State Financial Loss Calculation After the New Criminal Code

By Hendrawanto, SE., Ak., CA., CLI., AseanCPA., CPA., CFI. · 5 October 2026 · Baca dalam Bahasa Indonesia

Calculating state financial loss is often treated as if it were mere arithmetic: collect the transactions, add up the differences, and produce a single figure. That view is too simplistic. In cases involving criminal liability, the figure must emerge from a legal and economic construction that can be tested:

• what the irregularity was,
• what the proper benchmark condition should have been,
• which state assets or rights were actually diminished,
• when the loss occurred, and
• whether that consequence bears an adequate connection to the conduct under examination.

The issue has become more pressing since the National Criminal Code (KUHP Nasional) came into force. Article 622 of Law Number 1 of 2023 revokes and replaces references to Article 2(1) and Article 3 of the Anti-Corruption Law (UU Tipikor) with Articles 603 and 604. In Constitutional Court (MK) Decision Number 148/PUU-XXIV/2026, the Court affirmed that the elements of the offence in the two pairs of provisions remain substantially the same; the difference lies mainly in the penalties. The long-standing debate on the meaning of loss, institutional authority, and the quality of evidence has therefore not disappeared. Rather, it must now be read within the current legal framework.

Actual Loss Is the Starting Point, Not the Closing Line

Article 1 point 22 of the State Treasury Law and Article 1 point 15 of the Audit Board (BPK) Law define state or regional loss as a shortfall of money, securities, and goods that is real and definite in amount as a result of an unlawful act, whether intentional or negligent. Constitutional Court Decision Number 25/PUU-XIV/2016 then struck out the word "may" from Article 2(1) and Article 3 of the Anti-Corruption Law. As a consequence, the element of causing loss to state finances cannot rest on potential loss; the loss must actually have occurred, that is, it must be an actual loss.

This position was reaffirmed in Constitutional Court Decision Number 28/PUU-XXIV/2026. The Court stated that the loss must already be quantifiable based on the findings of an authorised agency or institution. This statement matters, but it must not be reduced to a mechanical formula. "Real" answers whether a shortfall has in fact occurred. "Definite in amount" demands a figure that can be explained and tested. And the phrase "as a result of" demands a link between the irregularity and the shortfall being calculated.

Accordingly, projected revenue that might have been received, penalty risks that have not yet arisen, unrealised impairments, or receivables still within their payment period do not automatically become actual loss. Constitutional Court Decision Number 148/PUU-XXIV/2026, in the concrete context of non-tax state revenue (PNBP) owed, shows why due dates and the collection regime cannot be ignored. A receivable may be a right of the state, but calculating loss for criminal purposes requires further examination of when that right fell due, whether it is uncollectible, and why it went uncollected.

A Procedural Breach Is Not the Same as a Loss

Administrative weaknesses may be audit findings, but audit findings do not always amount to state financial loss. Late documents, incomplete approvals, changed specifications, or a less-than-ideal procurement process may indicate non-compliance and control risk. To conclude that a loss exists, however, the examiner must still demonstrate an economic shortfall that is real and definite.

Constitutional Court Decision Number 28/PUU-XXIV/2026 reminds us that administrative errors that cause loss, and even those involving abuse of authority, are not always resolved through criminal law. Meanwhile, Constitutional Court Decision Number 66/PUU-XXIV/2026 clarifies the use of the phrase "state financial loss" in Article 20(5) and (6) of the Government Administration Law. This direction calls for caution: a calculation report must not leap from "procedure was breached" straight to "the state suffered a loss", let alone straight to a conclusion of criminal intent.

Accountants and auditors must stay within the limits of their profession. A calculation can explain the facts of transactions, economic irregularities, and the amount of the shortfall. Whether mens rea exists, however, is a legal judgement for the judge. Constitutional Court Decision Number 28/PUU-XXIV/2026 affirms that the fact of causing loss to state finances cannot simply be used as the sole basis for convicting a person without proof of the other required elements.

Who Calculates, Who Determines, Who Decides?

Disputes over authority are often a source of misunderstanding because three distinct functions are blended into one. First, the function of examination and calculation. Second, the function of declaring or determining loss under an institutional mandate. Third, the function of weighing the evidence and deciding the case.

At the constitutional level, Article 23E of the 1945 Constitution establishes BPK as a free and independent body to audit the management of and accountability for state finances. Article 10(1) of the BPK Law empowers BPK to assess and/or determine the amount of state loss resulting from unlawful acts. BPK Regulation Number 1 of 2020 governs investigative audits, the calculation of state or regional loss, and the provision of expert testimony.

The evidentiary system, however, does not pass through a single door. The Criminal Chamber formulation in Supreme Court Circular (SEMA) Number 2 of 2024 states that BPKP, inspectorates, regional government work units, and certified public accountants remain authorised to examine and audit the management of state finances, and their results may be used as a basis for determining whether state financial loss exists. The same formulation affirms that judges, based on the facts at trial, may assess whether a loss exists and its amount.

The most defensible position is therefore as follows: BPK's constitutional authority to declare and to assess or determine loss must be respected; other examiners may produce work relevant to the evidence in accordance with their mandate and competence; and the judge makes the final assessment of all the evidence. An audit report is not a court judgment, and a figure in a report does not automatically bind the judge.

