A pledge is an alternative to obtain quick funds, which has gained popularity among the people of Indonesia.1 According to Article 1150 of the Indonesian Civil Code, a pledge is a right which is obtained by a creditor in a movable asset, which has been provided to him by the debtor or his representative, to secure a debt, and which entitles the creditor priority over the other creditors with regard to the settlement of the debt; with the exception of the costs incurred in the sale of the asset and the costs incurred, after the pledge, for the maintenance of the asset, which shall have priority.2 The Pledge is further regulated in Book II, Chapter XX of the Indonesian Civil Code, Articles 1150 – 1160, and Financial Services Authority Regulation No. 31/POJK.05/2016 Concerning Pawn Shop Businesses (“POJK 31/2016”). According to Article 1 par. (1) of POJK 31/2016, “Pawn Shop Businesses are all businesses related to providing loans with movable goods, deposit services, appraisal services, and/or other services as collateral, including those held based on sharia principles”.
In the implementation of pledges, however, many issues pose a challenge. Among others is the pledging of stolen goods.
This issue raises a question mark and brings forth implications regarding the legal status of pledged goods
originating from the crime of theft.
This article will analyse three court decisions including : (i) Special Class IA Surakarta District Court Decision No. 170/Pdt.G/2018/PN Skt (ii) Surakarta District Court Decision No. 66/Pid.B/2018/PN Skt, and (iii) Central Java High Court Decision No. 78/Pdt/2019/PT SMG in order to further explore the legal status of pledged goods originating from the crime of theft.
The cases above involve PT. Pegadaian (Persero),3 a pawn shop (Plaintiff), against The Joe An, as Doro Solo Gold Shop employee (Defendant I) and Kuntjahyono Tanto, as the owner of Doro Solo Gold Shop (Defendant II). In its argument, the Plaintiff stated that between 2009 until January 2018, Defendant I, who is a customer of the Plaintiff, had pledged jewellery to the Plaintiff at 5 Pegadaian Branch offices in Soloraya with a total of 755 Proof of Credit (POC) and the total loan money issued by the Plaintiff was Rp. 4,562,850,710 (four billion five hundred sixty-two million eight hundred fifty thousand seven hundred and ten rupiahs).
Plaintiff believed Defendant I to be the owner of such 755 pieces of gold jewellery in good faith, following Article 533 of the Indonesian Civil Code.4 Defendant I has always paid administrative fees and interest on the pledge to Plaintiff throughout the pledge process.
Furthermore, to guarantee the ownership status of the pledged goods, Defendant I have made a Statement Letter signed on the stamp of 6000, explaining that the collateral pledged at Pegadaian, Pajang Branch Service Unit5
is the property of Defendant I and had been obtained legally according to law, as stipulated in Article 1151 of the Indonesian Civil Code.
Furthermore, according to Pegadaian Standard Operating Procedure (SOP), a Certificate of Ownership is not required for prospective customers who wish to pledge movable goods such as jewellery to PT. Pegadaian (Persero), in accordance with the provision of Article 1977 par. (1) of the Indonesian Civil Code.
However, in 2017, Plaintiff received a summons for questioning by the Surakarta City Police regarding an alleged criminal act of continuous theft committed by Defendant I based on the report to the Police made by Defendant II. As an employee of Doro Solo gold shop, Defendant I have been suspected of committing criminal acts of continuous theft of jewellery belonging to Doro Solo Gold Shop (Defendant II’s shop) from 2009 to January 2018 (nine years).
Such a criminal case has been tried and decided by the Surakarta District Court in Decision No.
66/Pid.B/2018/PN Skt. April 10, 2018, currently having Permanent Legal Force. The Judges, in its decision, declared that Defendant I is proven guilty of committing a crime of “Continuous theft”, sentenced Defendant I to imprisonment for two years and six months, and ordered Defendant I to return the stolen 755 pieces of jewellery to the victim-witness, Defendant II.
