Almost immediately following the issuance of Supreme Court Regulation No. Thirteen of 2016 on Case Handling Procedures for Corporate Crimes in December 2016, the Corruption Eradication Commission (KPK) named Nusa Konstruksi Enjiniring (NKE, previously Duta Graha Indah), a publicly traded production company, as a suspect of corruption in some of government production tasks.
Before the trial of NKE, the Corruption Court put NKE’s former president and director, Dudung Purwadi, on trial for enjoying corruption in two government creation tasks in which the bidding tactics were engineered to make certain NKE received the tasks.
The scheme involved payment of fulfillment costs to a public legitimate who acted as an intermediary among NKE and the challenge owners. On 27 November 2017, the court discovered Purwadi guilty of corruption and sentenced him to 4 years and 8 months in prison, and fined him IDR250 million (HK$18,000). In the identical selection, the courtroom also ordered NKE to pay restitution in the amount of IDR14. Forty-eight billion and IDR33.Forty-two billion for corruption involving the 2 tasks (the Jakarta High Court later changed the latter to IDR 36.87 billion in its selection dated 12 February 2018).
On three January 2019, the Corruption Court declared NKE guilty of corruption in a complete of eight authorities production initiatives, along with the two projects tested under the Purwadi case.
The Anti-Corruption Law stipulates that the essential penalty to be imposed on organizations which might be demonstrated to be guilty of corruption is exceptional. Additional consequences encompass confiscation of belongings, responsibility to pay restitution, full or partial closure of commercial enterprise, or revocation of rights. In the NKE case, the Corruption Court imposed a best of IDR700 million, restitution of IDR85. Forty-nine billion and revocation of the proper to take part in tenders held with the aid of the authorities for six months.
In determining the quantity of restitution imposed on NKE inside the Purwadi case, the court seems to have taken the technique that the quantity of restitution to be paid to the nation should be same to the number of profits gained via NKE from the 2 initiatives, as may be visible from the manner the court docket calculated the quantity of restitution.
The court determined that NKE had won IDR24. Seventy-seven billion and IDR42.71 billion to make the most of the initiatives. The court then deducted from those quantities the success expenses paid to the public legit, which resulted inside the quantities of IDR14.Forty-eight billion and IDR36.87 billion for restitution owed to the kingdom.
In NKE’s personal trial, the court docket adopted the identical technique of appropriating NKE’s earnings as restitution to the kingdom, this time by making clear reference to article 18(1)(b) of the Anti-Corruption Law and Supreme Court Regulation No. 5 of 2014 on Additional Penalty of Compensation in Corruption Crimes. These provisions stipulate that the maximum amount of repayment that may be imposed as an extra penalty is equal to the full quantity of assets won from the corruption.
The court docket discovered that NKE had won earnings in the amount of IDR240 billion from eight government creation projects (which include the two tasks examined in the Purwadi case) won by using NKE as a result of the corruption scheme.
The court docket then deducted from this quantity: (1) the quantity already deposited by NKE to KPK at the early levels of the investigation of the case; (2) the success expenses paid to the general public professional to win the initiatives; and (3) the amount of restitution paid by using NKE to the country as enforcement of the verdict in opposition to NKE inside the Purwadi case. This left a complete of IDR85.Forty-nine billion as the amount of restitution owed by way of NKE.
The court docket similarly said that the appropriation of all of NKE’s earnings is supposed to have a deterrent impact on the agency. The court also implied that it’s for sending a message that corruption can depart businesses penniless.
The successful implementation of company crook liability in the NKE case paves the way for subsequent indictments and sentencing of companies for crook actions. In 2018 by myself, KPK named 4 agencies as suspects in a number of corruption instances, which consist of a state-owned entity.
The indictment of NKE additionally indicates that regulation No. 13 will be continually enforced in destiny investigations of organizations in crook subjects. One of the criteria towards which the court can investigate the legal responsibility of an organization beneath regulation No. 13 is whether or not the business enterprise takes the necessary steps to prevent or mitigate destructive consequences and make certain compliance with the regulation to prevent a crime. The NKE indictment makes it all the greater essential for agencies in Indonesia to have inflexible and strict inner compliance rules to ensure the enforcement of those guidelines.