Part 2 of our Client Alert Series on the New Penal Code
in a nutshell
Prospects for digital information, bribery and money laundering-related offenses under the new Penal Code
The new Penal Code will be the first law to be enacted in 2023, promulgated as Law No. 1 on January 2, 2023. place.
Part 1 of our Client Alerts series outlined the key features of the new Penal Code (Access here). In the second part of the series, we’ll look at how the new criminal code will change the criminal law landscape in the areas of digital information, bribery and corruption, and money laundering-related crimes. This warning outlines the amendments to the provisions of Law No. 11 Year 2008 on Electronic Information and Transactions (as amended) (“corporate tax law“), Law No. 31 of 1999 on the Elimination of Criminal Practices of Corruption (as amended) (“ABC method“) and Law No. 8 of 2010 on the Prevention and Elimination of Criminal Practices of Money Laundering (“AML law”).
- A Step Towards Unification of Criminal Law General ProvisionsTraditionally, Book I of the Old Penal Code (which contains general provisions of the Penal Code such as exclusions, mitigation and intensification of punishment, participation in punishable acts, etc.) has been the principal authority in the investigation/prosecution of criminal offenses under other statutes. serves as a good reference. In recent times, its role has gradually diminished as some of these laws have begun to deviate from the general provisions of criminal law under the Old Penal Code and apply their own concepts. The new Penal Code seems to rekindle the role of the first Book of the Old Code. The new Penal Code codifies the general provisions of the Penal Code in Book 1 and extends the provisions of Book 1 to the prosecution of other punishable acts under other laws (including the EIT, ABC, and AML laws). obliged to apply. The New Criminal Code envisages the issuance of new legislation that will guide how to synchronize provisions of existing legislation, particularly those found to be inconsistent with Book I of the New Criminal Code.
- extraterritorialityThe EIT Law, ABC Law, and AML Law all contain provisions for extraterritorial application of criminal sanctions, while the new Penal Code contains a separate formulation of extraterritorial application (see part of this series). 1). whether the various rules of extraterritoriality will be synchronized in the future or, if all of these rules remain in place, how they will intersect and apply to criminal prosecutions under these laws in the future I don’t know yet. The enforceability of extraterritorial application of the provisions of the new Penal Code is also subject to similar provisions under applicable international treaties.
- Corporate Criminal Liability Benchmark. The concept of corporate criminal liability was not recognized under the old law. It has only become more common in the last decade, as some laws (including EIT, ABC, and AML laws) broadened the scope of crime to include businesses that profit from crime. The new Penal Code codifies and reinvents corporate criminal liability provisions in existing law. This provision deals, inter alia, with how to determine when a criminal offense is considered an exonerated offense by a company, under what circumstances a company can be held liable for a criminal offense, and how it applies to a company. It details the scope of the sanctions imposed. The main sanctions imposed on companies are fines starting from a minimum of IDR 200 million (unless otherwise stipulated by other laws) and up to a maximum of IDR 50 billion. This provision could replace similar criminal provisions in other existing laws found to be inconsistent with the new criminal code, such as the AML Act, which fines companies up to IDR 100 billion.
- Enactment of prohibited acts is generally maintained. The new Penal Code repeals and replaces several provisions of the EIT Law, ABC Law and AML Law. Overall, however, the formulation of digital information, bribery/corruption, and money laundering-related crimes in existing laws and the recent approach of law enforcement agencies in enforcing criminal provisions are preserved.
- Expanded prohibited content on digital platforms. The new penal code covers a broader range of punishable conduct with respect to information disseminated through digital platforms, inherently related to free speech and illegal conduct. It now incorporates various clauses condemning defamation through digital platforms against the president and vice presidents, heads of state or representatives of friendly countries in Indonesia, government or state agencies, and civil servants. An interesting point to note is that some of these articles are not considered defamatory if made for the “public interest and self-defense”. It is not yet known how this exemption will be implemented. The new Penal Code also prohibits new types of negative digital content. To incite to commit a criminal act or to act violently against ordinary authorities. Providing information, opportunity or means to commit criminal acts.
- References to the dissemination of negative content through electronic systems are made explicit. One of the key changes in the new Penal Code is to “disseminate information, [criminal content] This includes transmitting, distributing and making available digital information and documents on digital platforms. This clause is not clear as to whether it affects the extent to which owners/operators of platforms where information or documents are disseminated can be held liable.
- criminal Certain sanctions under the ABC and AML laws have been amended. Although the new Penal Code has repealed several penal provisions of the ABC and AML laws, there have been no material changes to the spirit and structure of these penal provisions. The changes primarily concern statutory minimum and maximum sanctions. Most minimum imprisonment terms and minimum fines have been reduced (in some cases by up to 50%), and maximum prison terms and fines have also been increased (in some cases by up to 100%).
Indonesia’s new criminal law
* * * * *
© 2023 HHP Law Office. All rights reserved. HHP Law Firm is a member firm of Baker & McKenzie International. This may be “attorney advertising” which requires notice in some jurisdictions. Previous results are no guarantee of similar results.