs to be changed is a law of proof law system, that is, from a conventional proof system to be a reversal one. This paper was written by a juridical-normative method, that is, by studying legislations, be they are contained in laws and those contained in literature/books on legal science, particularly legislations related to reversal burden of proof. Then, the results, in a form of juridical aspect, was written in a descriptive-analytical form. The overall conclusion of this research was an answer of the problems posed above, that is: Corruption crimes have been continuously occurring till now in Indonesia. Thus, Law Number 31 of 1999, particularly Article 37, has not been effective yet in eradicating corruption crimes.

scholarly journals Legal Rules Concerning Shoot to Death for Criminal Acts of Terrorism in the Perspective of the Principle of the Prejudiction of Innovality

2021 ◽  
Vol 4 (1) ◽  
pp. 33-40
Author(s):  
Moh. Lubsi Tuqo Romadhan ◽  
Nur Khotimah ◽  
Shinta Widhaningroem ◽  
Tekun Ibadata
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Criminal Code ◽  
Public Prosecutor ◽  
Presumption Of Innocence ◽  
Police Chief ◽  
Legal Rules ◽  
The Public ◽  
Principles And Standards ◽  
National Police

The state in carrying out the life of the nation and state faces threats that come from within the country and abroad. This study aims to find out the legal rules regarding shooting to death for perpetrators of criminal acts of terrorism in the perspective of the principle of the presumption of innocence, where this case has always been a hot issue in Indonesia, especially when we associate shooting to death or being shot on the spot for perpetrators of criminal acts of terrorism with the principle of presumption of innocence. This research is normative in nature with reference to existing books, journals, and laws and regulations. There are several legal rules that form the basis for doing so/shooting death against terrorism crimes are: Article 48 of the Criminal Code, In Article 49 paragraph (1) of the Criminal Code, In Article 51 of the Criminal Code paragraph (1), National Police Chief Regulation Number 8 of 2009 concerning Implementation of Human Rights Principles and Standards. The principle of presumption of innocence also places him in the Burden of Proof or the burden of proof and it is the duty of the public prosecutor to prove the defendant's guilt, unless the proof of Insanity is imposed on the defendant or the law provides strict provisions for reverse proof. The application of the principle of presumption of innocence must also always uphold human rights that must be respected by everyone.

scholarly journals PENERAPAN SISTEM PEMBUKTIAN TERBALIK TERHADAP TINDAK PIDANA KORUPSI (SEBUAH UPAYA PROGRESIF DALAM PEMBERANTASAN TINDAK PIDANA KORUPSI)

2012 ◽  
Vol 1 (2) ◽  
Author(s):  
Muwahid
Keyword(s):  
Data Analysis ◽  
Criminal Law ◽  
Burden Of Proof ◽  
Criminal Procedure ◽  
Criminal Code ◽  
Research Data ◽  
Proof System ◽  
Conventional System ◽  
Legal Research ◽  
The Law

<p align="center"><strong>Abstract</strong></p><p>The main object of this research is the regulation reversal burden of proof system of corruption in Act Number 20 of 2001. This research is a normative legal research, data obtained from primary legal materials that legislation, and secondary legal materials namely, books, journals and law relating to the burden of proof. The technique of data analysis uses content analysis.The results of research showed, <em>First</em> the reversal burden of proof system in criminal law of corruption stipulated in Article 12B paragraph (1), Article 37, Article 38A and Article 38B of Act Number 20 of 2001 on the eradication of corruption.<em> Second,</em> the application of reversal burden of proof principle in a criminal act of corruption is a specific provision in the law of criminal procedure, as a way to take war or eradicate of the corruption which is an extra ordinary crime, this provision is evidence of irregularities in the conventional system as was stipulated by the Criminal Code, in this case applies the principle of <em>lex specialis derogat lex generalis.</em><em></em></p><p><strong>Keywords</strong>: <em>Aplication,</em> <em>Reversal Burden of Proof, Corruption.</em></p>

scholarly journals Discourses of Legal Certainty in Execution of Administrative Court Decision

2019 ◽  
Vol 2 (2) ◽  
pp. 89
Author(s):  
Nyoman Martana ◽  
Putu Ade Hariestha Martana ◽  
Kadek Agus Sudiarawan ◽  
Bagus Hermanto
Keyword(s):  
Descriptive Analysis ◽  
Secondary Data ◽  
Empirical Method ◽  
Court Ruling ◽  
Legal Certainty ◽  
Law System ◽  
Government Administration ◽  
Procedural Law ◽  
The Law

After the enactment of the Law of Government Administration implied the regulation concerning the execution of the Administrative Court Judgment. Some pro-cons academic and practice discourses, arguing that the enactment of the Law of Government Administration is the culminating point from the limited role of the Administrative Court on enforcing  the administrative law and the argument that the regulation of the Law of Government Administration contains various ambiguities norms in concern with implementation in the Administrative Procedural Law System. This study aims to analyze and discuss concerning the regulation of the provisions of the Administrative Court Ruling execution, constrains in judgment execution and the legal certainty for the justice seekers in the provisions of the Administrative Court Ruling execution after the enactment of the Law of Government Administration. This paper is using a normative and empirical method. The data that using consisted of primary and secondary data, were analyzed using qualitative methods. This study result is presented in a descriptive analysis paper.

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