In light of Surakarta District Court Decision No. 66/Pid.B/2018/PN Skt., in its petition, the Plaintiff requested the Judges to render a decision declaring that: (i) Defendant I and Defendant II have committed an unlawful act, (ii) Plaintiff, as the party who has the right to possess such pledged goods of 755 pieces of jewellery consisting of bracelets, necklaces, and rings, and (iii) to punish Defendant II to hand over all of the jewellery to Plaintiff.
Furthermore, Plaintiff argued that Defendant II possesses a burden of responsibility towards Plaintiff because
the jewellery was pledged by Defendant I to Plaintiff.
In its decision, the Special Class IA Surakarta District Court partially granted Plaintiff’s claim.
The judges held that Defendant I had committed an unlawful act that resulted in a material loss to Plaintiff in Rp.5,141,141,800,- (Five billion one hundred forty-one million one hundred forty-one thousand and eight hundred rupiahs). Furthermore, the Judges opined that the 755 pieces of gold consisting of bracelets, necklaces and rings should be returned to victimwitness Defendant II, and is the property of Defendant II with due regard to Surakarta District Court Decision No. 66/Pid.B/2018/PN Skt. Such Decision of the Special Class IA Surakarta District Court was confirmed by the Central Java High Court Decision No. 78/Pdt/2019/PT SMG.
In the Surakarta District Court Decision No. 66/Pid.B/2018/PN Skt, the decision to return the jewellery to Defendant II was based on the provisions of Article 194 par.
(1) Law No. 8 of 1981 Concerning Code of Criminal Procedure (“KUHAP”) in conjunction with Article 46 KUHAP,
and past similar cases. In determining “who is the most rightful party” as stated in Article 194 par. (1) KUHAP in conjunction with Article 46 KUHAP, the Judges elaborated that the confiscated evidence is in the form of goods or objects and based on the Law of Objects in civil law,8 the perfect right is ownership right (eigendom).
With respect to this matter, the ownership right belongs to the victim-witness, Defendant II, as the legal owner of the 755 pieces of gold jewellery which Defendant took without his permission. In this matter, PT.
Pegadaian (Persero) merely holds the position of Bezitter (one who owns the goods), which merely occurred as a result of the civil relationship between Defendant and PT. Pegadaian (Persero).
Moreover, the Judges referred to the following cases: Magetan District Court Decision No.
127/Pid B/2014/PN.MGT, North Jakarta District Court Decision No. 364/Pid.B/2013/PN.JKT.UT, Tanjung Pinang District Court Decision No. 312/Pid.B/2015/PN.Tpg, and Jambi District Court Decision No.
328/Pid.B/2008/PN.Jmb. Such cases possess a similar background concerning jewellery theft, where stolen goods were pledged at a pawn shop. In all cases, the Judges decided to return the evidence (the stolen jewellery) to the owner/victim-witness instead of the pawn shop.
To analyse the legal position of pledged goods originating from the crime of theft, perspectives must be taken into account from both civil and criminal law. From civil law perspective, according to Article 528 of the Indonesian Civil Code, an individual can have right of ownership or right of property, right due to inheritance, right to use of proceeds, right of servitude or right of pledge or mortgage on properties. Furthermore, Article 1152 par.
stipulates that, “Right of pledge becomes void, if the pledge is no longer controlled by the pledgee.
In the event that this occurs as a result of loss or transfer, he has the right to reclaim pursuant to Article 1977, paragraph 2, and upon the return of the assets pledged, the pledge right shall be considered to have never been lost.” Moreover, according to Article 1977 par.
(2), “An individual who has lost something, or from whom something has been taken, may, during a period of three years effective as of the date that the loss or theft took place, claim the lost or stolen item as his property from the individual with whom he finds the items, without prejudice to the right of the latter mentioned to demand indemnification from the individual who delivered the items to him, also without prejudice to the stipulations in Article 582.”
Based on the provisions above, it can be inferred that the pledgee possesses the right to reclaim if the pledge is no longer in his/her control due to loss or transfer. Furthermore, according to Frieda Husni Hasbullah, Article 1152 par. (3) of the Indonesian Civil Code reflects the nature of droit de suite, as a pledge continues to follow the object in the hands of anyone.
