Criminal Liability of Online Gambling Perpetrators in Indonesia
According to the Electronic Information and Transactions Law
Sherly Bantu1, Wira
Franciska2, Hedwig Adianto Mau3
Universitas Jayabaya Jakarta, Indonesia
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Keywords |
Abstract |
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Criminal Liability, Online Gambling, UU ITE |
Online
gambling has become increasingly prevalent over a long time due to the ease
of access and the ability to play from anywhere with an online association.
The reason for this consideration is to look at and analyze the legal
provisions against online gambling offenders in Indonesia. The research
method used in this study can be a normative legal approach supported by
experimental law with graphic depiction. In extension, important information
is also used as supporting material for additional information. For control
checks, legitimate and standardized check strategies are used. From the
search results regarding the legal provisions against the perpetrators of
online betting violations in Indonesia, it appears that the legal authority
against online betting violations is the criminal sanction against online
betting based on Article 45 of Law Number 11 of 2008 concerning Electronic
Information and Transactions, but the punishment for the perpetrators is
lower than the threat of criminal sanctions in Article 303 of the Criminal
Code, so it does not have an inhibiting impact on the perpetrators of online
betting violations. Criminal liability for online betting offenses in
Indonesia is the responsibility of the perpetrators of online betting
offenses indicated by the existence of criminal offense components. In
addition, the activity component is one of the most important components in
criminal liability, because a person cannot be sentenced if he does not
commit an act that is classified as an act rejected by the law. |
Corresponding Author : Sherly Bantu
E-mail: [email protected]
INTRODUCTION
The
nature and attitudes of people in living social life are actually becoming more
complex along with the progress of time, culture, science and technology
(IPTEK) due to human behavior in social and state life. Legally, human nature
and attitudes certainly show behavior that can be classified as conforming to
norms, as well as behavior that deviates from the laws and norms that support,
expand and develop in society.
"Everyone has the
right to develop themselves through fulfilling their basic needs, has
the right to receive education and benefit from science and technology, arts
and culture, in order to improve the quality of life and for the welfare of
humanity."
Gambling
is risking a certain amount of money or property in a game of chance, with the
aim of getting a greater amount of money or property than the original amount
or property. In this case, gambling is a deliberate gamble, namely maintaining
a value or what is considered valuable with certain risks and expectations on
game events, matches, competitions, and events whose results are not/uncertain (Sagala,
2019).
The
crime of gambling is also regulated in Article 303 bis paragraph (1) of the
Criminal Code which is stated as follows: Punishable by a maximum imprisonment
of four years or a maximum fine of ten million rupiah."
1. Whoever uses the
opportunity to play gambling, which is held in violation of the provisions of
Article 303;
2. Anyone who participates in
gambling on a public road or on the side of a public road or in a place that
can be visited by the public, unless there is permission from the competent
authority who has given permission to carry out such gambling.
According to this
law, it has been explained that gambling transactions carried out using
electronic media are a criminal offense that carries a prison sentence for the
perpetrator. This criminal act is regulated in Article 27 paragraph (2) of Law
Number 19 of 2016 concerning amendments to Law Number. 11 of 2008 concerning
Electronic Information and Transactions which reads as follows:
"Everyone
intentionally and without authorization distributes and/or transmits and/or
makes accessible electronic information and/or which has gambling
content."
Online
gambling is a form of gambling carried out over the internet using a computer
or mobile device. These actions can take the form of betting on casino games,
sports betting, or other games of luck. Online gambling has become increasingly
popular in recent years due to ease of access and the ability to play from
anywhere with an internet connection. However, online gambling often violates
the law because it is difficult to monitor and regulate gambling activities on
the internet.
Many
countries around the world have laws that prohibit or restrict online gambling
to protect citizens from gambling addiction and counterfeiting (Wahyuni,
2018). Online gambling criminal acts occur when someone carries
out online gambling in an area that prohibits or restricts online gambling, or
when someone commits fraudulent acts or defrauds others in online gambling.
Criminal online gambling can involve fines, prison sentences, or both.
Additionally, criminal action may also be taken against persons providing
online gambling services, such as website owners or payment service providers,
if they violate applicable laws. This is done in an effort to stop illegal
gambling and protect the public from the dangers associated with online
gambling.
In this study, researchers raised the issue by comparing several
cases;
First case decision number: 3287 K/Pid.Sus/2019, that the
Defendant FN, has been proven legally and convincingly guilty of committing the
crime of �intentionally and without the right to distribute and / or transmit
and / or make accessible Electronic Information and / or Electronic Documents
that have gambling content�, and sentenced the Defendant FN to imprisonment for
3 (three) years and 6 (six) months minus the time the Defendant is in
detention;
Second case decision number: 239/Pid.B/2023/PN Dmk. That the
defendant ZI was guilty of committing the crime of �Gambling� which is
regulated and punishable in Article 303 paragraph (1) 2 of the Criminal Code as
in the Second Indictment of the Public Prosecutor. That the defendant was
charged with imprisonment for 1 (one) year and 2 (two) months deducted while
the defendant was in temporary detention, with an order that the defendant
remain in detention.
Third case number 71/Pid.B/2021/PN Gin, that the criminal charge
by the Public Prosecutor stated that the defendant IKD was found guilty of
committing the crime of �gambling� as regulated in Article 303 paragraph (1) to
2 of the Criminal Code yo Article 2 of Law No. 7 of 1974 concerning the control
of gambling in the Second Indictment, with a sentence of imprisonment for 5
(five) months minus the entire period during which the defendant was in
detention;�
To provide a difference between the research conducted by the
researcher and previous studies, a comparison is made with existing theses.
