Here are the Differences between Bribery and Gratification

PERTANYAAN

What are the differences between bribery and gratification? Thank you.

INTISARI JAWABAN

In short, the difference between bribery and gratification is related to whether there is a meeting of minds. In addition, bribes can be in the form of promises, while gratifications are gifts in the broadest sense and are not promises. However, gratifications or gratuities can be considered bribes. What is the legal basis?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Begini Perbedaan Suap dan Gratifikasi written by Bernadetha Aurelia Oktavira, S.H., and published on Tuesday, 23 May 2023.

This article is the second update from the article entitled Differences between Bribery and Gratification written by Diana Kusumasari, S.H., M.H and was first published on Friday, 23 December 2011.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

The Crime of Bribery

What is bribery and what are the examples? According to our research, you can find the definition of bribery under Law 11/1980, as follows.

1. Any person who gives or promises something to someone with the intention of persuading that person to do something or not to do something in relation to their duties, which is contrary to their authorities or obligations which involve the public interest, shall be sentenced for giving bribes with a maximum imprisonment of 5 years and a maximum fine in the amount of Rp15 million.[1]
2. Any person who receives or promises something, while they know or should be able to suspect that the giving of something or promise is intended so that they do something or not to do something in relation to their duties, which is contrary to their authorities or obligations which involve the public interest, shall be sentenced for accepting bribes with a maximum imprisonment of 3 years or a maximum fine in the amount of Rp15 million.[2]

In addition, the crime of bribery is also subject to punishment under Law 31/1999 and its amendments with the following provisions.

            Article 5 20/2001

1. Anybody that

1. gives or promises something to a civil servant or state apparatus with the aim of persuading him/ her to do something or not to do anything because of his/her position in violation of his/her obligation; or
2. gives something to a civil servant or state apparatus because of or in relation to something in violation of his/her obligation whether or not it is done because of his/her position,

Shall be sentenced to a minimum of 1-year imprisonment and a maximum of 5 years imprisonment and/or be fined a minimum of Rp50 million and a maximum of Rp250 million.

2. The civil servant or state apparatus who receives the award or promise as referred to in paragraph (1) letter a or b shall be sentenced to the same jail term as that referred to in paragraph (1).

Article 11 20/2001

A civil servant or state apparatus who receives a prize or promise that is believed to have been given because of the power or authority related to his/her position or prize or promise which according to the contributor still has something to do with his/her position, shall be sentenced to a minimum of 1 year's imprisonment and a maximum of 5 year's imprisonment and be fined a minimum of Rp50 million and a maximum of Rp250 million.

The Crime of Gratification

Furthermore, what is meant by gratification is a reward in a broad sense, including money, goods, discount, recompense, interest-tree loans, travel tickets, lodging, tour, free medicine, and other facilities. The gratification includes the gratification received at home or from abroad and the gratification done using an electronic device or not using electronic devices.[3]

When is gratification considered a bribe? Any gratification for a civil servant or state apparatus shall be considered as a bribe when it has something to do with his/her position and is against his/ her obligation or task, with the provision that:[4]

1. when the gratification amounts to Rp10 million or more, it is the recipient of the gratification who shall prove that the gratification is not a bribe;
2. when the gratification amounts to less than Rp10 million, it is the public prosecutor who shall prove that the gratification is a bribe.

Then, what about the criminal penalty? A civil servant or state apparatus who is found guilty of the criminal offense shall be sentenced to life imprisonment or a minimum of 4 years imprisonment and a maximum of 20 years imprisonment and be fined a minimum of Rp200 million and a maximum of Rp1 billion.[5]

However, the criminal provisions of gratification above do not apply, if the recipient reports the gratification he/she receives to the Corruption Eradication Commission (in Bahasa Indonesia is known as Komisi Pemberantasan Tindak Pidana Korupsi / "KPK"), which must be done by the recipient of the gratification no later than 30 working days from the date the gratification is received. KPK within no later than 30 working days from the date of receiving the report must determine whether the gratification belongs to the recipient or the state.[6]

The following are examples of gratification that have developed in practice, that must be reported to KPK by recipients of gratifications, including gratification received:[7]

1. related to the provision of services to the public;
2. related to duties in the budget preparation process;
3. related to duties in the process of examination, audit, monitoring, and evaluation;
4. related to the implementation of official travel (apart from legal/official acceptance from the agency);
5. in the process of recruitment/promotion/mutation of employees;
6. in the process of communication, negotiation, and implementation of activities with other parties related to the implementation of their duties and authorities;
7. as a result of cooperation agreements/contracts/agreements with other parties that conflict with the law;
8. as an expression of gratitude before, during, or after the procurement process;
9. from officials/employees or third parties on religious holidays;
10. in the implementation of work related to his/her position and contrary to his/her obligations/duties.

Differences between Bribery and Gratification

So, it is clear that bribes can be in the form of promises, while gratifications are gifts in a broad sense or wide meaning, and are not promises. Then, in bribery, there is an element of intent or intention to influence public officials in making policies and decisions.

As for gratifications, it is defined as a gift in a broad sense, but it can be considered a bribe if it is related to his/her position and contrary to his/her obligations or duties.

Prof. Eddy Omar Syarif, Deputy Minister of Law and Human Rights and Professor of Criminal Law at the Faculty of Law, Universitas Gadjah Mada, explained that the differences between bribery and gratification lie in whether or not there is a meeting of minds at the time of the acceptance. In the crime of bribery, there is a meeting of minds between the giver and the recipient of the bribe, while in the crime of gratification, there is no meeting of minds between the giver and the recipient. Meeting of minds is another name for consensus or things that are transactional.[8]

Moreover, quoted from Gratification and Bribery, What's the Difference?, for example, if someone came to see his boss to ask to be promoted, then the person lured something if he was successfully promoted. If that happens, it can be called a bribery act. Because if there is a meeting of minds, it means there is an agreement.

It is different if based on authority a person is appointed to a position, and after that, he comes to give something to the person who appointed his position, this is called gratification, not bribery. Because there is no meeting of minds, which means no prior agreement.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 11 of 1980 on Crime of Bribery;
2. Law Number 31 of 1999 on the Eradication of the Crime of Corruption as amended by Law Number 20 of 2001 on the Amendment to Law Number 31 of 1999 on the Eradication of the Crime of Corruption.

Reference:

1. Gratifikasi dan Suap, Apa sih Bedanya? (Gratification and Bribery, What’s the Difference?), accessed on 23 May 2023, at 08.56 Western Indonesian Time (zone);
2. KPK. Pengantar Gratifikasi. Jakarta: Direktorat Pendidikan dan Pelayanan Masyarakat Kedeputian Bidang Pencegahan, 2015.

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[1] Article 2 Law Number 11 of 1980 on Crime of Bribery (“Law 11/1980”).

[2] Article 3 Law 11/1980.

[3] Elucidation to Article 12B Law Number 20 of 2001 on the Amendment to Law Number 31 of 1999 on the Eradication of the Crime of Corruption (“Law 20/2001”).

[4] Article 12B section (1) Law 20/2001.

[5] Article 12B section (2) Law 20/2001.

[6] Article 12C section (1), (2), and (3) Law 20/2001.

[7] KPK. Pengantar Gratifikasi. Jakarta: Direktorat Pendidikan dan Pelayanan Masyarakat Kedeputian Bidang Pencegahan, 2015, pp. 85-86.

[8] KPK. Pengantar Gratifikasi. Jakarta: Direktorat Pendidikan dan Pelayanan Masyarakat Kedeputian Bidang Pencegahan, 2015, p. 85-86.