The implementation of a Deferred Prosecution Agreement (DPA) based on the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana - KUHAP)
- Davey Sagala
- 5 hours ago
- 6 min read
On November 18, 2025, Indonesia officially updated its Criminal Procedure Law through the ratification of the Draft Bill on the Criminal Procedure Code ("KUHAP"). This update will officially take effect on January 2, 2026, accompanying the enforcement of Law Number 1 of 2023 concerning the Criminal Code ("KUHP"). The enactment of the KUHP and the KUHAP introduces new concepts to the criminal justice system in Indonesia, including the enlargement of criminal subjects and special treatment for criminal subjects, particularly corporations, through the introduction of the Deferred Prosecution Agreement (DPA).
As explained above, the KUHP through Article 45 paragraph (1), has expanded the definition of criminal subjects by establishing corporations as parties that can be held criminally responsible. Furthermore, Article 1 number 55 of the KUHAP juncto Article 146 of the KUHP regulates the definition of a Corporation, as follows:
A Corporation is an organized collection of persons and/or assets, whether it is a legal entity in the form of a limited liability company, foundation, association, cooperative, state-owned enterprise, region-owned enterprise, village-owned enterprise, or the equivalent thereof, or an unincorporated association or business entity in the form of a firm, limited partnership, or the equivalent thereof.
stipulates that it shall be imposed on the Corporation and the person responsible for the Corporation. Furthermore, paragraph (2) states that the person responsible for the corporation is defined as the management holding a functional position within the corporation's organizational structure, the person giving the order, the controller, or the beneficial owner.
Some regulations that have previously applied criminal liability to corporations include:
Corruption crimes as regulated in Law Number 31 of 1999 concerning the Eradication of Corruption Crimes (“UU Tipikor”);
Money Laundering crimes as regulated in Law Number 8 of 2010 concerning the Prevention and Eradication of Money Laundering Crimes (“UU TPPU”);
Psychotropic crimes as regulated in Law Number 5 of 1997 concerning Psychotropics (“UU Psikotropika”);
Narcotics crimes as regulated in Law Number 35 of 2009 concerning Narcotics (“UU Narkotika”);
Environmental crimes as regulated in Law Number 39 of 2009 concerning Environmental Protection and Management (“UU PPLH”); and
As well as several other regulations.
The enforcement of the new KUHAP, which designates corporations as subjects of criminal offenses, reinforces the position of corporations as entities that can be held criminally responsible.
In connection with the enforcement of the new KUHAP (Criminal Procedure Code), the provisions for law enforcement in Indonesia now also introduce the DPA (Deferred Prosecution Agreement) for criminal offenses committed by Corporations. Article 1 number 17 of KUHAP explains the concept of the DPA, which is a legal mechanism for the Public Prosecutor to postpone prosecution against a defendant whose perpetrator is a corporation.
Furthermore, the KUHAP also regulates the expansion of the Public Prosecutor's authority to conduct a DPA, as stipulated in Article 65 letter k of the KUHAP, which states:
The Public Prosecutor has the authority: k. to conduct a Deferred Prosecution Agreement
In implementing the DPA, both the Public Prosecutor and the corporation must pay attention to the DPA mechanism, as regulated in Article 328 of the KUHAP, as follows:
The DPA can only be applied to criminal offenses committed by Corporations;
The application for a DPA may be submitted by the Suspect, Defendant, or Lawyer to the Public Prosecutor before the case is submitted to the court;
The Public Prosecutor may accept or reject the application, considering justice, the victim, and the defendant's compliance with statutory regulations;
If the DPA application is accepted, the Public Prosecutor must notify the court regarding the upcoming DPA process, and this must be recorded in the official minutes;
The outcome of the DPA agreement must be submitted by the Public Prosecutor to the court no later than 7 (seven) days after the agreement is signed by the parties (the Public Prosecutor and the Corporation);
The court must hold a review hearing to assess the feasibility and validity of the DPA before it is ratified, where the Judge must consider:
The conformity of the conditions in the DPA with statutory provisions;
The proportionality of the administrative sanctions or other obligations imposed on the Suspect or Defendant;
The impact on the victim, society, the environment, the state economy, and the criminal justice system; and
The ability of the Suspect or Defendant to meet the stipulated conditions.