Budi Artha in his thesis entitled �Law Enforcement against Online Gambling
Offenders Based on the Theory of Dignified Justice� discusses law enforcement
against online gambling crimes in the perspective of the theory of dignified
justice and the obstacles experienced. Meanwhile, Jhonson Manahara Sitompul in
his thesis entitled �Police Legal Rules in Law Enforcement of Online Gambling
Crimes in the North Sumatra Regional Police� examines the role of the Police in
handling online gambling as well as handling and investigating online gambling
crimes. Julimunto Pical in his thesis entitled �Legal Studies against ITE
Criminal Offenders Who Have Gambling Content� discusses the legal rules of
gambling crimes against ITE criminal offenders who have gambling content as
well as obstacles and law enforcement efforts. Previous studies tend to focus
on law enforcement, legal rules, and efforts to overcome online gambling
crimes. While the research to be conducted focuses on the criminal liability of
online gambling offenders in Indonesia based on the Electronic Information and
Transaction Law, so there are significant differences with previous studies.
To provide a difference between research conducted by researchers
and previous studies, a comparison with existing research is made. Budi Artha
in his thesis entitled �Law Enforcement against Online Gambling Offenders Based
on the Theory of Dignified Justice� discusses law enforcement against online
gambling crimes in the perspective of the theory of dignified justice and the
obstacles experienced. Meanwhile, Jhonson Manahara Sitompul in his thesis
entitled �Police Legal Rules in Law Enforcement of Online Gambling Crimes in
the North Sumatra Regional Police� examines the role of the Police in handling
online gambling as well as handling and investigating online gambling crimes.
Julimunto Pical in his thesis entitled �Legal Studies against ITE Criminal
Offenders Who Have Gambling Content� discusses the legal rules of gambling
crimes against ITE criminal offenders who have gambling content as well as
obstacles and law enforcement efforts. Previous studies tend to focus on law
enforcement, legal rules, and efforts to overcome online gambling crimes. While
the research to be conducted focuses on the criminal liability of online
gambling offenders in Indonesia based on the Electronic Information and
Transaction Law, so there are significant differences with previous studies.
The purpose of this study is to examine and analyze law
enforcement against online gambling offenders in Indonesia, as well as to
examine and analyze criminal liability for online gambling offenders in
Indonesia. This research aims to gain a deeper understanding of the legal
handling of online gambling activities that are increasingly widespread in
Indonesia. By examining aspects of law enforcement and criminal liability, it
is hoped that an effective solution can be found in overcoming the problem of
online gambling in Indonesia.
RESEARCH METHODS
Types of research
This research uses
normative juridical research methods (normative law research) using normative case studies in the form of legal
behavioral products, for example reviewing laws.
Research Approach
Researchers employing normative research can adopt several
approaches. First, the Statute Approach is essential, as it focuses on various
legal regulations that serve as the central theme of the study. Second, the
Conceptual Approach involves examining legal concepts, such as legal sources,
functions, and institutions. Lastly, the Case Approach allows researchers to build
legal arguments based on concrete cases encountered in the field, which are
closely related to relevant legal events.
Types and Sources of Legal
Materials
Legal materials are categorized into three priorities. The first
is Primary Legal Material, which consists of binding legal texts, including the
1945 Constitution of the Republic of Indonesia, the Criminal Code, and specific
laws regarding gambling, criminal procedure, the national police, the Supreme
Court, and electronic transactions. The second category, Secondary Legal
Materials, includes scholarly writings that discuss and analyze primary legal
materials, doctrines, jurisprudence, and related legal principles. Finally,
Tertiary Legal Materials offer additional explanations and context, comprising
legal and Indonesian dictionaries, as well as encyclopedias.
Legal Material Collection
Techniques
Information collection involves examining relevant documents,
transcripts, daily newspapers, and significant reference sources, both common
(books) and uncommon (reports), tailored to the specific issue under
investigation.
Legal Material Analysis
Techniques
The analysis method employed is a standardizing juridical approach
aimed at providing a prescriptive view through interpretive analysis,
particularly regarding criminal liability for online gambling offenders in
Indonesia, based on Law Number 19 of 2016. The analysis aligns with the
research's type and nature, involving the inventorying, classification,
processing, and examination of secondary legal materials to reach conclusive
insights. This preparation ensures that the legal materials are directed and
purposeful, optimizing the research objectives.
RESULTS AND DISCUSSION
Analysis of Criminal
Liability of Online Gamblers in Indonesia According to the Information and
Electronic Transactions Law
A.
Law Enforcement Against
Perpetrators of Online Gambling Crimes in Indonesia
The crime of online gambling is an act that is socially and
economically detrimental, and law enforcement against the perpetrators must be
carried out by taking into account the perspective of the theory of dignified
justice. Online gambling that offers a variety of games with the promise of
financial gain is increasing. Many times, this gambling activity is even played
by students who use their spending money to gamble online.
Perpetrators use smartphones and small amounts of money to try
their luck at gambling. However, in the long term, online gambling games can
become addictive and have the potential to cause criminal behavior that is detrimental
to the surrounding environment. Therefore, it is important to combat the
current rise in online gambling crimes in order to prevent discomfort in
society (Pratama, 2023).
Online gambling is one of the cybercrimes that is widespread in
Indonesia. Based on information provided by the Financial Transaction Reports
and Analysis Center (PPATK), it is reported that the total turnover of money
from online gambling throughout 2023 will reach IDR 327 trillion, where the
total turnover of money is recorded from 168 million transactions carried out
by 3.29 million Indonesians.
This online gambling case not only harms society financially, but
also has a negative impact on the social and economic order of a country. Gambling
crimes have actually been regulated in law for a long time, namely in Article 1
of Law Number 7 of 1974 concerning the Control of Gambling where states that
all forms of gambling are prohibited by law. Currently, gambling has even
entered the online realm, forcing updates in legal substance to make it more
relevant to current conditions.
