Legal Comparison of Deferred Prosecution Agreement (DPA) Methods in the USA, UK and Indonesia for Recovering State Financial Losses Due to Corruption Crimes

DOI:

https://doi.org/10.25041/corruptio.v4i2.2853

Abstract

A deferred prosecution agreement (DPA) is an attempt to delay prosecution by making an agreement between the prosecutor and the corporation that committed the crime. This system has been implemented in the United Kingdom and the United States. DPA is one of the solutions to problems in the process of eradicating corruption. However, differences in the legal system are obstacles to its application in Indonesia. So it is necessary to develop an approach to be able to determine a model that is in accordance with the existing laws in Indonesia. Using normative juridical methods, how do DPA in USA, UK, and similar legal institutions compare with DPAs in Indonesia and their obstacles. Based on the research findings and discussions, it can be concluded that in the USA, DPA can be executed when there is corporate acknowledgment of criminal facts, an agreement to cooperate, a specified timeframe for the agreement, and an agreement involving a certain amount of monetary payments as a condition. In the UK, DPA serves as a probation for corporations, involving a negotiation, approval, and enforcement process. Furthermore, because Indonesia has not yet implemented DPA, but there are legal mechanisms with characteristics similar to DPA, namely diversion, restorative justice, the prosecutor's principle of opportunity, fines payment, and the MSAA/MRNIA model applied in the case of the Bank Indonesia Liquidity Assistance.

Keywords:

Deferred Prosecution Agreement, Corruption, Corporation

References

Asep N. Mulyana, 2019, Deferred Prosecution Agreement in Business Crime, Jakarta: PT. Grasindo, P.236.

Artha, I. Gede, and Ni Nengah Adiyaryani. "The Role of the Prosecutor in Executing the Payment of Replacement Money." Udayana Master of Law Journal 9, no. 3 (2020): 521-534.

Luhut M. P. Pangaribuan, Special Criminal Law - Economic Crimes, Money Laundering, Corruption and International Cooperation and Asset Returns, Pustaka Kemang Publishers, Jakarta, 2016, p.179-180.

Moh. Dani Pratama Huzaini, 2020, Implementation of Deferred Prosecution Agreement in Indonesia in Several Cases, accessed at https://www.hukumonline.com/berita/baca/lt5e4b5d0202267/implementasi-i-deferred-prosecution-agreement-i-di-indonesia-dalam-sejumlah-kasus/, accessed on Monday, November 21, 2022.

Muhammad Ridho Sinaga. 2021. The Concept of Deferred Prosecution Agreement (DPA) in Combating Corporate Corruption in Indonesia. Jurnal Delegalata, Vol.6, No. 1: 89.

Mutiara N. Febby, 2019, Return on State Financial Losses: Can It Use Deferred Prosecution Agreement?, Unsri Journal of Light Relief, p. 13.

Polly Sprenger, 2015, Deferred Prosecution Agreements: The Law and Practice of Negotiate Corporate Criminal Penalties, UK: Sweet & Maxwell, p. 1.

Surachman, RM & Andi Hamzah, 1996, Prosecutor of Various Countries and Their Positions, Jakarta: Sinar Grafika, P 45.

Tri Widya Kurniasari, 2006, MSAA and MRNIA for the Recovery of BLBI Funds, "A Way Out or a Way to Exit," Journal of Society and Culture, Vol. 8, No. 1: p. 51.

Triwijaya, Ach Faisol, Yaris Adhial Fajrin, and Chintya Meilany Nurrahma, 2020, Dual Mediation: Resolving Environmental Cases Involving Corporations as Offenders through a Restorative Justice Approach. Udayana Master Law Journal 9, no. 2: 401-428.

http://www.gibsondunn.com/publications/Documents/2010YearEndUpdateCorporateDeferred ProsecutionAndNon-ProsecutionAgreements.pdf, accessed March 17, 2022

Deferred Prosecution Agreements, https://www.sfo.gov.uk/publications /guidance-policy-and-protocols/deferred-prosecution-agreements/ accessed March 25, 2022.

Asep N. Mulyana, 2019, Deferred Prosecution Agreement in Business Crime, Jakarta: PT. Grasindo, P.236.

Artha, I. Gede, and Ni Nengah Adiyaryani. "The Role of the Prosecutor in Executing the Payment of Replacement Money." Udayana Master of Law Journal 9, no. 3 (2020): 521-534.

Luhut M. P. Pangaribuan, Special Criminal Law - Economic Crimes, Money Laundering, Corruption and International Cooperation and Asset Returns, Pustaka Kemang Publishers, Jakarta, 2016, p.179-180.

Moh. Dani Pratama Huzaini, 2020, Implementation of Deferred Prosecution Agreement in Indonesia in Several Cases, accessed at https://www.hukumonline.com/berita/baca/lt5e4b5d0202267/implementasi-i-deferred-prosecution-agreement-i-di-indonesia-dalam-sejumlah-kasus/, accessed on Monday, November 21, 2022.

Muhammad Ridho Sinaga. 2021. The Concept of Deferred Prosecution Agreement (DPA) in Combating Corporate Corruption in Indonesia. Jurnal Delegalata, Vol.6, No. 1: 89.

Mutiara N. Febby, 2019, Return on State Financial Losses: Can It Use Deferred Prosecution Agreement?, Unsri Journal of Light Relief, p. 13.

Polly Sprenger, 2015, Deferred Prosecution Agreements: The Law and Practice of Negotiate Corporate Criminal Penalties, UK: Sweet & Maxwell, p. 1.

Surachman, RM & Andi Hamzah, 1996, Prosecutor of Various Countries and Their Positions, Jakarta: Sinar Grafika, P 45.

Tri Widya Kurniasari, 2006, MSAA and MRNIA for the Recovery of BLBI Funds, "A Way Out or a Way to Exit," Journal of Society and Culture, Vol. 8, No. 1: p. 51.

Triwijaya, Ach Faisol, Yaris Adhial Fajrin, and Chintya Meilany Nurrahma, 2020, Dual Mediation: Resolving Environmental Cases Involving Corporations as Offenders through a Restorative Justice Approach. Udayana Master Law Journal 9, no. 2: 401-428.

http://www.gibsondunn.com/publications/Documents/2010YearEndUpdateCorporateDeferred ProsecutionAndNon-ProsecutionAgreements.pdf, accessed March 17, 2022

Deferred Prosecution Agreements, https://www.sfo.gov.uk/publications /guidance-policy-and-protocols/deferred-prosecution-agreements/ accessed March 25, 2022.

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Authors

  • Ilham Nur Pratama Universitas Lampung, Indonesia

Published

2023-09-18

How to Cite

Pratama, Ilham Nur. 2023. “Legal Comparison of Deferred Prosecution Agreement (DPA) Methods in the USA, UK and Indonesia for Recovering State Financial Losses Due to Corruption Crimes”. Corruptio 4 (2):73-80. https://doi.org/10.25041/corruptio.v4i2.2853.

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Section

Articles