08
Any civil servant is obliged to inform KPK in
writing about any accepted gratification. KPK
then has to approve the gratification and has to
decide whether the gratification belongs to the
recipient or to the state. If the recipient fails to
comply with this provision, Article 12B of Law
20 of 2001 provides a threshold for the burden of
proof whether a gratifications constitute a bribe
or not. If the value of a gratification exceeds the
amount of IDR 10,000,000 the recipient has
to prove that the gratification is not a bribe. If
the amount is less, then the public prosecutor
has to prove that the gratification is a bribe.
According to the website of KPK (
.
go.id/gratifikasi/?p=40), the obligation to report
a gratification is not applicable only in specific
cases, such as money or goods received by the
civil servant for special occasions like wedding,
birth, baptism or any other religious, custom or
traditional ceremonies, if the gratification is not
more than IDR 1,000,000.
c. Perpetration by the Company
The corruptive practice has to be committed
by or on behalf of the company in order to fall
under Article 20 Anti-Corruption Law. According
to paragraph 2 of Article 20, the corruptive
practice was perpetrated by the company, if it was
committed by a person in the context of a working
relationship or other relationships, undertaken
within the environment of the company. This broad
scope of application may create legal uncertainties
in particular with regard to situations in which
a person is acting based on a non-employment
relationship to the company.
d.Criminal Liability of Manager
s
Article 20 para. 1 Anti-Corruption Law stipulates
that in addition to or instead of the company, the
managers of the company can be subject to criminal
liability as well.
e. Criminal Penalties
According to article 20 para. 7 Anti-Corruption
Law, any criminal charges against a company shall
be in the form of fines and the maximum fine of
the respective penal provision (e.g. articles 5 and
13 Anti-Corruption Law) shall be increased by 1/3.
The criminal penalties of the responsible managers
can be imprisonment and/or fines in accordance
with the respective penal provisions.
2. FOREIGN LEGAL FRAMEWORK ON ANTI-
CORRUPTION
Companies should be aware that in addition to
the Indonesian Anti-Corruption legal framework,
foreign Anti-Corruption rules might apply under
certain conditions as well. Some examples of foreign
Anti-Corruption rules are shortly summarized in the
following.
a. United States Anti-Corrupt Practice Act (FCPA)
The FCPA was issued in 1977 as federal law of
the United States of America. The FCPA prohibits
bribes to foreign civil servants and also contains
special accounting rules for companies listed in the
USA. Violations of the anti-bribery provisions can
lead to a fine of up to 2 million USD. A violation of
the accounting provisions can lead to a fine up to
25 million USD. The FCPA applies broadly to any
individual who is a citizen, national, or resident of
the United States, or any corporation, partnership,
association, joint-stock company, business trust,
unincorporated organization, or sole proprietorship
that is organized under the laws of the United
States or that has its principal place of business in
the United States of America. Officers, directors,
employees, agents, or stockholders acting on behalf
of a domestic concern, including foreign nationals
or companies, are also covered. Further, among
others the FCPA also applies to any company with
a class of securities listed on a national securities
exchange in the USA or to foreign persons that,
either directly or indirectly through an agent,
engage in any act in furtherance of a corrupt
payment while in the territory of the United States.
Hence, the FCPAmight apply to any bribe rendered
in Indonesia in the event the rendering person or
legal entity has exposure to the USA in accordance
to the FCPA.
b.German Criminal Code
The German Criminal Code can be applicable in
cases of corruption committed abroad, thus e.g.
committed inIndonesia. For example, according to§
335a in conjunction with §§ 334, 335 of the German
Criminal Code, the bribery of a foreign official can
be punished in Germany with imprisonment from
3 months to 5 years and, in severe cases, from 1 year
up to 10 years.
c. United Kingdom (UK) Anti-Bribery Act
The UK Anti-Bribery Act came into force in July
2011. Similar to the FCPA this act has a far reach
to corruption offences committed abroad, provided
that the person who is committing these corruption
acts has a close connection to the UK. According to
article 12 paragraph 4 of the UK Anti-Bribery Act,
the act applies among others to citizens of the UK,
individuals ordinarily resident of the UK and any
legal entity established under the laws of the UK.
A G U I D E T O C O M P L I A N C E I N I N D O N E S I A