The case of online gambling is currently very highlighted,
especially this is regulated in Article 303 and Article 303 bis in the Criminal
Code (KUHP), then online gambling regulations are also regulated in Article 27
Paragraph (2) of Law Number 11 of the Year 2008 concerning Information and
Electronic Transactions (ITE) which was amended into Law Number 19 of 2016,
where this action is categorized as an unlawful act which can be threatened
with imprisonment for 10 (ten) years, as well as a maximum fine Rp.
20,000,000,- (twenty million rupiah).89 Meanwhile in Article 45 Paragraph (2)
89 Article 27 Paragraph (2) of Law Number 11 of 2008 concerning Information and
Electronic Transactions (ITE) which was amended into Law -Law Number 19 of 2016
in the latest ITE Law states that those included in the category of online
gambling are every individual who intentionally and without permission
disseminates, sends or creates electronic information and/or electronic
documents containing gambling can be sentenced to a maximum of six years in
prison and/ or a fine of up to Rp. 1,000,000,000,- (one billion).
There are two main categories in online gambling based on the
transaction process (Pratama, 2022). First, online gambling with a direct transaction system is a
gambling activity carried out online using a game application that is similar
to conventional gambling in the real world. These applications, even though
they are only used for entertainment, cannot be stopped by the authorities
because they only function as a means of entertainment with no obvious element
of gambling. Games that are supposed to be recreational are often misused for
gambling activities, with casino-like applications being one of the most
commonly used. This phenomenon began to spread since the beginning of 2008,
initially it was only of interest to a handful of people, but as time went by,
public interest increased rapidly, even becoming a large industry with the
existence of online bookies. This online gambling grew along with the
development of the internet.
The second category is an online gambling model with a deposit
system that has been developing since 2010, which does not involve real money but
virtual money. This online gambling player transfers funds to the admin
account, which is then converted into virtual currency in the game. Online
gambling is more popular because it is specifically aimed at gambling
activities. This systematization of gambling allows players to feel safer,
because they use transaction methods that have been developed in such a way
that players can use the services of banks that collaborate with online
gambling admins.
The current development of online gambling is accompanied by rapid
developments in the world of information technology, where forms of gambling
crime are then transformed into cybercrime problems in cyberspace. With all its
sophistication, various modern crimes have a greater impact than conventional crimes
in general. So in dealing with this development it must involve various parties
with different territorial jurisdictions, times, countries, governments and
legal systems which raises the question of whether cases can be resolved
nationally and whether or not efforts to change international conventions are
needed in following up on cases of law violations (Sitompul, Ablisar, Hamdan, & Leviza, 2014).
Criminal acts that utilize technological media and penetrate the
virtual world include fraud, cheating, theft, gambling, and so on which are
carried out directly by utilizing internal energy and thoughts. To overcome
this problem, the Indonesian police have made various efforts to take firm
action against cases of online gambling that are rampant in people's lives (Budiarta, 2024).
Law enforcement in online
gambling cases must still prioritize the principle of proportionality of
punishment, which means that the sanctions given to perpetrators must be
proportional to the level of the violation. The law applied certainly cannot be
too light and not too heavy for the perpetrators of this violation. Data box
for the 2023 period revealed that in tracing various cases of online gambling
in Indonesia there had been 157,000,000 (One Hundred and Fifty Seven Million)
online gambling transactions with a total turnover of Rp. 190,000,000,000,000,-
(one hundred and nine trillion recovered). This figure was revealed in an
analysis of 887 parties related to online gambling. This shows that cases of
online gambling are very difficult to eradicate because of the existence of a
network of gambling bookies, in addition to technological developments which
are often misused by irresponsible individuals (Safitri, 2020).
In addition, law enforcement should also aim to protect society at
large from the negative impacts of online gambling, by implementing strict
regulations and providing education to the public about the risks involved.
However, law enforcement must also pay attention to the human rights of
perpetrators, including the right to fair treatment in the justice system and
opportunities for rehabilitation. Thus, the law enforcement approach to online
gambling crimes is based on law enforcement theory, where law enforcement is
effective and fair, and pays attention to the balance between strict law
enforcement and respect for human dignity.
Even though there is an impression that there are scientific
aspects in law enforcement theory, in the era of scientific and technological
development, tools are often equated with digitalization. The theory of
dignified justice, as a tool, is the result of human work created to improve
human dignity, which in its application combines aspects of legality and ethics
such as values and morality in all legal rules applied in the system.
The problem with decision case number 3287 K/Pid.Sus/2019 is that
the defendant FN is regulated and threatened with a crime under Article 27
Paragraph (2) in conjunction with Article 45 Paragraph (2) of Law Number 19 of
2016 concerning Amendments to Law Number 11 of 2008 regarding Information and
Electronic Transactions;
That the reason for the Public Prosecutor's cassation cannot be
justified because of the Judicial Facts decision of the Medan High Court which
upheld the Judicial Facts decision of the Medan District Court which stated
that the Defendant was proven legally and convincingly guilty of committing the
criminal act "Deliberately and without the right to make accessible
Electronic Transaction Information which has content gambling" is not
wrong and the legal regulations have been implemented properly and the trial
process has been carried out according to the provisions of the law;
Whereas the Judicial Facts decision has also considered the
relevant legal facts juridical appropriately and correctly in accordance with
the legal facts revealed before the court, the material actions of the
Defendant have fulfilled the elements of a criminal act in Article 27 Paragraph
(2) in conjunction with Article 45 Paragraph (2) of the Law Number 19 of 2016
on a single indictment;
Likewise, the Judicial Facts decision sentenced the Defendant to
imprisonment for 1 (one) year and 6 (six) months, not exceeding his authority
and having adequately considered all the circumstances surrounding the
Defendant's actions, both aggravating and mitigating circumstances and the
nature of the act committed by the Defendant;
Whereas apart from that, the reason for the Public Prosecutor's
cassation cannot be justified because it concerns the severity of the sentence
imposed, this matter is not subject to cassation, Judicial Facts in its
decision has considered aggravating and mitigating circumstances in accordance
with Article 197 Paragraph (1) of the Criminal Procedure Code;
That although the severity of the sentence imposed is in principle
the authority of the Judicial Facts, if there are relevant facts which
aggravate or mitigate the Defendant, the Judicial Facts has not considered it
or the Judicial Facts has not sufficiently considered this matter, the Supreme
Court can correct the sentence imposed on the Defendant, however in this case Judicial
Facts has sufficiently considered the aggravating and mitigating factors and
the sentence imposed is also appropriate;
In this case the judge sentenced Defendant FN to prison for 1
(one) year and 6 (six) months;
In the author's opinion, this is in accordance with the Law
Enforcement Theory according to Soerjono Soekanto, who says that law enforcement is an activity to harmonize the
relationship between values described in stable rules and attitudes of action
as a series of value translations at the final stage. To create, maintain and
maintain peaceful social life.
