Criminalizing Civil Law Actions of Default into Criminal Acts of Fraud: A Human Rights Perspective

The terms "Default" and "Fraud" and/or “Embezzlement” are often interchanged without clarity of meaning in many discussion forums, both oral and written. This confusion can be seen from the many court decisions that acquit defendants from prosecution which have permanent legal force. The public often hears that law enforcers carry out criminalization, such as witnesses becoming suspects, suspects becoming defendants and so on by shifting the civil legal action of Default to criminal act of Fraud and/or Embezzlement. Using 'criminalization' and 'criminalized' in this article is considered inappropriate, so it has been replaced by 'criminalizing' and 'criminalized'. If there is an action to shift the civil legal act of Default into a criminal act of Fraud and/ or Embezzlement, so from a human rights perspective, it is against the law. By using normative legal research methods, this paper examines how to differentiate civil legal acts of Default from criminal acts of Fraud and/or Embezzlement, how to apply civil compensation in cases where there are already criminal legal remedies, and what is the legal and human rights perspective when criminalization occurs. This paper uses a statutory approach and a case approach. The results show: First, there is a real difference between civil legal acts of Default and criminal acts of Fraud and/ or Embezzlement; Second, the application of compensation can be carried out through criminal and civil procedural law mechanisms; Finally, criminalizing civil legal acts into criminal acts is a form of violation of human rights.

Introduction

In the constitution of the Republic of Indonesia it is stated that Indonesia is a rule of law state³⁹, however, the aim of the law as it should be is not yet realized². There are still many legal issues concerning justice, legal certainty, and usefulness of the current law.

The public often hear presupposition that investigators from the Police of the Republic of Indonesia (“Polri”) ‘criminalizing’⁸;²⁰a civil case becomes a criminal case on the grounds that there are many court decisions which discharge the Defendant from prosecution (“outslug van alle rechtsvervolging”) which have legal binding force from judicial process⁵⁰. One of the legal issues that often attracts public attention is the civil case of breach of contract or default which was ‘criminalized’ by Police investigators into a criminal case of fraud. Even though this opinion is incorrect, because a criminal case can be transferred to a judicial institution, it cannot be separated from the intervention of the Public Prosecutor⁵⁰.

There is confusion in society about how to distinguish whether an act is a criminal act or a civil act²⁸. Especially in civil cases of breach of contract⁴⁷;¹³with criminal acts of fraud, and/ or Embezzlement.

There has been a grouping in the legal field, namely public law and civil (private) law²⁹. This grouping has occurred since Roman times through a Roman legal expert named Ulpian's, where he divided the Roman legal system into two groups, namely: First, public law relating to the welfare of the Roman state; and second, civil law which regulates people specifically. This grouping of legal fields is because there are matters that involve public interests, and there are also matters that involve civil interests³¹. The Roman legal system at that time divided public law (criminal publics) for crimes that harmed the public interest (society) with criminal sanctions, and private law (delicts private) regulating a person’s self or personal property which gave rise to liability for the offense (obligation ex delicts), which gives the injured person a civil claim²⁹.

Because criminal law is included in the public law group⁶, then the difference between criminal law and civil law lies in its application³⁴, the criminal law applies to regulate individual behavior in social life in society, while civil law applies to regulate relationships between individuals and other individuals.

Because there are two groups of legal fields, the public law and private law, it is necessary to regulate the procedural law of each legal field in question. Procedural law regulates the mechanisms to remedy the violated rights. The remedy or enforcing the violated rights has the aim of obtaining legal protection from the courts, which is to prevent vigilantism (eigenrichting)³. The Civil Procedure and Criminal Procedure have their own procedures or mechanisms for implementing law enforcement, which in this article will also discuss the civil procedure and criminal procedure related to the legal issues of the application of compensation for the victims of criminal acts to the perpetrators.

There are various types of criminal acts that depend on the target of the crime, such as crimes against the body (murder, rape, assault); crimes against property (robbery, theft, fraud, embezzlement); crimes against public order (robbery, drunkenness); and crimes against state security¹⁸. The criminal acts of fraud and embezzlement that will be discussed in this article fall into the category of crimes against property.

The criminal act of fraud regulated in the Criminal Code has a different legal character from fraud contained in Article 1328 of the Civil Code⁴⁷. Fraud in Article 1328 of the Civil Code has relation to the conditions for the validity of the agreement, there shall be a mutual consent as the condition. While it is different from fraud in the Criminal Code which is aimed at property (wealth). Fraud in Article 1328 of the Civil Code results in an agreement being annulled, then fraud in Article 378 of the Criminal Code carries a maximum prison sentence of four years.

Mistakes in determining whether an act is a civil law act of Default or breach of contract (wanprestasi) or a criminal law act of fraud will result in different sanctions⁵⁰;¹⁴. Although it is possible for an act to have two different legal acts, which is one is a civil act, and the other is a criminal law act. This means that an act may violate two laws at once, those are against criminal law (melawan hukum pidana)and violate civil law (melanggar hukum perdata)⁹.In the event that the understanding of the concept of fraud in the two domains of civil or criminal law is not clarified, and/ or confirmed into a standard form, then the boundaries or borders of civil law and criminal law will continuously be attempted to be blurred by parties who take advantage of the existing confusion.

The principle of freedom of contract is a human right that must be respected and protected. The International Covenant on Civil and Political Rights (ICCPR) states that: “No one may be imprisoned solely on the basis of his or her inability to fulfill an obligation arising from a treaty”²³