Likewise, it contains a right to sue because the recipient of the pledge has the right to claim back the lost object.10 However, it must also be noted that the recipient of the pledge is merely in possession of such pledged goods as houder11, not as a bezitter12 and has the responsibility to maintain the safety of the pledged goods.
Thus, the creditor may not enjoy or transfer the debtor’s objects that are pledged as collateral.
From the criminal law perspective, confiscated goods and evidence are regulated by Article 46 and Article 194 KUHAP. According to Article 46 par. (2), “If the case has been decided, the goods confiscated shall be returned to the person or those mentioned in the decision, except when according to the decision of the judge the goods shall be seized for the state, in order to be destroyed or damaged in such a way as to be no longer usable or if the goods concerned are still needed, to be used as evidence materials for another case.”
Based on such provision, it can be inferred that confiscation may end before or after the judge has rendered its decision.
In the event that the case has been decided, the goods confiscated shall be returned to the person or those mentioned in the decision.
Furthermore, according to Article 194 par. (1) KUHAP, “In case the verdict is for sentencing or release or acquittal of all legal charges, the court shall decide that confiscated evidence materials be handed over to the party most entitled to receive them back whose name shall be mentioned in said decision except when law regulations provide that the evidence materials must be seized in the interest of the state or destroyed or damaged that they can no longer be used.” Based on the provisions of Article 194 par.
(1) KUHAP above, confiscated evidence materials shall be handed over to the party most entitled to receive them back, which shall be mentioned in said decision.
With respect to confiscated goods, Yahya Harahap elaborated that, except for confiscated goods which are prohibited from being circulated, confiscated goods must be returned to the person from whom the goods were confiscated or to those “who are more rightful”, especially if the confiscated object is confiscated from a third party or the suspect but which he took against the law from the witness who was the victim of the criminal incident in question.
Aside from civil and criminal law perspectives, the role of case law also needs to be examined.
Case law serves as one of the sources of formal law in Indonesia, which plays a significant part in the establishment of new laws.
According to Purnadi Purbacaraka and Soerjono Soekanto, case law can be defined as the permanent judiciary or judicial law.17 The birth of case law can be referred to the provision of Article 5 par. (1) of Law No. 48 of 2009
concerning Judicial Power which stated that “Judges and constitutional judges are obliged to explore, follow, and understand the legal values and sense of justice that live in society.”
According to several Supreme Court justices as quoted by Teguh Satya Bhakti19, a Court Decision can be qualified as case law20 if it has fulfilled the following conditions: (i) A Judge’s decision which has permanent legal force; (ii) for cases that have been decided there is no legal regulation or the law is unclear, (iii) contains truth and justice; (iv) has been repeatedly followed by subsequent judges in deciding the same case; (v) has passed the examination or notation test by the jurisprudence team of the Supreme Court justices (vi) and has been recommended as a decision with permanent case law qualifications.
With respect to Surakarta District Court Decision No. 66/Pid.B/2018/PN Skt, it is unclear whether the past similar cases referred to by the Judges in its considerations are qualified to be considered as case law. In its considerations, the Judges referred to past similar cases as a benchmark to determine whether such confiscated goods shall be returned to their legal owner or rather the pawn shop and to gain insight on the legal basis used by previous Judges in deciding past similar cases.
Such cases were chosen due to their similar nature to the case at hand, namely the crime of theft of jewellery in which the stolen goods were pledged at a pawn shop.
In conclusion, the author believes that the Judges in (i) Special Class IA Surakarta District Court Decision No. 170/Pdt.G/2018 /PN Skt (ii) Surakarta District Court Decision No.
66/Pid.B/2018/PN Skt, and (iii) Central Java High Court Decision No. 78/Pdt/2019/PT SMG did not err in its decisions, specifically pertaining to the returning of pieces of jewellery as pledged goods which originated from theft to its legal owner, Defendant II, owner of Doro Solo Gold Shop, instead of PT. Pegadaian (Persero). The author is of the opinion that such decision has already been in line with the provisions of Article 46 and 194 par.
(1) KUHAP and has shown consistency with the decision of the Judges in past similar cases, while also bearing in mind that the recipient of the pledge is merely in possession of pledged goods as houder, not as a
bezitter. (IAD )