Law enforcement itself is directed at achieving justice, benefit
and legal certainty (everyone is equal before the law). This is directed in
accordance with legal principles. In law enforcement there must be a compromise
between these three elements. These three elements must receive attention in a
proportionally balanced manner, but in practice it is not always easy to
achieve a proportionally balanced compromise between these three elements.
In the form of law enforcement for online gambling perpetrators,
when viewed from the perspective of dignified legal theory, the prosecution of
these criminal cases must pay attention to the interests of the perpetrators as
human beings who have human rights. If there is sufficient evidence,
individuals who commit criminal acts of online gambling can be faced with
relevant articles, such as Article 27 paragraph (1) and Article 45 paragraph
(1) of the Information and Electronic Transactions Law (UU ITE) which regulates
the distribution of online gambling electronic information that violates the
law or harms other parties. Apart from that, the perpetrator can also be
prosecuted under Article 303 of the Criminal Code (KUHP) which regulates
gambling. The police can collaborate with other agencies, such as the Ministry
of Communication and Information, to increase supervision and enforcement of
online gambling.
This law enforcement effort is carried out by the police because
it is related to aspects of state order and security. This online gambling
action is usually carried out by accessing certain websites. The type of
gambling also depends on the offers from the website accessed by the
perpetrator. Then a website display will appear where gamblers will be asked to
enter the numbers to be drawn by entering the nominal amount of money used in
online gambling. Each number entered will be charged a fee, whereas if the
perpetrator does, he will receive a certain amount of money which will be sent
to the perpetrator's bank account (Purnawinata, 2021).
In this game, the perpetrator does not need any skills and does
not need to access permission from the authorities so that this act of online
gambling can be subject to criminal sanctions in Article 303 bis Paragraph (1)
in the applicable Criminal Code.
In determining punishment for online gambling perpetrators, law
enforcement officials must collect evidence in the form of gambling accounts
and all the equipment used. Judging from the elements of conventional gambling
crimes in Article 303 of the Criminal Code, it is certainly different from
online gambling, where conventional gambling focuses more on the player's
habits and abilities, not just luck. However, both conventional and online
gambling both have an element of betting in them which makes the game have
objects that benefit and objects that are harmed. Elements of online gambling
can be seen in Article 27 Paragraph (2) of Law Number 19 of 2016 which
includes:
1) Each person
2) Intentionally & without
right
3) Distributing/transmitting/making
accessible electronic information related to gambling.
Meanwhile, in Article 303
Paragraph (1) number 3, the Criminal Code (KUHP) which regulates gambling is as
follows:
1) Each person.
2) No rights.
3) Taking part in gambling as
a business.
From the two articles above, it is clear that gambling as a form
of crime, especially in cyberspace, can now be charged with a criminal offense
in accordance with applicable statutory provisions. First, intentionality based
on goals (opzet als oogmerk) occurs
when the perpetrator has the intention to produce a certain result from his
actions.
The perpetrator will not carry out this action if he realizes that
the desired result will not be achieved. Second, intentionality based on
awareness of certainty (opzet bij
zekerheidsbewustzijn) refers to a situation in which the perpetrator
definitely knows or is absolutely sure that his actions will produce
consequences other than those desired. In this case, the perpetrator
understands that his actions will definitely lead to additional consequences.
Third, intentionality based on awareness of possibility (opzet bijmogelijkheidsbewustzijn) is a condition where the
perpetrator carries out an action with the intention of creating a certain
consequence, but he is also aware of the possibility of other consequences that
are undesirable and prohibited by law.
Online gambling is not only detrimental but also a social disease
that will be difficult to eradicate without support in society by institutions
providing security and public order. In online gambling, the devices used can
be computers, laptops, cellphones, whereas to prove the truth of what is
happening in cyber space, that is by proving that there is access to the site
used by the gambler, namely by entering the Username and Password, and the
proof is done by tracking the cash flow from perpetrator's bank account.
The facts found show that the defendant's actions in participating
in online lottery gambling were carried out deliberately, starting with access
to the internet via a computer, and then using Google to visit the twine site.
On the site, the defendant registered and entered bank account information to
participate in the game. In the hope of making a profit, the defendant placed a
bet on a certain number, the payment of which was deducted directly from the
registered account. This entire process shows that the defendant's actions were
carried out with full awareness and the desire to gain profit from the bets
placed, not because of coercion or requests from other parties. The defendant
had clear motivation and intent, which in legal terminology is referred to as
�Will en Wetten,� to engage in online gambling, which is an activity that is
explicitly prohibited by law. Therefore, in handling online gambling criminal
cases, if seen from law enforcement theory, the panel of judges can state that
the element of intent in this case has been fulfilled so that the defendant can
be sentenced according to the type of violation he committed. Especially when
gambling parties have the ability to take responsibility for their actions,
both psychologically and physically, then legal provisions can apply. Both
parties, whether participating in online gambling or the dealer, can be subject
to criminal sanctions in accordance with Article 27 Paragraph (2) in
conjunction with Article 45 Paragraph (2) of the Information and Electronic
Transactions Law. 108 namely with a maximum imprisonment of 6 (six) years and a
fine Maximum Rp. 1,000,000,000. - (one billion). This punishment is of course
different from conventional gambling, which is easier to prove and eradicate,
therefore, gambling regulations are much more based on the regulations in the
applicable Information and Electronic Transactions Law (UU ITE).