The Judge may request additional information or clarification from the Public Prosecutor, Suspect, Defendant, or other relevant parties;
If the Judge approves the DPA, the ratification shall be stated in a court order, and the case shall be suspended in accordance with the agreement;
If the Judge rejects the DPA, the case shall proceed to trial under the regular examination procedure;
The conditions in the DPA may include:
Payment of compensation or restitution to the Victim;
Implementation of a legal compliance program or improvement of the Corporation's anti-corruption governance;
Obligation of reporting and cooperation with law enforcement during the deferred prosecution process; or
Other corrective actions deemed necessary by the Public Prosecutor.
In the event that the Suspect or Defendant fulfills all obligations in the DPA during the specified period, the case may be terminated without prosecution based on a court order;
The court is authorized to monitor the implementation of the DPA in accordance with the time specified in the agreement;
In the event that the Suspect or Defendant fails to fulfill the obligations in the DPA agreement, the Public Prosecutor is authorized to continue the prosecution process without requiring additional approval;
Every DPA shall be officially recorded and submitted to the Judge to be documented in the court minutes;
Violations of the DPA procedure may result in the agreement being null and void (batal demi hukum) and serve as grounds for the Suspect or Defendant to file an objection or challenge.
On the other hand, both the corporation and its management need to note Article 23 of Supreme Court Regulation Number 13 of 2016 concerning Procedures for Handling Criminal Cases by Corporations ("Perma 13/2016"). This article stipulates that the judge may impose a penalty on the corporation or the management, or both the corporation and the management, as stated in paragraph (1) of the article. Furthermore, paragraph (3) mentions that the imposition of punishment on the corporation and/or the management does not preclude the possibility of punishing other perpetrators who, according to law, are proven to be involved in the criminal offense. Thus, the resolution of a criminal case by a corporation does not automatically eliminate the possibility of criminal liability for the corporate management.
In line with Perma 13/2016, the Attorney General's Guidelines Number 24 of 2021 concerning Handling General Criminal Offenses (“Pedoman Jaksa Agung 24/2021"), in Chapter III regarding Criminal Cases involving Corporate Perpetrators, states that the legal subjects who can be prosecuted for corporate criminal liability are:
The Corporation;
The person who controls the criminal offense within the corporation; or
The Corporation and the person who controls the criminal offense within the corporation.
The person who controls the criminal offense within the corporation based on Pedoman Jaksa Agung 24/2021 is a person whose material actions have caused the criminal offense to occur, and is not limited to the management, controlling personnel, beneficial owner, or any other person, provided that their actions have contributed to the occurrence of the criminal offense, or they allowed, failed to prevent, or failed to stop the criminal offense despite having the authority to do so.
Article 116 of the UU PPLH provides a concrete example where criminal liability may be imposed on the corporation and/or the person who ordered the criminal act or the person who acted as the activity leader in the criminal offense, provided that the environmental crime was committed by, for, or on behalf of the business entity. The phrase "and/or" in this provision confirms that the criminal liability between the corporation and the corporate management, as individuals, is separate. This means that when a corporation and its management are involved in an environmental crime, the criminal liability for both is considered separately and stands on its own.
Through these provisions, the separation of criminal liability between the corporation and the corporate management means that not only the corporate management, but also the corporation itself, can be designated as a suspect or defendant. Nevertheless, the enforcement of the new KUHAP (Criminal Procedure Code) encourages a more efficient resolution of criminal cases concerning the application and enforcement of law in criminal justice. Furthermore, the regulation regarding DPA requirements prioritizes a restorative approach as the main principle, both for the victim and the corporation. The submission of a DPA becomes an alternative resolution for corporate criminal cases before the case file is handed over to the court. This mechanism also provides an opportunity for the Corporation to maintain its business continuity while effectively fulfilling its criminal liability. On the other hand, the application of DPA to the corporation does not eliminate the criminal liability of the corporate management. Therefore, even if the corporate legal subject has fulfilled its obligations as agreed in the DPA and its prosecution process has been terminated, this does not automatically stop the criminal proceedings against the corporate management, who, as an individual legal subject, is still accountable for criminal liability.
For further information, please contact the author: Ichsan Perwira Kurniagung (Partner of FKNK Law Firm) | kurniagung@fknk.co.id Muhammad Algifari (Associate) | algifari@fknk.co.id
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