REVERSAL BURDEN OF PROOF IN CORRUPTION CASE Hilmi Ardani Nasution 08410005 Criminal Penal Code as positive law codification

in Indonesia includes various types of crime, both in the form of a crime or offense. In addition to the offenses listed in the Criminal Code, there are some settings crimes committed outside the Criminal Code or commonly referred to as a specific criminal offense. This crime is a criminal offense that is loaded in some laws made by the government because there has been no criminal act as defined in the criminal code. As a codification of the criminal law, criminal acts should all be included in the codification but apparently it was not possible because it always acts arise because of changing times can be a criminal offense.

Simply to be included in the Criminal Code cannot be done, then it was created by the ruler of various laws and regulations in which includes a new offense that does not exist in the Criminal Code The special regulation provides a special treatment to one criminal conduct because the special crime is not as simple as the crime with violence. The special regulation related to the corruption case is one of the examples of special crimes, it cannot be treated like the other crimes. There must be a special conduct or system to provide this kind of crime because providing special treatment will help the law enforcement towards corruption. One of the special treatment to reveal the corruption conduct is the reversal burden of proof.

Within the scope of evidence, System Special Burden of Proof in Corruption case we refer to the system of the burden of proof (general) in criminal cases the burden is placed on the Attorney General. What about cases of Corruption, this is an exception and has special properties associated with the Material and Formal Criminal Justice. The burden of proof issue as a part of the formal criminal law experiences the change of paradigm since enacted Law no. 3 1971 and Act No. 31 of 1999. Origins of "Burden of Proof Inversion Principle" The term reverse authentication has been widely recognized by the public as a language that can easily be digested in one solution to the problem and eradicate corruption. This term is not appropriate, in terms of the language known as omkering van het bewijslat or reversal burden of proof which, when freely translated into "reversal of burden of proof. As a universal principle, it would be a biased sense when translated as a reversed burden of proof. Here there is a burden of proof is placed to one side, which lies on the prosecution Universalist. However, given the nature of the urgent of speciality, the burden of proof is placed no longer to the public prosecutor but to the defendant. Process in a reversal of the burden of proof is then known to the lay term "reverse proof". The opinion of Prof. SH Andi Hamzah, this is really appropriate because without putting the word "burden" the meaning of which occur will be different. Burden of proof without words can be interpreted no burdens of proof on the defendant so that literally only see the sort order of evidence alone.

"This term (reverse proof) Is not appropriate when done grammatical approach. Of the language known as Omkering van het Bewijslast or Reversal Burden of Proof that when freely translated as "Reversal of the Burden of Proof '." Problematic Reversed Burden of Proof The second limitation on the Act raises the pros and cons in legal circles regarding the application of the reversal of the burden of proof. Some of them say that a total reversal of the burden of proof would violate human rights. Prof JE Sahetappy [5] said, "Is it true that the application of the burden of proof is violating human rights?. I did see lately many interpretations like beauty is in the eye of the beholder related to Human Rights. I want to ask, whether such retroactive application of the principle that has been approved by the Committee MPR in Senayan is against human rights. Many NGOs and politicians eager to apply the retroactive principle related to the gross violation of human rights. That in the world known principle of law de uitzonderingen bevestigen de regal (exceptions ensure that existing rules), and it is often forgotten or pretended not to be remembered by the partisans of a particular group."

"Is it not contrary to PERPU Criminal Code? Save me not, because in the Corruption Act No. 31 of 1999, the law has accommodated the show, so there is no reason to reject this PERPU. As a tentative conclusion can be recorded as follows: PERPU is very is needed in order to eradicate corruption those who challenged this for various reasons, can be categorized from a "fear" of corruption will be demolished, to try to blame the authorities. No element of human rights violations, because the principle of "rertroactive" to gross violation of human rights also violate the legal doctrine of

legalistic positivism; violation of the Code of Criminal Procedure is also not true, because the Corruption Act which now has set its own procedural law in Article 28 of the Corruption Act also requires further elaboration and it can be achieved through. I still would expect the "common sense ", will also legal ethics and moral ethics, because if it is not the case, then as a former educator, it is not good when I think of the words of David Paul Brown that the mere lawyer is a mere Blockhead."