In terms of regulating criminal acts of online gambling, it cannot
be separated from the regulation of criminal acts of gambling (conventional)
which are already known to the public, for this reason the role of previously
existing regulations is very much needed, such as regulating criminal acts in
Articles 303 and 303 bis of the Criminal Code, to overcome the criminal act of
gambling carried out via electronic systems or the internet which is currently
occurring, the Indonesian government has created Law Number 19 of 2016 concerning
Information and Electronic Transactions (ITE Law) which is in It regulates
various activities carried out in cyber space, including several acts that are
prohibited because they violate the law and contain criminal elements.
Although criminal acts in cyberspace (Cybercrime) have not been
specifically regulated in certain statutory regulations, they have been
regulated in Law Number 19 of 2016 Article 27 Paragraph (2) which states:
"Every person
intentionally and without authorization distributes and/or transmits and/or
makes accessible electronic information and/or electronic documents that
contain gambling content." The criminal threat of Article 27 Paragraph (2)
in conjunction with Article 45 Paragraph (1), states: "Every person who
meets the elements as intended in Article 27 Paragraph (1), Paragraph (2),
Paragraph (3), or Paragraph (4) shall be punished with imprisonment for a
maximum of 6 (six) years and/or a fine of a maximum of IDR 1,000,000,000.00
(one billion rupiah)."
Meanwhile, in the provisions of the Criminal Code, Article 303
paragraph (1) states; Threatened with a maximum imprisonment of ten years or a
maximum fine of Rp. 25,000,000.00 (Twenty-five million rupiah).
The sentences for gambling perpetrators are still considered low
so that the perpetrators do not get a deterrent effect from their actions, so
it is necessary to revise the Information and Electronic Transactions Law
Number 19 of 2016 concerning the imposition of penalties and fines for online
gambling perpetrators.
This preventive exertion is
carried out with the point of avoiding the event of wrongdoings and making a
conducive air in society to play down the improvement of wrongdoings and
decrease the number of wrongdoings that happen within the middle of Law Number
11 of 2008 concerning Data, Exchanges and Electronic Society. The Delegate Head
of Criminal Examination Unit for the Bandar Lampung Police has a few avoidance
and supervision endeavors in carrying out preventive law authorization. To
begin with, by carrying out Cyber Watch.
Cyber watch in carrying out
its obligations employments web media as a supporting facility in carrying out
watches in the internet, this is often to screen the exercises of somebody who
is shown to be carrying out online betting exercises or diversions as well as
following websites that have betting substance.
Cyber watch in carrying out
its duties employments web media as a supporting office in carrying out watches
in the internet, this is often to screen the exercises of somebody who is shown
to be carrying out online betting exercises or recreations as well as following
websites that have betting substance.
Repressive efforts are a
form of action and effort carried out by directly seeking the root of the
problem in society in order to eradicate a crime by taking firm action so that
the perpetrators of the crime have a deterrent effect. The repressive efforts
carried out by the Cyber Crime Unit in handling this online gambling case are
by taking firm action in the form of arresting and imposing criminal sanctions
on online gambling perpetrators, whether online gambling bookies or online
gambling players, if in the investigation and investigation process it is
proven that someone has If it is legally against the law to carry out online
gambling activities, the Cyber Crime Unit will immediately take firm action by
arresting someone who is proven to be carrying out online gambling activities.
B.
Criminal Responsibility for
Online Gambling Crimes in Indonesia
According
to the Criminal Code, gambling is any game where the hope of winning generally
depends on luck alone. It is said that a gambling game is a game that is
related to the rules regarding the decisions of competitions or other games,
which are not held by the parties directly involved in a competition or playing
in a competition, as well as all other rules that are used with the aim of
gaining profit by profit (Astini
& Lubis, 2019).
Gambling
is a game where someone who is usually called a "gambler" bets to
choose one option among several available options where only one option is
correct and determines who will be the winner. The gambler who loses the bet is
obliged to give or pay the bet to the winner. Gambling that develops in society
can be differentiated based on the tools and facilities (Nasution,
2017). In gambling activities, the rules and betting amounts are
determined before the game starts by the parties playing the gambling game.
The
principles in a gambling game generally have the same thing, namely the aim is
to make a profit if you win a bet. The greater the value of the money or goods
at stake, the greater the money you can get as a winning prize. Therefore, by
playing gambling, people think they can fulfill their daily needs. There are
even people who make gambling their livelihood, with the aim of meeting the
economic needs of society, and there are also those who open various gambling
games for other people to play. Online gambling itself is a gambling game via
electronic media with internet access as an intermediary.
In
fact, the law was created to provide justice, goodness and alignment with the
interests of the wider community (Arliman,
2019). Indonesia has legally regulated gambling in several laws
and regulations, including those regulated in Article 303 and Article 303 bis
of the Criminal Code. Then, with regard to online gambling law, it is specifically
regulated in Article 27 paragraph (2) of the Electronic Transaction Information
Law or better known as the ITE Law and its amendments.