The Method Must Follow the Economic Facts

No single method is right for every case. The method should be chosen after the examiner has established the object, the period, the causal event, the rights and obligations of the parties, and the benchmark condition or counterfactual. A counterfactual is a provable picture of what should have happened had the transaction been carried out lawfully, fairly, and in accordance with the rights of the state.

For fictitious procurement or deliverables that are entirely unusable, a total loss approach may be relevant. The contract value, however, must not automatically be equated with the loss where the state received goods, services, rights, or benefits that can be measured. In such circumstances, a net loss approach—payments less the fair value of the benefits actually received—often better reflects the economic substance.

In overpricing cases, the examiner may use the price difference against a reliable comparator. The comparator must be adjusted for specification, quantity, timing, location, payment terms, warranty, delivery costs, and market conditions. Internet prices or non-comparable quotations are not sufficient merely because they produce a large difference. For damaged assets or work that does not meet specifications, repair cost or replacement cost may be considered, provided it does not double-count an impairment already recognised.

For lost revenue, the basis of calculation must be stronger than a target or forecast. The examiner needs to prove a valid right to collect, the amount already due, the ability to collect, and the link between specific conduct and the lost revenue. Under every method, recoveries, guarantees that can be drawn down, residual value, or benefits still held by the state need to be identified. The aim is neither to reduce nor to inflate the figure, but to prevent double counting.

Seven Stages of a Defensible Calculation

1. Define the mandate, objective, report users, object, period, and engagement boundaries. Make sure the terms used do not exceed the authority of either the engaging party or the examiner.
2. Build a chronology and identify the relevant irregularities. Separate administrative breaches, control weaknesses, fraud indicators, and facts that genuinely change the economic position of the state.
3. Construct a counterfactual grounded in law and evidence: the payment that should have been made, the fair value that should have been received, revenue that has fallen due, or the asset position had the conduct not occurred.
4. Map all cash flows, assets, rights, obligations, deliverables, benefits, recoveries, and residual values. Set a cut-off so that transactions after the measurement date are treated consistently.
5. Choose the method that fits the source of the loss. Document the reasons for rejecting alternative methods and perform a sensitivity analysis where material inputs fall within a range.
6. Test cause and effect and other factors. Exclude losses arising from market changes, other policies, negligence of unrelated parties, or post-transaction events where they cannot be attributed.
7. Build a replicable audit trail: data sources, validation procedures, reconciliations, assumptions, formulas, tiered review, and a list of limitations. Another examiner should be able to follow the same logic and understand the origin of every material figure.

Five Mistakes That Undermine a Report's Credibility

1. Equating the entire contract value with the loss without assessing the goods, services, or benefits received by the state.
2. Turning potential, targets, or risks into actual loss without a clear point of realisation and a right to collect.
3. Using non-comparable price benchmarks or selectively choosing data to produce a particular figure.
4. Ignoring cut-off, recoveries, guarantees, residual value, and inter-period payments, resulting in double counting.
5. Concluding unlawfulness, mens rea, or criminal guilt as an accounting opinion without limiting the scope of expertise.

The Role of Public Accountants: Relevant, but Not Unlimited

SEMA Number 2 of 2024 explicitly includes certified public accountants among the parties that may examine and audit, with results that may serve as a basis for determining whether a loss exists. On the professional side, the Indonesian Institute of Certified Public Accountants (IAPI) Investigation Services Standards include SJI 5400 on Calculation of Financial Loss and SJI 5500 on Providing Expert Testimony, effective for engagements from 1 January 2022.

This space must be exercised with strict discipline. Public accountants need to ensure team competence, independence, engagement acceptance, the legal standing of the engaging party, data integrity, quality review, and the safeguarding of electronic evidence. The report must state the facts examined, the method, assumptions, limitations, and the precise meaning of the figure. Where the mandate is to calculate, the title and conclusion should not suggest that the public accountant is taking over BPK's constitutional authority or the authority of the judge.

The ability to give expert testimony also cannot be separated from the quality of the working papers. A good expert is not merely able to defend a figure, but able to explain why a method was chosen, which data can and cannot be relied on, how alternatives were tested, and what conditions could change the conclusion. A report's resilience in court comes from transparency, not from absolute language.

Conclusion

Calculating state financial loss is a forensic reconstruction of the state's economic position, not a race to produce the largest figure. With the National Criminal Code in force, the actual loss principle remains the main safeguard. At the same time, developments in Constitutional Court decisions and SEMA 2/2024 call for a more careful reading of authority: BPK holds a constitutional mandate, other examiners can contribute within their authority and competence, and the judge makes the final evidentiary assessment in each concrete case.

The measure of a report's quality is not only whether it states a single definite figure. The more important measure is whether that figure has a legal basis, reflects a real shortfall, follows the economic facts, is free of double counting, and can be replicated by a competent examiner. If any link in that chain is weak, the certainty of the figure is only an illusion of certainty.

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Disclaimer. This article is general information and is not a legal opinion, audit opinion, or expert testimony for any particular case. Conclusions in a concrete case must be based on the relevant mandate, facts, documents, applicable regulations, and evidentiary process. The Indonesian version is the original text.