Criminal Liability of Notaries in Connection with the Making of Covernotes (Study of Supreme Court Decision Number: 5710k/Pid.Sus/2023)

Abstract

A notary is a public official with special authority regulated by a specific law, namely the Notary Office Law. Notaries have the authority to issue deeds and are also authorized to issue deeds related to land matters. Notary Elviera was implicated in a corruption case for issuing a covernote in the process of disbursing a loan applied for by PT. KAYA at Bank BTN Branch Medan, where the covernote stated that Notary Elviera had received 93 SHGBs to be used as loan collateral, whereas in reality, out of the 93 SHGBs that were supposed to be transferred and encumbered, only 5 SHGBs were transferred to PT. RICH and encumbered. The remaining SHGBs were not transferred and no mortgage rights were attached because PT. KAYA (the debtor) did not pay the BPHTB (Land and Building Acquisition Tax) and PPh (Income Tax) as requirements for the transfer of ownership, which is followed by the attachment of a mortgage. The process of transferring ownership and attaching a mortgage is the responsibility of the defendant Elviera as a Notary/PPAT who has a work contract with Bank BTN Branch Medan. Therefore, the court ruled that Notary Elviera's role in issuing the covernote for the loan disbursement process could be classified as aiding and abetting the commission of a corruption offense. What is puzzling to the author in the case involving Notary Elviera is that the core issue is the failure to transfer the title and attach the mortgage in the case because PT. KAYA (the debtor) refused to pay the BPHTB and related taxes, even though it had received and enjoyed credit facilities from Bank BTN Medan Branch amounting to Rp.39,500,000,000.00 (thirty-nine billion five hundred million rupiah). Therefore, the questions are: 1. How is the legal certainty of the covernote made by the Notary for the parties in the banking credit transaction. 2. How is the Judge's Consideration in imposing a criminal penalty on the Notary who made the covernote in the credit agreement (Study of Supreme Court Decision Number: 5710k / Pid.Sus / 2023). In this study, the researcher used the Normative Juridical problem approach method with a case approach (case approach) and a Statute approach (statue approach). The data sources used are secondary data with primary legal materials, secondary legal materials and tertiary legal materials. For the theories used are the theory of legal responsibility, the theory of legal certainty and the theory of legal protection. The results of the first problem formulation, the covernote does not have legal certainty because there is not a single article or paragraph that explains that the Notary makes or publishes a covernote as regulated in Article 15 of Law Number 2 of 2014 regarding the amendment to Law Number 30 of 2004 concerning the Position of Notaries regarding the authority of the Notary. Second, the judge's considerations in the Elviera case should consider non-juridical aspects, which are the basis for the judge's considerations,useful for examining social backgrounds such as education, residential environment and work, as well as knowing the defendant's motives for committing a crime.