Gambling
According to Article 303 paragraph (1) of the Criminal Code, it is explained
that the act of gambling committed in Indonesia is a criminal offense that
carries a maximum penalty of imprisonment of ten years in prison or a fine of a
maximum of twenty-five million rupiah. Furthermore, Article 303 paragraph (1)
of the Criminal Code explains the forms of activity that can be categorized as
gambling, namely if someone deliberately offers, provides the opportunity to
play gambling games, even makes it a source of income, and is also actively
involved in a management of gambling companies. Furthermore, based on the provisions
of Article 303 bis paragraph (1) of the Criminal Code, which reads:
�Threatened
with a maximum prison sentence of 4 years or a maximum fine of ten million
rupiah: 1. anyone who uses the opportunity to gamble, which is held in
violation of the regulations in article 303; 2. Anyone who takes part in
gambling games that are held on a public road or on its side or in a place that
can be entered by the general public, unless there is permission from the
competent authority to hold it."
Based
on Article 303 paragraph (3) of the Criminal Code, it is explained that the act
of gambling is any gaming activity that facilitates the possibility of taking
advantage of profits in an easy way because of luck or because the player is
skilled and used to it. Also included in the category of gambling games are
bets on the outcome of competitions or other games, which are not held by those
participating in the competition or playing, more broadly also on all other
bets.
Explanation
of Article 303 paragraph (3) of the Criminal Code which states that, "what
is called a gambling game is any game, where generally the possibility of
making a profit depends on sheer luck, also because the players are more
trained or more skilled.
This
includes all the rules regarding decisions on competitions or other games which
are not held between those competing or playing, as well as all other
regulations." Emphasizes that in principle Indonesia prohibits all forms
of gambling activities because they contain elements that are detrimental to
society, conflict with social values and violate religious norms. The law
contains teachings, rules regarding orders and prohibitions that must be
immediately obeyed and implemented.
In
relation to acts of gambling carried out online, Indonesian law has also
regulated as contained in the Information and Electronic Transactions (ITE) Law
which is used as an effort to reduce acts of gambling that occur in society by
ensnaring the perpetrators and people who distribute the content gambling with
threats/criminal penalties.
Article
27 paragraph (2) ITE Law Number 19 of 2016 states;
"Every
person intentionally and without authorization distributes, transmits, and/or
makes accessible Information or Electronic Documents that contain gambling
content"
Then
in Article 45 paragraph (2) of Law Number 19 of 2016 concerning Amendments to
Electronic Transactions it is said that;
"Any
person who intentionally and without right distributes and/or transmits and/or
makes accessible Electronic Information and/or Electronic Documents containing
gambling content as intended in article 27 paragraph (2) shall be punished with
a maximum imprisonment of 6 (six) years and/or a maximum fine of Rp. 1
billion"
Based
on the information from the statutory regulations above, it can be understood
that the meaning of online gambling is betting game activities carried out
using money as a betting tool with the provisions of the game procedures and
the amount of the bet value determined by the online gambling player by using
electronic media with internet access as intermediary media. Online gambling
activities are the same as conventional gambling in that it can be said to be a
kind of addiction, which starts from just trying and winning which then
naturally stimulates the desire or desire to repeat it with bigger and bigger
bets with more and more thoughts. If you bet a lot of money, you will win more
results. Online gambling itself can be done anywhere and at any time as long as
the online gambler has a lot of free time, a certain amount of money used as a
bet in the player's savings account, and a computer or smartphone and an
internet connection that is used as a tool to carry out online gambling.
In
this case, carrying out betting or gambling in any form is something that is
prohibited, whether done in person or online, for the perpetrators.
Perpetrators of cybercrime, especially online gambling, require enforcement
efforts to prevent and eradicate these crimes so that they do not become more
widespread. Conceptually, cybercrime is also defined as computer crime, but the
term criminal act is used for computer crimes. Organizing gambling promises
many benefits for the owner, there is no need for complicated administrative
licensing to create a gambling business via the internet. If someone carries
out or is involved in online gambling then the article imposed no longer refers
to the Criminal Code but uses Article 27 of Law no. 19 of 2016 concerning
Amendments to Law No. 11 of 2008 concerning Electronic Information and
Transactions or called the ITE Law as a manifestation of the principle of lax
specialist derogate legit lax generalist.
The
concept of responsibility for a crime is based on the aspect of the negative
impact that arises as a result of the occurrence of a form of crime. Therefore,
it is important to discuss the origins or background of the current concept of
criminal responsibility. In English, criminal responsibility is referred to as
the concept of criminal responsibility, which actually does not only involve
legal matters, but also concerns moral values or general decency adhered to by
a society or groups in society, this is done so that criminal liability can be
achieved by fulfilling justice (Senjaya,
2022). Criminal responsibility is a form used to determine
whether a person is suspected of committing a criminal act or a person who has
been charged with committing a criminal act to be responsible for the
occurrence of a criminal act.
In
terms of criminal liability, it can be interpreted as continuing the objective
blame that exists in a criminal act and subjectively fulfilling the
requirements to be punished for that act. What is meant by objective censure is
that an action carried out by someone or anyone is a prohibited action, namely
an action that is contrary to or prohibited by law, both formal law and
material law. Meanwhile, what is meant by subjective censure refers to someone
who commits a prohibited act, or in other words, subjective censure is a person
or perpetrator who commits an act that is contrary to the law or prohibited. If
the act carried out is a disgraceful act or an act that is prohibited, but if
the person has conditions that cause him or her not to be responsible, then
there is no possibility of criminal liability for the occurrence of the
incident.
