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[co-authors: Harris Syahni Toengkagie, Charissa Naomi Witantra]*
1. Is your nation a member of the OECD Anti-Bribery Conference?
No.
2. Is your nation a member of every other bilateral or multilateral conventions on anti-corruption?
Sure. Amongst others, Indonesia is likely one of the signatories of the United Nations Conference towards Corruption.
3. Are there native anti-corruption legal guidelines in your nation specializing in companies, not people? If sure, what sanctions might be imposed?
Sure. Indonesia adopted Regulation No. 31 of 1999 on Corruption Eradication (as amended) (“Corruption Eradication Regulation”), which focuses on the acts of corruption given to and from state officers or state directors.
With regard to corruption within the non-public sector, Regulation No. 11 of 1980 on the Felony Act of Bribery (“Regulation 11/1980”) is the one legislative instrument that seems to be related to the non-public bribery of homeowners, workers, or administrators of personal, non-government-owned firms. The content material of Regulation 11/1980 is basic, with Article 1 particularly defining the Felony Act of Bribery as an act of bribery that isn’t regulated beneath any current legal guidelines or rules. Though Regulation 11/1980 continues to be in drive and has not been revoked by Regulation No. 31/1999 (as amended), there may be some uncertainty as as to if Regulation 11/1980 has ever been utilized by Indonesia’s prosecuting authorities.
The under dialogue will primarily give attention to the specialised provisions beneath the Corruption Eradication Regulation.
The Corruption Eradication Regulation acknowledges each people and companies (outlined as a gaggle of individuals or organized wealth, could also be within the type of a authorized entity) as its topics.
Below the Corruption Eradication Regulation, imposable sanctions differ, based on the kind of crime dedicated by the company in query. In short, the Corruption Eradication Regulation could impose sanctions within the type of imprisonment for as much as 20 years and wonderful for as much as IDR 1 billion. In extreme circumstances, the dying penalty may additionally be imposed. As well as, the Corruption Eradication Regulation specifies supplemental sanctions could also be imposed within the type of items confiscation, requirement to compensate, closure of a part of all or the company’s enterprise, and revocation or elimination of half or the entire company’s sure rights.
4. Can firms be held answerable for acts of corruption beneath civil or administrative legislation?
On the whole, no. An act of corruption is classed as a prison act beneath Indonesian legislation. Nevertheless, there’s a chance {that a} occasion could file a civil authorized motion towards the opposite occasion who’s confirmed to conduct corruption (e.g., on the premise of tort).
5. Is corruption of people punishable?
Sure, please check with the reply to query 3.
6. Are facilitation funds allowed?
When facilitation funds are made to expedite any administrative processes, they don’t seem to be allowed and might be thought of a violation of the Corruption Eradication Regulation.
7. Is there a authorized regulation/most restrict for accepting or giving items, invites, and many others.?
The Corruption Eradication Regulation acknowledges receiving or giving items and invites as acts of gratification. Moreover, giving reductions, commissions, journey facilities, in addition to different services to onshore or abroad recipients (through electronical means or non-electronical means) are additionally acknowledged as gratification.
The Corruption Eradication Regulation focuses on the acts of gratification towards state officers or state directors. This legislation doesn’t point out the minimal or most restrict that state officers or state directors are allowed to obtain, and subsequently, strictly talking, any sort of items acquired by state officers or state directors in any quantity are required to be reported by the respective recipients to the Corruption Eradication Fee (KPK) in a well timed method as decided by the legislation.
The KPK Regulation No. 2 of 2019 on Gratification Reporting supplies detailed exemptions on the sorts of revenue that Civil Servants (pegawai negeri) or State Officers (penyelenggara negara) could obtain, which don’t require the Civil Servants or the State Officers to report back to the KPK. The mentioned revenue embody, amongst others, items from the respective Civil Servants or State Officers’ households (so long as there isn’t any battle of curiosity), items obtained from any competitors that the respective Civil Servants or State Officers entered into themselves, financial or non-monetary appreciations given by the federal government based mostly on their work efficiency, items associated to marriage, beginning, baptism, circumcision, tooth-filing, or different conventional/non secular ceremonies with a worth restrict of IDR 1,000,000.00 per giver. Nevertheless, this provision needs to be thought of rigorously as a result of if the intention is to supply these items is to affect the state officers, it could be categorized as an act of corruption/bribery.
8. Are bribes to international authorities officers prohibited?
The principal Indonesian legislation prohibiting the bribery of international public officers is Regulation No. 7 of 2006, which ratified the United Nations Conference towards Corruption (the “UN Conference”). Indonesia signed the UN Conference on December 18, 2003, and ratified it on September 19, 2006.
The Indonesian authorities has acknowledged that disputes associated to the interpretation and software of the UN Conference that can’t be settled by way of the channel offered for therein could solely be referred to the Worldwide Court docket of Justice with the consent of the events to the dispute.
However the adoption of the UN Conference, there may be at present no carried out laws for the UN Conference with regard to international bribery legal guidelines.
9. Does your laws have any extraterritorial attain?
Sure. Below Article 16 of the Corruption Eradication Regulation, any particular person outdoors the territory of Indonesia may additionally be indicted if they’re confirmed to supply help, alternatives, means, or data to allow the fee of prison acts of corruption.
10. Is it attainable to confiscate property from the corporate?
Sure, please check with the reply to query 3.
11. Does your laws depend on deferred prosecution or non-prosecution agreements or every other sort of non-trial decision for corruption?
No.
12. Can an organization be answerable for the acts of its intermediaries or third events?
Sure, relying on the case.
13. Can a dad or mum firm be answerable for the acts of its subsidiaries?
Sure, relying on the case.
14. Are there any affirmative defenses or exceptions for these accused of corruption acts?
No. This needs to be considered on a case-by-case foundation.
15. Does your jurisdiction require home entities to implement anti-corruption inner applications?
Strictly talking, no. Nevertheless, it’s urged. Moreover, Supreme Court docket Regulation No. 13 of 2016 on Procedures for Dealing with Felony Actions by Companies specifies that if a company doesn’t take the mandatory steps to forestall and guarantee compliance with relevant authorized provisions to keep away from the incidence of prison acts, the company in query may additionally be held criminally accountable in accordance with the relevant provisions.
16. Is having a compliance program a protection or mitigating issue, whereas reviewing sanctions?
Each, based on the compliance program utilized by every company.
17. Might the cooperation with the authorities or an inner investigation be a protection or mitigating issue?
Each, based on the cooperation utilized by every company.
18. Is there any publicly out there guideline issued by the authorities in control of implementing anti-corruption legal guidelines? For instance, manuals on compliance applications, leniency agreements, and many others. If that’s the case, please present the hyperlink.
Sure. Nevertheless, the Corruption Eradication Regulation has been amended a number of instances, and the federal government’s official web sites don’t present a consolidated model of the Corruption Eradication Regulation. Nonetheless, Regulation No. 31 of 1999 on Corruption Eradication (in Indonesian) is open for public entry through the next hyperlink: https://jdih.setkab.go.id/PUUdoc/7177/UU311999.pdf
*Makarim & Taira S.
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