Pertanggungjawaban Pidana Badan Usaha Commanditaire Venootschaap (CV) dalam Tindak Pidana Lingkungan Hidup

Abstract

 Article 116 UUPPLH is a concept of criminal liability of environmental crimes imposed to business entities and their managers simultaneously. The references to business entities in Article 116 UUPPLH include legal business entities such as Limited Company, and non-legal business entities such as CV. According to Article 19 KUHD, CV has a typical characteristic in which there are two types of partners or allies, which are complementary ally whose task is to take care of the CV, keep in touch with the third party and personally in charge of everything, and limited liability ally or silent ally who has the responsibility to hand over money, stuff or profit, whose responsibility depends on the amount of given input and cannot interfere in the task of complementary ally. Furthermore, in Article 116 UUPPLH there is a phrase "the ones giving the orders to commit the crimes" or "the ones acting as leaders of the crimes", which refers to managers of CV i.e. complementary ally and limited liability ally. Research methodology used is normative judicial research pointing at norms in legislations, international conventions, treaties, court decisions and societal norms. Normative legal research is a type of research that is commonly used in activities of legal science development, normally called dogmatic law. Hence, as a normative judicial research, resolving problems in this dissertation uses these following approaches: statute approach, conceptual approach, case approach and comparative approach. The outcome of the research shows that for criminal liability of environmental crimes of CV, according to Article 116 UUPPLH, which are committed by or on behalf of the business entity, the parties criminally liable would be; 1. Business entity CV without first proving the wrongdoing based on theory of strict liability and 2. Managers of CV (both complementary ally and limited liability ally) if the limited liability ally takes part in managing the CV. Regulations concerning penalty exemption when crimes take place are attempts of legal defense towards criminal charges, functioning as an escape from legal charges. Therefore, if directors or managers of CV have performed duties and responsibilities thoroughly and with a gesture of goodwill, but there appears to have been crimes of environmental pollution and/or damage, directors and managers of CV could not be criminally liable. Managers of CV will get great protection if they have applied principle of judgement rules in doing CV management particularly concerning prevention of environmental pollution and/or destruction. The lawsuit against managers of CV as "the ones giving the orders to commit the crimes" or "the ones acting as leaders of the crimes" can be filed simultaneously, as specified by MVT, which is matrieele feit or material fate, meaning that such fate happens in the same time and place and is considered one materil feit. Moreover, the formulation of Article 116 subsection (1) part b and (2) UUPPLH using the word/phrase "or" between the phrase "the person giving orders to commit crimes" and the phrase "the person acting as leader of crimes" is a confirmation to prevent managers of CV to be sued twice and to prevent the violation of principle of ne bis in idem. Criminal liability of CV, from nine court decisions, is still imposed on managers of CV in their capacity as individuals although offences of environmental pollution and/or destruction are committed for and on behalf of the business entity CV.