The problem with decision case number 3287 K/Pid.Sus/2019, is that
the defendant FN is regulated and threatened with a crime under Article 27
Paragraph (2) in conjunction with Article 45 Paragraph (2) of Law Number 19 of
2016 concerning Amendments to Law Number 11 of 2008 regarding Information and
Electronic Transactions;
That the reason for the Public Prosecutor's cassation cannot be
justified because of the Judicial Facts decision of the Medan High Court which
upheld the Judicial Facts decision of the Medan District Court which stated
that the Defendant was legally and convincingly proven guilty of committing the
criminal act "Deliberately and without the right to make accessible
Electronic Transaction Information which has content gambling" is not
wrong and the legal regulations have been implemented properly and the trial
process has been carried out according to the provisions of the law;
Whereas the Judicial Facts decision has also considered the
relevant legal facts juridical appropriately and correctly in accordance with
the legal facts revealed before the court, the material actions of the
Defendant have fulfilled the elements of a criminal act in Article 27 Paragraph
(2) in conjunction with Article 45 Paragraph (2) of the Law Number 19 of 2016
on a single indictment;
Likewise, the Judicial Facts decision sentenced the Defendant to
imprisonment for 1 (one) year and 6 (six) months, did not exceed his authority
and had adequately considered all the circumstances surrounding the Defendant's
actions, both aggravating and mitigating circumstances and the nature of the
act committed by the Defendant;
Whereas apart from that the reason for the Public Prosecutor's
cassation cannot be justified because it concerns the severity of the sentence
imposed, this matter is not subject to cassation, Judicial Facts in its
decision has considered aggravating and mitigating circumstances in accordance
with Article 197 Paragraph (1) of the Criminal Procedure Code;
Whereas, although the severity of the sentence imposed is in
principle the authority of the Judicial Facts, if there are relevant facts
which aggravate or mitigate the Defendant, the Judicial Facts has not
considered it or the Judicial Facts has not sufficiently considered this
matter, the Supreme Court can correct the sentence imposed on the Defendant,
however in this case Judicial Facts has sufficiently considered the aggravating
and mitigating factors and the sentence imposed is also appropriate;
In
this case the judge sentenced Defendant FN to prison for 1 (one) year and 6
(six) months;
In the author's opinion, in accordance with the Theory of Criminal
Responsibility according to Roeslan
Saleh, it states that (Giddens, 2015):
"In
discussing criminal responsibility, one or two aspects cannot be separated from
it which must be viewed with philosophical views. One of them is justice, so
discussions about criminal responsibility will provide clearer contours.
Criminal responsibility as a matter of criminal law is intertwined with justice
as a matter of philosophy.�
The
criminal responsibility system in positive criminal law adheres to the
principle of error because criminal acts only refer to prohibited acts. Whether
the person who has committed the act is then also punished depends on the
question, whether the person who committed the act was guilty or not. If the person
who committed the criminal act was indeed guilty, then of course he will be
punished. However, if there is no fault, even if the person has committed a
prohibited and disgraceful act, the person is not punished. This principle is
an unwritten principle: "No punishment if there is no mistake", is
the basis for the perpetrator being punished.
That
criminal responsibility is a form of view in criminal law theory that is used
to determine whether a person is acquitted or convicted. The concept of
criminal responsibility, the burden of responsibility is borne by the
perpetrator of a criminal offense, this is related to the basis for imposing
criminal sanctions. It is said to have the nature of criminal liability, that
is, if an act carried out by someone is unlawful. However, there is a special
condition, namely the loss of the character of responsibility for a crime if
there is an element within the person that causes the loss of the person's
ability to be responsible which we can identify with justificatory and
forgiving reasons.
The
basis for a criminal act is the principle of legality, while the perpetrator of
the act can be punished based on error. This explains that a person can be said
to be criminally responsible if he has committed an act that is wrong and
contrary to the law. In essence, criminal liability is a form of mechanism
created to respond to violations of certain agreed acts (Harahap,
Gajah, & Harahap, 2019).
The
element of fault in a criminal act is the main element in criminal liability.
Furthermore, in its development, the definition of a criminal act explains that
it does not include criminal responsibility if the criminal act only refers to
whether the act is against the law or prohibited by law, so that whether
someone who commits a criminal act can then be punished, it depends on whether
the person who committed it whether the criminal act contains an element of guilt
or not.
In
relation to errors, whether intentional or negligent, many are mentioned in the
articles and provisions of the Criminal Code, but unfortunately the meaning of
intentional or negligent errors is not clearly explained in terms of their
meaning by law. The absence of further explanation regarding the meaning of
intentional or negligent errors means that the interpretation relies on the
doctrine and opinions of legal experts regarding the articles in the Criminal
Code. So that the conclusion regarding an act in these articles relating to the
elements of intentional or negligent error must be proven by the court, so that
in order to criminalize the perpetrator who commits a criminal act, there must
also be an element of intentional error or negligence which must also be proven
if the opposite is desired. . This means that in criminal liability, the
judge's role is very large in proving the existence of elements of criminal
liability in an act, because if these elements cannot be proven to be true then
a person cannot be held accountable.
According
to Law of the Republic of Indonesia Number 19 of 2016 concerning Amendments to
Law Number 11 of 2008 concerning Information and Electronic Transactions. This
law, which is referred to by the abbreviation the ITE Law, basically emerged as
a response to the development and progress of electronic communications
technology in the form of the internet. The various interpretations and very
broad scope of the ITE Law are the reasons for the many negative responses to
this Law, this is generally due to the use of language in drafting the Law.
Another reason for the criticism that has emerged is that this Law is seen as
mixing up various subjects which tend to be forced in its interpretation. As in
article 27 there are many topics of discussion, including the distribution and
access of electronic information which has moral content, gambling content,
defamation content, and extortion and threat content.
Furthermore,
with regard to online gambling, it is regulated in Article 27 paragraph (2) of
Law Number 19 of 2006 concerning Transaction and Electronic Information which
reads:
"Every
person intentionally and without right distributes and/or transmits and/or
makes accessible Electronic Information and/or Electronic Documents that
contain gambling content."
In
this case, the provisions of the article above can be identified as subjective
and objective elements in the article. Subjective elements are elements that
exist within the perpetrator of a criminal act. The subjective element in this
article is contained in the words "any person intentionally" which
contains the first meaning, the desire or intention of the perpetrator to
intentionally distribute or transmit and/or electronic documents containing
gambling content. Second, the perpetrator's knowledge that what he is doing can
enable other people to access information that has gambling content.
