The Dilemma of Restitution Penalty: Understanding Nemo Bis Punitur Pro Eodem Delicto or Bifurcating Criminal Responsibility

Rizkisyah Karoen Nasution

https://doi.org/10.62271/pjc.171.113.126

Abstract

Special punishment (strafsoort) is lex speciali which can only be imposed in corruption cases, namely restitution. The focal point of this paper is not about the application or effectiveness of the imposition of such punishment, but this paper focuses on the theoretical aspects of punishment that are directly related to efforts to find the basis and justification for the imposition of a punishment against a convict. Restitution punishment was originally created in 1958, which was then improved in 1971, and finally refined in 1999 with a variety of arrangements that are very extensive and deviate from the existing punishment in the codification book. When referring to the enactment of restitution punishment since 1999, it has been more than 25 years since this punishment has been applied in a positivistic sense, but it seems that this punishment is still not ideally implemented with various theoretical and practical problems so that this punishment cannot be utilized properly. Several lessons can certainly be extracted from the development of this punishment that has occurred three times, and it will certainly be touched upon in this paper to provide an overview of the true nature of restitution punishment. However, the focus of this paper still refers to what is currently in effect through Law No. 31/1999, especially Article 18. Because in the theoretical realm, there are considerable problems, but not realized by many parties regarding how this punishment has been imposed disproportionately and actually away from the ideal theory of punishment. This paper is an attempt to embody the fundamental problems of restitution punishment that still cannot be fully understood by academics and law enforcers in Indonesia, and is expected to provide additional references to understand the ideal form of restitution punishment.

Keywords: Proportionality, substitute imprisonment, double punishment, bifurcation