By: Ichwan Anggawirya

 

The irony in Indonesia regarding criminal cases of trademark infringement is that criminal sentences of less than one year are still being handed down, even though Law Number 20 of 2016 concerning Trademarks and Geographical Indications empowers judges to impose maximum criminal sanctions of 5 years, or even 10 years if it results in other disturbances as stated in Article 100 Paragraph (3). This is exemplified in a trademark infringement case decided by the North Jakarta District Court Number 117/Pid.Sus/2016/PN Jkt Utr dated June 02, 2016, which imposed a prison sentence of 4 months.

 

Another ruling from the Pasuruan District Court, Number 14/Pid.B/2013/PN.Psr, sentenced the defendant to 3 months and 15 days in prison. Even in the Supreme Court's decision Number 214 K/Pid.Sus/2015, the defendant was sentenced to 5 months in prison, with the condition that the sentence need not be served.

 

In cases of trademark infringement, besides filing a civil lawsuit, trademark owners can also pursue criminal proceedings as stipulated in Articles 100 to 102 of Law Number 20 of 2016 concerning Trademarks and Geographical Indications, which carry a maximum penalty of 5 years imprisonment and/or a maximum fine of 2 billion Rupiah, or a maximum of 10 years imprisonment and/or a maximum fine of 5 billion Rupiah. These criminal infringement proceedings are based on a complaint.

 

In the practice of economic crimes related to trademark infringement, offenders are generally sentenced to less than one year in prison. This is because the provisions in Articles 100 to 102 of Law Number 20 of 2016 concerning Trademarks and Geographical Indications do not specify a minimum prison sentence, which significantly weakens law enforcement against criminal trademark infringement.

 

This is undoubtedly ironic. The intention of trademark owners in pursuing criminal charges against infringers is to deter perpetrators. However, the minimal sanctions imposed by judges render law enforcement against criminal trademark infringement seemingly unjust, as explained by the author above.

 

Based on this, to create legal certainty and protection for trademark owners, it is necessary to develop a new approach to enforcing economic criminal law concerning intellectual property rights through the concept of a plea bargaining system.

 

As an integral part of the criminal justice system, plea bargaining always occurs in the handling of criminal cases. What is interesting in the practice of criminal justice in common law countries, particularly in America, is the concept of plea bargaining, which is a method of handling criminal cases where the prosecutor and the defendant or their legal counsel negotiate the type of crime to be charged and the potential sentence to be sought in court.

 

A voluntary plea of guilt from the defendant serves as a basis for the prosecutor to determine the sentence to be proposed in court. Thus, with the concept of plea bargaining, a criminal trial that would normally be lengthy becomes more efficient and faster. In this system, the judge only imposes the sentence agreed upon by the prosecutor and the defendant or their legal counsel.

 

The implementation of plea bargaining is heavily influenced by law enforcement officials. Plea bargaining requires prosecutors, lawyers, and judges to maximize the use of this system. It is possible that in its application, a prosecutor might be eager to conclude a case quickly, thus pressuring the suspect or defendant to "confess" by applying certain pressures. Similarly, the suspect's or defendant's lawyer might also wish to resolve their client's case promptly, thus preferring a plea bargain. It is also possible for judges to be indifferent to the case.

 

Plea bargaining involves an agreement (formal or informal) between the defendant and the Public Prosecutor. The Public Prosecutor typically agrees to a reduced prison sentence, thereby waiving the defendant's constitutional rights of non-self-incrimination and the right to a trial. Therefore, within the plea bargaining system, if an agreement is reached between the prosecutor and the suspect or defendant, it can override the defendant's right against self-incrimination and imply the cessation of further legal proceedings.

 

According to Carolyn E. Demarest, the plea bargaining mechanism offers advantages to both the prosecution and the defendant. Carolyn E. Demarest states: "The plea bargaining mechanism is believed to bring benefits to both the defendant and society. The benefit for the defendant is that they, along with the prosecutor, can negotiate a suitable sentence. Society benefits because this mechanism saves court costs, as the defendant admits their actions and will still receive a sentence. Although the sentences are, on average, less severe than what a judge might impose through a conventional trial, on the other hand, this mechanism can impact the criminal justice process because prosecutors have more time and can handle more cases."

 

The practice of plea bargaining becomes an unavoidable choice when the criminal justice system faces a backlog of cases that need to be handled promptly. Therefore, resolving cases through negotiation to reach an agreement based on a confession from the suspect or defendant is necessary to streamline the criminal justice process, which would otherwise involve complete and lengthy procedures.

 

The concept of a plea bargaining system is certainly new, as Law No. 8 of 1981 concerning the Criminal Procedure Code (KUHAP) does not recognize a procedure for resolving cases in such an efficient manner. This is because every case that enters and is brought to trial must go through each stage according to the mechanisms of the criminal justice system stipulated in the laws and regulations.

 

Plea bargaining, a method of handling criminal cases where the prosecutor and the defendant or their legal counsel negotiate the type of crime to be charged and the potential sentence to be sought in court. A voluntary plea of guilt from the defendant serves as a basis for the prosecutor to determine the sentence to be proposed in court.

 

Based on this, with the concept of plea bargaining, a criminal trial that would normally be lengthy becomes more efficient and faster. In this system, the judge only imposes the sentence agreed upon by the prosecutor and the defendant or their legal counsel.

 

Optimizing the utilization of non-litigation dispute resolution through plea bargaining in Intellectual Property Rights (IPR) cases is essentially a self-critique of prison sentences and the disparity in IPR rulings for IPR infringers. It can be observed that legislative policies consistently including prison sanctions in IPR legislation appear to be enacted without in-depth study.

 

This phenomenon seems to have become a habit of easily including prison sanctions, which further highlights the tendency of Indonesian society to use "threats" to ensure compliance with the law. However, the inclusion of such criminal sanctions actually complicates the enforcement phase.

 

Furthermore, the disparity in IPR cases when imposing prison sentences for IPR infringers against the maximum penalty can serve as a parameter to gauge the seriousness of law enforcement officials in enforcing IPR. If a judge imposes a minimum prison sentence, foreign parties might assume that IPR enforcement in Indonesia is still low.

 

Such a situation would make it difficult for Indonesia when IPR products from foreign owners are pirated in Indonesia, and the concerned governments sue the Indonesian government in the WTO forum or mechanism, or even impose trade sanctions or cross-retaliation on the country's export products.

 

Considering these various reasons, in order to socialize the utilization of dispute resolution through non-litigation means, especially in the field of IPR, it is time for the government to start conceptualizing non-litigation approaches for criminal offenses in the IPR sector. The use of non-litigation resolution methods like plea bargaining appears to be more appropriate compared to solely relying on the severity of prison sentences for IPR infringers. With a public confession through mass media, coupled with a substantial fine paid to the state treasury, this could already benefit all parties (a win-win solution).