Furthermore, objective elements are elements that exist outside the perpetrator
of a criminal act. The first objective element in the article is contained in
the words "without the right to distribute or transmit" which means
that the perpetrator must be proven to have committed an act of distributing
and/or transmitting gambling without having permission from the authorized party
to carry out the act of distributing and/or transmitting gambling. Second,
"Making information and/or electronic documents that have gambling content
accessible" that the perpetrator must be proven to have committed an act
that can enable other people to access information and/or electronic documents
that have gambling content.
Then
it is explained in Article 45 of the ITE Law that, if every person has
committed an act of gambling and fulfills the elements as regulated in Article
27 paragraph (2) of the ITE Law, then that person is threatened with a fairly
severe prison sentence, namely a maximum of 6 (six) years and /or a maximum
fine of Rp. 1,000,000,000.00 (one billion rupiah).
From
the explanation of the explanation of the articles above which regulate
gambling, it can be concluded that an act can be punished by the existence of
regulations that regulate, if someone has committed a criminal act of gambling,
then he can only be tried based on the applicable criminal laws and regulations
at the time the action is carried out. From the aspect of sanctions, what is
very important to do is ensure that the institution is competent to implement
sanctions, has a consistent attitude, is firm, fair and does not discriminate (Romdoni,
WN, & Nurdiansyah, 2022).
The
existence of these laws and regulations can also scare everyone so that they do
not commit bad acts, such as many people in the local community who gamble, and
to educate people who have committed bad acts so that they become good and can
be accepted back into society and the environment. The aim is also to create a
society that is peaceful and safe from criminal acts of gambling with the laws
and regulations that have been regulated above.
Every
form of legal crime always begins with the intention of the perpetrators who
move to commit legal crimes. law enforcement in Indonesia through social
analysis and offering the use of progressive law as a new paradigm in law
enforcement (Halim
& Setyawan, 2024).
Gambling
is a crime that is widespread in society if we look at it in terms of intention
and motive, mostly because it is driven by the idea of wanting to live richly
in an instant way. Legal accountability for online gambling perpetrators is
regulated within the criminal law regulatory space. In Indonesia, the
regulation of online gambling applies the principle of lex specialist derogate
legi lex generalist by using the ITE Law instead of the general law in the
criminal space as is usually regulated in the Criminal Code. The application of
more specific regulatory principles in gambling crimes is the actualization of
legal theories and principles that are able to dynamically follow the
development and progress of technology and civilization.
Online
gambling games carried out by someone are actually a form of criminal act that
is prohibited in the Unitary State of the Republic of Indonesia. In terms of
legal responsibility for online gambling, the crime is classified as a moderate
criminal offense with the threat of a fine and/or imprisonment. For
perpetrators of online gambling, criminal liability has been regulated in the
form of retaliation for this behavior with the threat of quite severe
imprisonment, namely 6 years in prison or also by paying a fine with a maximum
nominal value of one billion rupiah.
Criminal
liability for online gambling perpetrators is not only imposed on players but
also includes perpetrators who provide opportunities for someone to gamble,
such as service providers and managers of gambling platforms that are held
online. Therefore, determining which actors fall into the category of online
gambling service providers is by consolidating and qualifying their actions (Aziza,
2023).
Online
gambling is a development of gambling behavior which has changed in form due to
the impact of technological developments and advances. In principle, this
change in form does not significantly affect the intention of the perpetrators
to carry out the gambling act, whether online or traditionally. Therefore, the
aim and motivation of the perpetrators for committing gambling acts is because
they want to live a rich life in an instant way. For this reason, it is not
uncommon for people to consider gambling as their livelihood activity, whether
as gamblers or gambling game managers. Based on the description as previously
explained regarding online gambling, which if studied in depth can have a huge
negative impact. Not only does it deal with legal crimes, but it also has a big
impact on people's behavior both economically, socially and in matters of
religious belief. So there must be at least several policies implemented to
improve criminal acts of online gambling, including the following:
a. The crime of gambling as a
form of crime in the field of morality should not only be punishable by
criminal acts based on categories 6 of the Criminal Procedure Code and 5 of the
Criminal Code, imprisonment and fines, but additional penalties must be
determined, such as the revocation of the right to carry out a profession for
makers and managers who commit criminal acts of gambling in carrying out their
profession.
b. Every form of criminal act
of gambling, whether committed in person or online, cannot only be held
responsible by private individuals, but legal entities must and can also be
held criminally responsible. In terms of punishment, a balance must be
considered between individual interests and the interests of society. This
means that the punishment imposed must be adjusted to the interests of the
individual. Apart from that, a sense of justice and protection of society needs
to be taken into consideration when carrying out a sentence.
CONCLUSION
Law enforcement against
perpetrators of criminal acts of online gambling in Indonesia is that law
enforcement for criminal acts of online gambling is a criminal sanction against
online gambling based on Article 45 of Law Number 11 of 2008 concerning
Information and Electronic Transactions, however the punishment for
perpetrators is lower than the threat of criminal sanctions in Article 303 of
the Criminal Code, so that it does not have a deterrent effect on perpetrators
of online gambling crimes. Criminal liability for criminal acts of online
gambling in Indonesia means that the responsibility of online gambling
perpetrators is proven by containing elements of a criminal act. Furthermore,
the act element is one of the main elements in criminal liability, because a
person cannot be punished if he does not commit an act that is classified as an
act prohibited by law, this is in accordance with the principle of legality.
Criminal liability for gambling acts carried out online in Indonesia is
regulated in the Information and Electronic Transactions (ITE) Law with the aim
of being an effort to reduce gambling acts that occur in society by ensnaring
perpetrators and people who distribute gambling content with criminal
penalties. Online gambling is a development of gambling behavior that has
changed in form due to the impact of technological developments and advances.
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