The government is seeking to strengthen anti-corruption efforts and recover state losses through a proposal to implement deferred prosecution agreements (DPA) for corporations. However, the proposal has sparked serious debate regarding the balance between the effectiveness of recovering state losses and the principle of criminal accountability. Concerns have arisen that the mechanism for suspending prosecution could expand the discretion of law enforcement officials while also risking the erosion of the deterrent effect against corporate crime.
Vice Dean for Research, Community Service, and Information Systems at the Faculty of Law, Universitas Gadjah Mada (FH UGM), Professor Heribertus Jaka Triyana, stated that broad academic and public discussions must be encouraged in response to developments in national criminal law, particularly regarding the implementation of deferred prosecution agreements (DPA) in handling corporate corruption cases
He emphasized that discourse on DPA is essential because the mechanism is directly linked to efforts to recover state losses while safeguarding the principle of criminal accountability.
“We must ensure that every innovation in the legal system is not only oriented toward effective law enforcement and recovery of state losses, but also upholds the principles of accountability and justice,” he said during the national seminar titled ‘Assessing the Determination of Deferred Prosecution Agreements in Handling Corporate Corruption: An Effective Solution for State Loss Recovery or an Erosion of Criminal Accountability?’ held at the Master of Law Seminar Room, UGM Jakarta Campus, on Saturday (Feb. 21).
Deputy Minister of Law of the Republic of Indonesia and Professor of Criminal Law at UGM, Professor Edward O.S. Hiariej explained that Indonesia’s national criminal law system is currently moving toward a modern justice paradigm that emphasizes recovery and social reintegration. He referred to the new Criminal Code (KUHP), which is no longer solely oriented toward punishment but toward offender reform and victim recovery. According to him, the modern sentencing system is grounded in corrective, restorative, and rehabilitative justice.
“The new Criminal Code is based on corrective, restorative, and rehabilitative justice with a vision of social reintegration, thus seeking as much as possible to avoid imprisonment,” he said.
According to Professor Hiariej, this paradigm shift opens space for alternative mechanisms in handling corporate crimes, including DPA. However, he stressed that DPA cannot be applied to all types of corporate crime. Corporate crime is divided into three main categories: crime against corporations, crime for corporations, and criminal corporations. DPA is specifically intended only for crime for corporations, offenses committed for the benefit of a corporation that is essentially conducting legitimate business but engages in deviations.
“This regulation demonstrates that national criminal law seeks to address the increasingly complex practices of corporate crime while ensuring legal certainty in corporate accountability,” he explained.
Meanwhile, Junior Attorney General for General Crimes at the Attorney General’s Office of the Republic of Indonesia, Professor Dr. Asep Nana Mulyana, stated that Indonesia’s criminal law system is entering a new paradigm. With the enactment of the national Criminal Code, Indonesia is beginning to move away from a retributive approach. According to him, the DPA mechanism is one instrument that can be used to handle corporate crime while prioritizing the recovery of state losses.
“DPA is possible for certain offenses, such as bribery related to licensing or corporate crimes affecting the public interest, provided that the corporation pays fines, restores state losses, and improves corporate governance,” Professor Mulyana explained.
Lecturer in Criminal Procedure Law at the Faculty of Law, Universitas Indonesia, Dr. Febby M. Nelson, S.H., M.H., highlighted the urgency of establishing DPA in handling corporate crimes, particularly from the perspective of economic impact and the effectiveness of recovering state losses. She noted that imposing maximum sanctions on corporations, such as revoking business licenses or ceasing operations, can have broad economic consequences. According to her, DPA can serve as a more effective alternative for resolving cases and recovering state losses compared to conventional approaches focused solely on punishment.
“In practice in several countries, the use of DPA has generated substantial recovery of state losses, whereas conventional prosecution often results only in imprisonment of individuals with relatively limited financial recovery,” she said.
Continuing the discussion on oversight mechanisms in the implementation of DPA, Chief Judge of the East Kalimantan High Court, Dr. Albertina Ho, S.H., M.H., outlined the procedural aspects of DPA from a judicial perspective. She explained that DPA implementation requires judicial review to ensure transparency and accountability in law enforcement, particularly as the new Criminal Procedure Code has not yet formally come into force. According to her, once a DPA agreement is signed between the prosecutor and the corporation, the agreement documents must be submitted to the court within a specified period for judicial examination. However, Dr. Ho cautioned that oversight of corporate compliance after the DPA agreement is approved still requires more detailed regulation.
“More rigid regulation is needed regarding supervision of DPA implementation to prevent it from facing the same challenges as the supervisory judge mechanism, which has often been considered ineffective in practice,” she said.
From a practitioner’s perspective, Partner at Assegaf Hamzah & Partners, Eri Hertiawan, S.H., LL.M., M.CIArb., emphasized the importance of ensuring clear legal definitions and procedural stages for submitting DPA. This is crucial because the distinction between suspect and defendant status must be explicit, along with a clear procedural timeline for DPA submissions. He argued that clarity of norms is essential to prevent multiple interpretations in practice. According to him, DPA implementation must adhere to the principle of due process of law, ensuring certainty and protecting the rights of defense counsel when assisting clients.
“The implementation of DPA represents progress in the criminal justice system, but it must guarantee the protection of lawyers’ rights in assisting clients at every stage of the legal process,” he stated.
Meanwhile, Chair of the Association of Oil, Gas, and Renewable Energy Legal Practitioners, Dr. Didik Sasono Setiadi, S.H., M.H., examined DPA implementation from the perspective of economic analysis of law. He argued that handling corruption cases should not focus solely on punishing offenders, but also on safeguarding assets and maintaining national economic stability. According to him, the DPA mechanism can accelerate the recovery of state losses because its procedures are more efficient than conventional court proceedings. Therefore, he emphasized that the success of DPA implementation depends heavily on the readiness of the law enforcement ecosystem and a culture of compliance within corporations.
“DPA will be effective if business actors have established a culture of compliance, sound risk management, and control standards such as anti-bribery certification,” he explained.
Writer: Cyntia Noviana
Editor: Gusti Grehenson
Post-editor: Zabrina Kumara
Photograph: Hukumonline