Opinions expressed matching succeeds Atmasasmita, the development of the practice in be how many countries has led to a new initiative in addressing the bottlenecks in the process of proving corruption. Evidence for this theory is the recognized principle of proof "beyond reasonable doubt", which is considered to be contrary with the presumption of innocence principle but on the other hand is often difficult process proven in corruption cases. Proven in practice the verification system or known as, "negative evidence" not easy to implement. Depth of knowledge and human reason (legal logic) is not limited, so appear alternative principle of the new evidence that is precisely the origin of the research developed countries and in good view does not conflict with the protection of constitutional rights and the suspect, and yet very Effective in wide open access origins of assets suspected obtained because of corruption. The above description shows that the application of the principle of proof in a criminal case is clearly a violation of the presumption of innocence (General Explanation of Item 3 C Criminal Code). In the reversed burden of proof principle judges depart from the presumption that the defendant was guilty of committing an offense or a presumption of guilt. Then the defendant must prove that he is innocent, and if he can not prove it,

then he is declared guilty without proof again of the Public Prosecutor. If a suspect or defendant arrested nearly impossible then it can be done and anyway it should be noted that the Criminal Code does not charge any proof to the defendant (Article 66 of the Criminal Procedure Code)

Alternative evidence submitted initiated by thinkers in the developed world (Oliver, 2006) there is the theory of "balance of probability proof, which put forward the proportional balance between the protection of individual freedom on the one hand, and deprivation rights of the individual over his wealth which allegedly came from corruption. The new model of proof principle is intended to disclosure of origin completely assets suspected of corruption itself, by placing one's personal property rights at a very low level, but at the same time put the right to freedom of the person concerned at the level of the very high and absolutely should not be violated.

The balance of probability theory of proof in such assets put someone allegedly involved in corruption at the position where the previous person concerned has obtained the assets acquired as much now. The theory on the basis of the above considerations have practiced by the High Court in Hong Kong Hong Kong ICAC cases against the applicant 'judicial review "against reverse authentication process performed by the lower court was in accordance with Hong Kong's Bribery Ordinance Act. Decision Hong Kong High Court considers evidence that the process has reversed the lower court held have given equal justice for both parties is to the applicant and to the Hong Kong ICAC in presenting evidence.

As opposed to the model of Hong Kong (in reverse authentication) that can be used in corruption cases through the criminal procedural law, then the model of proof in the 2003 Convention against Corruption (Article 31, paragraph 8), and a lot to gain recognition from both developed countries are using the system law "Common Law" and "Civil Law", which supports the use of civil procedure in applying the theory of proof is reversed by the balance of probability, that is, along the reverse authentication procedure is intended to challenge the person's ownership rights over the wealth derived from the follow- corruption.

Act No. 31 of 1999 (Article 31) and Law No. 15 of 2002 (Article 37) contains provisions regarding proof has reversed (reversal of burden of proof or onus of) provisions in both laws are still not grounded to the theoretical justification, as has been described above, but only to place provision of proof solely as a means to facilitate the verification process without considering human rights aspects of the suspect / defendant Based on the 1945 Constitution. Now with the advent of two models with a reversed burden of proof is the balance of probability, it has theoretical and practical references are in upside evidentiary problems.

Certainly in terms of proof of ownership rights of an alleged property derived from the corrupt pose the pros and cons. View counter said that, upside down in the right proving ownership of property is also conflicting with human rights that every person has the right to acquire wealth and privacy rights that must be protected. Thus, contrary to the

idea that corruption is a serious source of poverty and crime is difficult to prove in practice the legal system in all countries, the individual rights over his property rights is not seen as absolute, but relative rights, and in contrast to the protection of personal freedom and the right to a fair trial and reliable.

The most important thing in the law of evidence of corruption, it should be a real loss to the state elements are still expected even real losses, are not in place and disproportionate to become a central element in the crime of corruption, and becuase not need to be proven again. Even the loss of the general public especially the injured third party due to corruption it should be accommodated in the new law on combating corruption.

Conclusion

The problem of corruption is a big problem and interesting as the legal issues regarding the kind of crime that complicated handling. One cause of the difficulty of proving corruption is difficult, because the perpetrators of this crime to commit crime are very neat. To solve the problem of the difficulty of proving the crime of corruption is one of the efforts that can be taken by the government by means of penal by applying reverse authentication against corruption matters. Although the application of reversed burden of proof is contrary to the principle of presumption of innocent or the presumption of innocence which has been internationally recognized and regulated in the Criminal Procedure Code, but for the sake of Indonesian law and in accordance with the laws aim to achieve as much happiness for many people, then it can only be applied to cases of corruption of course without forget the basic rights attached to the party and allegedly corrupt.